DK BASU v.
STATE OF WEST BENGAL
(1997) 1 SCC
416
Court: Supreme Court of India
Bench: Justice Kuldip Singh, Justice AS Anand
Date of judgment: 18th
December 1996
Parties:
Appellant: DK Basu
Respondent: State of West
Bengal
Introduction
Torture of a human being by another
human being is essentially an instrument to impose the will of the strong over
the weak by suffering. This case revolved around the increasing instances of
custodial torture, violence and deaths in the lock-ups. The case became a
landmark wherein the Supreme Court laid down guidelines regarding arrest and
detention of a person to be mandatorily followed.
Facts
The Executive Chairman of Legal Aid
Services, West Bengal, DK Basu, wrote a letter to Chief Justice of India to
draw his attention towards certain articles published in newspaper regarding
deaths in police lock-ups and custody. He further requested the authorities to
treat his letter as a Writ Petition within the category of Public Interest
Litigation. Considering the relevance and importance of the issues raised in
the letter, it was treated as a Writ Petition and notice was served to the
Respondent i.e. State of West Bengal. While the letter was under consideration,
another letter was addressed to the Chief Justice by Mr. Ashok Kumar Johri drawing
his concern towards the death of Mahesh Bihari in Pilkhana, Aligarh when he was
in police custody. This letter was also treated as a writ petition and was
listed along with the petition of D.K. Basu.
The Court passed an order by issuing
notices to all the State Governments and Law Commission of India requesting appropriate
suggestions within a period of two months. Consequently, various states such as
West Bengal, Orissa, Himachal Pradesh, Haryana, Assam, Meghalaya, Maharashtra,
Tamil Nadu and Manipur filed their affidavits. Dr. A.M. Singhvi was appointed
as Amicus Curiae to assist the court on this matter.
Issues
·
Why are crimes against individuals in lockups or
custody rising day by day?
·
Whether the actions taken by policemen arbitrary?
·
Whether there are any prescribed guidelines for making
an arrest and if not is there a need to issue guidelines for the same?
Judgment
The court was aggravated with the fact
that custodial violence was committed by persons entrusted to be protectors of
the citizens and held that “Custodial violence, including torture and
death in the lock ups, strikes a blow at the Rule of Law, which demands that
the powers of executive should not only be derived from law but also that the
same should be limited by law.” The court further held that, “Custodial
torture is a naked violation of human dignity which destroys, to a very large
extent, the individual personality and is a calculated assault on human
dignity.”
Relying on
Nilabati
Behera v. State of Orrisa,
1993 SC, the court observed that the main purpose of some statutory and constitutional
provisions is to protect people from any form of torture, assault, cruelty or
inhuman and degrading treatment. The basic human rights including the right to
liberty and dignity must not be taken away from any individual either they are
detenus, prisoners, convicts or under-trials and thus basic rights enshrined
under Article 21 and Article 22 must
always be protected.
The court held that preventing breaches of basic and affirmed
rights of people was a sacred duty of court since courts are custodians and
protectors of fundamental and basic human rights of all citizens. Thus, the
Bench with the objective of bringing some transparency in the structure decided
to implement effective machinery for recording and notification of all the
cases of arrest and detention and thus issued guidelines to protect prisoners
and detenus. The guidelines are as follows:
· The police personnel carrying out the arrest
and interrogation should bear accurate, visible and clear identification and
name tags with their designation and all such particulars must be recorded in a
register.
· The police officer carrying out the
arrest shall prepare a memo of arrest (including relevant date and time of
arrest) which shall be attested by at least one witness (either a family member
or a respectable local person) and shall be countersigned by the arrestee.
· Time, place of arrest and venue of
custody of an arrestee must be notified to any friend or relative of the
arrestee by the arresting officer.
· The arrestee should be subjected to
medical examination by a trained doctor every 48 hours during his detention in
custody.
· The arrestee has to be made aware of
his right to have someone notified regarding the arrest and the procedure on
his behalf.
· All documents including the memo of arrest
must be sent to the Magistrate.
· The arrested person has a right to meet
his lawyer.
· The arresting person has to inform
regarding the arrest to the relatives and family of arrestee.
· The arrestee has to be produced before
the Magistrate within 24 hours.
· An entry regarding the arrest must be
made in the diary of the arresting officer.
· A police control room must be set up in
all the districts and information about the prisoners and detenus has to be
communicated to all the districts.
· Hours of
affecting the arrest and at police control room should be displayed on a
conspicuous notice board.
These guidelines must be mandatorily
followed failing which would result in departmental action being initiated
against the concerned police officer and also render him/her liable for
contempt of court.
Conclusion
The case
evolved as a landmark at a time when administration of criminal system in India
needed an effective mechanism. The guidelines issued by the Bench in this case
were to protect the fundamental rights of individuals during arrest and
detention which appropriately aided in regulating the torturous and cruel
approach of police officers in dealing with arrestees and detainees and effectively
lowering the toll of custodial violence and death.
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