DK BASU V. STATE OF WEST BENGAL

Constitutional and Statutory Provisions Discussed

• Article 20 (3), 21, 22, 226 and 32 of the Constitution of India.
• Section 41, 46, 49, 50, 53, 54, 56, 57, 167, 174 and 176 of Criminal Procedure Code, 1973.
• Section 147, 149, 201, 218, 220, 302, 304, 330, 331, 34 and 342 of Indian Penal Code (IPC), 1860.

Introduction

When a criminal is apprehended, the legal justice system typically requires placing the person in police custody for trial. While some rights may be restricted, it’s crucial to remember that a criminal remains a human being. The Constitution of India, particularly Article 21, safeguards the Right to Life and Liberty. It emphasize that even in the face of legal actions, one’s humanity cannot be stripped away without due process.

Unfortunately, instances of police brutality on those in custody persist, posing a serious concern, especially if it results in loss of life. The police’s role should be to prevent further crimes, not to engage in unauthorized torture. Custodial deaths, where a person dies in police custody, have been increasing in India.

Efforts, including legal interventions like the Supreme Court Case of DK Basu v State of West Bengal. It also have been undertook to address and curb the issue of custodial deaths in India.

Facts of Case

1. DK Basu, from Legal Aid Services, West Bengal, wrote to the Supreme Court, highlighting news on deaths in police custody. He also requested acceptance of his letter as a Writ Petition under “Public Interest Litigation.”
2. Ashok Kumar Johari sent another letter to the Chief Justice regarding the death of Mahesh Bihari in Aligarh Police Custody, treating both letters as Writ Petitions.
3. The Supreme Court issued notices to all state governments and the Law Commission of India, urging the formulation of measures to address the situation within two months.
4. Submission of affidavits from state governments (Himachal Pradesh, West Bengal, Assam, Orissa, Haryana, Tamil Nadu, and Meghalaya) in response to the Supreme Court’s notices.
5. The court appointed Dr. A. M. Singhvi, who was the principal counsel for state governments, as the amicus curiae in the matter.

Issues:

1. Growth in incidents of Custodial Torture and Deaths by Police.

2.The arbitrariness of Police-men in arresting a person.

3.Is there any need to specify some guidelines to make an arrest?

Arguments from the side of Petitioner

The petitioner emphasized the necessity to prevent physical and mental suffering of prisoners in police custody, asserting that acts such as assault or rape go beyond legal boundaries. Stressing the need for a reasonable nation, the petitioner called for significant steps to eradicate such traumatic experiences.

Arguments from the side of Respondent

Counsels for various states, along with Dr. A.M. Singhvi, argued that everything was settled within their states, expressing their perspectives. They provided valuable assistance to the Court. Thus presenting beliefs and making suggestions for guidelines to minimize custodial violence and deaths due to torture.

Judgment of DK Basu Case

The Supreme Court, drawing from judgments like Neelabati Behra v. State of Orissa and Sunil Batra v. Delhi Administration, emphasized that any form of torture or inhumane treatment towards arrested individuals violates Fundamental Rights, especially Article 21. It reiterated the view in Joginder Kumar v. State of Uttar Pradesh, stating that while procedural requirements for arrests are define as, arrests should not become routine. The police officers must have valid reasons even when lawful authority exists for arrest without a warrant.

The Supreme Court, in its judgment, established guidelines governing police arrest and custody procedures:

1. Clear Identification: During an arrest, the police must record accurate details of all involved personnel, including their correct name tags, in a register.
2. Arrest Memo: The arresting officer must promptly prepare a signed memo of the arrest, witnessed by a family member or a respected local figure, including the arrested person’s signature, date, and time.
3. Right to Inform: The arrested person has the right to inform a family member, friend, or acquaintance about the arrest and place of custody.
4. Immediate Notification:Inform the detained person about their right to notify someone as soon as they are arrested.
5. Notification Procedure: If the notified person resides outside the district, the arrest details must be conveyed through the Legal Aid Organization within 8 to 12 hours.
6. Arrest Entry: The police must record details of the arrest and the arrested person, including the custody officer’s information, in a diary at the arrest location.
7. Injury Inspection: Upon request, the arresting officer should examine the detained person for injuries or marks and document them in an Inspection Memo, which both the arrested person and the arresting officer must sign.
8. Medical Examination: A trained doctor must medically examine the detainee every 48 hours, with a panel of approved doctors designated by the Director of Health Services.
9. Document Submission: The police must send copies of all documents, including arrest details, to the Magistrate for record-keeping.
10. Legal Representation: During interrogation, the authorities permit the arrested person to meet their lawyer. Provided the meeting does not extend throughout the entire interrogation.
11. Timely Communication: The police officer in charge must communicate details of the arrest to the police control room within 12 hours. Also with this information posted on a notice board in the control room at both district and state headquarters.

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