Author: Yashi Srivastava, Sem -7, BA.LLB ( Hons.), S.S.Khanna Girl’s Degree College
CASE NAME – D. k. Basu , Ashok K. Johri v. State of West Bengal, State of Uttar Pradesh
CASE INITIATED AS – WRIT PETITION (CRL.) No. 539 OF 1986
DATE OF JUDGEMENT – 18 December 1996
CITATION -Shri D.K. Basu ,Ashok K. Johri vs State Of West Bengal, State Of Uttar Pradesh , 18 December, 1996
BENCH – Justice Kuldip Singh, Justice A.S. Anand
APPELLANT-D.K. Basu , Ashok k. Johri
RESPONDENT – State of West Bengal , State of Uttar Pradesh
Abstract
The DK Basu case of 1996 so does a turning point for the rights of arrested person . Judgement came for the protection of human rights and article 21 and 22 of the constitution of India. It prevents custodial violence and sets the police accountability . This became a landmark judgement for the preservation of human dignity even when the person is arrested.
BACKGROUND OF THE CASE
DK Basu, the effective chairman of the legal aid services West Bengal ,which is a non political organisation registered under these societies registration Act addressed a letter to the chief justice of India . In this letter he drew the attention to certain news article published on 20, 21 and 22 July 1986 regarding the death in police lockup and custody . D.K.Basu submitted that it was important to look into the issue in depth and to develop ‘custody jurisprudence’ . He added that it was important to award compensation to the victim and /or family members of the victim for atrocities that have been caused in police custody. So as to decide the accountability because accountability is often made in hush- up manner, therefore the crime of death in lock up goes unpublished and subsequently it flourishes.
While the letter by D.K Basu was under consideration a letter was written by Shri Ashok Kumar Johri on 29th July 1987 to the honorable chief justice of India drawing the attention of the court towards the death of Mahesh Bihari of Aligarh. That letter was also treated as writ petition and was directed to be listed along with letter written by Sri DK Basu .
In the letter it was mentioned that notice should be send to all the state government and law commissions for their suggestions. The supreme court after considering in the letters appointed Mr. Abhishek Manu Singhvi as amicus curie for assisting the court in the matters of custodial violence.
Supreme Court took into account the allegations about the violence in the police custody which arose from different states .
The Apex court stated that in almost every state there are allegations of death in police custody. Since this is an all India question. It is desirable to issue notice to all the state government to find out whether they are desired to say anything in the matter. Notice should also be issued to the law commission of India with the request to that suitable suggestion may be submitted within 2 month.
ISSUES RAISED
Whether they right to life and personal liberty guaranteed under article 21 of the constitution violated by custodial violence and death in police custody?
Whether it is required to follow guidelines and will frame rules by the police before arresting?
Whether prisoners have right to life and whether violence and custodial death violets their article 21 even when they are behind bars ?
Whether the police officers can be made liable for causing custodial violence?
On what grounds can compensation be awarded to the victims of custodial violence?
OBSERVATION OF SUPREME COURT
Supreme Court observe that that torture and rape in police custody is volatile of article 20 of the constitution as well as basic human rights.
An arrested person should be informed of the ground of arrest and that he has a right to be defended by a legal practitioner of a straws under Article 22.
The court has that interrogation is essential but it must be done in scientific in human principals the use of third degree is totally impermissible.
To maintain transparency and accountability of police while they are arresting and individual there must be a check to preventive abuse of police power .
The public servant are by career free liable for their acts of committing custodial violence and the arrested person should be awarded with compensation.
The police officers must be given a proper training of arresting and individual before they carry out their arrest duties.
SUPREME COURT GUIDELINES
The supreme court came up with the following guidelines to ensure the rights of the arrested person and to keep a check on the police:
While arresting and individual the police officer making such a rest should bear proper name tags and designation so that they can be easily identified. The name of the police officers who will interrogate should be recorded in a register.
Arrest memo should be made which should consist of the following:
It will be prepared by the police mentioning the name of the person to be arrested.
Name of the person arresting.
Charges under which the person is arrested.
Place where such arrest is made
Counter sign by 1 witness member of the arrested persons family or any respectable person of the locality from which such a rest is made.
The person who is being arrested as a right to inform any office close friends or relatives about his arrest as early as possible.
The arrested person must be made aware of his rights after the arrest .
There arrested person should be examined at the time of his arrest of the major and minor injuries.
The arrested person must be subjected to medical examination every 48 hours during the police custody .
The arrested person maybe allowed to meet his lawyer during the interrogation and not throughout the interrogation .
The copy of arrest memo along with other required documents should be given to arrested person.
Within 12 hours of arrest police should inform the judicial magistrate about the arrest and the place where such person is kept in lock up.
Most important thing is to produce the arrested person before the judicial magistrate within 24 hours excluding travel time.
JUDGEMENT
The supreme court held that custodial violence and death in police custody directly violates article 21 of the constitution. They not only violet the right to life but also diminishes the public trust in the justice system.
IMPACT OF THE JUDGEMENT
The guidelines given in the DK Basu played an important role in safeguarding the rights of the arrested person . It prevents police torture and violence in the police custody. Though stringent rules and guidelines have been made but there is still prevalence of crime in police custody. The NCRB report shows that more than 270 cases of rape in custody were registered from 2017 to 2022.
FAQS
What are the rights of arrested person under Article 21 of the constitution?
The Article 21 of the constitution ensures that no person can be due to in without proper legal justification or without following the due process of law.
Can the police torture an arrested person?
No the police cannot torture an arrested person under Article 22 of the constitution. It is illegal for the police to beat, slap, intimidate or threaten a person who is arrested and is in the police custody.
Does the family of the people would die in police custody awarded in a compensation?
Yes according to the decision of supreme court the legal as of the victims who died in the police custody should be awarded compensation as an internal measure.
