Back
SUPREME COURT OF INDIA
T.S. THAKUR, R. BANUMATHI, JJ.
Dilip K. Basu - Appellant
Vs.
State of West Bengal and others - Respondents
Cri. M.P. No. 16086 of 1997
Decided on : 24-07-2015
Practice and Procedure - Deaths in police custody - Gruesome incidents - Custodial torture - Arrest or detention - Constitutional right - A person who has been arrested or detained and is being held in custody in a police station or interrogation 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 particular place, unless attesting witness of memo of arrest is himself such a friend or a relative of arrestee - Held, No reason why appropriate proceedings cannot be initiated in cases where enquiry establishes culpability of those in whose custody a victim dies or suffers any injuries or torture - Law should take its course and those responsible duly and appropriately proceeded against - As regards deployment of women constables all that we need say is that States concerned would consider desirability of posting women constables in police stations wherever it is found that over a period of past two years women were detained in connection with any criminal case or investigation - Liberty is, however, reserved to petitioner to seek revival of these proceedings should there be any cogent reason for such revival at any time in future – Direction issued - Criminal Miscellaneous Petition disposed of.
Ratio decidendi:
Mandatory constitution of State Human Rights Commissions (SHRCs): The word "may" in Section 21(1) of the Protection of Human Rights Act, 1993, must be construed as "shall" or mandatory, as it confers a power coupled with a duty, given the Act's purpose of protecting human rights, international obligations, access to justice under Article 21, and the scheme vesting SHRCs with powers akin to the National Human Rights Commission (NHRC) for inquiries, awareness, and promotion of human rights. States cannot evade this obligation due to discretion, financial constraints, or small size; they must constitute SHRCs (using Section 21(6) for joint setups if needed), especially in high-violation areas. (!) (!) [1000570890006][1000570890007][1000570890008][1000570890009][1000570890010][1000570890011][1000570890012][1000570890013][1000570890014][1000570890015][1000570890016] (!)
Filling vacancies in SHRCs: Vacancies in posts of Chairperson or Members must be filled expeditiously (within 3 months of occurrence or from the order date for existing ones) to keep SHRCs functional, as dysfunctional commissions defeat the Act's object; proactive processes should start in advance where possible.[1000570890021][1000570890022] (!) (!)
Reaffirmation of arrest/detention guidelines: The 11 requirements issued in the 1997 judgment (e.g., identification tags, arrest memo with witness, informing friend/relative, medical exams, diary entries, documents to magistrate, lawyer meetings, control room notices) remain binding as preventive measures against custodial abuse until legislated. (!) (!) [1000570890032] (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
Prosecutions in custodial deaths/injuries: Where inquiry establishes culpability of custody officials for death, injury, or torture, appropriate criminal proceedings (e.g., under IPC Sections 302/304) must be initiated without fail.[1000570890029] (!)
Other supportive measures: States should notify Human Rights Courts per Section 30; install CCTV in prisons (within 1-2 years) and consider phased installation in police stations; appoint non-official visitors for surprise inspections; deploy women constables where women were detained recently.[1000570890023][1000570890024][1000570890026][1000570890027][1000570890028] (!) (!) (!) (!) (!)
Judgment :
T.S. Thakur, J.
In D.K. Basu etc. v. State of West Bengal etc., (1997) 1 SCC 416 [D.K. Basu (1)] this Court lamented the growing incidence of torture and deaths in police custody. This Court noted that although violation of one or the other of the human rights has been the subject-matter of several Conventions and Declarations and although commitments have been made to eliminate the scourge of custodial torture yet gruesome incidents of such torture continue unabated. The court described 'custodial torture' as a naked violation of human dignity and degradation that destroys self esteem of the victim and does not even spare his personality. Custodial torture observed the Court is a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step backwards. The Court relied upon the Report of the Royal Commission on Criminal Procedure and the Third Report of the National Police Commission in India to hold that despite recommendations for banishing torture from investigative system, growing incidence of torture and deaths in police custody come back to haunt. Relying upon the decisions of this Court in Joginder Kumar v. State of U.P. and Ors., (1994) 4 SCC 260; Smt Nilabati Behera alias Lalita Behera v. State of Orissa and Ors., (1993) 2 SCC 746; State of M.P. v. Shyamsunder Trivedi and Ors., (1995) 4 SCC 262 and the 113th report of the Law Commission of India recommending insertion of Section 114-B in the Indian Evidence Act, this Court held that while the freedom of an individual must yield to the security of the State, the right to interrogate the detenus, culprits or arrestees in the interest of the nation must take precedence over an individual’s right to personal liberty. Having said that the action of the State, observed this Court, must be just and fair. Using any form of torture for extracting any kind of information would neither be right nor just or fair, hence, impermissible, and offensive to Article 21 of the Constitution. A crime suspect, declared the court, may be interrogated and subjected to sustained and scientific interrogation in the manner determined by the provisions of law, but, no such suspect can be tortured or subjected to third degree methods or eliminated with a view to eliciting information, extracting a confession or deriving knowledge about his accomplices, weapons etc. His constitutional right cannot be abridged except in the manner permitted by law, though in the very nature of things there would be a qualitative difference in the method of interrogation of such a person as compared to an ordinary criminal. State terrorism declared this Court is no answer to combat terrorism. It may only provide legitimacy to terrorism, which is bad for the State and the community and above all for the rule of law. Having said that, the Court issued the following directions and guidelines in all cases of arrest and/or detention:
'35. We therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention 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 dear 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 a 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 held in custody in a police station or interrogation centre or other lock-up, shall be entitled to ha
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
