CASE ANALYSIS
TITLE: Shri Dilip K. Basu Etc. Ashok K. vs State of West Bengal & Ors
BENCH: A. S. Anand , K.T. Thomas
CITATION: AIR 1977 SC 610
PETITIONER: D.K. Basu
RESPONDENT: State of West Bengal & Ors
DATE OF JUDGMENT:01/08/1997
CASE FACTS: 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 about deaths in police custody and custody. He requested that the letter be treated as a Writ Petition within the “Public Interest Litigation”. Meanwhile Mr. Ashok Kumar Johri addressed a letter to the Chief Justice of the Supreme Court calling his attention to the death of a Mahesh Bihari from Pilkhana, Aligarh in police custody. Considering the importance of the issues raised in both the letters, both were treated as a writ Petition.
In response to the notification, several states submitted affidavits, including West Bengal, Orissa, Assam, Himachal Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra, and Manipur. Additionally, Dr. A.M.Singhvi, Principal Counsel was appointed Amicus Curiae to assist the Court
ISSUES: 1 Why are crimes against persons in lockups or custody increasing day by day?
2.The arbitrariness of Policemen in arresting a person.
- Is there any need to specify some guidelines to make an arrest?
ARGUMENTS BY PETITIONER: The petitioner argued that bodily pain and mental agony suffered by a person within the four walls of a police station or confinement should be avoided. The petitioner further contended that there is a need for a civilized nation and some major steps should be taken for its eradication and there is a need for specific guidelines to regulate police arrests.
ARGUMENTS BY RESPONDENT : Respondents, on the other hand, claimed that the situation was “fine” in their respective states. However, there were no guidelines that regulated custodial deaths at the time, so the Apex Court ruled in favour of the petitioners, relying on certain judgements
JUDGEMENT: Relying on Nilabati behera vs. State of Orrisa (1993), the court stated that any form of torture or cruel, inhuman or degrading treatments falls within the ambit of article 21, whether it occurs during investigation, interrogation or otherwise, those rights cannot be denied to undertrials, convicts, detenus and other prisoners in custody. A restriction on Fundamental Rights could only be imposed on the citizens in accordance with the provisions of the law as previously observed in the case of Sunil Batra v. Delhi Administration.
It was observed by the apex court that even after laying down procedural requirements in Joginder Kumar vs. State of U.P., the system needs clear and sound guidelines for arrest.
In accordance to which the Apex court, issued the following guidelines that govern arrest and custody procedures required by the police to follow:
1) When the police are making an arrest, the details of all the police personnel involved in the arrest must be clear and accurate. Their name tags must bear correct and their particulars should be recorded in a register.
2) The police officer in charge of the arrest must prepare a memo of the arrest at the time, which shall be signed by at least one witness. This witness can either be a family member of the arrested person or could be a respected member of the locality from where the person is arrested. The memo will also contain the signature of the arrested as well as the date and time of the arrest.
3) When a person is arrested and put in custody by the police, he has a right to inform either his family member, or his friend or anyone known to him, of the arrest and of the place where he is put in custody.
4) The detained person is to be made aware of the abovementioned right as soon as he is arrested.
5) If the family member, or friend, or the person known to the arrested person lives outside the district or town, then the time and date as well as the place of custody of the arrested person must be made known to such person through the Legal Aid Organisation of the district. The same should also be done by the concerned police station within 8 to 12 hours of the arrest.
6) The details of the arrest as well as of the arrested person must be entered in a diary at the place of arrest. The entry must also contain the details of the police officer under whose custody the detained person has been placed.
7) If the detained person requests, then he shall be examined of any injuries or marks on his body and the same must be recorded. This examination, called the “Inspection Memo”, must be signed by the arrested person along with the police officer in charge of the arrest, and a copy must be handed over to the detained person.
8) While in custody, the detainee shall be medically examined every 48 hours by a trained doctor, from a panel of doctors approved by the Director of Health Services of the concerned state. The Director is required to prepare a panel of approved doctors for tehsils and districts.
9) The copies of all the documents should be sent to the Magistrate of the area for his record.
10) During interrogation, the arrested person is allowed to meet his lawyer, provided that such meeting does not last throughout the interrogation.
11) Every district and state headquarters of police must have a police control room, and the details of the person arrested should be communicated by the police officer in charge of the arrest within 12 hours of the same. The said details must be pinned on a notice board in the control room.
OVERVIEW: A person’s life and personal liberty cannot be taken away without the application of the law. The right to life entails more than mere animal existence, and denying it to a person violates the principle of the rule of law. Further the use of third-degree torture by police to extract confessions from accused persons clearly violates Article 20(3) of the Constitution.
It has been observed that Uttar Pradesh has the highest number of in-custodial deaths in India. In India, the police treat arrested people as second-class citizens and frequently attempt to take the law into their own hands. According to National Crime Records Bureau of India reports, more than half of those who died in custody were never brought before a magistrate. When people die without even having access to justice, it calls into question the principles of the country’s entire governance system.
CONCLUSION: In its decision in DK Basu v State of West Bengal, the Supreme Court ruled that a person’s death in custody violates their fundamental rights and is illegal. Custodial deaths are particularly in violation of Articles 14 and 21 of the Constitution, and the police should refrain from torturing anyone in custody in any way. The Supreme Court issued guidelines governing police arrest procedures, making them stricter and more comprehensive in order for them to be followed.
Written by MANSHI AGARWAL an intern under legal vidhiya.
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