D.K Basu v State of West Bengal

BY: Arnav Ghai

Procedural History

This case came into the picture at a time when the number of deaths, rapes and other types of offences in police custody was increasing exponentially. The particular position and the provisions that were at play at that time were that of the code of criminal procedure code 1973. To directly delve into these provisions, I would like to first highlight chapter 5 of the code which relates to various provisions relating to arrest of persons which are to be followed by the investigating agencies. I would discuss the major provisions which led to this public interest litigation being filed. Starting with the first provision that the section talks about which is Section 41 which gives the police officer the power to arrest a persons suspected to have committed a cognizable offence without the order or warrant of the magistrate and provides certain conditions which need to be fulfilled for that person to be arrested without warrant and the police before arresting are meant to write the reasons in writing as to the reason and the urgency of arrest. Now the provision that was and is the most debatable is Section 46 which talks about the police to “use all means necessary to effect the arrest” and that reading of Section 46(3) talks about the right to cause death of the person who is alleged of an offence which bears the maximum punishment as life or death and giving the police the right to cause death of the said accused in trying to arrest. Although there are other provisions protecting the accused such as section 49 which talks about no unneccesary restraint to be used, section 50 talking about the person arrested to be informed on the grounds of arrest and about his rights immediately after arrest like being informed on the grounds of arrest, having a right to automatic bail for a bailable offence. Also sections like section 56 and section 57 are safeguards which reiterate the right given under Article 22(2) of the Constitution Of India which talks about the alleged accused person not to be detained for more than twenty four hours and to be produced to the nearest magistrate by that time. Also the other safeguards after twenty four hours of arrest given under Section 53,54 and Section 167.

Due to the loopholes in these provisions making some contradictory interpretations this PIL was filed. To this effect even the national police commission in India in its 3rd report had highlighted certain key points relating to the above situation and gave certain criteria as to in which offences can the arrest in a cognizable offence without warrant maybe justified which were “cases involving grave offences like murder, dacoity, robbery and necessary to arrest such individuals for restoring confidence in the legal system. Second one being if the accused is likely to abscond and evade the processes of law. Third if the behavior of the accused is that he is violent and that might again commit any offence.”[1]  Also if we look at some international declarations one of them is the Universal Declaration of Human Rights 1948 in which Article 5 explicitly mentions that no one shall be subjected to torture in prisons. Now to make it clear what can the courts do if there is a custodial death is highlighted in the provision of Section 176 of the code which talks about that the magistrate can set an inquiry into cause of death in cases of custodial deaths through the inquest report.

Brief Facts of the case

The petitioner in this particular case had filed a public interest litigation as to the inquiry into the custodial deaths and also for the effective implementation of the rules prescribed for the police to be followed before, at the time of arrest and after the arrest and also to examine the issue of the compensation that is to be provided to the victim and in case of his death to the victim’s family. The petitioner is an executive chairman of West Bengal legal aid services. He had also published an article on the same concern regarding deaths in police lock-ups and custody in the “Statesman”. He contended that the courts are custodian and protector of the basic human rights of the citizen and that the powers of the executive in this aspect be limited by the court as it is protected by Article 21 and 22 of the constitution. As the case was directly referred to the supreme court, there is no case history as such. So I would straightly like to move onto what the supreme court a division bench of Justice Kuldip Singh and Justice J.S Anand had to say.

Reasoning

The court took into consideration various reports like the national police commission in India 3rd report and also the Universal declaration of human rights as already specified. The court also was in agreement to the fact that such type of custodial torture is a global problem and is to be dealt with judicially as to keeping the interests of the accused. They also knew as the reports had no statutory recognition and the least they could do was to issue a particular set of guidelines. They also took into matter various instances where the police had arrested without a warrant in the investigation of any specific cognizable offence and then subjecting the accused to torture and then not recording the arrest and such deaths or even torture is not mentioned anywhere in the case diary or anywhere and is often tried to hide away and as all of this is maintained by the police officials there lies high probability of manipulation of records. There is no direct evidence to the fact of such tortures or death either by the police or the prisoners. By the police because they belong to the same group and by the prisoners as they are often reluctant because there are high chances of them missing out on their computation of their offence when the police officer can manipulate the record by making bad remarks of his conduct. The court also took into cognizance of the recommendations given by the 113th Law Commission Report where it talked about insertion of Section 114-B in the Indian evidence act where if the accused dies in the police custody it is “presumed that the injury was caused by the police officer having the custody of the person during that period”[2].

