D.K. Basu vs State of West Bengal

 

Name of the Case: D.K. Basu vs State of West Bengal

Citation: (CRL) NO. 592 OF 1987

Date of Judgement: 18/12/1996

Appellant: D.K. Basu

Respondent: State of West Bengal

Bench: Kuldip Singh, A.S. Anand

Provisions Discussed: Section 41, 46, 49, 50, 53, 54, 56, 57, 167, 174and 176 of Criminal Procedure Code, 1973.

Article 20(3), 21, 22, 226, and 32 of the Constitution of India.

Section 147, 149, 201, 218, 220, 302, 304, 330, 331, 34 and 342 of the Indian Penal Code (IPC), 1860.

 

ABSTRACT: -

The D.K. Basu case, often known as the D.K. Basu case, is one of history's landmark decisions since it established the rules to be followed while making an arrest. Custodial fatalities have always occurred in our nation, and there is no adequate legislative mechanism in place to address them. This study involves the analysis of the facts of the case, the contention by both parties, etc.

INTRODUCTION: -

According to the Asian Centre for Human Rights (ACHR) recently released research, a total of 1,674 custodial fatalities occurred in India, including 1,530 deaths in pretrial detention and 144 fatalities in police custody. This worrisome increase in incarceration mortality is a major cause of concern in society.Custodial death is commonly described as the execution of a person who has been detained by police on an allegation of committing a crime or is on trial. The state of Uttar Pradesh has the highest rate of deaths that occurred while in police custody. The police have a legal right to use proportionate force to obtain evidence from severe offenders. It is common knowledge that police officers employ force while questioning suspects. Death in police custody is a "black mark" for the whole department since officers have no authority to take the law into their own hands and kill someone accused.

FACTS OF THE CASE: -

Ø  D.K. Basu served as the Executive Chairman of Legal Aid Services of West Bengal, a non-partisan organisation.

Ø  On August 26, 1986, he wrote to the Supreme Court of India, requesting attention to specific news articles published in the Telegraph Newspaper regarding fatalities in police custody and detention.

Ø  The petitioner asked that the letter be recognised as a Writ Petition under the context of the "Public Interest Litigation."

Ø  It was handled following the request, and the Defendants were alerted due to the significance of the problems stated in the letter.

Ø  While the writ petition was being heard, Mr. Ashok Kumar Johri wrote to the Chief Justice of the Supreme Court to draw attention to the death in police custody of Mahesh Bihari of Pilkhana, Aligarh.

Ø  That letter was considered as a Request for Writing and was attached to D. K. Basu's Request for Writing.

Ø  On August 14, 1987, the Court sent notifications to all state governments in response to the Order. A notification was also sent to the Law Commission, urging that a relevant proposal be submitted within two months.

Ø  Several states, including West Bengal, Orissa, Assam, Himachal Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra, and Manipur, filed affidavits in response to the announcement.

Ø  Dr A. M. Singhvi, the Principal Counsel, had also been designated as an Adviser to assist the Court.

Ø  All of the attorneys that presented were helpful to the Court.

ISSUES: -

·       The issue of Custodial Torture is trending upward.

·       The police officers' arbitrary arrest of a person.

·       Is it necessary to provide specific rules to make an arrest?

 

 

 

CONTENTIONS OF THE PETITIONER: -

The petitioner contended that a person's bodily and psychological pain should not occur within the confines of a station house or detention. The extent of their agony is beyond the reach of the law.Furthermore, the petitioner argued that a civilised nation is required and that significant measures must be done to eliminate the aforementioned situation.

CONTENTIONS OF THE RESPONDENT: -

Dr A. M. Singhvi and the Counsel for the several states presented the case, claiming that "all was ok" inside their respective jurisdictions. They expressed their separate opinions and gave important help to the Court in examining many aspects of the problem, guaranteeing the court's establishment of recommendations to decrease, if not prevent, violence in detention.To justify this significant collapse of the executive arm, the State of West Bengal attempted to transmit that there were no fatalities in the confinements and that if there were, an inquiry would be conducted.

