Topic: D.K Basu vs State of West Bengal.

Under the guidance of: Prof. Radhika Rodrigues.

Submitted by:
Name: Tanvi Pandurang Desai
Class: T.Y B.L.S L.L.B
Roll No.: 20513
Date: 13/09/2022

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Index:

Sr No. Topic. Page

No.
1 Introduction to the case 3

2 Facts of the case 4-5

3 Constitutional Provisions and Issues of the 6

Case

4 Arguments of Petitioner and Respondent 7

5 Guidelines by Goverment 8-9-10

Judgment 11
6
7 Grant of Compensation to victims of 12
custodial deaths
8 Conclusion 13

9 Bibliography 14

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INTRODUCTION:

Title of case: Shri D.K Basu, Ashok K. Johri vs

State of West Bengal, State of U.P
Citation: AIR 1997SC 610.
Case No: WRIT PETITION (CRL) NO. 592 OF
1987
Court: Supreme Court of India.
Appellant: SHRI D.K BASU, ASHOK JOHRI.
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.

AIR 1997 SC 610

Custody means restricting anyone's freedom of movement. The fundamental right to
move freely can be taken by the procedure established by law. In India, the person's
fundamental right to move can be restricted legally either by the way of judicial or
police custody.
The object behind either of custody is to prevent the person so taken into the custody
from further committing an offence or tampering of evidences or threatening of the
witnesses etc. The prima facie object of custody is to facilitate smooth functioning of
investigating procedure.
The accused in the custody also has right under Article 21 of the Indian Constitution
but before the present case, they were deprived of this right. Prior to the DK
BASU case there was significant increase of the cases of custodial death and violence;
the inflictor could get away easily due to absence of any law and procedure. The need
for prevention and regulation of custodial death and violence arose and hence led to
the filing of present case.

https://lawtimesjournal.in/d-k-basu-vs-state-of-west -bengal/
FACTS:
This case was decided by Justice Kuldip Singh and Justice (Dr) A. S. Anand of the
Supreme Court on 18th December, 1996. The case dealt with custodial deaths and
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various inhuman and degrading treatment of prisoners and other reasons being
questioned by the police.
On 26th August 1986, the Executive Chairman – Mr Dilip Kumar Basu of Legal Aid
Services – West Bengal, a non-political organisation wrote a letter to the Chief Justice
of India pertaining to some news article in the Indian Express and the Telegraph
Newspaper publishing events of deaths in police custody. In the letter, it was
mentioned that such crimes of custodial violence always went unpunished despite the
efforts made and urged the courts to look into the matter so that the family members
of the victims are given some form of compensation.
The petitioner requested that his letter be accepted as Writ Petition under “Public
Interest Litigation” Category. As his letter addressed some important contentions it
was considered to be treated as a Writ Petition and the respondents were served
notice. Mr Ashok Kumar Johari, while the said petition was still under consideration
send another letter to the Chief Justice addressing the death in Aligarh Police Custody
of Mahesh Bihari of Pikhana. Both of these letters were treated as Writ Petition. On
14th August 1987, the Court issued a notice through Order to all the States to come up
with suitable suggestions within two months. This led to the filling of several
affidavits in the response of the notice by different states including West Bengal,
Assam, Orissa, Haryana, Meghalaya, Maharashtra, Manipur and Himachal Pradesh.
The allegations were denied by the state of West Bengal. Dr A.M. Sanghavi, Senior
Advocate was later appointed to assist the court as the Amicus Curiae.
Considering the importance of the issue raised in the letter being concerned by
frequent complaints regarding custodial violence and deaths in police lock up, the
letter was treated as a writ petition and notice was issued on 9.2.1987 to the
respondents. In response to the notice, the State of West Bengal filed a counter. It was
maintained that the police was no hushing up any matter of lock-up death and that
where ever police personnel were found to be responsible for such death, action was
being initiated against them. The respondents characterised the writ petition as
misconceived, misleading and untenable in law.
The law commission also submitted to the Court, a copy of its 113 th Report regarding
injuries in police custody and suggested incorporation of a new Section (Section 114-
B) in the Indian Evidence Act.
After commenting on the fact that the word “torture” has not been defined by any
Indian statute, the Supreme Court remarked that “torture” is, today, synonymous with
the darker side of human civilization. It observed that custodial torture is a naked
violation of human dignity and whenever human dignity is wounded, civilization takes
a step backwards. What is of real concern in such cases is not only the infliction of
bodily pain, but also the mental agony which a person undergoes within the four walls
of the lock-up or police custody.
The Court observed that if the functionaries of the law themselves become law-
breakers, it is bound to breed contempt for the law and encourage lawlessness. Every
man would tend to become a law unto himself and this would lead to anarchism. The
police is, no doubt, under a duty to arrest a criminal and interrogate him; but the law
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does not allow the use of third degree methods to torture the accused while in police
custody with a view to solve the crime. As observed by the Supreme Court, “The end
cannot justify the means. No society can permit it”.
In India, Article 21 of the Constitution of India protects life and personal liberty by
providing that “no person shall be deprived of his law”. The Court observed that the
expression “life or personal liberty” includes the right to live with human dignity, and
thus it would also include within itself, a guarantee against torture and assault by the
State. Article 22 of the Constitution guarantees protection against arrest and detention
in certain cases, laying down the procedural requirements as well as the rights of the
person arrested. Detailed provisions are contained in the Criminal Procedure Code
regarding powers of arrest and the safeguards which are required to be followed by the
police to protect the interest

