Bench:

• Kuldeep Singh
• AS Anand

Issue:

• Whether there are set guidelines to be followed when a custodial arrest happens?
•  Whether Custodial Torture and Deaths by the Police is justifiable?

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Facts:

• DK Basu, The Executive Chairman, Legal Aid Services, West Bengal, a non- Political organization on 26.08.1986 addressed a letter to the Chief Justice of India drawing his attention to certain news items published in the Telegraph Newspaper regarding deaths in police lock-up and custody.

• He requested that the letter be treated as a Writ Petition within the "Public Interest Litigation" Category. Considering the importance of the issues raised in the letter, it was treated as a Writ Petition and notice was served to the Respondents.

• While the Writ Petition was under consideration, one Mr. Ashok Kumar Johri addressed a letter to the Chief Justice drawing his attention to the death of one Mahesh Bihari of Pilkhana, Aligarh in Police Custody.

• The same letter was also treated as a Writ Petition and was listed along with the Writ Petition of D.K. Basu. On 14.08.1987, the Court made the Order issuing notices to all the State Governments and notice was also issued to the Law Commission of India requesting suitable suggestions within a period of two months.

• In response to the notice, affidavits were filed by several states including West Bengal, Orissa, Assam, Himachal Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra, and Manipur. Further, Dr. A.M. Singhvi, Senior Advocate was appointed as Amicus Curiae to assist the Court.

Petitioner's Contentions:

• The petitioner argued that bodily pain and mental agony suffered by a person within the four walls of a police station or confinement should be avoided. Whether it is physical assault or rape in police custody, the scope of trauma experiences is beyond the scope of the law.

• The petitioner further argued that there is a need for a civilized nation and that some important steps must be taken to eradicate it.

Respondent's Contentions:

• The Counsel representing different states and Dr. AM Singhvi presented the case and stated that "everything was fine" within their respective States, presented their respective beliefs and provided useful assistance to this Court to examine various facets of the problem and made sure that suggestions for the formulation of guidelines by this court to reduce, if not prevent, violence in custody and the relatives of those who die in custody due to torture.

• In order to defend this important fall of the administrative wing, the State of West Bengal made an attempt to convey that there are no deaths in the confinements and even if there were any, then an investigation should be carried out on whoever did it.

Judgement:

The court issued a list of 11 guidelines in addition to the Constitutional and Statutory safeguards which were to be followed in all cases of arrest and detention. The guidelines are as follows-

• A Police Control Room should be provided at all districts and State Head Quarters, 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.

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

• Copies of all the documents including the memo of arrest referred to above should be sent to the Illaqa Magistrate for his record.

• The arrestee should be subjected to a 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 the Director, Health Services of the State or Union Territory concerned. The Director, Health Services should prepare such a panel for all tehsils and districts as well.

• 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 the 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.

• The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organization in the district and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

• 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.

• 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 at least one witness, who may either be 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 countersigned by the arrestee and shall contain the time and date of arrest.

Relevant Paragraph:

Failure to comply with the requirements herein above mentioned shall, apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the county having territorial jurisdiction over the matter.