Title of the case: Shri D.K. Basu, Ashok. K Johri vs state of west Bengal
Citation: AIR 1997SC 610
Court: Supreme Court of India
Case no: WRIT PETITION (CRL)NO.592 OF 1987
Bench: Kuldip Singh and Dr. A.S. Anand
Final verdict: 18th December ,1996
Parties: D.K. BASU, ASHOK K. JOHRI and STATE OF WEST BENGAL
Introduction
The three organs of the state are Administrative, Judiciary, Executive play an important role in shaping the society and maintain law and order in the society. one of organ in the Executive is police officers, play an important part of law enforcement have to enforce laws and to prevent crimes also. It is the duty of the police officers to caught the law violators and present them before the magistrate for a trail, but for ages the police officers are misusing their powers as custodial violence, lockup deaths. And also use of third degree torture by police officers on innocent accused ones. In this article I want describe how the highest court of India has tried to curb the custodial violence whether physical or mental through its guidelines laid down in the case DK BASU VS STATE OF WEST BENGAL (1997) considered as one of the land mark judgments in criminal jurisprudence.
FACTS OF THE CASE
DK Basu who is a resident of west Bengal, Executive chairman of legal aid services a non-political organization on 26/08/ 1986 addressed a letter to the supreme court of India to raise the concern over the recent deaths and violence which were being reported in custody of the police and lockups. He requested to treat the letter as writ petition within the PIL ‘’public interest litigation’’.
Considering the importance of the issue raised in the letter, it was treated as written petition and the defendants are notified.
While the writ petition was being consideration a letter on 29th august 1987 addressed to chief justice of India by MR. ASHOK KUMAR JOHRI to the chief justice of India mentioning about the death of a Mahesh Bihari from Pilkhana, Aligarh in police custody.
The same letter also treated as request and included along with D.K Basu request for writing and it is treated as writ petition. The main concern arose in the petition is misuse of power by the police and compensation should be provided to people of whom rights article 21 and article 22 of the constitution are violated.
On 14/08/1987 the court issued order issuing notices to all state governments and also to law commission requesting appropriate suggestion within at two months period.
In response to the notification several states have submitted their affidavits including west Bengal, Orissa, Himachal Pradesh, Assam, Haryana, Meghalaya, Maharashtra, Manipur, Tamil Nadu. Additionally, Dr. A.M. Singh vi principal was appointed Amicus Curiae to assist the court.
ISSUES ARISED:
1.what is reason for arresting persons massively?
2.Is the police has absolute power to arrest a person without a warrant?
3.what is the reason for rise in incidents of custodial torture and deaths by police?
ARGUMENTS ADVANCED
CONTENTIONS OF THE PETITIONER
The petitioner argued that bodily pain and mental torment suffered by any person within the four walls of a police station or captivity should be avoided. Whether it is physical violence/ assault or rape in the police custody, the trauma experiences are beyond the scope of law.
The petitioner further stated that there is need for a civilized nation and some major steps should be taken for its eradication.
CONTENTIONS OF THE RESPONDENT
The counsel attending for various states and Dr. A.M. Singhvi, presented the case and competed that everything was fine within the various states, specified their various beliefs and accomplished useful assistance to this Court in examining various aspects of the issue and made certain recommendations for formulation of guidelines by this court to minimize, if not prevent, custodial violence and relatives of those who die in custody on account of torture.
JUDGEMENT
The judgement by the bench of Justice A.S. Anand and Justice Kuldip Singh mainly included two parts: establishing procedural safeguards and compensation for victims of police brutal abuse. The judgement emphasizing the universal effort against torture. It has also upheld that culprits have their fundamental rights protected; only legally acceptable restrictions can be imposed on the enjoyment. It established a number of important guidelines were to be followed by the police officers while arresting someone.
The following observed by the supreme court
* Custodial violence including torture, death and rape in police custody infringes fundamental right Article 21 of the Constitution of India as well as basic human rights.
* Article 22(1) gives the right to the arrested persons to be informed about their grounds of arrest and the right to have a legal practitioner of his choice. The court held that if it is not provided to the person in custody leads to infringement of Article 22(1).
* Interrogation should be conducted based on humane, reasonable and scientific principles use of third-degree methods are totally impermissible.
* When arresting an individual, transparency and accountability should be there in police actions to check the abuse of police power.
* Compensation should be given in the case of custodial violence by public servants. For the acts of public servant’s state will also be vicariously liable for their act. The police authorities must respect the rights of arrested persons.
