Increasing toll of custodial deaths and tortures in the police lock-ups

D.K. Basu v. State of West Bengal

Date of Judgement: 18th December, 1996

Court: Supreme Court of India

Bench: J. Kuldip Singh, J. A.S. Anand

Citation: (1997) 1 SCC 416.

Parties:

Petitioners-Shri D. K. Basu; Ashok K. Johari

Respondent- State of West Bengal

Subject: Increasing toll of custodial deaths and tortures in the police lock-ups.

Applicable laws: Article 21, 22 and 20(3) of the Constitution of India and section 176 of Criminal Code of Procedure.

Facts of the case:

• Shri D.K. Basu, the Executive Chairman, Legal Aid Services, West Bengal, a non-political organisation registered under the Societies Registration Act, on 26th August, 1986 addressed a letter to the Chief Justice of India.
• In the letter he drew his attention to certain news items that were published in the Telegraph dated 20, 21 and 22 of July, 1986 and in the Statesman and India express dated 17th August, 1986 regarding deaths in police lock-ups and custody.
• The Executive Chairman after reproducing the new items had submitted before the court that it was imperious to examine the question in depth and seriousness and to develop the concept of "custody jurisprudence".
• The plea was to also put into words and formulate certain modalities for awarding compensation to the victim and/or family members of the victim for atrocities and death caused in police custody.
• Also, to provide for accountability as well as responsibility of the efforts, often made to hush up the matter of lock-up deaths and thus the crime goes without punishment and "flourishes".
• It was entreated that the letter alongwith the new items be treated as a writ petition under "public interest litigation" category.
• Considering the prominence of the issue raised in the letter being concerned by frequent complaints regarding custodial violence and deaths in police lock up, the letter was treated as a writ petition and notice was issued on 9.2.1987 to the respondents.
• In response to the notice, the State of West Bengal filed a counter. It was maintained that the police was not hushing up any matter of lock-up death and that whereever police personnel were found to be responsible for such death; action was being initiated against them.
• The respondents characterised the writ petition as misconceived, misleading and untenable in law.
• While the writ petition was under consideration a letter addressed by Shri Ashok Kumar Johri on 29.7.87 to the Hon'ble Chief Justice of India drawing the attention of this Court to the death of one Mahesh Bihari of Pilkhana, Aligarh in police custody was received.
• That letter was also treated as a writ petition and was directed to be listed alongwith the writ petition filed by Shri D.K. Basu. On 14.8.1987 this Court made the following order : "In almost every states there are allegations and these allegations are now increasing in frequency of deaths in custody described generally by newspapers as lock-up deaths. At present there does not appear to be any machinery to effectively deal with such allegations. Since this is an all India question concerning all States, it is desirable to issues notices to all the State Governments to find out whether they are desire to say anything in the matter. Let notices issue to all the State Governments. Let notice also issue to the Law Commission of India with a request that suitable suggestions may be returnable in two months from today."
• In response to the notice, affidavits have been filed on behalf of the States of West Bengal, Orissa, Assam Himachal Pradesh, Madhya Pradesh, Harayana, Tamil Nadu, Meghalaya , Maharashtra and Manipur. Affidavits had also been filed on behalf of Union Territory of Chandigarh and the Law Commission of India.
• During the course of hearing of the writ petitions, the Court felt necessity of having assistance from the Bar and Dr. A.M. Singhvi, senior advocate was requested to assist the Court as amicus curiae.
• Learned counsel appearing for different States and Dr. Singhvi, as a friend of the court, presented the case ably.
• Though the effort on the part of the States initially was to show that "everything was well" within their respective States, learned counsel for the parties, as was expected of them in view of the importance of the issue involved, rose above their respective briefs and rendered useful assistance to this Court in examining various facets of the issue.
• They made certain suggestions for formulation of guidelines by this court to minimise, if not prevent, custodial violence and kith and kin of those who die in custody on account of torture.
• 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."

Issues Raised:

1. Are the actions undertaken by policemen arbitrary?
2. Is there any need to specify some guidelines to make an arrest?

Contentions of the Petitioners:

The petitioner contended that the infliction of body pain and mental agony which a person experiences within the four walls of a police station or lock-up should be not permitted. Be it physical assault or rape in police custody, the magnitude of trauma experiences is beyond the purview of the law. The petitioner additionally contended that there is a requirement for a civilized nation and some foremost takes steps have to be taken for its extermination.

Contention of the Respondent:

The counsel for different states and Dr. A.M.Singhvi (amicus curiae), presented the case and stated that “everything was well” within their respective states, and made certain suggestions for formulation of guidelines by this court to decrease, if not thwart, custodial violence and kith and kin of those who die in custody on account of torture. To look after this major fall out of the governmental wing, the State of West Bengal completed an attempt to convey that there we no deaths in lock-ups and even if there were any, then an investigation must be going on whosoever has done it.

Judgement – Authored by Dr. A.S. Anand, J:

(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 NeelabatiBahera 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.

Conclusion:

The basic observation of the court was that the main objective behind some legal and constitutional provisions is to safeguard people from any type of torture, assault, and brutality. The rudimentary human rights or right to liberty and dignity must not be taken away from any person even if they are detenus, prisoners, convicts or anyone who is under trial. So, the court felt that the basic rights preserved under Article 21 and Article 22must be secured and the law can’t deny these privileges to the people who are in the custody. The court also looked into and questioned the credibility of the administration of the criminal system.