Case study
Dk
basu vs.state of west Bengal
APPELLANT – SHRI DILIP K. BASU ETC.ASHOK K. JOHARI
RESPONDENT – STATE OF WEST BENGAL & ORS.
DATE OF JUDGMENT – 01/08/1997
BENCH - A.S. ANAND, K.T. THOMAS
CITATION -WRIT PETITION (CRL) no. 592 OF 1987
INTRODUCTION:
This case
is based upon the heinous crimes behind the bar that when prisoner get died in
the correction home itself .a Public
interest litigation was filed letter to
the Chief Justice of India by by Dr. D.K
Basu , Executive chairman of the Legal Aid Services, West Bengal,, wrote a in
order to acknowledge this crucial issue
saying that torture and deaths in police custody are widespread and
efforts are often made by the authorities to hush up the matter. Because of
this custodial crimes goes unpunished and therefore flourishes. wrote a in
order to acknowledge this crucial issue. It is
a landmark Judgment delivered by
the Supreme Court of INDIA in 1997 .
Facts of the case :
1. D k Basu , the executive chairman of legal aid services, WB ,addressed a letter to the supreme court of India calling his attention about death in police custody.
2. The plaintiff d k bau requested to treat this letter as public interest litigation considering the importance of the issue raised by the letter.
3. The news death of prisoners in police custody was also published in the telegraph newspaper.
4. When the petition was being considered as writ , Mr. Ashok kumar johari addressed a letter to the sc calling his attention to the death of a Mahesh bihari from pilkhana, Aligarh in police custody.
5. It 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 gave the order for issuing notices to all state governments, including a notice 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. Singhvi, Principal Counsel was appointed Amicus Curiae to assist the Court. All of the attorneys who appeared to provide useful assistance to the Court.
Contention of the Parties:
Contention by the appellant
As it was a writ petition the contention of
the appelant was to look after this crucial matter of death in custody. Not
only D K BASU but also A K johari had represented as petitioner and their main
objective was to address the crucial issue.
Issues raised:
1. Growth in incidents of Custodial Torture and Deaths by Police.
2.The arbitrariness of Policemen in arresting a person.
3.Is there any need to specify some guidelines to make an arrest?
4. To develop custody jurisprudence and lay down principles for awarding compensation to the victims of the police atrocities,
5.Formulate means to ensure accountability of those responsible for such occurrences .
Judgment:
Ratio Decidendi:
When the right is guaranteed by the State, it is against the State that the remedy must be sought if the constitutional obligation imposed has not been fulfilled. article 21 guarantees the right to life and personal liberty and has been held to include the right to live with human dignity. It thus also includes a guarantee against torture and assault by the State or its functionaries.
Protection against arrest and detention is guaranteed by Article 22.
It provides that no individuals arrested shall be detained in custody
without being informed of the grounds of arrest and that arrested
individual shall not be denied the right to consult and defend themselves by a legal practitioner of their choice. Article 20 (3) provides that a person accused of an offence shall not be compelled to be a witness against himself or herself.
Obiter
Dicta:
The Court was of the opinion that custodial violence, including torture and death in lock-up, strikes at the rule of law. Custodial violence, including torture and death in prisons, was considered by the court to be one of the worst crimes in a civilized society governed by the rule of law.
The Court observed that despite the constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, the growing incidence of torture and deaths in police custody has been a disturbing factor.
Reference was made to the case of Nilabati Behera v. State of Orissa (1993)[2] in which the Supreme Court had held that prisoners and detainees are not deprived of their Fundamental Rights under Article 21 and only the restriction permitted by law could be imposed on the enjoyment of the Fundamental Rights of prisoners and detained.
Guidelines issued:
The Court issued a list of 11 guidelines in addition to the Constitutional and Statutory Safeguards to be followed in all cases of arrest and detention.
the guidelines are as follows: -
1. Police personnel who make the arrest and handle the interrogation of the arrested person must wear precise, visible and clear identifications and identification labels with their designations. Details of all personnel handling the interrogations of the arrested person must be recorded in a register.
2. That the police officer making the arrest of the detainee will prepare a memorandum of arrest at the time of the arrest and said memo will be witnessed by at least one witness who may be a member of the family of the arrested person or a respectable person from the locality from where the arrest is made. It must also be signed by the detainee and must contain the time and date of the arrest.
3. A person who has been arrested or detained and is detained at a police station or interrogation centre or other confinement, shall have the right to have a friend or relative or other person known to him or who has an interest in his well-being will be informed, as soon as possible, that he/they has/ have been arrested and is/are being detained in a particular place unless the witness crediting the arrest memorandum is himself a friend or relative of those arrested.
4. Police must notify a detainee's time, place of detention, and place of custody where he is being kept to the detainee's next friend or relative living outside the district or city through the District's Legal Aid Organization and the station. Police of the affected area should be telegraphically informed within the period of 8 to 12 hours after the arrest.
5. The person arrested must be made aware of his 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 Case Diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police official in whose custody the arrestee is.
7. Upon request, the Arrestee must also be examined at the time of his arrest and major and minor injuries, if present on his body, must be recorded at that time. The "Inspection Memo" must be signed by both the detainee and the arresting police officer and a copy must be provided to the detainee.
8. The detainee must undergo a medical examination by a trained physician every 48 hours while in custody by a physician on the panel of approved physicians appointed by the Director of Health Services of the State or Union Territory concerned.
9. Copies of all documents, including the arrest memo, must be sent to the Magistrate for registration.
10. The Arrestee may be allowed to meet with his attorney during the interrogation, although not throughout the interrogation.
11.A Police Control Room must be provided at all central district and state offices, where the arresting officer must communicate information about the arrest and the place of custody of the arrested, within 12 hours after the arrest and in the Police Control Room Board, must be displayed on a visible notice board.
My opinion :
In this particular case supreme court proficiently taken the decisions. Death in custody is not at all admissible .
Here sc rightly held it s decision issuing certain guidelines .but not only guidelines would help to come out of this particular problem. The officials must be more sensible in dealing with such cases.
Conclusion :
Custodial torture is a naked violation of human dignity, the Supreme Court said. The situation is aggravated when violence occurs within the four walls of a police station by those who are supposed to protect citizens. The Court accepted that the police have a difficult task in light of the deteriorating law and order situation; political turmoil; student unrest; and terrorist and underworld activities. They agreed that the police have a legitimate right to arrest a criminal and to interrogate her/him in the course of investigation. However, the law does not permit the use of third degree methods or torture on an accused person. Actions of the State must be right, just and fair; torture for extracting any kind of confession would neither be right nor just not fair. This case was based upon the article 21 and article 22 of the Indian constitution. Where right to liberty and Protection against arrest and detention gets utmost importance. The guidelines issued by the SC to be followed with care.
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