November 29, 2020

Case Brief: D.K Basu , Ashok K. Johri vs State Of West Bengal, State of U.P on 18 December , 1996

Court : Supreme Court Of India

Judges : Kuldeep Singh , A. S Anand

Author : A.S Anand

Parties : Shri D.K Basu , Ashok K. Johri vs State Of West Bengal, State of U.P

LAWS :

Article 21 i.e Right to life and personal liberty,

Article 22 i.e arrest and detention in certain cases,

Article 20 (c) i.e an accused should not be compelled to be

witness against himself Of The Indian Constitution.

Section 176 i.e enquier done by the magistrate in the cause of

death of The Criminal Procedure Code.

Facts :

In this case a letter addressed to the Chief Justice Of India on 26th August, 1986 to raise concern over the matter of recent deaths and violence which were being reported in the police custody and lockups was sent by the Mr. DK Basu the executive Chairperson of Legal Aid Services ( non political organization ). The letter tried to raise the point that many efforts were made to get the crime punished and family members of the victims get compensation. The letter was recognized as the writ petition filed before the supreme court of India. While the petition was under consideration a letter on 29th August 1987 addressed to Chief Justice Of India by Shri Ashok Kumar Johri mentioning the death of Mahesh Bihari of Pilkhana, Aligarh in the police custody.

This letter was also considered as writ petition by the Supreme Court. In this petition mainly the concern was rose for the misuse of power by Police officials and also compensation should be provided to the people of whom the rights of article 21 and article 22 of the Constitution are violated. State of West Bengal , state of U. P, Government of various states and law commission of India denied all the allegations made in the writ petition.

Issues :

1. Whether the crime against the people in lockups or custody are increasing day by day.

2. Whether polices authorities and these deaths and violences.

3. Whether the crime will be punished and compensation will be provided to the people and their families whose rights violated .

Arguments :

The petitioner contended that the reflation of body pain and mental pain which a person undergoes in police station or lock-up should be prevented. Be it physical assault or rape in police custody, the extent of torture experiences is beyond the limits of the law.

The petitioner also contended that there is a need for a civilized nation and some major actions should be taken for its eradication of this evil.

CONTENTIONS OF RESPONDENT

The counsel appearing for different states and Dr. A.M.Singhvi, presented the case and contented that nothing of this sort is happening within their respective states, presented above their respective beliefs and rendered useful assistance to this Court in examining various facets of the issue and made certain suggestions for formulation of guidelines by this court. To defend this major fall out of the administrative wing, the State of West Bengal made an attempt to convey that there we no deaths in lock-ups and even if there were any, then an inquiry must be going on whosoever has done it.

Judgement :

Decision was given by bench consist of KULDIP SINGH and A. S ANAND. The court issued some guidelines to safeguards the detenus and prisoners. The guidelines are as follows:

  • Rule of law : Court held that torture and violence in custody and lockups effects the rule of law.
  • Court also held that in the presence of several constitutional and statutory provision in India which are working for protection of personal liberty and life of the people still there are loop holes in the system which are leading us to this custodial deaths and torture
  • Apart from the existing law and statutory provision , court issued a list of 11 guidelines which were to be followed in every case of arrest and detention

Guidelines are as follows

1. The police officer who is carrying out the arrest of someone be present with visible and clear identification issued by the authorities and name tags with designation. Proper details of the police officer handling the case of interrogation of arrestee should be registered in the register.

2. At the time of arrest the police officer making the arrest should make a memo of the arrest in which he has to mention all the detail of arrest and that memo should be signed by at least by one witness which can be any family member of the arrestee or any person from the locality of the arrestee. Memo has to be also signed by the arrestee at the time of arrest mentioning the time and date of arrest.

3. When a person has been arrested or detained and is held in the custody or lockups is entitled to give information of arrest as soon as possible to a person whose interest is vested in the arrestee in any form unless the attesting witness of the memo is not the same person of vested interest in any form in the arrestee.

4. The time , place of arrest and also the place of custody is to be informed to the friend or relative of the arrestee who lives out the district or in the same district to the police station concerned through telegraphic system within 8 to 12 hours of arrest.

5. The person who has been arrested should be given the knowledge of his rights of informing someone about arrest as soon as possible.

6. A case dairy entry should be made at the place of detention in which all the details of arrest and also the name of friends of the arrestee to whom information of arrest has been given.

7. At the time of arrest the body of arrestee should be examined for major and minor injuries. If major and minor injuries are present on body then the information of the same should be mentioned in inspection memo and also be signed by both arresting officer and arrestee.

8. The arrestee should be examined by the trained doctors or panel of doctors appointed by the health services or the concerned government. This health examination should be made in every 48 hours during the period in which arrestee is under detention.

9. All the documents related to the rest including the Inspection Memo should be sent to the magistrate for his record.

10. All the arrestee should be allowed to meet their lawyers during interrogation and when not in interrogation.

11. In every district and state headquarters a police control room should be made. Information of every arrest taking place and also the place of custody of the arrestee shall be communicated to the police control room by the officer causing arrest.

Case referred: Neelabati bahera vs State of Orissa

In this case the Supreme Court 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.

Conclusion

this case is the land mark judgement against this serious crime in the society. It provide protection to the people who face any kind of torture and violence in police custody or lockups. It provides various rights to the person who has been arrested and is under detention.The guidelines given in this case makes the procedure of arrest more fair and transparent. This also limits the arbitrary powers of police officers. After this case there is a reduction in the number of similar cases. The guidelines also provide a system of check on the police officers. the judgement and guidelines given under this case has not reversed the condition totally. So in order to improve the situation more laws and action should taken.


Author Details: Diksha Sharma (Chandigarh University)

The views of the author are personal only. (if any)

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