DK Basu v State of Bihar
- Kaustubh Chourey
In the case of DK Basu, the honorable Supreme Court issued some guidelines which is to be followed by every police officer while performing arrest. The executive chairman of west Bengal Legal Aid Services, a registered non-political organisation, Mr. D.K. Basu wrote a letter to the Chief Justice of India and drawing his attention to the deaths occurring in police custody. The letter of D.K. Basu noted that efforts are often made to hush up the ‘lock up’ deaths and thus the crime goes unpunished. The letter stated that it was imperative that court looks into the issue in depth, formulate modalities for awarding compensation to the victim and/or to the family members of the victim and also to provide for the accountability of the officers concerned. The letter of D.K Basu was treated as a writ petition and notice was issued first to the state of West Bengal, and by a subsequent order to all the State Governments and to the Law commission of India. The state of West Bengal denied the allegations and characterised the writ petition as misleading, misconceived and untenable in law. Further, Dr A.M. Singhvi, senior advocate was appointed as Amicus Curiae to assist the court.
In this case it was debated, whether the arrested person could seek compensation from the state as he was tortured during custody. It was held by the supreme court that the quantum of the compensation would depend on peculiar facts of each case. However, the punishment under the Penal Code was inadequate for the same. The case debated that the attention of the parliament be invited to the need of amendment of statutory provisions in view of the sharp rise in the custodial violence and for the amendment of the relevant provisions of 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. The case dealt 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 court held that the balanced approach was necessary for meeting the ends of justice.
In the letter of D.K. BASU, he mentioned that the crime reported goes unpunished despite many efforts made by relatives and friends of the victim and also that court needs to analyse the issue raised so that family members of the victim are given some compensation in the acquaintance of their suffering. The writ petition was filed before the supreme court of India. Shri Ashok Kumar Johri also addressed a letter to the Chief Justice of India by highlighting the death of a person named Mukesh Bihari of Aligarh in police custody. In the case petitioner also raised concern over the police powers and that compensation should be given to the people if there is any kind of infringement of their rights mentioned in the article 21 and 22 of the constitution.
In the judgement supreme passed eleven guidelines, and it was mandatory for every police officer to follow those guidelines while performing an arrest. These eleven guidelines are available for every single person arrested in India. Those guidelines were-
1. Whichever police officer is handling the arrest or detention, they should carry clear identification and name tags with their designations. The particular of all such personnel who handle interrogation of the arrestee must be recorded in a register.
2. That the police officer carrying out the arrest of the arrestee 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 counter signed by the arrestee and shall contain the time and date of the arrest.
3. 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.
4. 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 Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
5. The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
6. 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 and particulars of the police officials in whose custody the arrestee is.
7. The arrestee should, where he so requests, 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 "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
8. The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.
9. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record.
10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
11. 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.
The supreme court said if any police officer will not follow these guidelines, then he would be liable for departmental action and also render him liable to be punished for contempt of court. 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 offence or a normal innocent person. This landmark order was passed by the supreme court in 1996, but still today also approximately five people die every day in police custody, in custodial death cases police directly violates the fundamental rights to Indian citizens. Parliament should soon bring some reforms to stop these deaths and tortures committed during police custody, the torturous and cruel approach of police in dealing with arrestees still requires a strong change.