D.K. Basu v. State of West Bengal

This article is written by APURVA, a student of Fairfield Institute of Management and Technology, GGSIPU.

Writ Petition

(CRL) NO. 592 OF 1987

Decided On

18/12/1996

Bench

Kuldip Singh, A.S. Anand

Provisions Discussed

Section 41, 46, 49, 50, 53, 54, 56, 57, 167, 174and 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.

Facts

D.K. Basu was an Executive Chairman of Legal Aid Services of West Bengal which is a non-political organization.
On 26 August 1986, he issued a letter to the Supreme Court of India seeking attention towards certain news published in the Telegraph Newspaper about deaths in police custody and custody.
The petitioner requested the letter to be treated as a Writ Petition within the “Public Interest Litigation”.
It was treated as per the request and the Defendants were notified considering the importance of the issues raised in the letter.
When the writ petition was being considered, in the meantime, Mr. Ashok Kumar Johri issued another letter to the Chief Justice of the Supreme Court to bring attention to the death of a Mahesh Bihari from Pilkhana, Aligarh in police custody.
That letter was treated as a Request for Writing and was included along with D. K. Basu’s Request for Writing.
On 14 August 1987, the Court addressed the Order issuing notices to all state governments. A notice was also issued to the Law Commission requesting appropriate suggestions within a period of two months.
In response to the notification, several states submitted affidavits, including West Bengal, Orissa, Assam, Himachal Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra, and Manipur.
In addition, Dr. A. M. Singhvi, the Principal Counsel was appointed as an Adviser to assist the Court.
All of the attorneys who appeared provided useful assistance to the Court.

Issues

The issues of Custodial Torture in a graph towards growth.
The Policemen’s arbitrariness in arresting a person.
Is there any need to specify some guidelines to make an arrest?

Contentions of the Petitioner

The petitioner argued that physical and psychological agony suffered by a person within the boundaries of a police station or confinement should not take place. The scope of trauma experienced by them is beyond the scope of the law.

Furthermore, the petitioner put forward an argument that there is a need for a civilized nation and that some important steps must be taken in order to eradicate the mentioned issue.

Contentions of the Respondent

Dr A. M. Singhvi and the Counsel representing different states presented the case stating that “everything was fine” within their respective States. They presented their respective beliefs and provided useful assistance to the Court to examine various facets of the problem assuring the suggestions for the formulation of guidelines by the court to reduce violence in custody, if not completely prevented.

In order to defend this important fall of the administrative wing, the State of West Bengal tried to convey that there were no deaths in the confinements and even if there were any, then an investigation would be carried out.

Ratio Decidendi

When a right is guaranteed by the State, it is against the State that the remedy must be sought if the constitutional obligation imposed has not been fulfilled.
Article 21 guarantees the right to life and personal liberty and has been held to include the right to live with human dignity. Thus, the right against torture and assault is guaranteed by the State or its functionaries.
Protection against arrest and detention is guaranteed by Article 22, i.e., an individual arrested shall not be detained in custody without being informed about the grounds of arrest and that particular individual who is arrested shall not be denied consulting a legal practitioner of their choice to defend him.
Article 20(3) provides that a person accused of an offense shall not be compelled to be a witness against himself or herself.

Obiter Dicta

The Court had an opinion on custodial violence that including torture and death in lockups strike at the rule of law. Custodial violence will be considered to be one of the worst crimes in a civilized society governed by the rule of law.
The Court observed that despite the constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, the growing incidence of torture and deaths in police custody has been a disturbing factor.
The case of Neelabati Bahera v. State of Orissa (1993) was taken as reference in which the Supreme Court had held that “prisoners and detainees are not deprived of their Fundamental Rights under Article 21 and only the restriction permitted by law could be imposed on the enjoyment of the Fundamental Rights of prisoners and detained”.

Guidelines Issued

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: –

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.

That 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.
A person who has been arrested or detained and is detained at a police station or interrogation center 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 you have been arrested and are being detained in a particular place unless the witness crediting the arrest memorandum is himself a friend or relative of the arrested.
Police must notify a detainee’s time, place of detention, and place of custody where the detainee’s next friend or relative lives outside the district or city through the District’s Legal Aid Organization and station. Police of the affected area telegraphically within the period of 8 to 12 hours after the arrest.
The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.
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.
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.
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.
Copies of all documents, including the arrest memo, must be sent to the Magistrate for registration.
The Arrestee may be allowed to meet with his attorney during the interrogation, although not throughout the interrogation.
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.

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