DK Basu vs State of West Bengal

The DK Basu vs State of West Bengal case is widely considered a landmark in criminal jurisprudence. The guidelines established in DK Basu vs State of West Bengal were later integrated into the Criminal Procedure Code, 1973, through the Code of Criminal Procedure (Amendment) Act, 2008, effective from November 1, 2010.

Before the DK Basu case, custodial violence and deaths were not uncommon and although compensation was occasionally awarded, there were no specific provisions or rules to hold parties accountable for such incidents. The case emerged as a crucial response to address the pressing issue of custodial deaths and violence. It marked the beginning of holding the police liable for their actions in custody.

While there has been a reduction in custodial deaths and violence following this case, these issues have not been entirely eradicated. Some of the guidelines outlined in the case remain more of theoretical regulations on paper rather than consistently enforced practices in reality.

Facts of DK Basu vs State of West Bengal

DK Basu served as the Executive Chairman of Legal Aid Services in West Bengal, a non-political organisation. He wrote a letter to the Supreme Court of India, bringing to its attention news reports about deaths in police custody and lockups. In the letter, he highlighted that such cases of custodial violence often went unpunished, despite efforts made to address the issue.

He urged the court to investigate this matter and provide compensation to the families of the victims. He requested that the letter be treated as a Writ Petition under the category of “Public Interest Litigation.” Recognising the importance of the issues raised in the letter, the court treated it as a formal petition and the defendants were notified.

Issues Raised

The issues raised in DK Basu versus State of West Bengal were:

• Is there an increase in cases of custodial deaths and violence?
• Is there a need for guidelines governing the arrest and custody of detainees?
• Should police officers be held responsible for custodial deaths and violence?
• Does custodial death and violence constitute a violation of Article 21 of the detainees’ rights?

Arguments from the Petitioner

The petitioner argued in DK Basu vs State of West Bengal that the physical and mental suffering experienced by detainees within police stations or confinement facilities should be prevented. Whether it involves physical assault or rape in police custody, the trauma endured extends beyond what the law currently addresses.

The petitioner further contended in DK Basu case that, as a civilised nation, significant steps should be taken to eliminate such practices.

Arguments from the Respondent

Counsel representing different states and Dr. A.M. Singhvi asserted in DK Basu v State of West Bengal that everything was already well-established within their respective states. They presented their beliefs and provided valuable assistance to the court in examining various aspects of the issue.

They also made suggestions for the court to establish guidelines aimed at reducing, if not preventing, custodial violence and providing support to the relatives of those who die in custody due to torture.

Judgment of DK Basu vs State of West Bengal

The Supreme Court, in DK Basu vs State of West Bengal referring to the case of Neelabati Bahera v. State of Orissa (AIR 1993 SC 1960), reiterated that prisoners and detainees should not be deprived of their Fundamental Rights under Article 21. Only legally permissible restrictions can be imposed on the enjoyment of their Fundamental Rights.

DK Basu Guidelines

In light of this, the Apex Court laid down the following guidelines for the arrest and detention of individuals:

1. Police officers involved in the arrest and interrogation of an arrestee must wear clear, visible identification and name tags with their designations. Details of all police personnel handling the interrogation must be recorded in a register.
2. The police officer affecting the arrest must prepare a memo of arrest at the time of arrest. It should be witnessed by at least one person who may be a family member or a respected individual from the area where the arrest occurs. The memo should also be countersigned by the arrested person and include the time and date of the arrest.
3. Any person arrested and held in custody has the right to have a friend, relative, or someone is known to them informed about their arrest and detention as soon as possible unless the witness to the arrest is such a friend or relative.
4. The police must notify the time, place of arrest and place of custody of the arrestee to the next of kin if they live outside the district or town. This notification should be made through the Legal Aid Organisation in the district and the concerned area’s police station within 8 to 12 hours after the arrest.
5. The person arrested must be informed of their right to have someone informed of their arrest or detention as soon as they are taken into custody.
6. An entry regarding the arrest must be made in the case diary at the place of detention. This entry should also include the name of the person informed about the arrest (next of kin) and the names and details of the police officials responsible for the arrestee.
7. The arrestee, upon request, should be examined at the time of arrest and any visible injuries on their body, major or minor, should be documented. Both the arrestee and the police officer should sign an “Inspection Memo,” and a copy should be provided to the arrestee.
8. The arrestee should undergo a medical examination by a qualified doctor every 48 hours during their custody. These doctors should be on a panel of approved doctors appointed by the Director of Health Services in the respective State or Union Territory. Such a panel should be prepared for all Tehsils and Districts.
9. Copies of all documents, including the memo of arrest, should be sent to the Magistrate for their records.
10. The arrestee may be allowed to meet with their attorney during the interrogation, although not necessarily throughout the entire process.
11. Police control rooms should be established at all district and state headquarters. The officer in charge of the arrest must communicate information about the arrest and the place of custody of the arrestee to the control room within 12 hours of effecting the arrest. This information should be displayed on a visible notice board at the control room.

DK Basu vs State of West Bengal Summary

The DK Basu case is a landmark in Indian criminal jurisprudence. It established guidelines to protect the rights and dignity of individuals in police custody. The Supreme Court emphasised the need for visible identification of police officers, the preparation of an arrest memo and the right of the detainee to have a friend or relative informed about their arrest.

The DK Basu versus State of West Bengal case led to the inclusion of these guidelines in the Criminal Procedure Code in 2008. While it has helped reduce custodial deaths and violence, challenges in enforcement remain, making it essential to ensure that these safeguards are consistently applied to protect the rights and well-being of those in custody.

Researchers: Arpit Pyasi (Student, Dr Harisigh Gour Central University Sagar M.P) and Diksha Sharma (Chandigarh University

Author: Aishwarya Agrawal