D.K. BASU, ASHOK K. JOHRI v. STATE OF WEST BENGAL, STATE OF U.P.
1. INTRODUCTION
The D.K. Basu v. State of West Bengal1 is a landmark case when it comes to Indian criminal
jurisprudence, which addresses the issue of custodial deaths and custodial violence. Prior to
this judgement, instances of custodial deaths often went unnoticed and unpunished as there
were no specific rules to hold the policemen doing these acts accountable. This case resulted
in the establishment of 11 essential guidelines that must be followed by policemen while
arresting or detaining individuals, to protect their dignity and rights.
2. FACTS
Mr. Dilip Kumar Basu (D.K. Basu) was the executive chairman of a non-political organization
called Legal Aid Services in West Bengal. In the year 1986, he wrote a letter to the Supreme
Court of India, wherein he highlighted the rise of custodial deaths in India and attached
newspaper articles along with it.
He expressed concerns over the unlawful and inhumane treatment of individuals in police
custody. He pointed out that the police officers treating individuals like this often went
unpunished and there was a lack of accountability. He urged the court to take cognizance of
this issue, investigate it and provide the required compensation to the families of such victims.
He requested the Supreme Court of India to this letter as a Writ Petition under the category of
Public Interest Litigation. While this was still under consideration, one Mr. Ashok Kumar
Johari sent another letter to the then Chief Justice of India addressing a custodial death that
took place in the Aligarh police custody. Recognising the seriousness of this issue and keeping
public interest in mind, the Supreme Court treated both these letters as a single Writ Petition
and initiated the proceedings accordingly.
1
AIR 1997 SC 610.
1
The Supreme Court issued notices to all the state governments and the Law Commission of
India, requesting their suggestions in the formulation of appropriate measures to address the
situation within a stipulated period of 2 months. In response to this, several states submitted
affidavits including Assam, Odisha, West Bengal, Haryana, Tamil Nadu, Himachal Pradesh,
Meghalaya, Manipur and Maharashtra. Dr. A.M. Singhvi who was the principal counsel was
appointed as the amicus curiae to assist the court.
3. ISSUES
1. Whether there is an increase in the cases of custodial death and violence?
2. Whether the police officers should be held liable for custodial death and violence?
3. Why are the policemen showing arbitrariness while arresting individuals ?
4. Is there a need for some specific certain guidelines governing the arrest and custody of
detainee?
4. LAW
The following legal provisions from various Acts, Statutes and the Constitution of India have
been mentioned in the judgment of this case -
The Criminal Procedure Code, 1973 -
Chapter V deals with the powers of arrest and the safeguards required to be followed by the
police to protect the arrested person’s interests. The judges refer to the following sections of
this chapter, while delivering the judgement of this case -
• Section 41: Grants power to police officers to arrest citizens without a warrant under
specific circumstances.
• Section 46: Defines the method and manner of arrest.
• Section 49: Restricts the use of unnecessary restraint or force during an arrest.
• Section 50: Requires informing the arrested person of the offence they have committed
and their right to get a bail.
• Section 53: Stipulates that a medical examination of the accused shall be conducted,
by a registered medical practitioner.
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• Section 54: Stipulates that the examination of arrested person must be conducted by a
by medical officer.
• Section 56: Mandates producing the arrested person before a magistrate or officer in
charge of the police station without any sort of delay.
• Section 57: Stipulates that the arrested person should not be kept in police custody
beyond 24 hours without a warrant.
• Section 167: Lays down the procedure, when the investigation cannot take place within
24 hours.
• Section 176: Requires a magistrate to inquire into the cause of death if someone dies
in police custody.
The Indian Penal Code, 1860 -
• Section 220: Punishes officers who detain someone with malicious intent.
• Sections 330 and Section 331: Punish those inflicting injuries to extract confessions.
The Constitution of India -
• Article 21 gives the fundamental right of, the right to life and personal liberty.
• Article 22 deals with the protection against arrest and detention in certain cases.
5. ANALYSIS
In this case, the petitioner argued that detainees’ physical and mental suffering in police stations
or confinement facilities should be prevented. The petitioner emphasized that the trauma
experienced, whether through physical assault or rape in police custody, goes beyond the scope
of existing laws and regulations. The petitioner urged that as a civilized nation, substantial
measures must be taken to eliminate such practices and protect the rights and well-being of
detainees.
On the other hand, the respondents, including counsel representing different states and Dr. A.M.
Singhvi, maintained that their respective states already had well-established procedures and
regulations in place. They asserted their confidence in the existing systems and offered valuable
insights to the court to consider various aspects of the issue. Additionally, they made
suggestions for the court to create guidelines aimed at reducing, if not entirely preventing,
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custodial violence and ensuring support for the families of individuals who die in custody due
to torture.
