Author: Vidhyanand Roy, Sri Krishna Jubilee Law College, Muzaffarpur, Bihar
ABSTRACT
This article focuses on the landmark judgement pronounced in the year 1997, this case was related to the custodial deaths of the prisoners in various states of India, there was a huge hue and cry in the country because the newspaper between the year 1996-1997 mainly consisted of custodial deaths which brought the attention of the common people towards this issue, the constitution of India under Article 21 guarantees protection of life and personal liberty but this rights was being violated in police custody, so an effective remedy was the need of an hour, to curb the growth of custodial deaths in India, the most interesting fact of the case was that D.K Basu, a non-political organizations submitted a letter, requesting that it should be considered as a writ petition under Public Interest Litigation, to the apex court of India, we know that, it is a herculean task alone for the government to maintain law and order in the state, so the law enforcement agencies has been assigned with the responsibility to maintain law and order, but while performing their duties it has often been witnessed that they often misuses their power and sometimes they also have a personal grudges with the accused because of which there is an illegal arrest and detention. which ultimately results in custodial deaths. So the apex court in this case provided an effective guidelines which compel all the law enforcement agencies to follow while arresting any person accused of an offence. Before going into the details of the case it is important to put a light on some of the important terms which are described below.
What is custody? Is police custody and judicial custody same?
According to Cambridge Dictionary, custody means the legal right or duty to care for someone or something, especially a child after its parents have separated or died, but in legal perspective custody means snatching a person freedom of movement
Police Custody means that police has the physical custody of the accused while Judicial Custody means an accused is in the custody of the concerned Magistrate.
What is arrest?
If we put a light on old Criminal Procedure Code (Cr.P.C), 1973 and new Bharartiya Nagarik Suraksha Sanhita, 2023 (BNSS), neither of the codes defined the term “arrest”.
In State of Haryana Vs Dinesh Kumar (2008) 3 SCC 222
The apex court observed that the expression arrest has neither been defined in the Cr.p.C nor in IPC or any other enactment dealing with the criminal offence. The only indication as to what would constitute arrest may perhaps be found in Section 46 of the code, which describe the modes in which arrests are to be made.
The court cited the meaning of the arrest in Halsbury’s Laws of England, the word arrest when used in its ordinary sense, means the apprehension or restraint or the deprivation of one’s personal liberty.
An arrest consists of taking into custody of another under authority empowered by law for the purpose of holding or detaining him to answer a criminal charge and preventing of a criminal offence.
Is arrest and detention are synonymous?
In Directorate of Enforcement Vs Deepak Mahajan AIR 1994 SC 1775
It may be noted that “custody” and “arrest” are not synonymous terms. Taking a person into judicial custody is followed after the arrest of a person.
Facts of the case
In light of the custodial deaths in India, executive chairman of Legal Aid service, a non-political organization, submitted a letter, requesting that it should be considered as a writ petition under Public Interest Litigation, to Supreme Court of India. Considering this request along with other similar letter filed by Ashok Kumar Johri based on the alleged custodial death of person named Mahesh Bihari a notice was issued by the apex court to law commission and state governments and Dr. AM Singhvi was appointed the principal counsel on behalf of the state government Affidavits from the respondents that is, the state government stated that there no instance of custodial torture and situation was fine. However, the apex court ruled in petitioner’s favour and went on to issue 11 guidelines after taking into account some other cases like, state of Andra Pradesh Vs V.N. Venugopal, Joginder Kumar case, Nilabati Behera V State of Orissa, State of UP Vs Ram Sagar Yadav etc.
Facts in issue
To curb the menace of custodial death?
Is there was a need for well framed rules with regard to custodial deaths?
Whether monetary compensation can be awarded to the deceased family in addition to the punitive measures or supplementary to the punishment?
Does prisoners have the right to life and personal liberty after arrest?
Guidelines / Judgement of the Apex Court
The apex court issued 11 important guideline for all the law enforcement agencies which they must comply when arrest is being made by them. The various guidelines can be briefly described as follows:
IDENTIFICATION: Police personnel who make the arrest and handle the interrogation of the arrested person must wear precise, visible and clear identifications labels with their designations. Details of all personnel handling the interrogations of the arrested person must be recorded in a register.