* Proper training should be given to police officers in the way of arresting an individual and the treatment of that individual in custody, before carrying out their arrest duties.
GUIDELINES GIVEN BY THE SUPREME COURT IN CASE OF ARREST AND DETENTION
Relying on Nilabati Behera vs. State of Orrisa (1993), the court stated that any form of torture or vicious, oppressive or abusive treatments falls within the scope of article 21, whether it happen during investigation, interrogation or otherwise. The rights guaranteed by article 21 cannot be refused to undertrials, condemn, detainee and other prisoners in custody, except any procedure established by law by placing such fair and acceptable restrictions on the right which are permitted by law.
In Joginder Kumar vs. State of U.P., even though the procedural requirements are laid down it has been observed that, when police arrested any person without warrant in relation with the investigation of an offence and the arrested person has been put through torture to extract information or a confession.
As a result, the court issued certain guidelines to be followed in case of arrest and detention. The guidelines are as follows;
1. The police officer who make the arrest of a person should wear precise, visible, proper name tags and identifications so that they can be easily identified. The particulars of the police officers who will inquire must be registered in a register.
2. The police officer who is carrying out the arrest should prepare the arrest memo and it shall be attested by at least one witness besides either a family member or a respectable person from the locality where the arrest is made, must be signed by detainee and contain the time and date of arrest.
3. The person arrested will have the right to inform any of his close friends or relatives about his arrest as early as possible.
4. Every detail with respect to the arrest like the time, place of arrest and address of custody of the arrested person must be notified by the police. Where the next friend or relative of the arrestee who lives outside the district or town/city, they should also be informed within a period of 8 to 12 hours after the arrest through the legal aid organization in the district and the police station of the area through telegraphically.
5. An entry must be made in the diary at the place of detention regarding the arrest / detained of the person as well as the particulars of the friend or relative who has the information about the arrest. The police officers and address of station under whose custody the arrestee is shall also be mentioned.
6. On request, examination can be carryout on the arrestee/detainee and every information regarding any major or minor injury on the body of the arrestee shall be recorded. The inspection memo must be signed by both the detainee and the police officer affecting the arrest and its copy must be provided to the arrestee.
7. Medical examination should be performed on the arrested person by a trained physician for every 48hours while in custody. The medical examination can also be conducted by a doctor assigned by the Director of Health Services of the state union territory concerned.
8. The arrestee may be allowed to meet his attorney/advocate during interrogation, but not throughout the interrogation.
9. Copies of all necessary documents including arrest memo, must be sent to magistrate/judge for registration.
10. In all the districts and state headquarters, a police control room should be setup, to collect information regard to the detainee and place of custody of the arrestee/detainee, communicated by the police officer causing the arrest within 12 hours of the arrest, it should be exhibit on the notice board of the police control room.
The court mentioned forwarding the necessary guidelines to the Director General of Police and the Home Secretary of every State/Union Territory, and it shall be their duty to transmit the same to every police station under their charge and get the same notified at every police station at a conspicuous place. Advertising the guidelines through All India Radio National Network of Doordarshan was suggested by the court so that the guidelines could reach the largest number of people. Distribution of pamphlets in the local language in village areas to spread awareness.
AFTER D.K BASU CASE (1997)
The Supreme Court has laid down guidelines to be followed by the Central and State Investigating security agencies in all cases of arrest and detention. The main of guide lines were to ensure the protection of the rights of the detainees, their implementation varied across the different states over time.
The guidelines established in DK Basu vs. State of West Bengal have been combined into the Criminal Procedure Code 1973, through the Code of Criminal Procedure (Amendment) Act 2008, effective from November 1, 2010. This amendment brought changes like allowing video conferencing technology to record evidence of witnesses and speedy trials including the formation of special courts. These guidelines have increased awareness among law enforcement agencies. Different training programs have been started to educate police officers about the guidelines.
CONCLUSION
After the establishment of guide lines, the custodial violence and infringement of fundamental rights of arrested person gradually decreased. It made clear that police officers should not use third degree unnecessarily on detainees. It prevents infringement with the rights of any person during detention. Although, the proper procedure has been established by law and any person who violates is liable to be punished as contempt of court. it imposes obligation on the state to protect the citizens, either they are accused of an offence or a normal innocent person.
Submitted by:
P. SASI REKHA
FINAL YEAR LAW
DR.BR.AMBEDKAR COLLEGE OF LAW
ANDHRA UNIVERSITY
