AIR 1997 SC 610

Custody means restricting anyone's freedom of movement. The fundamental right to move freely can be taken by the procedure established by law. In India, the person's fundamental right to move can be restricted legally either by the way of judicial or police custody.

The object behind either of custody is to prevent the person so taken into the custody from further committing an offence or tampering of evidences or threatening of the witnesses etc. The prima facie object of custody is to facilitate smooth functioning of investigating procedure.

The accused in the custody also has right under Article 21 of the Indian Constitution but before the present case, they were deprived of this right. Prior to the DK Basu case there was significant increase of the cases of custodial death and violence; the inflictor could get away easily due to absence of any law and procedure. The need for prevention and regulation of custodial death and violence arose and hence led to the filing of present case.

Bench

Justice Kuldip Singh and Justice Dr. A.S. Anand

Facts

DK Basu was the Executive Chairman of Legal Aid Services, West Bengal, a non-political organization. He addressed a letter to the Supreme Court of India drawing the courts attention to a piece of news published in various newspapers about deaths in police custody and lockups.

In the letter, it was mentioned that such crimes of custodial violence always went unpunished despite the efforts made and urged the courts to look into the matter so that the family members of the victims are given some form of compensation. He requested that the letter be treated as a Writ Petition within the “Public Interest Litigation” category.

Considering the significance of the issues brought up in the letter, it was treated as a written petition and the defendants were informed.

Issues

Ø Whether there is an increase in the cases of custodial death and violence?

Ø Whether there is a need for guidelines for arrest and custody of detenu?

Ø Whether the police officers be held liable for custodial death and violence?

Ø Whether custodial death and violence amounts to violation of Article 21 of the detenu?

 

Judgment

The Supreme Court referred to the case of Neelabati Bahera v. State of Orissa AIR 1993 SC 1960 and reiterated that prisoners and detainees should not be deprived of their Fundamental Rights under Article 21 and only the restriction permitted by law could be imposed on the enjoyment of their Fundamental Rights.

The Apex Court further laid down the following guidelines and said that arrest and detention will be subject to the guidelines. The violation of these guidelines would attract not only the departmental action but also the contempt of court proceedings in a High Court having the jurisdiction over the matter. The guidelines are as follows:

1) The police officer who arrests and handles the interrogation of the arrestee must wear accurate, visible and clear identification and name tags with their designations. The details of all such police personnel who handle interrogation must be recorded in a register.

2) The police officer carrying out the arrest must prepare a memo of arrest at the time of arrest and it shall be attested by at least one witness who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrested person and shall contain the time and date of arrest.

3) A person who has been arrested and is being held in custody in a police station or interrogation centre or other lock-up shall be entitled to have one friend or relative or other person known to him or having an interest in his welfare be informed, as soon as possible, about his arrest and detention in a particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a 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 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 which shall also disclose the name of his next friend who has been informed of the arrest and the names and details of the police officials in whose custody the arrestee is.

7) On request, the arrestee should be also examined at the time of his arrest and any major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer and a copy must be given to the arrestee.

8) The arrestee should be subjected to a medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by the Director, Health Services of the concerned State or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.

9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record.

10) The arrestee may be allowed to meet his attorney during interrogation, although not throughout the interrogation.

11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer who was in charge of the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a visible notice board.

 

Conclusion

The DK Basu case is regarded as the most landmark case of the criminal jurisprudence. The guidelines laid down in the case have been incorporated in the Criminal Procedure Code, 1973 by the Code of Criminal Procedure (Amendment) Act, 2008 (w.e.f. 1/11/2010).

Before, DK Basu case there had been instances of custodial violence and deaths; in some cases compensation was also awarded however, there wasn't any provision or rule to impose liability regarding the same. The present case was the need of the hour wherein the Supreme Court laid down guidelines regarding custodial deaths and violence so to put to rest this issue for once and for all. This was the pioneer case to impose liability upon the police

However, after this case, the instances of custodial death and violence have reduced but it didn't stop. Some of the guidelines have been limited to mere paper regulations.