The case Brief
Petitioner– D K Basu, Ashok K. Johri
Respondent-State of West Bengal and State of Uttar Pradesh.
Statutes Referred: –
- The Constitution of India, 1950.
- The Societies Registration Act, 1860.
- The Indian Evidence Act, 1872.
- The Criminal Evidence Act (UK), 1984.
- The Criminal Procedure Code, 1973.
- The Essential Commodities Act, 1955.
- The Customs Act, 1962.
- The Foreign Exchange Regulation Act, 1973.
- International convent on civil and Political Rights, 1966 (ICCPR).
- The Indian Penal Code, 1860 Act NO. 45 OF 1860.
- The New Zealand Bill of Rights Act, 1990.
- Cases cited: –
- Joginder Kumar Vs. State [1994 (4) SCC, 260].
- Nilabati Bahara Vs. State of Orissa [1993 (2) SCC, 746].
- State of Madhya Pradesh Vs. Shyamsunder Trivedi & Ors. [ 1995 (3) Scale, 343].
- Miranda Vs. Arizona, 384 US 436.
- Rudal Shah Vs. State of Bihar [ 1983 (4) SCC, 141].
- Sebastian M. Hongrey Vs. Union of India [ 1984 (3) SCC, 339].
- Bhim Singh Vs State of J & K [1984 (Supp) SCC, 504].
- Saheli Vs. Commissioner of Police. Delhi [1990 (1) SCC 422].
- Kasturi Lal Ralia Ram Jain Vs. State of U.P. [1965 (1) SCR, 375].
- Maharaj Vs. Attorney General of Trinidad and Tobago [ (1978) 2 All E.R. 670].
- Simpson v Attorney General [Baigent’s case]  3 NZLR 667.
Custodial deaths have been alarming in our society. They have created a very bad image on the police stations and their method of enquiry. In recent times, two vendors, Jayaraj and Benniks in the district of Tirunelveli, Tamil Nadu were the victims of custodial violence. The father and the son died due to the violent treatment of the police officers against them, and after a widespread protest, the police officers were held accountable and have been included as accused in the case of double murder. This case, is one of the landmark judgments which changed the perspective of people regarding the custodial treatment and torture.
D K Basu is the executive chairman of Legal Aid Services, a non-political organization. On 26th August 1986, he addressed a letter to the chief justice of India. In that letter, he highlighted the news items published on 20, 21 and 22nd July 1986 in the Telegraph, and on 17th August in the Statesman and India Express regarding lock-ups and custodial deaths.
After the mews items, D K Basu suggested that it is the high time to examine the depth and develop custodial jurisprudence, provide compensation for custodial death victims and to identify accountability for such deaths, and therefore preventing such incidents. Considering the gravity of the crime and the frequency of such deaths, the letter was taken as a writ petition by the court, and notice for respondents was issued on 9.2.1987 to the respondents.
The state of West Bengal filed a counter, stating that the police was reporting the lock-up deaths regularly, without covering them up, and necessary action was initiated against such officers. The writ petition was said to be misconceived, misleading and untenable in law.
Another letter by Ashok K. Johri addressed to the Chief justice of India, stating the custodial deaths in the state of Uttar Pradesh, on 29.8.1987. The lock-up death of Mahesh Bihari of Pikhana, Aligarh was mentioned in the letter by Ashok. This letter also, due to its importance, was treated as a writ petition by the Supreme Court and listed along with the one of D K Basu.
The Supreme court found out that there was no machinery to deal with such issues, and thus issued notices to all state governments, to know if there was anything they would wish to say. A notice to the Law commission was also issued to find suitable suggestions, within two months.
The states of West Bengal, Orissa, Assam Himachal Pradesh, Madhya Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra and Manipur filed affidavits. Affidavits were also filed on behalf of Union Territory of Chandigarh and the Law Commission of India.
Dr.A.M. Singhvi was appointed as amicus curiae to assist the court. The Law Commission of India also in response to the notice issued by this Court forwarded a copy of the 113th Report regarding “injuries in police custody and suggested incorporation of Section 114-B in the India Evidence Act.”
- The alarming rate of growth in custodial torture and death by police officers.
- The arbitrary process of arresting a person. The Supreme court found out the lack of regulations in the process of arrest and lawful confinement of accused.
- The questions which arise when thinking of forming guidelines for arrest, lawful confinement and dignified treatment of accused and their family.
Contention of parties: –
- The accused persons face physical torture and mental agony from these acts of police officers. The mental agony cannot be quantified or understood by our country’s laws. The trauma suffered by the persons in the police station should be avoided and regulations should be placed for such dignified treatment.
- The petitioner emphasized his argument on the need for civilized society, thus making such evil practices vanish from our society.
- In the affidavits filed by the states, the counsels opined that there was no such practices in their respective states and thus they were strictly complying with the regulations and the laws.
- The states counsels also offered their full assistance with regard to the matter in discussion, thus helping the court in this endeavour.
- The State of West Bengal filed an affidavit, stating that they were following the rules and the laws, and there were no lock-up deaths in the state. Even if there are any such deaths, the officers related to such offences were incriminated, and necessary actions were initiated against them.
- The fundamental rights of the citizens should be guarded at any costs, and it is the duty of the court. Custodial violence, including torture and death in the lock ups, strikes a blow at the Rule of Law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law.
- The right of dignified treatment of citizens is guaranteed by the constitution, and thus it can be exercised against the state. If the state violates the fundamental right of people, then the people are entitled to sue for compensation.
- Indian constitution, by article 21, grants right to life and personal liberty to the citizens, which also includes the right against torture and assault.
- Article 22 states that no person not be unlawfully confined without valid reason. The accused shold be treated with dignity, and should be given the right to consult with their legal advisor.
- Article 20(3) emphasizes on the situation where an accused person should not be compelled to be a witness against themselves.
- Custodial violence should never be excused and the persons responsible should be punished.
- Though there are many provisions regarding custodial deaths, they are defied by the increasing lock-up deaths.
In the case of Neelabati Bahera v. State of Orissa, the court held that the prisoners and the accused should not be deprived of the right under article 21, therefore should be treated with dignity.
The court issued guidelines such as
- 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.
- 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 at least 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.
- 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.
- 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.
- 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.
- 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 the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
- 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.
- 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.
- Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaga Magistrate for his record.
- The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
- 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.
This case widened the spectrum of custodial deaths and violence, and thus helping the people. The court thanked the counsels and Dr. Singhvi, for his invaluable assistance to the court as amicus curiae. These guidelines have been a safety net against the crimes, and have helped to impose the accountability of such incidents on the concerned police officers. It also paved way for compensation from the state for the physical pain and mental agony suffered by the victims and their family.