1996 Supreme(Raj) 763

Supreme Court
Honble KULDIP SINGH & DR. A.S. ANAND, JJ.
Shri D.K. Basu - Appellant
Versus
State of West Bengal - Respondents
Writ Petition (Crl.) No. 539 of 1986
Decided On : December 18, 1996

Headnote:(a) Constitution of India – Article 21 and 22 (1) – Right of life and personal liberty – Right to live with human dignity – Any degrading treatment whether it occurs during investigation, interrogation or otherwise would fall within inhibition of Article 21 – Using any form of torture is impermissible – Custodial death is one of the worst crime in a civilised society. (Para 21)(b) Constitution of India – Article 21 – Abuse of police power – Costodial violence – There are two safeguards to check – Transparency of action and accountability – Till the Law is amended Court issued requirements to be followed strictly in every case – Monetary compensation to be awarded – State is vicariously liable for the acts of the police – Defence of sovereign immunity is not avilable to State – Compensation will be based on strict liability – It will be in addition to claim available in private law of damages. (Para 18, 25, 27, 38 & 43)(c) Criminal Jurisprudence – Attention of Parliament was drawn to amend the Law as required to meet the situation – Wide publicity by every means be directed to spread the message of the aforesaid requirement – If these directions/requirements are violated then, it will be deemed to be contempt of court. (Para 31 and 34)

       Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation interogation or otherwise. If the functionaries of the Government become law breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto him self thereby leading to anarchanism. No civilised nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These question touch the spinal cord of human rights jurisprudence. The answer, indeed, has to be an emphatic `No. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials, detenues and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law. (Para 21)

       We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or deterntion till legal provisions are made in that behalf as preventive measures.

       (1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

       (2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by atleast one witness. Who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.

       (3) A person who has been arrested or detained and is being helstody in a police station or interrrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is him self 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 by the police where the next friend or relative of the arrestee lives outside the 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 this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

       (6) An entry must be made in the 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 officials in whose custody the arrestee is.

       (7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The ``Inspection Memo must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

       (8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director Health Services of the concerned State of Union Territory, Director, Health Services should prepare such a penal for all Tehsils and Districts as well.

       (9) Copies of all the documents includeing the memo of arrest, referred to above, should be sent to the illaqa Magistrate for his record.

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

       (11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. (Para 30)