Cases

D.K. Basu vs State of West Bengal

Facts of the Case:

In August 1986, Mr. Dilip Kumar Basu, the Executive Chairman of Legal Aid
Services - West Bengal, wrote to the Chief Justice of India regarding news
articles in the Telegraph Newspaper that reported deaths in police custody.
He requested his letter be treated as a Writ Petition under "Public Interest
Litigation." The letter was considered a Writ Petition, and respondents were
served notice. Another letter from Mr. Ashok Kumar Johari regarding a
death in Aligarh Police Custody was also treated as a Writ Petition.
On August 14, 1987, the Court issued an order for all states to provide
suitable suggestions within two months. Several states, including West
Bengal, Assam, Orissa, Haryana, Meghalaya, Maharashtra, Manipur, and
Himachal Pradesh, filed affidavits in response to the notice, with West
Bengal denying the allegations. Dr. A.M. Sanghavi, a Senior Advocate, was
later appointed as Amicus Curiae to assist the court.

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.

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:-

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. Copies to Illaqa Magistrate: The Illaqa Magistrate must have copies of
all documents including the memo of arrest sent to him.
10. The assistance of lawyer: The lawyer of the arrestee must be allowed
to meet the arrestee during his interrogation, though not throughout the
interrogation.
11. 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.
Joginder Kumar v. State of UP

Facts:
A 28-year-old LL.B. graduate and registered advocate named Joginder
Kumar was summoned to the Senior Superintendent of Police's office in
Ghaziabad. On January 7, 1994, he went there with his brothers but was
detained without clear reasons. His family couldn't locate him until later
that day when they found out he was held against his will by the SHO, P.S.
Mussoorie. The next day, it was revealed he was detained for investigation,
but he hadn't been taken to a magistrate. When his family visited the police
station on January 8, 1994, he had been secretly moved. Joginder Kumar
filed a petition for his release. The court issued a notice to the State of U.P.
and SSP, Ghaziabad, on January 11, 1994. Both appeared before the court
on January 14, 1994, questioning why he had been detained for five days
without seeing a magistrate

Held
The Court, concerned about the unlawful detention of the petitioner for five
days, orders a thorough investigation by the District Judge in Ghaziabad.
The report must be submitted within four weeks. The Court rules in favor of
the petitioner, ordering their immediate release. To prevent police abuse of
authority, the Court suggests implementing restrictions on arrest rights and
requiring police officers to record arrest circumstances in the case diary,
ensuring adherence to predetermined standards.

Arnesh Kumar vs State Of Bihar & Anr

The facts of the case are as follows, where the wife filed a complained
against his husband for Dowry case. After that Arnesh went to sessions
court for anticipatory court, but the court denies, then he moved to HC then
to SC. In this SC granted anticipatory bill. The court observed that women
misused this provision, as police, in these cases, arrest the whole family.
The court gave new guidelines regarding the arrest.

Guidelines
 All the state govt. to instruct its police officer not to atomically arrest,
the person who is alleged of commission of an offence under Section
498 A of IPC and also deals with dowry case, though the offence is
registered.
  No Arrest shall be made on the basis of offence being non-bailable &
cognizable.
 Arrest should be proceeded by initial investigation by the officers to
access the geniuses
 The necessity of the arrest arises, when the case calls under the
parameter under Parameter of section 41CrPC
 All police officers shall be provided with the check list containing
specific sub-clause under Section 41 (1)(b)(2)
 The police officer shall forward the checklist dully filled and furnish
the reason and material which necessities the arrest of the person.
 All these documents should be produced before the magistrate when
the arrested person is presented before the magistrate for further
detention
 The magistrate shall presume, the report furnished by police, while
authorizing detention
 The magistrate in turn is to be satisfied that the condition
precedented for the arrest under Section 41 of CrPC has been satisfied
and thereafter only he will allow the detention of the accused
 The decision to not to arrest the accused must be forwarded to
magistrate within 2 weeks, with further extension
 The copy of documents be forwarded to magistrate which may be
extended to SP with reasons to be recorded in writing.
 The notice of appearance in terms of Section 41 A CrPC shall be
severed to accused within 2 weeks from the date of initiation of the
case
 Failure to comply with the direction, the police officer shall be liable
for departmental action, and also for the punishment for contempt of
court which shall be appropriated before HC
 Authorising detention without writing reasons before magistrate shall
be liable for departmental action by the appropriate high court

Guidelines in Delhi Judicial Association Case