This post has been written by Aditi Singh, a first year law student from Hidayatullah National Law University, Raipur.
Title of case : Shri D.K. Basu,Ashok K. Johri vs State Of West Bengal,State Of U.P
Citation : AIR 1997SC 610
Case no. : WRIT PETITION ( CRL) NO. 592 OF 1987
Court : Supreme Court of India
Bench : Kuldip Singh and Dr. A.S. Anand
Date Decided : 18 December, 1996
Appellant: SHRI D.K. BASU,ASHOK K. JOHRI Respondent : STATE OF WEST BENGAL,STATE OF U.P.
- DK Basu, Executive Chairman of Legal Aid Services, West Bengal, a non-political organization on 26/08/1986 addressed a letter to the Supreme Court of India calling his attention to certain news published in the Telegraph Newspaper about deaths in police custody and custody. He requested that the letter be treated as a Writ Petition within the “Public Interest Litigation”.
- Considering the importance of the issues raised in the letter, it was treated as a written Petition and the Defendants were notified.
- While the writ petition was being considered, Mr. Ashok Kumar Johri addressed a letter to the Chief Justice of the Supreme Court calling his attention to the death of a Mahesh Bihari from Pilkhana, Aligarh in police custody. The same letter was also treated as a Request for Writing and was included along with D.K.Basu’s Request for Writing. On 14/08/1987 the Court issued the Order issuing notices to all state governments and a notice was also issued to the Law Commission requesting appropriate suggestions within a two month period.
- In response to the notification, several states submitted affidavits, including West Bengal, Orissa, Assam, Himachal Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra, and Manipur.
- Additionally, Dr. A.M.Singh vi, Principal Counsel was appointed Amicus Curiae to assist the Court. All of the attorneys who appeared provided useful assistance to the Court.
- Why are crimes against persons in lockups or custody increasing day by day ?
- The arbitrariness of Policemen in arresting a person.
- Is there any need to specify some guidelines to make an arrest?
Arguments Advanced from the side of Petitioner
The petitioner argued that bodily pain and mental agony suffered by a person within the four walls of a police station or confinement should be avoided. Whether it is physical assault or rape in police custody, the scope of trauma experiences is beyond the purview of the law. The petitioner further contended that there is a need for a civilized nation and some major steps should be taken for its eradication.
Arguments advanced from the side of Respondent
The counsel appearing for different states and Dr. A.M.Singhvi, presented the case and contented that “everything was finel” within their respective states, presented above their respective beliefs and rendered useful assistance to this Court in examining various facets of the issue and made certain suggestions for formulation of guidelines by this court to reduce, if not prevent, custodial violence and relatives of those who die in custody on account of torture.
Relying on Nilabati behera vs. State of Orrisa (1993), the court stated that any form of torture or cruel, inhuman or degrading treatments falls within the ambit of article 21, whether it occurs during investigation, interrogation or otherwise. The rights guaranteed by article 21 cannot be denied to undertrials, convicts, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions on the right as are permitted by law.
Even after laying down procedural requirements in Joginder Kumar vs. State of U.P., it has been observed that the police arrested a person without warrant in connection with the investigation of an offence and the arrested person has been subjected to torture to extract information or a confession.
As a result court issued a list of 12 guidelines in addition to the C onstitutional and statutory safeguards which are to be followed in all cases of arrest and detention. The guidelines are as follows:
(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name togs with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest a such memo shall be attested by atleast one witness. who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of he next friend of the person who has been informed of the arrest an the names and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned Stare or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaga Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within
(12) Hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.
The case thus gave a landmark judgement where guidelines regarding the arrest of of a person were prescribed otherwise more offences were committed in the name of doing justice. It prevents any infringement with the rights of an individual during detention. Although now, the proper procedure has been established by law and anyone who does contempt of court is liable to be punished. The administration of the criminal system existing in a country like India needed an effective mechanism. This case evolved as a landmark case as the guidelines issued by the bench aimed to protect the people in custody. It is an obligation of the state to protect the citizens, either they are accused of an offence or a normal innocent person.
- D. K. Basu vs. State of West Bengal (18.12.1996 – SC) : MANU/SC/0157/1997