The Supreme Court referred to a case called Neelabati Behra v. State of Orissa2, in which it
was stated that mistreating, being cruel or showing inhumane behaviour to people who are
arrested, violates their Fundamental Rights, particularly Article 21. Any restrictions on these
rights can only be imposed on citizens in accordance with the legal provisions. This same idea
was also seen in the case of Sunil Batra v. Delhi Administration 3.
The Supreme Court also mentioned the case of Joginder Kumar v. State of Uttar Pradesh 4 and
emphasized that even though rules for arresting criminals were already established, it was
noticed that police officers were arresting people without warrants. Just because the law allows
a police officer to make an arrest doesn’t mean they can do it without a good reason. Arrests
should not be done without justification.
The court issued a set of 11 guidelines along with constitutional and statutory safeguards that
are to be followed by policemen in all cases of arrest and detention. They are as follows -
1. Identification: Police officers must wear visible identification and name tags while arresting
or interrogating suspects, and details of officers must be recorded.
2. Memo of Arrest: Officers must prepare a memo of arrest at the time of arrest, attested by a
witness and signed by the arrested person.
3. Information of Arrest: The arrested person can have one friend or relative informed of their
arrest, unless that person is also a witness to the arrest.
4. Information of Arrest to a person outside the district: If the person to be informed lives
outside the district, details of arrest must be sent via telegram.
5. Informing the Arrestee: The arrested person must be informed of the grounds of arrest and
their right to inform a relative or friend.
6. Diary Entry: Details of the arrest, informed individuals, and police officials must be entered
in a diary at the place of detention.
2
AIR 1993 SC 1960.
3
1980 AIR 1579.
4
1994 Cr. L. J. 1981
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7. Inspection Memo: The arrestee can request a physical examination for injuries, which must
be recorded in an Inspection Memo signed by both the arrestee and the arresting officer.
8. Medical Examination: The arrestee must undergo a medical examination every 48 hours
by an approved doctor.
9. Copies of documents to Illaqa Magistrate: All arrest-related documents must be sent to
the Illaqa Magistrate.
10. Right to Lawyer: The arrestee has the right to consult and be defended by a lawyer of their
choice, though not necessarily at all times during interrogation.
11. Police Control Room: Details of the arrest must be reported to the Police Control Room
within 12 hours, and this information must be displayed on the control room's notice board.
The court emphasized the importance of widely publicizing these arrest procedures or
guidelines through media channels. Police stations are also required to clearly display these
guidelines. Failure to follow these guidelines can result in disciplinary action against the
officer, and they could even be held in contempt of court.
These guidelines combined with other existing rights given by the the Constitution of India,
the Code of Criminal Procedure, 1973 and the Indian Penal Code, 1860, such as the right to
appear before a judge within a day of arrest and freedom from torture in custody, are essential
procedures in upholding the fundamental rights and freedoms of detainees.
6. CONCLUSION
The D.K. Basu case is a landmark case in India that established important guidelines to prevent
custodial violence and protect the rights of detainees. Majority of the policemen in India have
this superiority complex, and they feel that they have the right to treat the detainees however
they want, be it hurling abuses at them or physically abusing them. The Supreme Court
recognized the gravity of the situation and highlighted the need for stricter enforcement of
existing legal provisions alongside the newly formulated guidelines. This case serves as a
reminder that law enforcement officials must operate within the legal framework and respect
the fundamental rights of all individuals. It also emphasizes the importance of accountability
for police officers who violate these guidelines. The D.K. Basu case continues to be a
significant precedent in ensuring police accountability and upholding the dignity of arrested or
detained persons in India.
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7. REFERENCES
Acts / Statutes / Constitution Referred
The Constitution of India, 1950
The Code of Criminal Procedure, 1973
The Indian Penal Code, 1860
Book Referred
Ratanlal and Dhirajlal, The Code of Criminal Procedure, Lexis Nexis, 23rd Edition, 2020.
Cases Referred
D.K. Basu vs. State of West Bengal (AIR 1997 SC 610.)
Neelabati Behra v. State of Orissa (AIR 1993 SC 1960.)
Sunil Batra v. Delhi Administration (1980 AIR 1579.)
Joginder Kumar v. State of Uttar Pradesh (1994 Cr. L. J. 1981)
Website Referred
https://police.andaman.gov.in/index.php/en/rules-regulations/rights-of-arrestee.html
https://cjp.org.in/revisiting-dk-basu-the-most-relevant-judgment-of-all-time/
https://www.thehindu.com/news/national/custodial-deaths-on-a-rise-in-west-bengal-claim-
activists/article67188215.ece
https://theleaflet.in/d-k-basu-case-supreme-court-seeks-comprehensive-note-on-enhancing-
safeguards-on-custodial-violence/