https://lawtimesjournal.in/d-k-basu-vs-state-of-west -bengal/

Constitutional and Statutory Provisions Discussed:

Section 41, 46, 49, 50, 53, 54, 56, 57, 167, 174 and 176 of Criminal Procedure Code,
1973.

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Article 20(3), 21, 22, 26 and 32 of the Indian Constitution.

Section 147, 149, 201, 218, 220, 302, 304, 330, 331, 34 and 342 of Indian Penal Code
(IPC), 1860.

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?
 For award of compensation to the victims of custodial violence and to the kith and
kin of those who die in custody on account of such torture.

https://indiankanoon.org
Arguments Advanced:

Contentions of Petitioner:

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The petitioner argued that bodily pain and mental agony suffered by a person within
the four walls of a police station or confinement should be avoided. Whether it is
physical assault or rape in police custody, the scope of trauma experiences is beyond
the scope of the law. The petitioner further argued that there is a need for a civilized
nation and that some important steps must be taken to eradicate it.

Contentions of Respondent:
The Counsel representing different states and Dr. A M Singhvi presented the case and
stated that “everything was fine” within their respective States, presented their
respective beliefs and provided useful assistance to this Court to examine various
facets of the problem and made sure that suggestions for the formulation of guidelines
by this court to reduce, if not prevent, violence in custody and the relatives of those
who die in custody due to torture. In order to defend this important fall of the
administrative wing, the State of West Bengal made an attempt to convey that there
are no deaths in the confinements and even if there were any, then an investigation
should be carried out on whoever did it.

https://www.iasparliament.com/current-affairs/dk-basu-judgments-custodial-deaths .

General guidelines issued:

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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(4).

The guidelines are as follows: –

1. Police personnel who make the arrest and handle the interrogation of the arrested
person must bear accurate, visible and clear identifications and name tags with
their designations. Details of all personnel handling the interrogations of the
arrested person must be recorded in a register.

2. That the police officer making the arrest of the arrestees will prepare a
memorandum of arrest at the time of the arrest and such memo shall be attested 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 arrestee and must contain the time and date of the arrest.

3. A person who has been arrested or detained and is being held in a custody in a
police station or interrogation centre or other lock-up, 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 attesting witness of the memo of
arrest is himself such a friend or a relative of the arrestee.

