The present guidelines by the Supreme Court of India in regards to arrest, custodial death and detention is the result of this case which enabled the judiciary to take steps and address the increasing number of deaths in police custody and lock up.
|(1997) 1 SCC 416: 1997 SCC (Cri) 92
|Hon’ble Supreme Court of India
|December 18, 1996
|Union of India and State of West Bengal (and Others)
|Kuldip Singh and Dr A.S. Anand, JJ.
Facts of the Case:
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 Telegraph Newspaper publishing events of deaths in police custody. The petitioner requested that his letter be accepted as Writ Petition under “Public Interest Litigation” Category. As his letter addressed some importance 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.
What are the issues in this case?
- Death of several accused in the Police Custody due to Custodial Torture by police.
- Arbitrariness while arresting a person by the police.
What was held by the Court?
The Court relied on various judgements delivered by Indian as well as foreign courts. It delivered that the state should act in a “fair, right and just” manner. Torturing an individual for extracting any kind of information is neither fair nor right nor just and is thus violative of Article 21. A crime suspect can be interrogated but cannot be tortured as it abridges his or her constitutional rights. The Court keeping in view of the already existing procedures laid down in Joginder Kumar v. State of UP created structured machinery to be followed in cases of arrest or detention.
For Punitive Measures
It finally, was of the view that many a time the courts faces the challenges of satisfying the social aspirations of its citizens for whom the law is and so the courts are obliged to act for the satisfaction of their aspirations. The families of the victim cannot be solaced by mere punishments and civil damages are a vexatious judicial process. In such cases, only monetary compensation is a form of redressal effective enough to satisfy the family of the victim if the victim was the sole bread-earner of the family. The same view was taken into account in the case of Nilabati Behara v State of Orissa held that “Adverting to the grant of relief to the heirs of a victim of custodial death for the infraction or invasion of his rights guaranteed under Article 21 of the Constitution of India, it is not always enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortious act of the State as that remedy in private law indeed is available to the aggrieved party. The citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the courts exercising writ jurisdiction. The primary source of the public law proceedings stems from the prerogative writs and the courts have, therefore, to evolve ‘new tools’ to give relief in public law by moulding it according to the situation with a view to preserve and protect the Rule of Law.” It was also held that for tortious act the state is not protected by the principles of strict liability for which sovereign is granted immunity but it must compensate the citizen whose fundamental right such as Article 21 is infringed. The Court while deciding the compensation took the view that the citizen must be compensated keeping in mind of the compensatory element and not punitive. The object of the Court should be “to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty-bound to do.”
Why is this case significant in relation to Criminal Justice?
This case is a celebrated case as it gives a piece of structured machinery (as earlier mentioned) for recording and notifying cases of arrest or detention by maintaining transparency and accountability. The following are the guidelines laid down in this case:-
- Accurate, visible and clear identification and name tags: The police arresting and handling the interrogation must have accurate, visible name tags with their designations. A recorder must be maintained in the register for all those carrying out the interrogation.
- Memo of arrest: At the time of arrest a memo of arrest must be prepared by the arresting police officer which shall be attested by at least 1 witnesses who can be a family member of the arrestee or any respectable person of the locality from where the arrestee was arrested. Countersigned by the arrestee with date and time of the arrest.
- Right to inform: The arrestee or detainee has the right to inform anyone friend or relative or other person is known to him as soon as possible of his arrest or detention at the particular place unless the memo of arrest is attested by any such friend or relative.
- Notification by police: The police with the help of Legal Aid Organisation in the District and police station in the area concerned must notify the time, place of arrest and venue of custody of the arrestee to his next friend or relative living outside the district or town.
- An arrestee must be informed: After his or her arrest or detention the person must be informed and made aware of this right to inform his friend or relative.
- Diary entry: At the place of arrest an entry should be made in the diary with the names and particulars of the police officials in whose custody is the arrestee along with the arrestee’s name and the name of his next friend.
- Inspection Memo: If the arrestee request for him to be examined of any existing major or minor injuries present of his/her body at the time of arrest must be recorded and this “inspection memo” be signed by both the police officer and the arrestee. A copy of the same should be provided to the arrestee.
- Medical Examination: A trained doctor who must be on the panel of approved doctors appointed by the Director, Health Service of the State or Union Territory concerned should in every 48 hours examine the arrestee. The director of the Health Services should prepare such panels in all tehsils and districts.
- Copies to Illaqa Magistrate: The Illaqa Magistrate must have copies of all documents including the memo of arrest sent to him.
- The assistance of lawyer: The lawyer of the arrestee must be allowed to meet the arrestee during his interrogation, though not throughout the interrogation.
- Police Control room: There should be a police control room in all districts and State headquarters which should have information regarding the arrest of a person and the place of his custody communicated to the control room by the officer causing the arrest within 12 hours of arrest and the same information must be displayed on a conspicuous notice board.
Any failure to comply with abovementioned guidelines must not only make the concerned official liable for departmental actions but will also be making him liable for punishment for contempt of court. The proceeding for contempt of court against such official will take place in High Court of the State concerned having jurisdiction on the matter.
The guidelines are inflow of Article 21 and Article 22(1) of the Constitution of India and therefore needs to be followed strictly. This is in addition to the already existing “constitutional and statutory safeguards and does not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee.”
- D.K.Basu v. State of West Bengal, (1997) 1 SCC 416.
- Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260.
- Nilabhati Behara v. the State of Orissa, (1993) 2 SCC 746.
Gloria Hancy PurtyAuthor
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