RATIO DECIDENDI: -

§  When the State guarantees a right, the solution must be pursued against the State if the fundamental requirement established is not met.

§  Article 21 ensures the right to life and personal liberty, as well as the right to live in dignity. Thus, the State or its agents ensure the right against abuse and torture.

§  Article 22 guarantees protection against detention and arrest by stating that an arrested person shall not be detained in custody without being informed of the grounds of arrest and that an arrested person shall not be denied the right to consult with a legal practitioner of their choice to defend him.

§  According to Article 20(3), a person accused of an offence must not be forced to testify against himself or herself.

OBITER DICTA: -

v  The Court issued an opinion on custodial brutality, including torture and death in prisons, which violates the rule of law. In a civilised society regulated by the rule of law, prison violence will be regarded as one of the worst crimes.

v  The Court noted that, notwithstanding constitutional and legislative safeguards intended at protecting a citizen's liberty and life, the increased incidence of torture and fatalities in police custody has been a troubling concern.

v  The case of Neelabati Bahera v. State of Orissa (1993), in which the Supreme Court ruled that "prisoners and detainees are not deprived of their Fundamental Rights under Article 21 and only the restrictions authorised by law can be applied," was cited.

GUIDELINES ISSUED BY THE COURT: -

In addition to the Constitutional and Statutory Safeguards, the Court provided a set of 11 guidelines to be observed in all circumstances of detention and arrest. The following are the guidelines: -

1.   Police officers who make arrests and conduct interrogations must wear exact, visible, and unambiguous identification and identifying tags with their credentials. All individuals involved in the interrogation of the arrested individual must be listed in a registry.

2.   The law enforcement officer arresting the person will write up a document of arrest at the time of the arrest, and that memo will be verified by at minimum one witness, who may be a family member of the detained individual or a reputable local citizen. Additionally, it must have the detainee's signature and include the date and time of the detention.

3.   Unless the witness corroborating the arrest memorandum is also a friend or relative of the arrested, anyone who has been arrested or detained and is being held at a police station, interrogation centre, or another place of confinement has the right to request that a friend, relative, or another person who knows him or has an interest in his well-being be informed as soon as possible that they have been arrested and are being detained there.

4.   When a detainee's next friend or family resides outside the district or city, police must inform them of the detainee's time, location, and place of confinement through the district's legal aid station. Within eight to twelve hours after the arrest, the local police in the affected region communicated through telegraph.

5.   As soon as someone is placed under arrest or taken into custody, they must be informed of their right to have someone informed of their arrest or detention.

6.   An entry regarding the arrest of the person must be made in the Case Diary at the location of detention. This entry must also include the name of the person's next friend who has been informed of the arrest as well as the name and contact information of the police officer who is holding the arrestee.

7.   The Arrestee should also, upon request, be inspected at the time of his arrest, and any major and minor injuries, if any, upon his body shall be noted at such time. Both the detainee and the arresting police officer must sign the "Inspection Memo," and the detained must get a copy.

8.   Every 48 hours while in detention, the detainee must go through a medical examination by a qualified doctor who is appointed to the list of recognised doctors by the Director of Health Services of the relevant State or Union Territory.

9.   The Magistrate must receive copies of all paperwork, including the arrest memo, to register.

10.The Arrestee may be permitted to meet with his counsel during the questioning, but not for the duration of the questioning.

11.At all central district and state offices, a police control room must be available, where the arresting officer must give information about the arrest and the person being held there within 12 hours of the arrest. This information must also be posted on a visible notice board in the police control room.

CONCLUSION: -

To conclude this judgement was a landmark for cases dealing with custodial abuse and torture. The guidelines issued by the court helped every individual to know his rights and how such a person is to be detained. Yet, there is still no law dealing with custodial abuse in our country and these guidelines are playing a pivotal role.