4. The time place of arrest and venue of custody of an arrestee must be notified by
the police, where the next friend or relative of the arrestee lives outside and district
or town, through the Legal Aid Organisation in the District and the Police Station
of the area concerned, telegraphically within a period of 8 to 12 hours after the
arrest.

5. 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.
6. 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.
7. 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 arrestee and the arresting police
officer and a copy must be provided to the arrestee.
8. 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
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 concerned Awareness must be created to the arrestee so that he can understand his
basic rights at the time of the arrest.

9. Copies of all documents, including the arrest memo, must be sent to the Magistrate
for registration.

10. The Arrestee may be allowed to meet with his attorney during the interrogation,
although not throughout the interrogation.

11. 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.

Thus, this case was a landmark judgment given by the court while considering the
rampant issue of custodial death and violence in the country. But somewhere our
legislation has not yet taken any moral as well as legal consideration towards this
issue and there is no specific law in the country which deals with the issue of custodial
deaths. Public officers are acquitted after having no evidence against them to prove
their guilt. Thus, guidelines given under this case must be adopted by the officer and
no one should be allowed to take the law into their hands.

This court also opined that failure to comply with the above requirements, apart from
rendering the official concerned liable for departmental action, would also render him
liable to be punished for contempt of court and the proceedings for contempt of court
could be instituted in any High Court of country, having territorial jurisdiction over
the matter. This Court further observed:
"The requirements mentioned above shall be forwarded to the Director General of
every State/Union Territory and it shall be their obligation to circulate the same to
every police station under their charge and get the same notified at every police
station under their charge and get the same notified at every police station at a
conspicuous place.

https://indiankanoon.org
It would also be useful and serve larger interest to broadcast the requirements on All
India Radio besides being shown on the national Network of Doordarshan any by
publishing and distributing pamphlets in the local language containing these
requirements for information of the general public. Creating awareness about the
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lights of the arrestee would in our opinion be a step in the right direction to combat
the evil of custodial crime and bring in transparency and accountability. It is hoped
and accountability. It is hoped that thee requirements would help to curb, if not totally
eliminate, the use of a questionable methods during interrogation and investigation
leading to custodial commission of crimes."
More than seven months have elapsed since the directions were issued. Through these
petitions, Dr. Singhvi, the learned Amicus Curiae, who had assisted the Court in the
main petition, seeks a direction, calling upon the Director General of Police and the
Home Secretary of every State/union Territory to report to this Curt compliance of the
above directions and the steps taken by the All India Radio and the National Network
of Doordarshan for broadcasting the requirements.

We direct the Registry to send a copy of this application, together with a copy of this
order to respondents 1 to 31 to have the report/reports from the Director General of
Police and the Home Secretary of the concerned State/Union Territory, sent to this
Court regarding the compliance of the above directions concerning arrestees. The
report shall indicate in a tabular from a to which of the "requirements" has been
carried out and in what manner, as also which are the "requirements" which still
remain to be carried out and the steps being taken for carrying out those.

Report shall also be obtained from the Directors of All India Radio and Doordarshan
regarding broadcasts made.

The notice on respondents 1 to 31, in addition, may also be served through the
standing counsel of the respective State/union Territories in the Supreme Court. After
the reports are received, copies of the same shall be furnished to the Advocate on
Record for Dr. Singhvi, Ms. Suruchi Agarwal Advocate.

The reports shall be submitted to this court in the terms, indicated above, within six
weeks from today. The matters shall be put up on board for monitoring, after seven
weeks.

https://indiankanoon.org

Judgment:

Ratio Decidendi:

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 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.
Relying on Nilabati behera vs. State of Orrisa (1993), the court stated that any form
of torture or cruel, inhuman or degrading treatments falls within the ambit of article
21, whether it occurs during investigation, interrogation or otherwise. The rights
guaranteed by article 21 cannot be denied to under trials, convicts, detenus and other
prisoners in custody, except according to the procedure established by law by placing
such reasonable restrictions on the right as are permitted by law. Even after laying
down procedural requirements in Joginder Kumar vs. State of U.P., it has been
observed that the police arrested a person without warrant in connection with the
investigation of an offence and the arrested person has been subjected to torture to
extract information or a confession.

