|Case Name||DK Basu v. State of West Bengal along with Ashok K. Johri v. State of UP.|
|Court||Before the Supreme Court of India|
|Bench||Kuldip Singh, A.S.Anand, JJ.|
|Author of the judgement||Justice A. S. Anand|
|Abstract||In the present case, guidelines with regards to all types of arrest and detention were made by the Supreme Court of India. The need for these guidelines arose due to writ petition filed seeking preventive measures against custodial death.|
|Author of the brief||Darshan Patankar, Student at Gujarat National Law University.|
|Keywords||Arrest, Custodial Death, Detention.|
Facts: – DK Basu, The Executive Chairman, Legal Aid Services, West Bengal, a non- Political organisation on 26.08.1986 addressed a letter to the Chief Justice of India drawing his attention to certain news items published in the Telegraph Newspaper regarding deaths in police lock up and custody. He requested that the letter be treated as a Writ Petition within the “Public Interest Litigation” Category. Considering the importance of the issues raised in the letter, it was treated as a Writ Petition and notice was served to the Respondents. While the Writ Petition was under consideration, one Mr. Ashok Kumar Johri addressed a letter to the Chief Justice drawing his attention to the death of one Mahesh Bihari of Pilkhana, Aligarh in Police Custody. The same letter was also treated as a Writ Petition and was listed along with the Writ Petition of D.K.Basu. On 14.08.1987, the Court made the Order issuing notices to all the State Governments and notice was also issued to the Law Commission of India requesting suitable suggestions within a period of two months. In response to the notice, affidavits were filed by several states including West Bengal, Orissa, Assam, Himachal Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra and Manipur. Further, Dr. A.M.Singhvi, Senior Advocate was appointed as Amicus Curiae to assist the Court. All the Advocates appearing rendered useful assistance to the Court
Issue: The Issue in the Present Case pertained to Custodial Torture and Deaths by the Police.
Decision: – Authored by Dr. A.S. Anand, J. (as he then was)
(1) The Court opined that Custodial Violence, including Torture and Death in Lock Ups, strikes a blow at the Rule of Law.
(2) The Court observed that despite the presence of several Constitutional and Statutory provisions aimed at safeguarding the personal liberty and life of a citizen, there had been several instances of torture and deaths in police custody which was a disturbing factor.
(3) The Court severely criticised the existence of Custodial Death and regarded it to be one of the Worst Crimes in a Civilised Society to be governed by the Rule of Law.
(4) A Reference was made to the case of Neelabati Bahera v. State of Orissa (1993) in which the Supreme Court had held that prisoners and detenues are not denuded of their Fundamental Rights under Article 21 and only such restriction as permitted by law could be imposed on the enjoyment of the Fundamental Rights of the prisoners and detenues.
(5) The Court issued a list of 11 guidelines in addition to the Constitutional and Statutory Safeguards which were to be followed in all cases of arrest and detention. The guidelines are as follows: –
(i) The Police Personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The Particulars of all such personnel who handle interrogation of the arrestee must be recorded in a register.
(ii) That the Police Officer carrying out the arrest of the arrestee shall prepare a memo of the arrest at the time of arrest and 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.
(iii) 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 the arrest is himself such a friend or a relative of the arrestee.
(iv) 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 period of 8 to 12 hours after the arrest.
(v) 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.
(vi) 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 if the police official in whose custody the arrestee is.
(vii) The Arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if 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.
(viii) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by the Director, Health Services of the concerned State or Union Territory.
(ix) Copies of all the documents including the memo of arrest should be sent to the Magistrate for his record.
(x) The Arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(xi) 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 Board, it should be displayed on a conspicuous notice board.