Shri D.K. Basu, Ashok K. Johri vs State Of West Bengal, State Of U.P on 18 December 1996
SHRI D.K. BASU, ASHOK K. JOHRI …. PETITIONER
Vs.
STATE OF WEST BENGAL, STATE OF U.P …….. RESPONDENT
DATE OF JUDGMENT: 18/12/1996
BENCH: KULDIP SINGH, A.S. ANAND
JUDGMENT: WITH WRIT PETITION (CRL) NO. 592 OF 1987 J U D G M E N T DR. ANAND, J.
Summary:
- In this case, the scope of Article 21 of the Constitution of India dealt in a case of custodial death. In the state of West Bengal, there were several types of torture, cruel, inhuman or degrading treatment would fall within the prohibit of Article, irrespective of the stage of the case at the time of occurrence – The Supreme Court of India provide the specific guidelines which need to follow in all the cases of arrest or detention till the legal provisions were made for preventive measures.
- This case debated over the issue- whether the arrested person could seek compensation from the state as he was tortured during custody.
The Apex Court held that the quantum of the compensation would depend on peculiar facts of every case; however, the punishment under the Indian Penal Code was inadequate for the same.
- Another issue of this case was that the Parliament’s attention would gather to the need of amendment of statutory provisions relating to the custodial violence and the law to protect the interest of the persons accused of economic offences, offences under the Essential Commodities Act, the Excise and Customs Act, and the Foreign Exchange Regulation Act.
- Another issue, in this case, was also that with the requirement of the protection of the fundamental rights and human rights of the criminals vis-à-vis duties of the police in view of the incidents of custodial violence & violence
The Apex Court held that the balanced approach was necessary for meeting the ends of justice.
The Hon’ble Supreme Court, in D.K. Basu Vs State of West Bengal, has laid down specific guidelines required to be followed while making arrests:
- 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.
- 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.
- A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock-up shall be entitled to have one friend or relative or other person known to him or having an 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 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.
- 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.
- 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 land particulars of the police officials in whose custody the arrestee is.
- The arrestee should, where he so request, 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 Inspector Memo’ must be signed both by the arrestee and the police officer affecting the arrest and its copy provided to the arrestee.
- The arrestee should be subjected to a medical examination by the trained doctor every 48 hours during his detention In custody by a doctor on the panel of the approved doctor appointed by the 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.
- Copies of all the documents including the memo of arrest, referred to above, should be sent to the 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.
Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render his liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.
The requirements referred to above flowing from Articles 21 and 22 (1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier.
