D. K. Basu v. State of West Bengal, (1997) 6 SCC 642

Introduction

In this case the Supreme Court provided guidelines related to the arrest or detention to prevent custodial violence. The cases of the custodial death and violence were increasing day by day and there was a great concern regarding safety of the prisoners hence the Supreme Court framed guidelines to deal with the same in the present case.

Facts

• A Public Interest Litigation (PIL) was filed by a Non-Governmental Organization (NGO) to bring matter of custodial violence and death of prisoners before the Supreme Court.
• The PIL dealt with the issue that the fundamental rights and human rights of prisoners are violated and they face torture, rape and even death in police lock up and custody.
• The infringement of the rights by such authorities who are supposed to be protectors of people within four walls of a police station became an issue worth immediate attention.
• The precious right to life under Article 21 of The Constitution of India, 1950 cannot be denied to convicts, undertrials, detenus and other prisoners in custody except according to the procedure established by law.

Issues Involved

• Whether the custodial deaths are increasing?
• Whether the fundamental rights of the convicts are violated under Article 21?
• Whether there is any need for guidelines with respect to arrest and detention?

Observations

• The Supreme Court referred to the case of Neelabati Bahera v. State of Orissa (1993) and reiterated that prisoners and detainees should not be deprived of their fundamental right under Article 21 and only the restriction permitted by law could be imposed on the enjoyment of their fundamental rights.
• In this case, the following guidelines were laid down by the Court:
  • The police personnel 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 must be recorded in a register.
  • An arrest memo shall be prepared by police officer making an arrest which shall be attested by atleast one witness (a family member or respected person of the locality where arrest is made).
    • It shall also be counter signed by the arrestee and shall contain the time and date of arrest.
  • The arrested person shall be entitled to have one friend, or relative or other person known to him or having an interest in his welfare being informed about his detention or arrest.
  • 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 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 this right to have someone informed of his arrest or detention as soon as he is put under arrest or detained.
  • An entry must be made in the diary mentioning the name of the next friend who has been informed about the arrest.
  • The arrestee should, where he so requests, also be examined at the time of his arrest and an "Inspection Memo" shall pe prepared and signed both by the arrestee and the police officer effecting the arrest and its copy must be provided to the arrestee.
  • 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.
  • Copies of all the documents including the memo of arrest, as mentioned above, should be sent to the ‘illaqa’ 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.

Conclusion

• The Court finally said the failure to comply with the above requirements would lead to departmental actions upon the concerned officials as well as he/she would be liable to be punished for Contempt of Court.
• The guidelines given by the court of law in this case were later incorporated into the Code of Criminal Procedure, 1973 through the Amendment Act of 2008 which came into effect on 1.11.2010.

Notes

Article 21 of the Constitution of India, 1950 - Protection of life and personal liberty — No person shall be deprived of his life or personal liberty except according to procedure established by law.