IN THE SUPREME COURT OF INDIA
State of West Bengal
Date of Judgement
18th December, 1996
Hon’ble Justice Kuldip Singh; A.S. Anand, JJ.
At least 591 people died in police custody in 2015, most of them are arrested and have not yet appeared before a magistrate.[i] In 2016, government data recorded 92 deaths in police custody, of which 60 occurred before reaching court. This makes a mockery of sections 55A and 57 of the Code of Criminal Procedure (Cr.P.C.) which places the duties of care of the accused, and the production before a magistrate within 24 hours, to the person in custody.
However, India has witnessed a multitude of historical trials that have evolved and made our Constitution a personification of justice, fairness, and good conscience. One of those lawsuits that have broadened the horizons of the meaning of fundamental rights was D.K. Basu v. West Bengal State[ii]. This case analysis deals with a seminal issue.
Constitutional and Statutory 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.
DK Basu, Executive Chairman of Legal Aid Services, West Bengal, a non-political organization on 26/08/1986 addressed a letter to the Supreme Court of India calling his attention to certain news published in the Telegraph Newspaper about deaths in police custody and custody. He requested that the letter be treated as a Writ Petition within the “Public Interest Litigation”. Considering the importance of the issues raised in the letter, it was treated as a written Petition and the Defendants were notified. While the writ petition was being considered, 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. The same letter was also treated as a Request for Writing and was included along with D.K.Basu’s Request for Writing. On 14/08/1987 the Court issued the Order issuing notices to all state governments and a notice was also issued to the Law Commission requesting appropriate suggestions within a two month period. 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.Singh vi, Principal Counsel was appointed Amicus Curiae to assist the Court. All of the attorneys who appeared provided useful assistance to the Court.
- Growth in incidents of Custodial Torture and Deaths by Police.
- The arbitrariness of Policemen in arresting a person.
- Is there any need to specify some guidelines to make an arrest?
Contentions of 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. Whether it is physical assault or rape in police custody, the scope of trauma experiences is beyond the scope of the law.
The petitioner further argued that there is a need for a civilized nation and that some important steps must be taken to eradicate it.
Contentions of Respondent:
The Counsel representing different states and Dr. AM Singhvi presented the case and stated that “everything was fine” within their respective States, presented their respective beliefs and provided useful assistance to this Court to examine various facets of the problem and made sure that suggestions for the formulation of guidelines by this court to reduce, if not prevent, violence in custody and the relatives of those who die in custody due to torture.
In order to defend this important fall of the administrative wing, the State of West Bengal made an attempt to convey that there are no deaths in the confinements and even if there were any, then an investigation should be carried out on whoever did it.
- When the 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. It thus also includes a guarantee against torture and assault by the State or its functionaries.
- Protection against arrest and detention is guaranteed by Article 22. It provides that no individuals arrested shall be detained in custody without being informed of the grounds of arrest and that arrested individuals shall not be denied the right to consult and defend themselves by a legal practitioner of their choice.
- Article 20(3) provides that a person accused of an offense shall not be compelled to be a witness against himself or herself.
- The Court was of the opinion that custodial violence, including torture and death in lock-ups, strikes at the rule of law. Custodial violence, including torture and death in prisons, was considered by the court 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.
- Reference was made to the case of Neelabati Bahera v. State of Orissa (1993)[iii] 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.
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.[iv] 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.
The case thus gave a landmark judgment where guidelines regarding the arrest of a person were prescribed otherwise more offenses were committed in the name of doing justice. It prevents any infringement with the rights of an individual during detention and thus protects all the citizens by certain procedures established by law. Although now, the proper procedure has been established by law and anyone who does contempt of court is liable to be punished, still, there are crimes similar to those in the above case, for instance, police officials refuse to file an FIR, or does something due to which many innocent people have to suffer injustice and due to which there is infringement with the fundamental rights of the citizens. Therefore, more strict laws should be made so that innocent people have not to suffer.
In my opinion, before this case, the administration of the criminal system existing in a country like India needed an effective mechanism. This case evolved as a landmark case as the guidelines issued by the bench aimed to protect the people in custody. It is an obligation of the State to protect the citizens; either they are accused of an offense or a normal innocent person.
The law can’t be prejudicial in its approach and can’t deny basic rights like the right to liberty, dignity to someone who is in the police custody.
Moreover, the torturous and cruel approach of police in dealing with arrestees required a strong change. The Apex Court had to meddle in such a situation and the decisions taken by the bench were absolutely appropriate and just.
Edited by Parul Soni
Approved & Published – Sakshi Raje
[i] Human Rights watch, India: Killings in Police Custody, https://www.hrw.org/news/2016/12/19/india-killings-police-custody-go-unpunished, (last visited 12th March 2020, 8:00 P.M).
[ii] D.K. Basu v. West Bengal State, (1997 ) 1 SCC 416.
[iii] Neelabati Bahera v. State of Orissa, 1993 AIR SCC 196.