11 Guidelines for arrest by Supreme Court of India D K Basu

Title: Shri D. K. Basu, Ashok K. Johri vs State Of West Bengal, State Of U.P.

Case No: WRIT PETITION (CRL) NO. 592 OF 1987

Judgment Date: 18/12/1996

Mode of Citation: AIR – 1997 SC – 610

By Divisional Bench of Justice Kuldeep Singh and Justice Dr. A.S. Anand

Author of the judgement: Justice Dr. A.S. Anand

Abstract:

In the present case, guidelines with regards to all types of arrest and detention were made by the Supreme Court of India. The need for these guidelines arose due to the writ petition filed seeking preventive measures against custodial death.

Facts:

Mr. D K Basu, the Executive Chairman, of Legal Aid Services, West Bengal, a non-political organisation registered under the Societies Registration Act, on 26.08.1986 addressed a letter (a postcard) to the Chief Justice of India drawing his attention to certain news items published in newspapers namely, The Indian Express and The Telegraph regarding deaths in police lock-ups and custody.
Mr. D. K. Basu after reproducing the new items submitted that it was essential to examine the issue in depth and to develop “custody jurisprudence” and formulate modalities for awarding compensation to the victim and/or family members of the victim for atrocities and death caused in police custody and to provide for accountability.
It was requested by the petitioner that the letter along with the new items be treated as a writ petition under “public interest litigation” category.

Legal Course:

Considering the importance of the issue raised in the letter, the letter was treated as a writ petition and notice was issued on 9.2.1987 to the respondents (The state of West Bengal).
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 action is initiated against the police personnel responsible for such death or actions. The respondents characterised the writ petition as misconceived, misleading and untenable in law.
While the writ petition was under consideration a letter from Shri Ashok Kumar Johri on 29.7.87 to the Hon’ble Chief Justice of India drawing the attention of this Court to the death of one Mahesh Bihari of Pilkhana, Aligarh in police custody was received. That letter was also considered as a writ petition and clubbed along with the writ petition filed by Shri D.K. Basu. On 14.8.1987.
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 notices were issued to all the State Governments and Law Commission of India with a request that suitable suggestions from them in two months.
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.
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.
“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.

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.
In the light of UDHR and ‘Report of a Royal Commission on Criminal Procedure following 11 guidelines were issued for arresting a person.

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.

11 Guidelines for Arresting a Person:

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.
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.
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.
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.
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.
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.
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.
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.
Copies of all documents including the arrest memo have to be sent to the Area Magistrate (Illaqa Magistrate) for his record.
The arrestee has a right to meet a lawyer during the interrogation, although not throughout the interrogation.
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.

These requirements are in addition to other rights and rules, such as:

The right to be informed at the time of arrest of the offence for which the person is being arrested.
The right to be presented before a magistrate within 24 hours of the arrest.
The right not to be ill-treated or tortured during arrest or in custody.
Confessions made in police custody cannot be used as evidence against the accused.
According to Proviso, Section 160(1) Code of Criminal Procedure, 1973, Women should not be called to the police station or to any place other than their place of residence for questioning inasmuch (only) as it says that no male person under the age of fifteen or woman shall be required to attend at any place other than the place in which such male person or woman resides.