Case Comment

D.K Basu vs. State of West Bengal

(1997 (1) SCC 416) 

Petitioner

D.K. Basu

Respondent

State of West Bengal, State of U.P

Date Of Judgement

18th December, 1996

Bench

Hon’ble Justice Kuldip Singh; A.S. Anand, JJ.

Introduction

Commonly known as the D.K. Basu, is one of the historic trials in history, which stipulates
the guidelines to be followed at the time of arrest. Deaths in custody have always occurred in
our country. There was no legislation for a period of time proposing effective mechanisms to
deal with the increasing number of such cases in India.

Custodial deaths are events of the demise of persons who are detained by police during
pretrial or after conviction. Custodial deaths can be broadly classified into three types –

1. Death in police custody; 

2. Death in judicial custody; and 
3. Death in custody of army or paramilitary force. 

Deaths in custody are well-known deaths that occur to people who are on trial or have
been convicted. This may be due to natural causes such as illness, suicide, and infighting
between prisoners, but in many cases, police brutality and torture are the causes of death.
This topic is very controversial and complicated. Victims are often tortured before being
arrested, that is, before being detained, which helps the police to easily conclude that
these were not violent incidents during detention and that the injuries occurred before
being arrested. Sometimes, before being arrested, the victim will be killed in a fake
encounter. This is also a form of death in custody, which becomes very difficult to prove.
The most intriguing point is that all the evidence and records are in the hands of the
police, and external evidence is almost impossible to obtain. This makes it difficult to
determine the violence of internment and subsequent deaths. Death while in custody is
one of the most serious forms of human rights violations. This is a powerful attack on the
right to life and freedom guaranteed by the Indian Constitution. The responsibility to
protect the lives of the accused and criminals rests with their respective countries. People
accused or found guilty have the right to a fair trial and security in police and judicial
detention centers and in prisons. However, law enforcement agencies often fail miserably
in meeting their constitutional obligations. What is even more regrettable is that after
those incidents, the perpetrators did everything possible to cover up their illegal activities.
The government plays an important role in protecting the accused.

Factual Analysis
The Executive Chairman of the West Bengal Legal Aid Service, DK Basu, wrote to the
Supreme Court of India on August 26, 1986, asking it to pay attention to certain reports
published in The Telegraph about police arrests and deaths in custody. He requested that this
letter be considered a written request in a "public interest litigation." Considering the
importance of the issues raised in the letter, it was treated as a written request and the accused
was served. While considering the order petition, Mr. Ashok Kumar Johri wrote to the Chief
Justice of the Supreme Court to draw his attention to the death of Mahesh Bihari from
Pilkhana of Aligarh in police custody. The same letter is also considered a written request and
is included with D.K.'s written request. Basu. On August 14, 1987, the court issued an order
to issue notices to all state governments, and also issued a notice to the Law Commission,
requesting appropriate recommendations within two months. In response to the notification,
several states submitted affidavits, including West Bengal, Orissa, Assam, Himachal Pradesh,
Haryana, Tamil Nadu, Meghalaya, Maharashtra, and Manipur. In addition, the Chief Legal
Counsel, Dr. A.M. Singh vi, was appointed amicus curiae to assist the court. All the attorneys
who appeared in court provided helpful assistance to the court.

Issues

1. Why are crimes against persons in lockups or custody increasing day by day ?
2. The arbitrariness of Policemen in arresting a person.
3. Is there any need to specify some guidelines to make an arrest?

Arguments Advanced from the side of Petitioner

The petitioner argued that a person should be prevented from suffering physical and mental
pain within the four walls of a police station or prison. Whether it is a physical assault or a
rape while in police custody, the scope of the traumatic experience is beyond the scope of the
law. The petitioner further argued that a civilized country is needed and that some important
steps must be taken to eradicate it.

