DK Basu, Chairman of Legal Aid Services, West Bengal, a non-political organization. On 26/08/1986 addressed a letter to the Supreme Court of India calling his attention to certain news published in the Telegraph Newspaper about deaths in police custody and custody. He requested that the letter be treated as a Writ Petition within the “Public Interest Litigation”. It was treated as a written Petition and the Defendants were notified.
Mr. Ashok Kumar Johri addressed a letter to the Chief Justice of the Supreme Court calling his attention to the death of a Mahesh Bihari from Pilkhana, Aligarh in police custody. The letter was included along with D.K.Basu’s Request for Writing. On 14/08/1987 the Court issued the Order, notices to all state governments, and a notice was also issued to the Law Commission requesting appropriate suggestions within a two-month period.
Issues:
Growth in incidents of Custodial Torture and Deaths by Police.
The arbitrariness of Policemen in arresting a person.
Is there any need to specify some guidelines to make an arrest?
Ratio Decidendi:
When the right is guaranteed by the State, it is against the State that the remedy must be sought if the constitutional obligation imposed has not been fulfilled.
Article 21 guarantees the right to life and personal liberty and has been held to include the right to live with human dignity. It thus also includes a guarantee against torture and assault by the State or its functionaries.
Protection against arrest and detention is guaranteed by Article 22. It provides that no individuals arrested shall be detained in custody without being informed of the grounds of arrest and that arrested individuals shall not be denied the right to consult and defend themselves by a legal practitioner of their choice.
Article 20(3) provides that a person accused of an offense shall not be compelled to be a witness against himself or herself.
Obiter Dicta:
● The Court was of the opinion that custodial violence, including torture and death in lock-ups, strikes at the rule of law. Custodial violence, including torture and death in prisons, was considered by the court to be one of the worst crimes in a civilized society governed by the rule of law.
● The Court observed that despite the constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, the growing incidence of torture and deaths in police custody has been a disturbing factor.
● Reference was made to the case of Neelabati Bahera v. State of Orissa (1993) in which the Supreme Court had held that prisoners and detainees are not deprived of their Fundamental Rights under Article 21 and only the restriction permitted by law could be imposed on the enjoyment of the Fundamental Rights of prisoners and detained.
Guidelines issued:
The Court issued a list of 11 guidelines in addition to the Constitutional and Statutory Safeguards to be followed in all cases of arrest and detention. The guidelines are as follows: –
Police personnel who make the arrest and handle the interrogation of the arrested person must wear precise, visible, and clear identifications and identification labels with their designations. Details of all personnel handling the interrogations of the arrested person must be recorded in a register.
That the police officer making the arrest of the detainee will prepare a memorandum of arrest at the time of the arrest and said memo will be witnessed by at least one witness who may be a member of the family of the arrested person or a respectable person from the locality from where the arrest is made. It must also be signed by the detainee and must contain the time and date of the arrest.
A person who has been arrested or detained and is detained at a police station or interrogation center or other confinement shall have the right to have a friend or relative or other person known to him or who has an interest in his well-being will be informed, as soon as possible, that you have been arrested and are being detained in a particular place unless the witness crediting the arrest memorandum is himself a friend or relative of the arrested.
Police must notify a detainee’s time, place of detention, and place of custody where the detainee’s next friend or relative lives outside the district or city through the District’s Legal Aid Organization and station. Police of the affected area telegraphically within the period of 8 to 12 hours after the arrest.
The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.
An entry must be made in the Case Diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police official in whose custody the arrestee is.
Upon request, the Arrestee must also be examined at the time of his arrest, and major and minor injuries, if present on his body, must be recorded at that time. The “Inspection Memo” must be signed by both the detainee and the arresting police officer and a copy must be provided to the detainee.
The detainee must undergo a medical examination by a trained physician every 48 hours while in custody by a physician on the panel of approved physicians appointed by the Director of Health Services of the State or Union Territory concerned.
A Police Control Room must be provided at all central district and state offices, where the arresting officer must communicate information about the arrest and the place of custody of the arrested, within 12 hours after the arrest and in the Police Control Room Board, must be displayed on a visible notice board.
Copies of all documents, including the arrest memo, must be sent to the Magistrate for registration.
The Arrestee may be allowed to meet with his attorney during the interrogation, although not throughout the interrogation.
CONCLUSION
In my opinion, before this case, the administration of the criminal system existing in a country like India needed an effective mechanism. This case evolved as a landmark case as the guidelines issued by the bench aimed to protect the people in custody. It is an obligation of the State to protect the citizens; either they are accused of an offense or a normal innocent person. The law can’t be prejudicial in its approach and can’t deny basic rights like the right to liberty, dignity to someone who is in police custody.
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