Law and You >Procedural Laws > BNSS > Guidelines for Arrest of Persons (D K Basu)

Custodial Violence is any kind of violence that takes place in the Lockup, police custody, or Judicial Custody. D.K. Basu v. State of W.B. is the landmark judgment that acted as a scourge against custodial violence which transpires in disguise of rape, torture, deaths in police custody, or lockup. The Judgement undoubtedly stated that custodial violence is an infringement of Articles 21, 22, and 32 which are our fundamental rights granted by the Constitution of India. The DK Basu case furnished the guidelines and obligatory precautions to be followed while making arrests and it is believed to be one of those first attempts taken by the judiciary to protect the rights of arrestees and restrict the unlimited power which the police started to exercise without being checked. This article discusses guidelines for arrest of persons given by the honourable Supreme Court in D. K. Basu, Ashok K. Johri vs State of West Bengal, State of U.P., AIR 1997 SC 610 case.

“Torture” has not been defined in Constitution or in other penal laws. Dictionary meaning of “Torture” is “the action or practice of inflicting severe pain on someone as a punishment or in order to force them to do or say something”. The court observed “Custodial torture” is a naked violation of human dignity and degradation which destroys, to a very large extent, the individual personality.

D. K. Basu, Ashok K. Johri vs State of West Bengal, State of U.P., AIR 1997 SC 610

Facts of the Case:

In West Bengal during that time the Executive Chairman of the Legal Aid Services of West Bengal D.K. Basu sent a letter to the apex court whose aim was to draw attention towards deaths in police custody and lockups. The crime was also reported in various newspapers like The Telegraph, The Statesman, and Indian Express. Upon his request and considering the significance of the issue brought up, the court treated the letter as a writ petition filed within “Public Interest Litigation”. While this was still into consideration, another letter was received from Shri Ashok Kumar Johri addressing the Honourable Chief Justice of India. The letter focused on the death of Mahesh Bihari from Aligarh who died in police custody. Both the letters reported were taken seriously and treated as the Writ Petition.

Supreme Court observed that in every state there were allegations and these allegations were then increasing in frequency of deaths in custody and there was no machinery to effectively deal with such allegations. The Supreme Court then issued an order for all state governments and a notice was given to the law commission to come up with appropriate guidelines within two months to solve this emergent issue. In response to the notice, affidavits have been filed on behalf of the States of West Bengal, Orissa, Assam Himachal Pradesh, Madhya Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra and Manipur. Affidavits have also been filed on behalf of Union Territory of Chandigarh and the Law Commission of India. Their attempt was to show that “Everything Is Well” in their states. In response to the notice, the law commission came up with the 113^th Report.

Facts in Issue:

The matters raised in the present case were,

1. Who would be liable for such violence and deaths in the police custody? Will it be the state or the individual policeman?
2. Many a time the policemen arrest a person and commit such violence to extract information but is it justified, and to what extent?
3. The death and violence in custody have increased at an alarming rate, this is not merely a national issue but it has become a global one. How to address it? The Universal Declaration of Human Rights in Article 5, stipulates the definition of custodial violence. Thus, the necessity to make guidelines that would be followed while arresting acted as the last issue.

Courts Proceedings:

The proceedings took place before the Divisional Bench of Justice Kuldeep Singh and Justice Dr. A.S. Anand. During the course of hearing of the writ petitions, the Court asked assistance from the Bar and Dr Abhishek Manu Singhvi, a senior advocate as amicus curiae. Learned Counsels from different states and  A. M. Singhvi provided useful assistance to this Court in examining various facets of the issue and made certain suggestions for the formulation of guidelines by this court to minimise, if not prevent, custodial violence and compensation to kith and kin of those who die in custody on account of torture.

Constitutional Provisions Referred:

• Article 21 of the Constitution of India, person shall be deprived of his life or personal liberty unless there is an exceptional case where is taken by the procedure established by law. But suffering like torture, assault, violence, and harassment all act as the violation of such rights which was conferred in the current case. This right is not taken away from convicts, under-trials, and other prisoners who were also deliberated in the judgment. Any form of violence would act as an infringement of Article 21.
• According to Article 22(1) of the Constitution of India, every person has the right to know the reason behind the detainment in custody and also the grounds of his arrest. Along with that, it guarantees the right to consult a legal practitioner of his or her choice and get defended. This is that article that protects the arrestee and prevents unreasonable discrimination. Article
• According to Article 22(2) of the Constitution of India, the person arrested should be made present informant of the magistrate within 24 hours of judicial custody. This article guards the person against being kept in jail pointlessly as this not only affects the arrestee physically but also mentally. Section 57 of the CrPC (S. 58 BNSS) echoes with Article 22 (2) of the Indian Constitution.
• According to Article 22(3) of the Constitution of India, the accused cannot be made the witness against himself. This protects the arrestee so that he is not subjected to as a coercive witness.

