Overview Of D K Basu V State Of West Bengal

3rd November, 2023 - 6:48 am Categories: News & Updates 0 Comments

INTRODUCTION

DK Basu V State of West Bengal is a landmark case in the Indian legal system. This case talks about the increasing reports of custodial deaths in India. Most of these deaths are occurring before even presenting the witnesses beforea magistrate. This case also lays down the guidelines for making an arrest and the Arbitrariness of policemen in arresting a person where they think custodial torture is the correct way of extracting information and making a break inthe case.

FACTUAL BACKGROUND

D K Basu (Petitioner) was the chairman of the Legal Aid Services, West Bengal and while reading certain articles in the Telegraph newspaper and the Statesmen it came to his attention that there had been a lot of cases of custodial violence and the guilty went unpunished as they were no rigid guidelines laying down the rules for arrests. On 26^th August 1986, he wrote a letter to the Chief Justice of India and urged them to look into the matter so that the family members of the victims could be given some form of compensation. He requested that the letter be treated as a writ petition under the Public Interest Litigation Category (PIL)

While this petition was being considered, another letter came before the Supreme Court from Mr. Ashok Kumar Johri which highlighted the death of a man named Mahesh Bihari from Aligarhin police custody, this letter was attached to the previous letter while being considered before the court.

After a brief period of one year, on 14^th August 1987, the supreme court issued a notice to the law commission asking for guidelines and appropriate suggestions for the same. Orders were also sent out to all the state governments and Dr.AM Singh was appointed the amicus curiae to assist the court

PROCEEDINGS AND CONTENTIONS OF THE PARTIES

The petitioner (DK Basu) stated that bodily discomfort and mental anguish experienced by a person while confined to a police station or jail should be avoided. The extent of trauma experiences is beyond the purview of the law, whether it is physical assault or rape in police custody.

The petitioner went on to say that a civilised nation is needed and that some critical efforts must be taken to eliminate it.

The public prosecutors assigned to the case on behalf of various states along with Dr.AM Singh presented the case. They stated that “everything was fine” in their respective states, presented their respective beliefs, and assisted this Court in examining various aspects of the problem and ensuring that suggestions for the formulation of guidelines by this court to reduce, if not prevent, violence in custody, including death by torture, were made.

JUDGEMENT AND GUIDELINES ISSUED

In the case of Neelabati Bahera v. State of Orissa, the Supreme Court underlined those prisoners and detainee should not be deprived of their Fundamental Rights under Article 21, and that only legal restrictions on their enjoyment of their Fundamental Rights should be imposed.

The principles laid down by the Hon’ble Supreme Court are given hereunder:

1. The police constable who takes charge on the arrest and handles the arrestee should have a visible and clear identification of his name and designation. Moreover, all the names of all the police officers involved in the case should be recorded in the arrest report.
2. The police officer who takes lead on the arrest shall prepare a memo at the time of the arrest which shall contain important information such as date, time, place, officers involved and such memo shall be signed by a witness be it a family member, relative or a neighbour and most importantly, the memo shall be signed the arrestee himself.
3. The person who has been arrested by the police and is kept in custody or interrogation centre is entitled to have a family member, friend or neighbour informed of his whereabout by a police constable as soon as possible unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
4. Within 8 to 12 hours after an arrest, the police must notify the next friend or relative of the arrestee who lives outside the district or town through the Legal Aid Organization in the district and the police station of the area concerned telegraphically of the time, place of arrest, and venue of custody of the arrestee.
5. The arrested person should be informed of his rights to have a family member, friend or neighbour informed of his arrest as soon as he is put under such arrest.
6. The police must record an entry in a diary at the detention centre regarding the date, place, time of the arrest. Such entry shall also include names of the people informed of the arrest and the officers present during the arrest.
7. The arrestee shall be granted a medical inspection whenever he requests and be also examined at the time of arrest. The medical memo shall be signed by the police officer as well as the arrestee and a copy shall be provided to the arrestee.
8. During his detention in custody, the arrestee should be examined by a trained doctor every 48 hours by a doctor on the panel of approved doctors appointed by the Director, Health Services of the concerned State or Union Territory. The Director, Health Services should also prepare such a panel for all Tehsils and Districts.
9. All documentation, including the above-mentioned memo of arrest, shall be sent to the Magistrate for his records.
10. During interrogation, the arrestee may be allowed to meet with his counsel, but not for the entire duration of the interrogation.
11. 1. A Police Control Room must be created at all central district and state offices, where the arresting officer must communicate information regarding the arrest and the arrestee’s site of custody within 12 hours of the arrest, and the Police Control Room Board must be visible on a notice board.

ANALYSIS AND CONCLUSION

The case of DK Basu v. State of West Bengal is an absolute gem which reminded the State about its obligation to protect the rights of all the citizens including the persons under arrest and in prisons. Especially in a country like India, there is a huge probability of the administrative wing abusing its power and intervening in the judiciary through DK Basu’s petition is commendable. The law can’t be biased in its methodology and can’t deny basic rights toanyone even if that person is in custody.

Despite these measures, we still hear instances of custodial violence and the failure to comply with the guidelines issued by the court. Many a time, the police department itself tries to bury deep the evidence of custodial torture to prevent the media, common man and judiciary from criticizing and taking action against them. Consequently, the guidelines given under this case should be embraced by the officials and nobody ought to be permitted to take the law into their hands.

Prior to this case, I believed that the administration of the criminal justice system in a country like India lacked an effective process. The instructionsimposed by the judges attempted to protect those in jail, making this a landmark case. The state has a responsibility to safeguard citizens, whether they are accused of a crime or are simply innocent.

Additionally, the police’s torturous and brutal response to arrestees required a dramatic change. The Supreme Court was forced to intervene in such a scenario, and the bench’s rulings was fair and just.

Author: Sonakshi Pandey, A Student at Symbiosis Law School, NOIDA, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

REFERENCES

1. AIR1997 SC610
2. https://lawtimesjournal.in/d-k-basu-vs-state-of-west-bengal/
3. https://www.khannapolice.org/dk-basu-case-guidelines.php
4. https://www.legalbites.in/case-analysis-d-k-basu-1997/#_ftnref1
5. http://www.lawjure.com/case-summary-d-k-basu-vs-the-state-of-west-bengal/