DK Basu v State of WB - Case Comment PDF

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FACTS – A letter was written by the Executive Chairman (“EC”) of the Legal Aid Services in West Bengal, which is a registered society. The letter was written by the EC in light of increasing cases of lock-up and custodial deaths coming to light every day. The letter urged the court to develop certain norms to regulate, minimise and improve the situation as it stood then, and to look into measures to provide relief, which may be monetary, to those affected by the inhumane police methodology applied in custody. The court took cognizance of the same, and considered the letter to be a writ petition, under the PIL category, as is allowed under its powers, issuing notice to the authorities concerned regarding the same. The reply to the notice stated the letter to be misconceived & misleading, with it being untenable in law. While considering this matter, another letter regarding the same issue was received by the court, by one Mr. A.K. Joshi. The court took cognizance of the same and clubbed the matter along with the above-mentioned. While stating the matter to be one concerning all states in the country, the court issued notice to all the states as well as the Law Commission of India. ISSUES – While reading the case, one may state that the issue at hand is straightforward. Primarily, the court considered issues relating to the increase in the number of the lock-ups and custodial deaths and how to minimise the same. The court considered, along with the same the issue of police power and placing appropriate checks on the same. The court acknowledged that the problem of such deaths is a matter prevalent not just in India but also in other countries, all around the world. LAW – The court considered in its judgment various laws from different jurisdictions. The court analysed the recommendations of the Royal Commission in England constituted in light of the usage of the inhuman practice of torture in interrogations, and how the same were instrumental in reducing the number of cases of any deaths in lock-ups or custody. The court also drew on international law, stating Article 5 (Right against Torture) of the Universal Declaration of Human Rights as well as Article 9 (Compensation) International Covenant on Civil & Political Rights.

Considering the existing law, the court highlighted in its judgment, Chapter V of the Code of Criminal Procedure (Cr.P.C.) of 1974, along with singling out various provisions regarding the same. These are Section 41, 46, 49, 50, 56. The sections talk about the powers of the police relating to arrest, the method for the same, the limitations in the same, communication of the grounds of arrest and the offence charged for, etc. The court placed due emphasis on Sections 53, 54, 167, and 176 as well. Finally, the court drew on the Fundamental Rights as enshrined in the constitution. In particular the court referred to the Articles 20(3), 21 and 22. Article 20(3) states that no person can be compelled to be a witness against themselves. Article 21 recognises the right to life and personal liberty of an individual while at the same time stating when such liberty may be curtailed. Article 22 of the constitution talks about the rights of an individual in arrest and detention as well as protection from the same, in order to protect the people from any unjustified assault by state. ORDER – In the case, 11 guidelines adhering to Article 21 and article 22(1) were prescribed by the court which need to be strictly followed otherwise the official would be liable to punished for the contempt of court and proceedings must be instituted against him. 1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should have clear identification and name togs with their designations. 2. The police personnel carrying out the arrest shall make a memo at the time of the arrest. 3. The person who has been arrested shall be entitled to have a friend, relative or any other person known to him that he has been arrested or detained at the particular place. 4. The time, place of arrest and venue of custody of an arrestee must be notified by the police and where the friend or relative of the arrestee lives outside 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 arrested person must be aware of his right to inform someone of his arrest. 6. An entry should be made in the place of detention with name of the person in custody, his friend who has been informed along with the details of police officials attached to it.

7. The arrestee should be examined at the time of arrest and any injuries on his body must be recorded. The inspection memo must be signed both by the arrestee and police officer concerned and a copy must be provided to the arrestee. 8. The arrestee should be subjected to medical examination every 48 hours during his detention by a trained doctor. 9. Copies of all the documents including the memo of arrest should be sent to Magistrate for his record. 10. The arrestee must be permitted to meet his lawyer during the interrogation but not throughout the whole 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 should be displayed on the notice board of police control room. ANALYSIS – The judgment refers to the provisions of the law as stated above to state that there does exist statutory provisions laying down the powers of the police and how it may be validly exercised. The purpose of the judgment is to highlight how the existing laws then were inadequate in light of the situation prevalent to tackle abuse of power by the relevant authorities. The judgment brings to the fore the possibility of an anarchical state, where lawlessness is being encouraged as well as disobeying the law will become a practice, in light of the fact that it is the state machinery itself which is negligent towards the rights of the accused. It is important to note that the Fundamental Rights are available to all, be it a civilian or an undertrial person/accused. The deprivation of liberty may only occur as per the procedure established by law. A person, as per the Common Law systems, is innocent until proven guilty, and thus has all such rights available to any person who is not an accused, with the restriction to those being legally defined along with the circumstances of when they may be used. Maintenance of the norms as per the Rule of Law are paramount. The court in this judgement has laid down a very realistic analysis of the situation as it exists.

The court has drawn in from International Jurisprudence to settle the situation regarding the same, in order to show possible solutions for the problems haunting the system. An interesting fact to note is that the court while doing so, inculcates the ICCPR, to which India is a signatory but has not ratified the same. The Supreme Court has maintained its stand of protecting the rights of all citizens. However, at the same time, it is important for one to consider that the powers of the police are not to be limited to such an extent that their hands are completely tied by procedure. Granted, that lawlessness needs to be taken care of in the system and those who abuse the system and its process require deterrence to not do so. But the provisions that the court creates, while ensuring the rights of the accused, also needs to ensure that the rights of the victim and those affected by the same are not taken away. A fair balance between the rights of the accused and the victim needs to exist within the Criminal Justice System....