D.K. Basu v. State of W.B.

AIR 1997 SC 610

Subject matter:- Death in police lockups and custody

Aspects of law :-Custody jurisprudence, Modalitles for providing compensation, and

Accountability of police officers.

Brief Facts:-The executive chairman of Legal Aid Services wrote a letter to CJI
drawing his attention to news items regarding deaths in police lock ups and custody
and prayed to examine the issues w.r.t custody jurisprudence , modalities for
providing compensation to victim and accountability of police officers. According to
him the matters of lock up deaths were hushed up and crime got unpunished. He also
prayed that his letter alongwith news items be accepted as writ petition.

The court accepted his prayer and issued notice to W.B govt which contradicted the
allegation .At the same time the court received a letter ofsri A.K.Johari stating death
of Mahesh Bihari of ALIGARH in police lock up. The court accepted the letter as writ
and directed to be listed with writ petition of Sri D.K.Basu. The court observed that
police lock up deaths were reported across India and acquired all India question ,so
requiring all State govts to express their views. Accordingly notices were issued to all
state govts as well as Law Commission of India to express their views and
suggestions on the matter. Dr A.M.Singhvi was requested to assist the court as
AMICUS CURIAE.

Decision; The court observed the following;

1. Custodial violence violates the Rule of law demanding executive power to be

derived from be limited by law.
2. Torture is not defined in constitution and penal laws but it stands for imposing
will of the strong over the weak by suffering and presents darker side of
civilization.
3. The UDHR vide Art.5 states that no one shall be subjected to torture or cruel,
inhuman or degrading treatment or punishment.
4. SIR Cyril Philips Committee in 1981 examined police powers to arrest ,detain
and interrogate and stated that power to arrest without warrant must be related
to object to be served and not every case without object.
5. Custodial violence is a naked violation of human dignity involving
degradation taking away individual personality.
6. According to the Royal Commission the objects of arrest may be as follows;
a. Unwillingness to identify himself
b. Need to prevent continuance or repetition of offence
c. Need to protect accused or other person or property.
d. Need tosecure or preserve evidence.
e. Likelihood of person’s failure to appear at court.
The Commission suggested for Appearance Notice in place of arrest on line
with Ontario Scheme
7. Art.21 CONST. includes guarantee against torture by state functionaries. Art
22 mandates that arrestee can not be detained without informing grounds of
arrest nor denied right to consult legal counsel for defense. It furthermore
calls for producing arrestee before magistrate within 24 hours .of arrest. Art
20(3) provides for not compelling arrestee to be a witness against himself. The
court noted that despite the above mandates incidents of torture and deaths in
police lock ups were reported which was a disturbing fact as that resulted
during investigation by police by using third degree methods and screening
arrest by not recording and describing deprivation of liberty on account of
prolonged interrogation.
8. The National Police Commission in its third report suggested justification of
arrest during investigation of cognizable offence as follows;
a. For restraining movements to infuse confidence to victim.
b. When accused may abscond
c. When accused being of violent behaviour may commit offence.
d. When he is a habitual offender likely to commit similar offence.
The suggestion also emphasized recording of reasons by police in case diary.
9. Joginder Kumar v. State of U.P. Arrest is justified only when reasonable
justification is reached after some investigation about bonafides of complaint
and reasonable belief as to person’s complicity and need for arrest.
10. Neelbati Bahera v.State of Orissa Detenues are not denuded of right to life
and personal liberty except according to procedure established by law which
the police and prison authorities must ensure, as duty to take care is strict on
state,and the wrong doer is accountable for any deprivation to detenue or
prisoner.
11. State of M.P V.Shayam SunderTrivedi and Others For torture leading to
death in police custody the concerned officials were convicted under ss 304
read with 34 IPC and sentenced to imprisonment and fine to be paid to heirs of
deceased by way of compensation.
12. Miranda v. Arizona (US Sup COURT) An individual can not be compelled to
be a witness against himself and his right can not be abridged.
13. The right to interrogate detenues, and arrestees must proceed over individual’s
right to personal liberty, however the action of state must be right, just and
fair. Hence, any torture for extracting information is neither right, nor just nor
fair and therefore impermissible being offensive to Art.21.
14. Decision of the court :- The court issued following requirements to be
followed in cases of arrest and detention till legal provisions were made ;
a. Police personnel to bear accurate, visible and clear identification with name
tagsand designation and recording of all particulars of personnel handling
interrogation.
b. Arrest Memo to be prepared at time of arrest to be attested by at least one
witness ( family member or respectable member of locality) and countersigned
by arrestee and mentioning of time and date of arrest.
c. Unless family member being a witness, any friend or relative or other person
known o him/having interest in welfare to be informed about arrest and
detention at a particular place.
d. Notification of time, place of arrest and venue of custody to the next
friend/relative through the Legal Aid Organisation of the district and the
police station of the area telegraphically within 8 to 12hrs of arrest.
 e. Right to be informed of his right to have someone informed of arrest or
detention soon after arrest or detention.