With these recommendations in mind, the Supreme court had already in the case of State of Madhya Pradesh v Shyamsunder Trivedi held that the “ government and legislature would give serious thought to the recommendations of the 113th law report.”[3]  The police cannot resort to third-degree torture and that the training methodology of the police needs restructuring and there needs to be a balance of all these rights due to the presence of extremists like terrorists, underworld or any drug peddlers would misuse such kind of rights and therefore such schemes would leave such type of criminals scott free. Keeping all of this mind the court issued eleven guidelines and also stated that the failure to comply with these conditions would lead to departmental action and even for contempt of court and that these guidelines in no way hinder any guideline that has been passed before.

“The guidelines issued by the court 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 police personnel who handle interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designation. The particular 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 shall prepare a memo of 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 countersigned 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 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 Aids Organization in the District and the police station of the area concerned telegraphically within a 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 as he is put under arrest or is detained.

VI.       An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclosed the name of the next friend of the person who has been informed of the arrest and the names land particulars of the police officials in whose custody the arrestee is.

VII.     The arrestee should, where he so request, be also examines 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 Inspector 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 the trained doctor every 48 hours during his detention In custody by a doctor on the panel of approved doctor appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well.

IX.       Copies of all the documents including the memo of arrest, referred to above, 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 it should be displayed on a conspicuous notice board.”[4]

Critical Analysis

The third guideline issued by the court talking about the accused being entitled to have his friend or relative being informed about his grounds of arrest and place of arrest and which was later the ratio in the case of Joginder Kumar v State of UP (1994) 4 SCC 260. The seventh guideline about being examined at the time of arrest was incorporated by Act 5 in 2009 under Section 54 and the only difference that lies is that in the section the examination is to be done by a medical officer and not anyone. It is also essential to notice how in the tenth guideline the supreme court had laid down something in the year of 1997 which has been introduced in the stature book in the code of criminal procedure in the year 2009 by the insertion of Section 41-D which gives the accused the right to have the lawyer during the investigation but not throughout the investigation. A recent example of the implementation of Section 41-D was in the case of Arnab Goswami when he was interviewed for almost half a day, but his lawyer was with him not throughout the investigation but only for sometime indicating the effective implementation of the section. If we talk about the guidelines being implemented in the practical course of life then there have been various commissions that have been formed for the effective implementation of this particular case’s guidelines. Even last year after the encounter of the victims in the Telangana rape case. The supreme court had set up a commission for enquiry in the particular case. There are also more recent examples of custodial torture like in Tamil Nadu in the case of Jeyaraj and Bennix and the latest encounter of Vikas Dubey. According to a recent report by the National Campaign Against Torture “1,731 people had died in custody.”[5]  Now all of this indicates that the police is exploiting the power that is given to them in their hands and are finding loopholes in specific provisions of the statutes. I think the need of the hour is to educate these police personnel and when there are meant to be educated ones and the ones making every person in the nation feel safe then why are they the culprit of violation of basic fundamental rights of these prisoners given under Article 21 and Article 22 of the Constitution of India. There should be more stringent application and scrutiny of these custodial deaths or torture and the word “may” in Section 176 of the code of criminal procedure should be replaced with “shall” where it becomes a duty of the Magistrate in every case of such death to prepare an inquest report and separately investigate into the matter.

I want to end by saying that when the faith is lost in our judiciary by its people, then this would lead to people deciding such grave issues in their own hands and which would lead to more grave offence being committed. There is an urgent need to restore the faith in the judiciary and to take decisions judicially and without being influenced or manipulated by any person holding a position in the society.


[1]https://police.py.gov.in/Police%20Commission%20reports/3rd%20Police%20Commission%20report.pdf

[2]113th Law Commission of India Report on Injuries in Police Custody,1985

[3]State of Madhya Pradesh v Shyamsunder Trivedi 1995 4 SCC 262

[4]D.K Basu v State of West Bengal 1997 1 SCC 416

[5]http://www.uncat.org/wp-content/uploads/2020/06/INDIATORTURE2019.pdf

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