This Case Commentary is written by Naman Sharma, a Second-year law student of Law Centre 2, Delhi University

INTRODUCTION;

Police officers form an important section of law enforcement, and enforcement of laws and prevention of crimes are some of the jobs that a policeman has to do. It is also the job of police officers to catch the violators of the law and bring them before a magistrate so that they are given a fair trial. But for centuries, we have experienced that the powers conferred upon the policemen have been misused by them. We have witnessed countless custodial violence, which has happened because protectors turned into perpetrators. The darkest hour of custodial violence has always been the tortures given by police officers third degree. In this paper, I try to articulate how the Supreme Court of India has attempted to curb custodial violence by the guidelines laid down in DK Basu Vs the State of West Bengal (1997). This is considered to be a landmark judgment in criminal jurisprudence.[1]

CASE DETAILS:

Case Name: D.K. Basu vs State of West Bengal

Citation: 1997 (1) SCC 416

Date of judgment: December 18, 1996

Bench: Justice A.S. Anand and Justice Kuldip Singh

BRIEF FACTS:

DK Basu was the Executive Chairman of Legal Aid Services in West Bengal, which is a non-political organization. He wrote to the Supreme Court of India detailing news reports on deaths in police custody and lockups. The letter conveyed that for the most part such cases of custodial violence usually remained unrewarded, no matter how much attempt was made to put an end to such occurrences in the long term.

He pleaded that the Court should conduct an inquiry into this matter and award compensation to the family members of the men who were slain. The petition was prayed to be considered as a Writ Petition under the head of "Public Interest Litigation." Sensing the gravity of the issues raised in the letter, the court construed it as a petition and issued notice to the respondents.[2]

ISSUES RAISED:

1. Violation of the Rule of Law and Human Dignity through Custodial Violence

2. Right to Compensation for Infringement of Fundamental Rights

3. Availability of Sovereign Immunity in Tortious Acts by Public Servants

ARGUMENTS FROM THE PETITIONER SIDE:

· The petitioner must create the modalities for granting compensation to the victim and/or members of the victim's family for atrocities and death caused in police custody and to provide for accountability of the efforts that are made to hush up the matter of lock-up deaths and thus the crime goes unpunished and "flourishes".

· It was prayed that the letter with the new items be considered as a writ petition under the "public interest litigation" category.[3]

ARGUMENTS FROM RESPONDENT SIDE:

Respondents on receiving the notice issues filed a counter-petition for which,

· It was advanced that the police were not covering up anything about any death in lockup and that wherever police personnel were found responsible for such death, action was being initiated against them.

· The respondents described the writ petition as misconceived, misleading, and untenable in law and that "everything was well" within their respective States.

PROVISIONS ADDRESSED IN CASE:

1. Article 21 of the Constitution of India:

It clearly states that "No person shall be deprived of his life or personal liberty except according to procedure established by law."

Relevancy in the case: Relating it to Article 21, the case of DK Basu vs State of West Bengal applies. This is so because Article 21 covers matters to do with the right to life and personal liberty. The Supreme Court of India made it clear that this Article gives the accused the Right against custodial torture and abuse by police through this it states that these gestures by police directly offend a person's right to life and liberty.

2. Article 22 of the Indian Constitution:

Article 22 speaks about some rights of the citizen in case of arrest and detention:

It states that “No person who is arrested shall be detained in custody without being informed of the grounds of arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”

Further, it adds, “Every person apprehended and detained in custody shall be taken before the nearest magistrate within such period not exceeding 24 hours of such apprehension, excluding the time necessary for the journey from the place of apprehension to the court of the magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.”

Application to the case:

Article 22 was brought to safeguard the accused against unlawful arrest and detention. The case presented importance regarding this Article where the rights are communicated to detained persons and the cause of detention which further prevents illegal detention and custodial torture.

3. Article 226 of the Constitution of India:

Article 226 reads that towards the said purpose along with any other purpose, a High Court would issue such direction, order, or writ including habeas corpus, mandamus, prohibition, quo warranta, and certiorari.

Relevance to the case:

Even in the DK Basu vs State of West Bengal, Article 226 had been the significant section that had provided a legal platform from where the petitioner had sought redress against custodial violence. An appropriate section in the Code of Criminal Procedure (CrPC) was also needed while discussing the complaint of illegal detention and torture because it had ensured the writ of habeas corpus by a High Court.

4. Section 50 of the Code of Criminal Procedure (CrPC)

It states:

Each police officer capturing any person without a warrant should forthwith communicate to him the complete particulars of such offense for which he is arrested or other grounds for such arrest.

Relevance of the case:

Section 50 of the Code was challenged by the Court of Law in DK Basu Vs State of West Bengal so that the detained persons are apprised instantly of the detention grounds. This has been an important provision so that these arrested people are not in the hands of arbitrary arrest and it saves them from custodial torture altogether. So, transparency also prevails in the arrest process.