f. Entry to be made in the diary about arrest and name of person informed and
name of custodian.

g. Medical examination about injuries at time of arrest upon request and its
recording. Inspection Memoto be signed by police officer and arrestee and a
copy to be provided to arrestee.

h. Medical examination at every 48 hrs during detention by trained doctor.

i. Copies of all documents including Arrest Memo to be forwarded to Ilaqua

magistrate for his record.

j. Right to meet lawyer during interrogation and not throughout it.

k. Police control room to be established at district and state hqrs to display

details of arrest and place of custody and arrester to communicate all details of
arrest within 12 hrs.

l. Any failure to abide by the above requirements shall make official liable under
service rules and contempt of court proceedings shall be launched in the high
court having territorial jurisdiction.

m. Requirements shall bind other state agencies also.

n. Requirements shall operate in addition to constitutional and statutory safegua

rds and directions of court from time to time.

o. DGP and Home Secretary of every state or UT Shall circulate the

requirements to police stations to display conspicuously.

p. Broadcasting of requirements on ALL India Radio and showing on national

networks of Door Darshan and distribution of pamphlets in local languages for
information to public.

q. Awareness about rights of arrestee would be a step in right direction tocombat

custodial violence and bring in transparency and accountability.

r. The Court believed the requirements able to curb if not eliminate questionable
methods of interrogation during investigation leading to custodial crimes
commited by police.

PUNITIVE MEASURES ;
Aspect; Whether court can order for granting compensation while disposing writ
petition for enforcing fundamental right?
The court decided the aspect on the basis of the following principles of law
and judicial decisions;
a. Ubi jus ibi remedium; A mere declaration of illegality of lock up deaths does
not provide any meaningful remedy to a victim of deprivation of fundamental
right guaranteed under Art.21 Const. Much more needs to be done.
b. Indian Penal Code regime; S.220 provides punishment for detaining a person
in confinement with corrupt motive or malice. S.330 &331 provide
punishment for inflicting injury to a person for extorting confession in regard
to commission of an offence.
The court estimated the above provisions as inadequate to repair the
wrong done to a victim of deprivation of fundamental right and observed that
prosecuting the wrong doer is the state’s obligation but victim of crime needs to
be compensated monetarily also. The court emphasized that in case of deprivation
of fundamental right it can not stop with a mere declaration ,rather it will proceed
further to grant compensatory relief not by way of damages as in acivil action but
by way of compensation under public law for wrong done due to breach of public
duty by state in not safeguarding fundamental right of citizen .
3.ICCPR 1966vide Art.9(5) provides for right to compensation to a person
victimized in unlawful arrest or detention .The court noted the GOI ‘s specific
reservation to not accepting the provision, however explained its firm conviction
for awarding compensation for violation of fundamental right of a citizen as it
held in the decisions as follows;
a. Rudal Shah v. State of Bihar.
b. Sebestian M .Hongreeeeeeeeeey v.UOI.
c. Bhim Singh v.State of J &K. and
d. Saheli v. Commissioner of police, Delhi.
The court noted that even in vacuum of express provision for grant of
compensation in the Const. it evolved right to compensation in cases of
deprivation of personal liberty or life in the above cases