Procedural Provisions Referred:

• Chapter 5 of the CrPC, 1973 (Chapter V BNSS) deals with the power or arrest the person and it also talks about the protection that police must take care of while and after arrest.
• Section 41 of CrPC (s. 35 BNSS) is the section where the police can make the arrest without any order or warrant granted by the magistrate.
• Procedure of Arrest is dealt under Section 46 of the CrPC (S. 43 BNSS). Section 50 CrPC (S. 47 BNSS), discusses the importance that the person should be fully aware of the grounds of his or her arrest.

References Used:

• The police powers of arrest, detention and interrogation in England were examined in depth by Sir Cyril Philips Committee and ‘Report of a Royal Commission on Criminal Procedure’ was prepared. The Royal Commission suggested certain restrictions on the power of arrest on the basis of the `necessity principle’.
• The Universal Declaration of Human Rights (UDHR) is a historic document that was adopted by the United Nations General Assembly at its third session on 10 December 1948 as Resolution 217 at the Palais de Chaillot in Paris, France.

Court Observations:

• The Court opined that Custodial Violence, including Torture and Death in Lock-Ups, strikes a blow at the Rule of Law. The court regarded Custodial Violence, including Torture and Death in Lock-Ups to be one of the Worst Crimes in a Civilised Society to be governed by the Rule of Law.
• The Court observed that in spite of the constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, growing incidence of torture and deaths in police custody has been a disturbing factor.
• A Reference was made to the case of Neelabati Bahera v. State of Orissa (1993) in which the Supreme Court had held that prisoners and detenues are not denuded of their Fundamental Rights under Article 21 and only such restriction as permitted by law could be imposed on the enjoyment of the Fundamental Rights of the prisoners and detenues.

Judgment:

The Supreme Court suggested that there must be a check on the police power by maintaining a proper level of transparency and culpability. Court also observed that there is a terrible need proper for modifications in the work culture and training of police officials. The court gave the judgment by laying down 11 guidelines for arrest of persons.

11 Guidelines for Arresting a Person:

1. Police personnel arresting and interrogating suspects should wear “accurate, visible and clear” identification and name tags with their designation. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
2. A memo of arrest must be prepared at the time of arrest. This memo should have the time and date of arrest. This memo must be attested by at least one witness who may either be a family member of the person arrested or a respectable person of the locality where the arrest was made. It must be counter-signed by the person arrested.
3. The person arrested, detained or being interrogated in custody in a police station or interrogation centre or other lock up has a right to have a relative, friend or well-wisher informed as soon as practicable, of the arrest and the place of detention or custody. If the person to be informed has signed the arrest memo as a witness this is not required.
4. Where the friend or relative of the person arrested lives outside the district, the time and place of arrest and venue of custody must be notified by police within 8 to 12 hours after arrest. This should be done by a telegram through the District Legal Aid Authority and the concerned district and police station.
5. The person arrested should be told of the right to have someone informed of the arrest, as soon as the arrest or detention is made.
6. An entry must be made in the diary at the place of detention about the arrest, the name of the person informed and the name and particulars of the police officers in whose custody the person arrested is. This should include details of all events from police officers leaving police station arrest to bringing the arrestee to the custody. It includes details all police officers involved, mode of transportation including details of vehicle used. It should also disclose the name of the next friend of the person who has been informed of the arrest.
7. The person being arrested can request a physical examination at the time of arrest. Minor and major injuries if any should be recorded. The “Inspection Memo” should be signed by the person arrested as well as the arresting police officer. A copy of this memo must be given to the person arrested.
8. The arrestee must have a medical examination by a qualified doctor every 48 hours during detention in custody. This should be done by a doctor who is on the panel of approved doctors, which must be constituted by the Director of Health Services of every State or union territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.
9. Copies of all documents including the arrest memo have to be sent to the Area Magistrate (Illaqa Magistrate) for his record.
10. The arrestee has a right to meet a lawyer during the interrogation, although not throughout the interrogation.
11. There should be a police control room in every District and State headquarters where information regarding the arrest and the place of custody of the person arrested must be sent by the arresting officer. This must be done within 12 hours of the arrest. The control room should prominently display the information on a notice board.

Implementation and Expectation of the Order:

These guidelines were issued to the Director General of Police and the Home Secretary of every State. They were obliged to circulate the guidelines to every police station under their charge. Every police station in the country had to display these guidelines prominently. The judgment also encouraged that the guidelines be broadcast through radio and television and pamphlets in local languages be distributed to spread awareness.

If any police officer doesn’t follow the above guidelines, then he can be made liable for contempt of court and action can be taken against him. The judgment also stated that the state will be held liable for its actions as they are the protectors of the citizens of the country. Consequently, if there is a breach of Fundamental rights then they won’t be protected from sovereign immunity and thus will be liable to pay monetary compensation.

Conclusion:

This case stands as a landmark judgment in the realm of human rights and criminal jurisprudence in India. It firmly established that the rights of individuals, especially those in police custody, cannot be compromised under any circumstance. By laying down specific guidelines to curb custodial torture and promote accountability within the police system, the Supreme Court not only upheld the constitutional right to life and dignity under Article 21 but also reinforced the principles of due process and the rule of law. This case continues to be a foundational precedent in safeguarding civil liberties against state excesses.

For More Articles on BNSS Click Here

For More Articles on Different Acts, Click Here