(This article is written by Parul Sharma, a fourth-year BBA-LLB Student from Gitarattan International Business School, Rohini, Delhi.)
Introduction
D.K. Basu v. the State of West Bengal gave a landmark judgement in which guidelines concerning the arrest of a person were established otherwise more offences were committed in the name of doing justice. It prevents any violation of the rights of an individual during detention.
Citation
AIR 1997SC 610
Case no.
WRIT PETITION (CRL) NO. 592 OF 1987
Court
Supreme Court of India
Bench
Kuldip Singh
Dr A.S. Anand
Date Decided
18 December 1996
Facts of the case
DK Basu, Executive Chairman of Legal Aid services, West Bengal, addressed a letter to the Supreme Court of India putting his focus on a published Telegraph Newspapers regarding the deaths in police custody. He asked for the letter to be treated as a Writ Petition within the PIL, Public Interest Litigation.
Since the issues raised in the letter were important, it was treated as a written Petition and the Defendants were informed. While the write petition was under consideration, Mr Ashok Kumar wrote a letter to the chief justice of the Supreme Court drawing his attention to the death of a Mahesh Bihari from Pilkhana, Aligarh in police custody. The same letter was also seen as a request for writing and was added alongside D.K Basu’s Request for Writing. The Court gave an order on 14.08.1987 issuing notices to all state governments and also a notice to the Law Commission seeking appropriate suggestion within two months.
In response to the notices sent, many states submitted affidavits including Orissa, Assam, West Bengal, Haryana, Himachal Pradesh, Meghalaya, Tamil Nadu, Manipur, and Maharashtra.
Furthermore, Dr A.M. Singh, Principal Counsel was appointed as the Amicus Curiae to support the Court. All the lawyers who appeared in the Court showed useful assistance as well.
Issues
- Why is there a constant increase in the number of crimes against persons in lockups or custody?
- Is the arbitrariness of Policemen justified while making an arrest?
- Is specifying some guidelines for an arrest necessary?
Petitioner’s Arguments
The petitioner contended that bodily pain and mental torture faced by an individual with the police confinement or four walls of the police station should be avoided. Whether it’s rape or physical assault, the scope of traumatic experiences is beyond the purview of the law. The petitioner further argued that there is a requirement for a civilized nation to take major steps for its eradication.
Respondent’s Arguments
The counsel appearing from various states and Dr A.M. Singhvi presented the case and rebutted that “everything was final” within their respective states, presented above their respective beliefs and performed useful assistance to the Court in studying different facets of the issues, and made certain suggestions for the establishment of guidelines by the court to scale down, if not prevent, the custodial violence and relatives of these people who died in custody because of the torture.
Judgement
Relying on Nilabati Behera v. the State of Orissa [1], the court held that any form of cruel or torture, inhuman, or degrading treatment comes within the scope of article 21, whether it occurs during interrogation, investigation, or otherwise. The rights given under article 21 cannot be refused to convicts, undertrials, detainees, and other prisoners in custody except according to the procedure laid down by law by establishing reasonable restrictions on the rights as permitted by law.
Even after establishing procedural requirements in Joginder Kumar v. the State of U.P. [2], it was ascertained that the police arrested a person without a warrant in relation to the investigation of the offence, and the arrested person was tortured to take out information or a confession.
Considering this case, the court laid down a list of 12 guidelines along with statutory and Constitutional safeguards which are to be followed in all cases of detention and arrest. The guidelines are as follows:
- The police officer conducting the arrest and handling the interrogation of the individual should have proper, clear, and visible identification and name tags with their designations. The details of all such police officers who handle interrogation of the arrestee much be recorded in a register.
- That the police officer handling the arrest of the arrestee should prepare a memo of arrest at the time of arrest and this memo should be attested by one witness at least. That witness is often either a family member of the arrestee or a decent person of the area where the arrest was made. It shall also be counter-signed by the arrestee and shall have the date and time of the arrest.
- An arrested person or detained person and is in custody in the police station of interrogation centre of other lock-up, shall have the right to have one relative or friend or the other person known to him or having an interest in his welfare being informed, as soon as possible, about the person’s arrest and therefore the place he’s being detained unless the attesting witness of the memo of arrest is that the relative or friend of the arrestee himself.
- That place of arrest, time, and therefore the venue of custody of an arrestee must be told by the police where the relative or friend of the arrestee lives outside the town or district through the legal Aid Organization in the district and the police station of the area concerned telegraphically within 8-12 hours after the arrest.
- The arrested person must be aware of this right to inform someone about his arrest or detention as soon as he is detained or put under arrest.
- An entry must be made within the diary at the place of detention about the arrest of the person which shall even have the name of the relative or friends of the one that was informed about the arrest and therefore the names and particulars of the police officers in whose custody the arrestee was in.
- The arrestee should, on his request, be also examined at the time of his arrest, and minor or major injuries, if any present on the person’s body, must be recorded at that time. The “Inspection Memo” must be signed by both the arrestee and the police official making the arrest and its copy will be provided to the arrestee.
- The arrestee should even be permitted a check-up by a trained doctor within every 48 hours during his detention or custody. Such doctors shall be approved by a panel of doctors appointed by the Director, Health Services of that State or Union Territory. Director, Health Services should have such a penal for all Districts or Tehsils as well.
- Copies of all the documents including the memo of arrest, should tend to the Magistrate for the record.
- The arrestee may be subjected to meet his lawyer during his interrogation.
- A police control room should be in all state and district headquarters, where information about the arrest and place of custody of the arrestee shall be communicated by the official making the arrest.
- The information should be communicated with the hours of effecting the arrest and at the police control room should be shown on conspicuous notice board.
Citations:
[1] 1993 AIR 1960, 1993 SCR (2) 581
[2] 1994 AIR 1349, 1994 SCC (4) 260
