D.K. Basu v. State of West Bengal: Rights of an Arrested Person in Police Custody

When a person is arrested, their freedom of movement is taken away. Custody simply means restricting a person's freedom to move. In India, this freedom can be taken only by the procedure established by law, and it is done either through judicial custody or police custody.

The reason behind keeping a person in custody is to stop them from committing another offence, tampering with evidence, or threatening witnesses. In short, custody is meant to help the investigation run smoothly.

A person in custody also has rights under Article 21 of the Indian Constitution. But before the D.K. Basu case, arrested persons were often deprived of this right. Cases of custodial death and violence had increased a lot, and those responsible often got away easily because there was no clear law or procedure to deal with them. This need for protection led to the filing of this important case. It is one of the most discussed judgments in any Judiciary Exam, and for good reason.

Background of the Case

The case began with a simple letter. The need to prevent and control custodial death and violence was strongly felt, and the court was asked to step in. The Supreme Court took the matter seriously and gave directions that changed how arrests are made in India.

Bench

The case was decided by Justice Kuldip Singh and Justice Dr. A.S. Anand.

Facts of the Case

D.K. Basu was the Executive Chairman of Legal Aid Services, West Bengal, a non-political organisation. He wrote a letter to the Supreme Court of India to draw the court's attention to news reports published in various newspapers about deaths in police custody and lockups.

In the letter, he pointed out that crimes of custodial violence almost always went unpunished, even after efforts were made. He requested the court to look into the matter so that the family members of the victims could be given some form of compensation. He also asked that his letter be treated as a Writ Petition under the category of Public Interest Litigation.

Looking at the importance of the issues raised, the court treated the letter as a written petition and informed the defendants.

Issues Before the Court

The Supreme Court looked into the following questions:

•        Whether there was an increase in cases of custodial death and violence.

•        Whether there was a need for guidelines on the arrest and custody of a detenu.

•        Whether police officers could be held liable for custodial death and violence.

•        Whether custodial death and violence amounted to a violation of Article 21 of the detenu.

Judgment

The Supreme Court referred to the case of Neelabati Bahera v. State of Orissa AIR 1993 SC 1960. It repeated that prisoners and detainees should not be deprived of their Fundamental Rights under Article 21. Only the restrictions allowed by law could be placed on the enjoyment of these rights.

The court then laid down a set of guidelines and said that every arrest and detention would be subject to them. Breaking these guidelines would lead not only to departmental action against the officer, but also to contempt of court proceedings in a High Court that has jurisdiction over the matter.

The guidelines laid down by the court are:

1.     The police officer who arrests and handles the interrogation must wear accurate, visible and clear identification and name tags with their designations. The details of all such police personnel must be recorded in a register.

2.     The officer carrying out the arrest must prepare a memo of arrest at the time of arrest. It must be attested by at least one witness, who may be a family member of the arrestee or a respectable person of the locality. It must also be countersigned by the arrested person and must contain the time and date of arrest.

3.     A person who is arrested and held in custody is entitled to have one friend, relative or other person known to him informed about his arrest and place of detention as soon as possible, unless the attesting witness of the memo is already such a friend or relative.

4.     Where the friend or relative of the arrestee lives outside the district or town, the time, place of arrest and venue of custody must be notified by the police through the Legal Aid Organisation in the district and the local police station, telegraphically, within 8 to 12 hours of the arrest.

5.     The arrested person must be made aware of his right to have someone informed of his arrest or detention as soon as he is arrested or detained.

6.     An entry must be made in the case diary at the place of detention about the arrest. It must disclose the name of the next friend who was informed and the names and details of the police officials in whose custody the arrestee is kept.

7.     On request, the arrestee should be examined at the time of arrest, and any major or minor injuries on his body must be recorded. This Inspection Memo must be signed by both the arrestee and the police officer, and a copy must be given to the arrestee.

8.     The arrestee should undergo a medical examination by a trained doctor every 48 hours during detention. The doctor must be on a panel of approved doctors appointed by the Director, Health Services of the concerned State or Union Territory.

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

10. The arrestee may be allowed to meet his lawyer during interrogation, though not throughout the interrogation.

11. A police control room should be set up at all district and state headquarters. Information about the arrest and place of custody must be communicated to it within 12 hours of the arrest, and it should be displayed on a visible notice board.

Conclusion

The D.K. Basu case is treated as one of the most landmark cases in criminal jurisprudence. The guidelines given in this case were later added to the Criminal Procedure Code, 1973 through the Code of Criminal Procedure (Amendment) Act, 2008, which came into effect on 1 November 2010.

Before this case, there were many instances of custodial violence and death. In some of them compensation was awarded, but there was no provision or rule to fix liability for such acts. This case came at the right time, and through it the Supreme Court laid down clear guidelines to settle the issue of custodial death and violence. It was the first case to place liability on the police.

After the judgment, cases of custodial death and violence reduced, but they did not stop completely. Some of the guidelines have remained limited to paper only. Even so, this case remains a strong reminder that an arrested person never loses the protection of Article 21.

For anyone preparing for the Civil Judge Exam, PCS J Exam or any other Judiciary Exam, D.K. Basu is a must-read judgment. At Aashayein Judiciary  case laws like this are explained in simple language so that aspirants can understand both the facts and the principle clearly.