https://www.iasparliament.com/current-affairs/dk-basu-judgments-custodial-deaths

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Grant of Compensation to victims of custodial torture
In every case where a man is wronged, he must have a corresponding remedy. Ubi jus
ibi remedium. When a fundamental right of a person is infringed by the State, a mere
declaration of the invalidity of an action or a finding of custodial violence or death
would not be a meaningful remedy. In the words of the Court, “To repair the wrong
done and give judicial redress for the legal injury is a compulsion of judicial
conscience”.
In such cases, mere punishment of wrong – doer cannot give much solace to the
victim or his family members. Driving him to file a civil suit for damages would also
be a long drawn and cumbersome judicial process. Therefore, monetary compensation
would be a useful, and perhaps, the only effective remedy “to apply balm to the
wounds of the family member to the decased victim, who may have been the bread-
winner of the family”.
Then Supreme Court, therefore, examined the provisions of the International
Covenant on Civil and Political Rights, 1966, as well as the observation in several
Indian and English cases. Thereafter, it came to the conclusion that monetary or
pecuniary compensation would be the appropriate, effective, and in some cases, the
only suitable remedy for the infringement of a citizen’s fundamental rights to life by a
public servant. The State is vicariously liable for the acts of its servants and after
meeting its monetary liability to the victim, claim of the citizen is based on the
principle of strict liability and the defence of sovereign immunity is not available to
the State. The citizen is thus entitled to the compensation from the State.
Lastly, the Court observed that the quantum of compensation would depend on the
peculiar facts of each case, and no strait-jacket formula can be evolved for this
purpose. However, in accessing such compensation, the emphasis should be on the
compensatory and not the punitive element.

https://lawcirca.com/dk-basu-vs-state-of-bengal/
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Conclusion
The study concludes that custodial deaths are increasing in India and various
organizations raise their concern over the same. Death can be of natural or unnatural
consequences. But generally, the death in custody is occurring due to the torture of the
pubic officers while investigating the case. It is necessary and permitted by the law to
interrogate an accused but at the same time, it is also provided that no illegal methods
be adopted to investigate the case.

To conformity with the constitutional provisions and human rights aspects, it is

necessary that these offenses against the arrestee must be curbed in the democratic
country. The Supreme Court has taken this matter seriously and raised its concern in
the number of cases of custodial violence and death. But it is no moral, as well as
legal consideration, is taken by the legislation.

Further, there are various provisions incorporated under the Code of Criminal
Procedure, Indian Penal Code, Indian Evidence Act, and Constitution of India to
protect and safeguards the rights of an arrestee. But these provisions are not sufficient
to prove the guilt of the perpetrators of the crime due to the influence of politics and
lack of evidence against them. These provisions are not specifically dealt with the
issue in the hand of custodial deaths in India especially unnatural deaths in the lockup.
Though the SC suggested and recommended certain guidelines in various cases of
custodial violence, legislation has not been taken into consideration, and death due to
custodial violence is increasing day by day due to various factors in India. It is the
duty of the state to preserve the Constitution of India and make certain amendments to
the law which are prima facie in violation of rule of law. It is the vicarious liability of
the state to curb these offenses as they are committed by the protectors of the citizens.

https://lawcirca.com/dk-basu-vs-state-of-bengal/
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BIBILOGRAPHY:
https://lawtimesjournal.in/d-k-basu-vs-state-of-west -bengal/
https://lawcirca.com/dk-basu-vs-state-of-bengal/
https://www.casemine.com/judgement/in/5790b33ce561097e45a4e365#
https://www.iasparliament.com/current-affairs/dk-basu-judgments-custodial-deaths
https://www.alec.co.in/judgement-page/dk-basu-v-state-of-west-bengal
https://indiankanoon.org

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