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Case Reviews

D.K. Basu v. State Of West Bengal (1997) 1 SCC 416

By: Raksha Chauhan, 3rd year, Ramaiah Institute of Legal Studies 

In this case, guidelines were laid down by the Supreme Court of India with regards to all cases of arrest and detention, in order to prevent custodial deaths and torture by the police.

Relevant Facts

  • Shri D.K. Basu, the executive chairman of Legal Aid Services, West Bengal, wrote a letter to the Chief Justice of India drawing his attention to certain news items published in the Telegraph, the Statesman and India Express in 1986 to raise concern over deaths and violence being reported in police custody and lock-ups.
  • He requested that his letter along with the news items be treated as a writ petition within the “Public Interest Litigation” category.
  • Considering the seriousness of the issue raised in the letter, it was regarded as a writ petition and notice was served on 9th February, 1987 to the respondents.
  • While the writ petition was under consideration, Mr. Ashok Kumar Johri wrote a letter to the Chief Justice of India drawing his attention to the death of one Mahesh Bihari of Pilkhana, Aligarh in police custody. The letter by Mr.Johri was also treated as a writ petition and was directed to be listed along with the writ petition filed by D.K. Basu.
  • The Court made the order issuing notices on 14th August, 1987 to all the state governments and the Law Commission of India asking for suitable suggestions within a period of two months. 
  • In response to the notices, affidavits were filed by several states including West Bengal, Orissa, Assam, Himachal Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra and Manipur.
  • Dr. A.M. Singhvi, senior advocate was appointed as amicus curiae to assist the court during the course of hearing of the writ petitions. Learned counsel appearing for different States rendered useful assistance to the court. 

Key Issues

  1. Whether policemen are arbitrary in arresting a person?
  2. Who shall be held answerable for custodial deaths and violence?
  3. How to keep a check on the abuse of power by the police authorities?

Rules Applicable

  1. Articles 20(3), 21 and 22 of the Indian Constitution, 1950.
  2. Section 41 and 176 of the Code of Criminal Procedure, 1973.
  3. Section 6 of the Indian Evidence Act, 1872. 

Arguments made by the Petitioner

  • Custodial violence and torture in the police lock-ups are the pressing issues. The infliction of body pain and mental agony that a person goes through within the four walls of a police station or lock-up should be prevented. The extent of trauma experiences is beyond the purview of the law, either it is physical assault or rape in police custody. It was further requested to the court to take some major steps for the eradication of custodial violence.

Custodial violence and torture in the police lock-ups are the pressing issues. The infliction of body pain and mental agony that a person goes through within the four walls of a police station or lock-up should be prevented.

Arguments made by the Respondent 

  • It was argued by the West Bengal Police that the police department was not hushing up any matter of lock-up death and that wherever police personnel were found to be responsible for the death caused during interrogation or in custody, the necessary action was being taken against them. The respondents specified the writ petition as misconceived, misleading and untenable in law.
  • Learned counsel appearing for different States and Dr. Singhvi, as a friend of the court, presented the case and argued that “everything was well” within their respective states and made certain suggestions for formulation of guidelines by the court to minimize, if not prevent, custodial violence.

Judgement

The case was decided on 18.12.1996 with writ petition (CRL) No. 592 of 1987. The bench consisting of Justice Kuldip Singh and Justice A.S. Anand was of the view that it would be useful and effective to lay down certain basic requirements to be followed in all cases of arrest and detention as preventive measures. The requirements are as follows:

