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A Judgment on Torture & Deaths Caused By Police in the Custody & Guidelines to be Followed By the Police While Arresting & Detaining.

(Landmark)

D.K.Basu

vs.

State of West Bengal

Real name of the case- [Shri D.K.Basu, Ashok K.Johri vs. State of W.B., State of U.P]

Bench- Js. Kuldip Singh, Js. (Dr.) A.S. Anand.

Date of Judgment- December 18th, 1996.

Precedent considered- {Nilabati Behera vs. State of Orissa} [1993]

Notable Fact- there were as many as approximately 51 number of Advocates involved in the present case with one “amicus curiae” (friend of court) Dr. A.M.Singhvi.

BRIEF FACTS OF THE CASE-

  • On 26thAugust, 1986 one Basu D K acting as executive Chairman of the Legal Aids Services at West Bengal directed the attention of the the Hon’ble Supreme Court by communicating a letter to the Honourable Chief Justice of India, towards a certain piece of new printed in the newspapers named ‘Telegraph’ and the ‘Statesman and India’ regarding deaths that took place in the police custody and the lock-ups; thereby requesting the letter as well as the news pieces to be treated as writ petition within the PIL.
  • Upon repeated complaints and considering the gravity of the issue, the same letter was eventually treated as a writ petition, after which State of W.B. was notified on 9th February, 1987.
  • The State then filed a counter denying the allegations in the petition calling it was misleading, unreliable, and that it was portraying a misconceived notion.
  • Meanwhile another letter was addressed to the CJI by one A K Johri thereby attracting the court of law’s attention towards the alleged custodial death of a man named, Mahesh Bihari belonging to a place named Pilkhana in Aligarh. This letter was ordered to be attached with the previous letter and be considered as a writ petition.
  • On 14th August, 1987 the court by means of sending a notice to all the state govts. and the Law Commission of India asked reasonable and suited recommendations or suggestions on the same issue.
  • Answering this notice, respective affidavits were filed by different states.
  • The petitioners argued that these incidents indicated sheer and arbitrary misuse of powers by the police and that the state shall be made liable to pay compensation in case there arises violation of the rights guaranteed by the articles. 21 and 22 of the Constitution of India. On the other hand the respondents argued that the letters were unreliable, misleading and miscalculating.

 

ISSUES RAISED BEFORE THE COURT OF LAW- Considering the alarming rise in number of custodial deaths the issues that were raised in the present case can be summarised here as follows:

  • There has been a sharp rise in the number of incidents of torture and deaths by police in lock-ups.
  • The police personnel are showing arbitrariness in arresting a person.
  • Who shall hold the responsibility or accountability for these incidents?
  • Is there any need of measures that may reduce these deaths if not prevent completely?

 

FINAL VERDICT OF THE COURT –

In its final verdict the Honourable Supreme Court has framed a set of 11 Guidelines’ to be observed and obeyed by the police personnel while arresting a person and detaining which are listed as follows:

  1. CLARITY ABOUT IDENTIFICATION OF THE POLICE PERSONNEL-
  1. Thepolice officials making arrest and carrying investigation should wear badges and carry other identity cards/ materials that should bear clear and accurate names, designation and identity.
  2. Secondly, a register should be maintained where all the details of the investigating officials should be recorded.
  1. “MEMO OF ARREST”- a “memo of arrest” needs to be prepared, by the police official conducting the arrest , at the ‘time of arrest’ and this memo has to contain:
  1. Date and time arrest.
  2. Attestation by atleast one member of the arrested person’s family or by a decent and creditable member of locality in which he (arrestee) resided.
  3. Countersign of the arrestee.

 

  1. INFORMATION ABOUT THE ARREST OR DETENTION- unless and until the attesting witness himself comes out to be the relative or friend of the arrested person, the information about the arrest and detention of him (arrestee) at  particular needs to be informed to a trusted relative or friend of the arrestee or to any other person who is acquainted with him or is interested in his welfare.
  2. NOTIFICATION WITHIN A PARTICULAR TIME PERIOD- in case that friend, relative or acquaintance of the arrestee is out of the town or district then in that case he/she needs to be notified by the arresting authority by means of legal aids organisation about :
  1. The time of arrest.
  2. Place of arrest.
  3. Place of detention; within the time period of 8-12 hoursafter arresting him.

 

  1. RIGHT TO INFORM- its arrestee’s right to be made awarethat he has a right to communicate about his arrest and detention to someone he knows, immediately after his arrest or detention takes place.
  2. MAINTAINING DIARY AT THE PLACE/LOCATION OF DETENTION- a diary shall be maintained at the place of detention which shall record the following entries:
  1. Information relating to the ‘arrest’, of the person detained.
  2. Information regarding the detained person’s friends, relatives or acquaintances who have been informed about the detention. 
  3. Information such as‘names’ and residence of the investigating officials who have kept the arrestee in their custody.

 

  1. RIGHT TO MEET HIS LAWYER- the permission maybe granted to the arrestee to meet his lawyer if he requires so during the interrogation, but the lawyer cannot accompany him throughout the whole process each time.
  2. BODILY EXAMINATION AT THE TIME OF ARREST- on the request of the arrestee his bodily examination shall be conducted at the time when he is immediately put to arrest and all the injuries present on his body whether major or minor shall be recorded/maintained in an ‘INSPECTOR MEMO’, which shall be attested by both the arrestee as well as the arresting authority after which a copy of the same shall be provided to him.
  3. MEDICAL EXAMINATION DURING DETENTION- during the detention the arrestee shall be medically examined and such examination shall be conducted by a trained doctor in every 48 hours of time period. Such a doctor shall be appointed by the approved ‘panel of doctors’ precisely appointed by the ‘Director of Health Services’, of the concerned state or union territory.
  4. INTIMATION TO THE MAGISTRATE- a copy of all the documents mentioned shall be recorded with the magistrate to bring it to his knowledge.
  5. INFORMATION TO AND TO BE DISPLAYED BY THE ‘POLICE CONTROL ROOM’- within the ‘12 hours’ of arrest all the information regarding the arrest shall be communicated to a ‘Police control room’, of the concerned district; about the place where the arrest was carried and custody of the detained person by the police officer himself who has carried the arrest. Such information shall be clearly exhibited on a perceivable board in the PCR (police control room).

 

Failure or refusal by the arresting authority to observe these requirements shall result into following consequences:

  1. Departmental action.
  2. Contempt of court. The proceedings of Contempt shall be initiated in the HC which exercises territorial jurisdiction of the matter.

 

CONCLUSION- Thus the present judgment has been a medium in preventing such kind of deaths and providing a safeguard to the rights of arrestee or a person who has been detained; as the motive is towards rehabilitation of the accused and providing a humanly treatment to them while being in the custody, because the discretion of providing the right kind and quantum of punishment must reside in the hands of the judiciary and not the investigating authority outside the scope of its authority and beyond the procedure that has been established by the law.

Photo Posted By: Kritika Singh
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