POLICE CONTROL ROOM: All the district and state headquarters are required to have police control rooms. The officer making the arrest is duty-bound to inform the control room regarding the details of the arrest and the place where the arrested is kept in custody, this must be done in all cases of arrest within 24 hours of arrest. The notice board of the control room should display such information correctly and clearly.
RIGHT TO CONSULT A LAWYER: The arrested person has the right to consult and defended by the lawyer of his own choice which is also a fundamental rights guaranteed under Article 21(1)(3) of the Constitution.
COPIES OF DOCUMENTS TO AREA MAGISTRATE: The police are required to send a copy of all documents about the arrest, including the memo of arrest, the inspection memo and all other documents mentioned to the area magistrate for their records.
MEDICIAL EXAMINATION: The arrested person is required to undergo a medical examination every 48 hours during the period of detention. Such examination must be conducted by a trained doctor, one who is on the panel of approved doctors, as appointed by the Director of Health Services of the respective State.
INSPECTION MEMO: The arrested person at the time of the arrest, has a right to request a physical examination for any minor or major injuries and such injuries must be recorded at that time. This is to be mentioned in the inspection memo and is required to be signed by both the arrested person and the police officer who made the arrest.
DIARY ENTRY: An entry in the diary is required to be made at the place of detention. It must include the details of the arrest, the name of the friend or relative or other individual informed of the arrest, along with the names and details of the police officials holding the arrested person in custody..
INFORMING THE RIGHTS OF THE ARRESTED PERSON: The arrested person is required to be informed of the grounds of arrest, and also his rights which are guaranteed under Article 22(1)(2).
INFORMATION OF ARRESTED PERSON OUTSIDE THE DISTRICT: If a person arrested lives outside the district of the police station where the arrested person is detained, then the police are required to inform such person of the details of the arrest including time, place of arrest and place of custody through a telegram to be sent via the concerned police station and the District Legal Aid Authority
INFORMATION OF ARREST: The arrested person is entitled to have one friend or relative, acquaintance or well-wisher informed, as soon as practicable that he has been arrested and is being detained at the particular place unless such friend or relative is also the witness who attested the memo of arrest.
MEMO OF ARREST: Every police officer making an arrest is required to prepare a memo of arrest at the time of arrest, which shall be attested by at least one witness. Such a witness may be a family member of the arrested person or any respectable person in the locality of the arrest of the person.
Conclusion
The DK Basu case has been regarded as one of the landmark judgement of the supreme court this guidelines was incorporated under Cr.P.C, 1973 by the code of Criminal Procedure Amendment Act, 2008 which came into effect on 1st November, 2010. Before the pronouncement of this judgment there had been an huge instances of custodial deaths in various states in India and there was not any provision to curb the menace of custodial deaths.
However, even after the guidelines issued in this case there are still various cases of custodial deaths arising, so in a nutshell it can be said that the instances of custodial deaths have reduced to some extent but it did not stop.
FAQS
Define arrest?
An arrest consists of taking into custody of another under authority empowered by law for the purpose of holding or detaining him to answer a criminal charge and preventing of a criminal offence.
Difference between arrest and detention ?
In criminal law, people often make the mistake of thinking that being arrested is the same as being detained. While both involve interaction with police, an arrest means that a person have been charged with a crime while detention is merely a moment of questioning by police.
Name all the guidelines in DK Basu case?
The basic requirements for arrest and detention are as follows:
Identification
Memo of Arrest
Information of Arrest
Information of Arrest to a person outside the district
Informing the rights to the arrested person
Dairy entry
Inspection of memo
Medical examination
Magistrate
Right to consult a lawyer
Police control room
When did the guideline of DK Basu incorporated under Cr.P.C?
The guidelines established in DK Basu case was incorporated into the Cr.PC, 1973, through the Amendment Act, 2008 which came into effect from 1st November 2010.
References
https://indiankanoon.org
https://indianexpress.com
https://prsindia.org