4. The defence of sovereign immunity is not available to state for tortuous acts of
public servantsfor established violation of right guaranteed under Art.21 CONST.
5. The above claim for compensation is based on strict liability in public law for
violation of fundamental right and is in addition toany claim available in private
law for damages for tortuous act of public servants.
6. The court is obliged to satisfy social aspirations of citijens as courts and law
are for the people and expected to respond to their aspirations. Mere punishment
of offender can not give much solace to victim’s family and civil action for
damages is a longdrawn cumbersome judicial process .Hence monetary
compensation is a useful and perhaps the only effective remedy for the family
members of the deceased.
7. The primary source of the public law proceedings stems from the prerogative
writs and courts have therefore to evolve new tools togive relief in public law by
moulding it according tosituation with a view to protect and preserve the R ULE
OF Law.
8. Just a similar approach of redressing the wrong by compensation has been
adopted by courts of Ireland.
9. B yrne v..Ireland(1972) ; Aright guaranteed by state is against the state that
remedy must be sought if state had failed to discharge the const. obligation.
10. Maharaj v.Attorney General of Trinidad and Tobago (1978).; Order for
monetary compensation is available under Sec 6 of C ONST. For redress for
violation of basic human rights and fundamental freedoms…
11. Simpson v. Attorney General(1994); The Court of Appeal observed that the
courts are not only to observe the Bill of Rights in discharge of their duties but are
able to grant appropriate and effective remedies for infringement of rights.1
12. Nilabati Bahera v.State of Orrissa (1993); The supreme court awarded
damages against state to mother of a young man for death in police custody and
observed that it was a remedy in public law and not in tort and was based on strict
liability for violation of fundamental right and to which sovereign immunity
principle did not apply.
13. In Simpson’s case the five members of court of Appeal had delivered separate
judgements but they opined unanimously regarding grant of compensation in
monetary terms to victim for violation of rights guaranteed under the Bill of Right
Act ,in spite of lack of a corresponding provision in that behalf.
14. The court observed that in the assessment of compensation emphasis has to be
on on compensatory and not on punitive element as punishment to offender is left
to criminal courts and where state has a duty to punish the offender.
15. The award of compensation as above is also without prejudiceto any other
action like civil suit for damages for the same matter for tortuous act of state
functionary.
16. The quantum of compensationwill depend on particular facts of the case and
therefore no strait jacket formulacan be evolved.
17 The relief of compensation for violation of fundamental right under public law
is in addition to traditional remedies and not in derogation of them.
18.The amount of compensation as awarded by the court and paid by state,may in
a given case be adjusted against any amount which may be awarded to the
claimant by way of damages in a civil suit.

‘’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’
ASSIGNMENTS;
Q1.Draft a hypothetical state of facts relating to violation of fundamental right in
police custody or lock up and determine the quantum of compensation as well as
punishment of the errant public official under specific statutory provisions . Also
state under which statutory provisions the amount of compensation can be
indemnified against the guilty public official ? Whether senior public official can
also be accountable and liable for punishment as well as indemnification ?
Q2.Critically examine contribution of D. K. Basu judgement in criminal justice
system and evaluate its impact in eradicating police brutalities in lock up and
custody.Refer to relevant authentic data and cases etc.to support your answer as
any.
Q3.Do you think that power of arrest under Cr.P.C requires amendment ? Argue
your view in light of underlying problems and modalities suitable to safeguard
individual and societal interests relating to rising crimes and expanding horizons
of human rights.

Dr. P. K. Shukla