5. Section 57 of the Code of Criminal Procedure, (CrPC)

It states that “No police officer should keep an individual in care, an individual arrested without a warrant for a longer period than which is sensible agreeing to the case, and such period might not unless allowed by a special order of a magistrate under Section 167, surpass 24 hours exclusive of the time essential for the travel from the place of arrest to the magistrate's court.

Relevance to the case:

Section 57 was considered by the court in the DK Basu vs State of West Bengal case to present an arrested person before the magistrate within 24 hours. This provision is sought to be made to prevent illegal detention for an unduly long time and a check on the police so that custodial abuse is prevented, and a person is presented timely before judicial authorities.[4]

GUIDELINES LAID DOWN IN THE JUDGEMENT:

The following guidelines were laid down by the apex court as Preventive measures in the judgment of the case:

(1) The police staff who arrest and bargain with the cross-examination of the arrested individual ought to wear clear, unmistakable, and straightforward recognizable proof and title identifications showing their designations. Details of all such police staff who bargain with cross-examination of the arrested individual ought to be entered in a list.

(2) That the arresting police officer at the time of arrest, himself should plan a memo of arrest, and that memo must be attested by at least one witness, who either be a part of the family of the arrested individual or a respectable citizen of the neighborhood from where the arrest is made. It should be moreover marked by the accused and should incorporate the time and date of arrest.

(3) Where an individual has been arrested or kept and is being held in guardianship in a police station or cross-examination center or other lock-up, he should be entitled to be educated, as before long as practicable of the actualities of the arrest and of the put wherein he is being kept and of the rights said in sub-clause (a) of clause (1) unless the validating witness of the remainder of arrest is himself such companion or relative of the arrestee.

(4) The police should communicate the time, place, and venue of custody of an arrestee to a friend or part of the family of the arrestee, dwelling exterior of the area or town through the Legal Aid Organization within the Area and the Police Station of the concerned range telegraphically inside a period of 8-12 hours after the arrest.

(5) The prisoner to be arrested should be made aware of his right to have someone aware of his arrest or detainment as soon as he is put under arrest or 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 inspected thoroughly for any major or minor injuries, if any present on his/her body, which must be noted at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy should be provided to the arrestee.

(8) During his detention in custody by a doctor on the panel of approved doctors appointed by the Director of Health Services of the concerned State or Union Territory, the detainee should be submitted to a medical examination by a qualified doctor every 48 hours. The director of Health Services should prepare such penal for all Tehsils and Districts as well.

(9) All these documents including the memo of arrest, referred to above, should be transmitted to the Illaqa Magistrate for his record.

(10) The arrestee should be allowed to meet his lawyer during interrogation although not throughout the interrogation process.

(11) A police control room shall be opened at every district and state headquarters, whereby the arresting officer shall, within 12 hours of arrest and at the police control room, communicate and exhibit on a board post in a view hoarding the reason for detention and place of detention of the detained person.[5]

CONCLUSION:

As stated right in Bhagwad Geeta, "Hate the crime, not the criminals". The case DK Basu Vs State of West Bengal goes by the principle and teaches the true meaning of humanity. Our constitution provides for equality to all the citizens and Prisoners are also covered under it. They also have all the rights that a free man has under some restrictions. Just being behind bars, does not strip them of their fundamental rights. Every clause of Art 20 is provided to safeguard the people against the excess of the legislature, the judiciary, and the executive respectively. Moreover, article 21, provides them with their right to life, and avails them of the freedom to lead it with dignity. These protections are available to both citizens and foreigners. The guidelines issued were done in a way to protect the rights of an individual as well as of the whole nation. The procedure now has been established by law and those who do contempt of court are liable to be punished. No one shall be subjected to injustice, that's what our constitution provides for. For all the International Charter we find that "No one shall be subjected to cruel, inhuman or degrading treatment or punishments" has been the base to form every human right. The right to life is a Universal remedy and basis for every human right. So much privilege is attached to the post for which thousands of people aspire, so the dignity of the post should be maintained and some limitations to the powers must be adhered to. The following suggestions provide for the same which must be taken into consideration by the judiciary.

REFERENCES

[1] Kathakali Banerjee,’D.K. Basu vs State of West Bengal’(2024) Ipleaders https://blog.ipleaders.in/dk-basu-vs-state-of-west-bengal-1997-case-analysis/ accessed 23rd September,2024

[2] Aishwarya Aggrawal,’ DK Basu vs State of West Bengal’(2023) Lawbhoomi https://lawbhoomi.com/dk-basu-vs-state-of-west-bengal/

[3] Adhya Sharma,’ CASE ANALYSIS DK BASU VS. STATE OF WEST BENGAL’(2020) Probonoindia https://probono-india.in/Indian-Society/Paper/155_Adhya.docx

[4] ‘D.K. Basu vs State of West Bengal’(2024) Testbook https://testbook.com/landmark-judgements/dk-basu-vs-state-of-west-bengal

[5] D.K. Basu v. State of West Bengal (18.12.1996-SC): MANU/SC/0157/1997