Judgments

D. K. BASU VS STATE OF WEST BENGAL : CASE SUMMARY

The Supreme Court in one of its landmark judgments D. K. Basu Vs State of West Bengal (1997) 1 SCC 416 issued guidelines to followed by police officer while making an arrest. The Supreme court also held that State is vicariously liable to pay compensation in cases of wrongful arrest.

Legal Aid Services, an NGO registered under Society Registration Act, addressed a letter regarding custodial deaths in State of West Bengal. The same was treated as Writ Petition by the Supreme Court of India. Notices were issued to all the states and also Law Commission of India.

Custodial Violence

The Court noted that growing cases of custodial violence is a matter of concern. It is committed by persons who are protectors of the citizens. It is committed within four walls of police station or lock up where the victim is totally helpless.

Torture has not been defined under the Constitution or under other penal laws. Torture is essentially and instrument to impose the will of the strong on the weak. Torture is a naked violation of human dignity and degradation which destroys individual personality.

The Supreme Court noted that Custodial Violence is concern of global dimension. Article 5 of the Universal Declaration of Human Rights, 1948 states that no one will be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

The Court noted that in England torture was resorted to get information regarding crime, the accomplices, case property and confessions. But with development of common law such inhuman practices have been done away with. Right to life and personal liberty under Article 21  has been held to include right to live with human dignity thus it will also include within itself a guarantee against torture. The Court noted that Article 20 and 22 also provide certain rights to arrested persons. The Court noted that Code of Criminal Procedures, 1973 also provides several safeguards in cases of arrest.

The Supreme Court observed that Police has right to arrest criminals and interrogate him during investigation but Police can not use third degree or torture in custody. Relevant para is as under :

Police is, no doubt, under a legal duty and has legitimate right to arrest criminals and to interrogate him during investigation of an offence but it must be remembered that the law does not permit use of third degree methods or torture of accused in custody during interrogation and investigation with a view to solve the crime. End cannot justify the means. The interrogation and investigation into a crime should be in true sense be purposeful to make the investigation effective. By torturing a person and using third degree methods, the police would be accomplishing behind the closed doors what the demands of our legal order forbid. No society can permit it.

The Court observed that freedom of individual has to yield to security of state. The right to interrogate detenues, arrestees or culprits in interest of the nation must take precedence over an individual’s right to personal liberty. But actions of the State have to be just, fair and reasonable. Using any form of torture for extracting information would not be just, fair and reasonable and will offence Article 21.  A crime suspect can not be tortured, or subjected to third degree methods or eliminated with a view to elicit information, extract information or derive knowledge about accomplices, weapons etc.

Directions in respect of Arrest

The Supreme Court issued following directions to be followed by police while making an arrest till legal provisions are made.

  • Police personnel carrying out arrest or interrogation has to bear clear and visible identification and name tags with designation. The particulars of police personnel handling interrogation have to be recorded in register.
  • Memo of arrest has to be made at the time of arrest. Such memo of arrest has to be attested by a family member of arrestee or a respectable person of locality. It has to be countersigned by arrestee and date and time of arrest has to be provided.
  • Arrested person has right to inform about his arrest to one of his family members or a friend or any other person known to him
  • Time, place of arrest and venue of custody has to be notified by the police where next friend or relative of arrestee resides outside the district or town through legal aid organization and police station of the area concerned telegraphically
  • The person arrested has to be informed about his right to inform someone about his arrest or detention as soon as he is arrested or detained.
  • An entry has to be made in diary at the place of the detention regarding arrest and details of the person who has been informed have also to be entered into dairy. Particulars of police officials having custody have also to be entered into dairy.
  • The Arrestee should be examined and any major or minor injury should be recorded. The Inspection Memo should be signed by arrestee as well as police officer.
  • The arrestee should be subjected to medical examination every 48 hours during his detention in custody every 48 hours.
  • Copies of all documents including Memo of Arrest has to be sent to Magistrate
  • The arrestee may be permitted to meet his lawyer during interrogation
  • Police Control room should be provided in every district and state headquarters and information regarding arrest and place of custody of arrestee has to be communicated to within 12 hours. Information regarding these have to be displayed at police control room.

Failure to follow these procedures will make liable the responsible personnel for departmental proceedings as well as contempt proceedings. Such contempt proceedings can be initiated before jurisdictional High Court.

Liability of State for compensation  

The court noted that a mere declaration of invalidity of a wrongful arrest is not sufficient.  Section 220 of IPC provides for punishment to an officer or authority who keeps a person in confinement with a corrupt or malicious motive. Section 330 and 331 of IPC provides for punishment for those who inflict injury or grievous hurt to extort confession or information in regard to commission of an offence. These statutory provisions are not sufficient.

The Supreme Court held that monetary and pecuniary compensation is an appropriate remedy for established infringement of Fundamental Rights to life by public servants and State is vicariously liable for the acts of the Public Servants. The claim of the citizen is based on principle of strict liability to which the defense of sovereign immunity is not available. In assessment of compensation, the emphasis has to be on compensatory and not on punitive element. The award of such compensation is without prejudice to other remedies under law.

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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

Mukesh Kumar Suman

Mukesh Kumar Suman

Mukesh Kumar Suman is an advocate based at Delhi. He has rich experience in civil, criminal, commercial, arbitration and corporate insolvency matters. He regularly appears before District Courts, NCLT, NCLAT, High Court and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

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