Arguments advanced from the side of Respondent

Attorneys and Dr. AMSinghvi who appeared in court in different states introduced the case
and insisted that “everything is fine” in their respective states, surpassing their respective
beliefs, and provided useful help for this court’s review of all aspects of the subject to ensure
The court’s recommendations for developing guidelines provide recommendations to reduce,
if not prevented, the detention of violence and family members of persons who died in
custody as a result of torture.
Judgement

Based on the case Nilabati behera v. The State of Orrisa (1993), the court noted that any form
of torture or cruel, inhuman or degrading treatment is within the scope of Article 21, whether
it is carried out under investigation, interrogation or other circumstances. The rights
guaranteed by article 21 shall not be deprived of unappreciated persons, criminals, detainees
and other prisoners in custody, unless the rights are reasonably restricted in accordance with
the procedures prescribed by law and to the extent permitted by the law. Even after the
procedural requirements were stipulated in Joginder Kumar v. UP State, it was observed that
the police arrested people involved in criminal investigations without a warrant and the
arrested people were tortured to obtain information or confess. As a result, in addition to the
C system and legal guarantees, the court also issued a list of 12 guidelines that all arrests and
detentions must follow these guarantees. The guidelines are as follows:
(1) Police officers making arrests and questioning arrested persons shall wear accurate,
conspicuous and clear identification cards and identification tags. The information of all
police officers responsible for questioning detainees must be recorded. Read also:
Government. Feeling the urgent need to amend the current labor law.
(2) The arresting police officer must prepare an arrest memorandum at the time of arrest, the
memorandum must be witnessed by at least one witness. It can be a relative of the detained
person or a person respected in the place where the arrest took place. The arrest warrant must
also be countersigned by the arrested person and must include the time and date of the arrest.
(3) A person arrested or detained and held in a police station or interrogation center or other
detention center has the right to inform a friend, relative or other person or to take an interest
in their welfare as soon as possible. he had been arrested and detained in a specific place,
unless the witness to the arrest memorandum was himself a friend or relative of the person
arrested.
(4) If the next friend or relative of the arrested person lives in the area or out of town, the
police must notify the arrested person through the legal aid organization and the police station
in the area of the hour, place and place of detention after arrest 8 Notify relevant areas by
telegram within 12 hours.
(5) The arrested person must be aware of this right, and someone can be notified of his arrest
or detention immediately after being arrested or detained.
(6) The arrest of the person must be recorded in the diary of the place of detention. The name
of the next friend of the detained person and the name of the detained person and the detailed
information of the police detained by the detained person should also be disclosed.
(7) The detainee must make a request at the time of arrest and be examined at the time of
arrest. If you have any serious or minor injuries to your body, you must register at that time.
The "Inspection Memorandum" must be signed by both the arrested person and the arresting
officer, and a copy of it must be delivered to the arrested person.
(8) The arrested person shall undergo a medical examination by a trained physician every 48
hours while in custody, and shall be performed by a physician in an approved medical team
designated by the Director of Health Services in Ciudad Vieja or Corresponding United
Territory. . The director of health services should also prepare such sanctions for all Tehsils
and districts.
(9) Copies of all documents, including the aforementioned arrest memorandum, must be sent
to the magistrate of Ilaga for the record.
(10) The detainee can meet with his lawyer during the interrogation, but not during the entire
interrogation.
(11) Police control rooms must be provided at all regional and state headquarters, and the
officer who caused the arrest will be produced within
(12) hours after the arrest to convey information about the arrest and the place of detention of
the arrested person. The arrest must be posted on a prominent notice board in the police
control room.

Contention of Petitioner

Some people worry about the power of the police and point out that physical and mental pain
in the police station or any incarceration should be avoided. Some people believe that if the
rights of victims mentioned in articles 21 and 22 of the Constitution are violated in any way,
compensation should be provided to the victims. Whether it is actual physical assault, rape,
mental torture, or anything else in police custody, the extent of the injury is beyond the scope
of the law. The petitioner further argued that these heinous crimes must be eliminated in a
"civilized society"

Contention of Respondent

They submitted their respective cases and provided useful assistance for the court to review
various facts on the subject, and made some suggestions on the formulation of guidelines to
minimize or even prevent the detention of the families of people who died due to violence
and torture. The defendants confirmed that the writ application was poorly conceived,
inappropriate, and legally misleading, so they denied the charges against them. In order to
defend the collapse of the executive branch, West Bengal tried to convey that there was no
death during the confinement period. Even if there were, it should investigate who did it.

