Case Briefs

DK Basu V. State of West Bengal, 1991 – Arrests and Jails (Case Brief)

LegalUp’s Snippy:–DK Basu versus West Bengal State is an important case that widened the frontiers of the definition of basic rights. This case study addresses a critical topic of criminal jurisprudence which is arrests and jails.

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Facts

DK Basu, Executive Chairman of Legal Aid Services, West Bengal, a non-political organisation, wrote to the Supreme Court of India on August 26, 1986, drawing its attention to various news articles published in the Telegraph Newspaper regarding fatalities in police custody and detention. He asked that the letter be recognised as a Writ Petition under the context of the “Public Interest Litigation.”
Because of the gravity of the allegations addressed in the letter, it was considered as a formal Petition, and the Defendants were notified.
While the writ petition was being heard, Mr Ashok Kumar Johri wrote to the Chief Justice of the Supreme Court, drawing his notice to the death in police custody of a Mahesh Bihari from Pilkhana, Aligarh.

The identical letter was classified as a Request for Writing and was submitted with D.K.Basu’s Request for admission. On 14/08/1987, the Court issued an Order notifying all state governments, as well as the Law Commission, and asking for acceptable ideas within a two-month period.
Several states, including West Bengal, Orissa, Assam, Himachal Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra, and Manipur, filed affidavits in response to the announcement.
Dr A.M.Singhvi, the Principal Counsel, was also appointed as an Amicus Curiae to assist the Court. All of the attorneys who appeared aided the Court in some way.

Issues

Why are there more crimes against people in jails and prisons every day?
The arbitrariness with which police officers arrest people.
Is it necessary to provide specific rules in order to make an arrest?

Judgement

The court held in Nilabati Behera vs. the State of Orrisa (1993) that any type of torture or cruel, inhumane, or humiliating treatment comes within the scope of article 21, whether it occurs during an inquiry, interrogation, or otherwise. The rights protected by article 21 cannot be denied to undertrials, convicts, detainees, and other inmates in custody unless done so in accordance with the method provided by law by imposing reasonable limits on the right as authorised by law.

Even after establishing procedural guidelines in Joginder Kumar vs. State of Uttar Pradesh, it has been noted that the police detained a person without a warrant in connection with the investigation of an infraction, and the apprehended person was tortured to extract information or a confession.

As a result, the court produced a set of 12 rules to being followed in all situations of arrest and detention, in addition to the constitutional and legislative safeguards. The policies are as follows:

Police personnel conducting the arrest and questioning of the arrestee must wear accurate, conspicuous, and legible identity and name tags with their designations. All police officials who handle the arrestee’s questioning must have their information entered in a register.
That the police officer carrying out the arrest of the arrestee should create a note of arrest at the time of arrest, which shall be attested by at least one witness, who may be a member of the arrestee’s family or a respected person from the neighbourhood where the arrest is made. It must also be countersigned by the arrestee and include the time and date of the arrest.
A person who has been arrested or detained and is being held in custody in a police station, interrogation centre, or other lock-up has the right to have one friend or relative or other person known to him or people who are interested in his wellbeing informed, as quickly as feasible, that he has been arrested and is being detained at the specific location unless the attesting witness of the arrest memo is himself such a friend or relative of the arrestee.
The time, place of arrest, and venue of custody of an arrestee must be telegraphically communicated by the police to the next friend or relative of the arrestee who lives outside the district or town via the legal Aid Organization in the District and the police station of the area concerned within 8 to 12 hours of the arrest.
The arrested person must be notified of his right to have someone informed of his arrest or imprisonment as soon as he is placed under custody or detained.
An entry must be made in the journal at the site of detention detailing the arrest of the person, which must also provide the name of the person’s next friend who has been told of the arrest, as well as the names and particulars of the police officers in whose custody the arrestee is.
If the arrestee asks it, he shall be inspected at the time of his arrest, and any major and minor injuries on his/her body should be noted. The “Inspection Memo” must be signed by both the arrestee and the officer making the arrest, and a copy must be delivered to the arrestee.
Every 48 hours during his detention in custody, the arrestee should be submitted to a medical examination by a trained doctor from the panel of recognised doctors established by the Director of Health Services of the concerned State or Union Territory. The Director of Health Services should create a similar penalty for all Tehsils and Districts.
Copies of all papers, including the arrest memo mentioned above, shall be given to the village Magistrate for his file.
The arrestee may be allowed to meet with his counsel during questioning, but not for the duration of the interview.
All district and state headquarters should include a police control room where the officer causing the arrest may convey information about the arrest and where the arrestee is being held.
Within 12 hours following the arrest, it shall be posted on a prominent notice board in the police control room.