  1. The police officer carrying out the arrest should bear accurate, visible and clear identification with their designations.
  2. The police officer should prepare a memo of arrest at the time of arrest and it should be attested by at least one witness and countersigned by the arrestee.
  3. The arrestee should be entitled to have one friend or relative or other person known to him or having an interest in his welfare being informed about the arrest. 
  4. The time, place of arrest and venue of custody of an arrestee must be notified to his/her friend or relative who lives outside the district or town through the Legal Aid Organization in the District and the police station of the area concerned within a period of 8 to 12 hours after the arrest.
  5. The arrestee must be made aware of the right to have someone informed of his arrest or detention. 
  6. Regarding the arrest of the person, an entry must be made in the diary at the place of detention.
  7. The arrestee should be examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time.
  8. The arrestee should be subjected to a medical examination every 48 hours during his detention in custody.
  9. The memo of arrest and the copies of all the documents, referred to above, should be sent to the Magistrate for his record.
  10. The arrested person may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
  11. At all district and state headquarters, there should be a police control room.

Failure to comply with the above requirements would render a person liable to be punished for contempt of court.

Precedents Cited

A. Neelabati Behera vs. State of Orissa (1)

Suman Behera, son of the petitioner, was arrested by the Orissa police for   investigation involving the offence of theft and the very next day his dead body was found near the railway track. The court took suo moto cognizance and converted it into a writ petition and pointed out that prisoners and detenues are not denuded of their fundamental right under Article 21 and such restrictions are only permitted by law, which can be imposed on the enjoyment of the fundamental rights of the arrestees and detenues. 

B. Joginder Kumar vs. State of U.P & Ors. (2)

A practicing lawyer who was called by the Senior Superintendent of Police, Ghaziabad to the police station regarding a case. On not receiving any information of his whereabouts, the family members of the petitioner filed a writ petition in the nature of habeas corpus before the court and in adherence to the notice, the lawyer was produced. It was held that an arrest cannot be made on a mere allegation of offence against a person or in a routine manner. Constitutional rights of a person mandate that he cannot be arrested on simple suspicion of complicity in an offence.

C. State of Madhya Pradesh vs. Shyamsunder Trivedi & Ors. (3)

During an investigation, the arrestee Nathu Banjara was tortured by police and due to extensive injuries, he died in police custody. The court convicted the respondents for various offences under IPC and imposed fine on them, which was directed to be paid to the heirs of Nathu Banjara. 

Analysis

Custodial deaths and torture in police lock-ups have been a disturbing factor and one of the serious issues that needed to be addressed as early as possible. The court observed that despite the constitutional and statutory provisions aimed at safeguarding the life and personal liberty of a citizen, there has been an escalating incidence of death and torture in police custody. There were many instances where police arrested a person without a warrant in connection with the investigation of an offence without recording the arrest. Many a times, the arrestee has been subjected to torture to extract information for confession or further investigation. Custodial violence strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from the law but also should be limited by law. In Neelabati Behera’s  case(1), it was observed that the right guaranteed under Article 21 of the constitution cannot be denied to convicts, under trials or other prisoners in custody, except according to the procedure established by law. Considering all the loopholes in the provisions, the court issued 11 guidelines which were to be followed in all cases of arrest and detention.

The guidelines given by the court were later incorporated in the Code of Criminal Procedure, 1973 by the amendment act of 2010 as follows- 

Section 41-A. Notice of appearance before police

Section 41-B. Procedure of arrest and duties of an officer making arrest

Section 41-C. Control room at districts 

Section 41-D. Right of arrested person to meet an advocate of his choice during interrogation      

Conclusion

Policemen have to face difficult challenges and many hardcore criminals in day-to-day life where leniency does not turn out to be useful and they are obliged to take strict action against the offenders. But that does not mean they should use the power given to them arbitrarily. The cure, however, cannot be worse than the disease. The decision given by the apex court is good in law. The law cannot deny fundamental rights to a person who is in police custody. Policemen are considered as the guardian of law and when incidence comes up like death in custody or torture, it makes people lose their faith in them. The police must work within the four walls of law and maintain law and order in society.   

(1) 1993 AIR 1960, 1993 SCR (2) 581.
(2) 1994 AIR 1349, 1994 SCC (4) 260.
(3) Appeal 217(CRL) of 1993.

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