Case Analysis On D K Basu V. State Of West Bengal By - Sonakshi Anil Singh
Case Analysis On D K Basu V. State
Of West Bengal
Authored By - Sonakshi Anil Singh
Thakur Ramnarayan College Of Law
S.Y. LLB.
INDEX
Introduction
There are few topics that are
partially or totally ignored in the Society, and such ignorance or avoidance
often results into acceptance and society is accustomed it. Let’s take example
of few Bollywood movies or web series such as Sacred Games, Singham, Rowdy
Rathore, Satyamev Jayate and Simmba, there is one common things among all these
movies i.e., torture and deaths in police custody. We as society should not
promote such act by Policemen as it violates basic rights of Humans.
Over 2,150 cases of deaths in
judicial custody and 155 deaths in police custody were reported by the National
Human Rights Commission in 2021-22. This makes a mockery of sections 55A[1]
and 57[2] of
the Code of Criminal Procedure (Cr.P.C.) which defines duties and care of the
accused to be taken, and the production before a magistrate within 24 hours, to
the person in custody.
2(two) years ago, we witnessed a
massive movement in the USA and across the world regarding the killing of a
black man, George Floyd by a police officer. Police brutality has been seen in
almost every country and India is no exception to this and only a few days
after Floyd's killing India witnessed a massive outrage over the custodial
torture and death of a father-son duo Jayaraj and Bennicks by police officers
at Sathankulam police station in thootukudi district, Tamil Nadu and what was
more surprising is the alleged charge against them, that they kept their shop
opened beyond the permitted time. In this case, the role of magistrate is also
under scanner as this was a petty offense and the accused should have been
granted bail.
India does not have an Anti-Torture
Law. India had signed the UN Convention against torture way back in 1997, had
still not ratified it. The Convention defines torture as a criminal offence.
Further, Prevention of Torture Bill, 2010 was passed by Lok Sabha in 2010
itself. But even after so many years, it has not been passed by Rajya Sabha.
However, India has witnessed a large
number of historical trials that have evolved and made our Constitution a
personification of justice, fairness, and good conscience. One of those
lawsuits that have broadened the horizons of the meaning of fundamental rights
was D.K. Basu v. State of West Bengal. This case analysis deals with a seminal
issue.
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IN THE SUPREME COURT OF INDIA
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Petitioner
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D. K. Basu
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Respondent
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State of West Bengal
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Date of Judgement
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18th December, 1996
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Bench
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Hon’ble Justice Kuldip Singh, A.S. Anand & JJ
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Facts
D. K. Basu, Executive Chairman of the
Legal Aid Services in West Bengal, a non-political organization, wrote to the
Supreme Court of India on August 26, 1986, focusing on certain news items
published in the Telegraph Newspaper about deaths in police custody and custody.
He demanded that the letter be treated as a Writ Petition within the “Public
Interest Litigation”. Given the importance of the issue raised in the letter,
it was treated as a written petition and notified to the defendant. While the
writ petition was being considered, Mr. Ashok Kumar Johri also wrote a letter
to the Chief Justice of the Supreme Court drawing his attention to the death of
a Mahesh Bihari from Pilkhana, Aligarh in police custody. Then both the letters
were treated as a Request was included along with D.K. Basu’s Request for
Writing. On 14th August 1987 the Court issued the Order issuing
notices to all state governments and a notice was also issued to the Law
Commission requesting appropriate suggestions within a two-month period.
Several states submitted affidavits, including West Bengal, Orissa, Assam,
Himachal Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra, and Manipur in
response to the notification. Additionally, Dr. A.M. Singh vi, Principal
Counsel was appointed Amicus Curiae (friend of the court) to assist the Court.
All of the lawyers who appeared provided useful assistance to the Court.
Issues
·
Rapid
Growth of Custodial Torture and Deaths of Arrestee by Police.
·
Lack
of proper guidelines for arrest
Arguments Advanced
ARGUMENT of
Petitioner
The petitioner said that physical
pain and mental misery suffered by a person within the police station or
internment should be avoided. Whether it is Rape or physical assault in police
custody, the trauma experiences are beyond the scope of the law.
The petitioner further said that
there is a need for a civilized nation and that some important steps must be
taken to eradicate it.
ARGUMENT of Respondent
Different States were represented by
the Counsel and Dr. AM Singhvi presented the case and stated that within their
respective States “everything was fine”, Dr. Singhvi presented their beliefs
and provided useful assistance to this Court to examine various facets of the
problem and made sure that suggestions for the formulation of guidelines by
this court to reduce, if not prevent, violence in custody and the relatives of
those who die in custody due to torture.
In order to defend this important
fall of the administrative wing, the State of West Bengal made an attempt to
convey that there are no deaths in the confinements and even if there were any,
then an investigation should be carried out on whoever did it.
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 individuals 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 offense 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-ups, 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 Neelabati Bahera v. State of Orissa (1993) 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: –
·
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.
·
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.
·
A
person who has been arrested or detained and is detained at a police station or
interrogation center 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 you have been arrested
and are being detained in a particular place unless the witness crediting the
arrest memorandum is himself a friend or relative of the arrested.
·
Police
must notify a detainee’s time, place of detention, and place of custody where
the detainee’s next friend or relative lives outside the district or city
through the District’s Legal Aid Organization and station. Police of the
affected area telegraphically within the period of 8 to 12 hours after the
arrest.
·
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.
·
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.
·
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.
·
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.
·
Copies
of all documents, including the arrest memo, must be sent to the Magistrate for
registration.
·
The
Arrestee may be allowed to meet with his attorney during the interrogation,
although not throughout the interrogation.
·
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.
Conclusion
The above case was a landmark
judgment where guidelines of arrest of a person were laid down as more offenses
were committed in the name of doing justice. It prevents any violation of the
rights of an individual during detention and thus protects all the citizens by
certain procedures established by law.
In my opinion, before this case, the
administration of the criminal system existing in a country like India needed
an effective mechanism. This case evolved as a landmark case as the guidelines
issued by the bench aimed to protect the people in custody. It is an obligation
of the State to protect the citizens; either they are accused of an offense or
a normal innocent person.
The law can’t be prejudicial in its
approach and can’t deny basic rights like the right to liberty, dignity to
someone who is in the police custody.
Moreover, the torturous and cruel
approach of police in dealing with arrestees required a strong change. The Apex
Court had to meddle in such a situation and the decisions taken by the bench
were absolutely appropriate and just.
References
1. D.K. Basu v. West Bengal State, (AIR
1997 SC 610).
1. 55A- It shall be the duty of the person having the
custody of an accused to take reasonable care of the health and safety of the
accused.
2.
57- No police officer
shall detain in custody a person arrested without warrant for a longer period
than under all the circumstances of the case is reasonable, and such period
shall not, in the absence of a special order of a Magistrate under section 167,
exceed twenty-four hours exclusive of the time necessary for the journey from
the place of arrest to the Magistrate's Court