Rationale

Ratio Decidendi:
When rights are guaranteed by the state, if the imposed constitutional obligations are not
fulfilled, it is detrimental to the state to seek recourse. Article 21 guarantees the right to life
and personal freedom, and is considered to include the right to live with dignity. Therefore, it
also includes guarantees of torture and aggression against the state or its officials. Article 22
guarantees protection against arrest and detention. This article stipulates that any arrested
person shall not be detained without being informed of the reason for the arrest, and the
arrested person shall not be deprived of the right of consultation and defense. lawyer. your
choice. Article 20, paragraph 3, stipulates that a person accused of a crime may not be forced
to testify in court.

Obiter Dicta:

The court held that the violence of incarceration, including torture and death in custody, is a
blow to the rule of law. Violence in incarceration, including torture and death in prison, is
considered by the courts as one of the most serious crimes in a civilized society under the rule
of law. The court noted that, although the Constitution and legal provisions are designed to
protect personal liberty and the lives of citizens, the increasing incidence of torture and death
during police custody is a worrying factor. refers to the case Neelabati Bahera v. Orissa
(1993) [iii], in which the Supreme Court held that prisoners and detainees were not deprived
of their basic rights under Article 21, and that only restrictions allowed by law could be
imposed on prisoners to enjoy basic rights.

Conclusion Or Inference

As a result, a landmark verdict was issued in this case, stipulating guidelines for the arrest of
a person, otherwise more crimes would be committed in the name of justice. It prevents
violations of individual rights during detention, thus protecting all citizens through certain
procedures prescribed by law. Although the law has established adequate procedures, anyone
who fails to comply with the court will be punished, but there are still crimes similar to the
previous cases, such as the refusal of the police to present FIR, or many innocent people have
to suffer unfair treatment such as Outcome. and therefore, the basic rights of citizens are
violated. Therefore, stricter laws must be enacted to prevent innocent people from suffering.
In my opinion, in this case, the management of the existing penal system in a country like
India requires an effective mechanism. As the guidelines issued by the court were aimed at
protecting detainees, the case evolved into a landmark case. It is the duty of the state to
protect citizens; they are either accused of crimes or they are ordinary innocents. The practice
of the law cannot damage or deprive people detained by the police of their basic rights, such
as freedom and dignity. In addition, the cunning and cruel way the police handle detainees
requires strong changes. In this case, the Supreme Court had to intervene, and the decision
made by the court was absolutely appropriate and fair.
The observe concludes that custodial deaths are growing in India and numerous businesses
improve their subject over the identical. Death may be of herbal or unnatural consequences.
But generally, the demise in custody is taking place because of the torture of the pubic
officials whilst investigating the case. It is vital and accepted through the regulation to
interrogate an accused however on the identical time, it's also supplied that no unlawful
techniques be followed to analyze the case.

In order to comply with constitutional provisions and human rights, it is necessary to

suppress these crimes against detainees in democratic countries. The Supreme Court takes
this matter seriously and is concerned about the number of violence and deaths that occurred
during detention. But this is not a moral consideration, it is also a legal consideration. It is
adopted by legislation. In addition, various provisions have been incorporated into the
Criminal Procedure Act, the Indian Criminal Act, the Indian Evidence Act and the Indian
Constitution to protect and guarantee the rights of detainees. However, due to political
influence and the lack of evidence against him, these regulations are not sufficient to prove
the guilt of the perpetrator. These regulations do not specifically address the deaths of
detainees in India, especially unnatural deaths in detention centers. Although the Securities
Regulatory Commission has presented and recommended certain guidelines in various cases
of arrest violence, it has not taken the legislation into account. For various reasons, the
number of deaths caused by arrest violence in India is increasing by the day. The state is
responsible for upholding the Constitution of India and making certain amendments to the
law that appear to violate the rule of law. The state has the responsibility to stop these crimes
committed by the protectors of citizens.

Reference

[i] Human Rights watch, India: Killings in Police Custody,

https://www.hrw.org/news/2016/12/19/india-killings-police-custody-go-unpunished, (last
visited 12  March 2020, 8:00 P.M).
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[ii] D.K. Basu v. West Bengal State, (1997 ) 1 SCC  416.

[iii]Neelabati Bahera v. State of Orissa, 1993 AIR SCC 196.

D. K. Basu vs. State of West Bengal (18.12.1996 – SC) : MANU/SC/0157/1997