DK BASU V. STATE OF WEST BENGAL
|NAME||DK BASU V. STATE OF WEST BENGAL|
|CITATION||(1997) 1 SCC 416: 1997 SCC (Cri) 92|
|DATE OF JUDGEMENT||December 18, 1996|
|COURT||Hon’ble Supreme Court of India|
|CASE TYPE||Writ Petition (CRL) No. 592 of 1987|
|RESPONDENT||Union of India and State of West Bengal (and Others)|
|BENCH||Kuldip Singh and Dr A.S. Anand, JJ.|
FACTS OF CASE
- Section 41, 46, 49, 50, 53, 54, 56, 57, 167, 174 and 176 of Criminal Procedure Code, 1973.
- Article 20 (3), 21, 22, 226 and 32 of the Constitution of India.
- Section 147, 149, 201, 218, 220, 302, 304, 330, 331, 34 and 342 of Indian Penal Code (IPC), 1860.
- DK Basu, Executive Chairman of Legal Aid Services, West Bengal, a non-political organization addressed a letter to the Supreme Court of India calling his attention to certain news published in the Telegraph Newspaper about deaths in police custody and custody.
- The petitioner requested that his letter be accepted as Writ Petition under “Public Interest Litigation” Category.
- Mr Ashok Kumar Johari, while the said petition was still under consideration sent another letter to the Chief Justice addressing the death in Aligarh Police Custody of Mahesh Bihari of Pikhana. Both of these letters were treated as Writ Petitions.
- The Court issued notices to all state governments and to the Law Commission of India requesting the formulation of appropriate measures to address the situation, within a period of two months.
- Subsequently, the Supreme Court received several affidavits by the state governments of Himachal Pradesh, West Bengal, Assam, Orissa, Haryana, Tamil Nadu and Meghalaya. The Supreme Court also appointed Dr. A. M. Singhvi, who was the principal counsel on behalf of the state governments, as the amicus curiae to the court.
- Why are crimes against persons in lockups or custody increasing day by day ?
- The arbitrariness of Policemen in arresting a person.
- Is there any need to specify some guidelines to make an arrest?
Arguments from the side of Petitioner
The petitioner argued that bodily pain and mental agony suffered by prisoners within the four walls of a police station or confinement should be avoided. Whether it is physical assault or rape in police custody, the scope of trauma experiences is beyond the purview of the law. The petitioner further contended that there is a need for a civilized nation and some major steps should be taken for its eradication.
Arguments from the side of Respondent
The counsel appearing for different states and Dr. A.M.Singhvi, presented the case and contented that “everything was final” within their respective states, presented above their respective beliefs and rendered useful assistance to this Court in examining various facets of the issue and made certain suggestions for formulation of guidelines by this court to reduce, if not prevent, custodial violence and relatives of those who die in custody on account of torture.
Judgment of the Case
The Supreme Court relied on the judgment of Neelabati Behra v. State of Orissa, wherein it was held that torture of any form, or cruel and inhumane behaviour towards arrested persons deprived them of their Fundamental Rights, especially Article 21, which is against the law of the country. A restriction on Fundamental Rights could only be imposed on the citizens in accordance with the provisions of the law. The same view was also observed in the case of Sunil Batra v. Delhi Administration.
The Supreme Court also mentioned the case of Joginder Kumar v. State of Uttar Pradesh, and held that even though procedural requirements regarding arrests of criminals had already been laid down, it was found that police officers were making arrests without warrants. Simply because a police officer is allowed under law to arrest a person does not imply that he can arrest a person without reason, i.e. arrests should not be the routine.
The Court issued a list of 11 guidelines in addition to the Constitutional and Statutory Safeguards to be followed in all cases of arrest and detention.
The guidelines are as follows: –
1. Police personnel who make the arrest and handle the interrogation of the arrested person must wear precise, visible and clear identifications and identification labels with their designations. Details of all personnel handling the interrogations of the arrested person must be recorded in a register.
2. The police officer making the arrest of the detainee will prepare a memorandum of arrest at the time of the arrest and said memo will be witnessed by at least one witness who may be a member of the family of the arrested person or a respectable person from the locality from where the arrest is made. It must also be signed by the detainee and must contain the time and date of the arrest.
3. A person who has been arrested or detained and is detained at a police station or interrogation centre or other confinement, shall have the right to have a friend or relative or other person known to him or who has an interest in his well-being will be informed, as soon as possible, that he/they has/ have been arrested and is /are being detained in a particular place unless the witness crediting the arrest memorandum is himself a friend or relative of those arrested.
4. Police must notify a detainee’s time, place of detention, and place of custody where he is being kept to the detainee’s next friend or relative living outside the district or city through the District’s Legal Aid Organization and the station. Police of the affected area should be telegraphically informed within the period of 8 to 12 hours after the arrest.
5. The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
6. An entry must be made in the Case Diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police official in whose custody the arrestee is.
7. Upon request, the Arrestee must also be examined at the time of his arrest and major and minor injuries, if present on his body, must be recorded at that time. The “Inspection Memo” must be signed by both the detainee and the arresting police officer and a copy must be provided to the detainee.
8. The detainee must undergo a medical examination by a trained physician every 48 hours while in custody by a physician on the panel of approved physicians appointed by the Director of Health Services of the State or Union Territory concerned.
9. Copies of all documents, including the arrest memo, must be sent to the Magistrate for registration.
10.The Arrestee may be allowed to meet with his attorney during the interrogation, although not throughout the interrogation.
11.A Police Control Room must be provided at all central district and state offices, where the arresting officer must communicate information about the arrest and the place of custody of the arrested, within 12 hours after the arrest and in the Police Control Room Board, must be displayed on a visible notice board.
The DK Basu case is widely recognized as a landmark in criminal jurisprudence. The guidelines established in this case have been integrated into the Criminal Procedure Code, 1973 through the Code of Criminal Procedure (Amendment) Act, 2008, effective from November 1, 2010.
Prior to the DK Basu case, there were incidents of custodial violence and deaths, and although compensation was sometimes awarded, there was no provision or rule to hold the police accountable. The case addressed this pressing issue by providing comprehensive guidelines on custodial deaths and violence. It was a pioneering case that established liability for the police in such situations.
While there has been a reduction in instances of custodial death and violence following the DK Basu case, the issue has not been completely eradicated. Some of the guidelines, unfortunately, remain confined to being mere regulations on paper.
written by Aditi Surana intern under legal Vidhiya