D.K. BASU V. STATE OF W.B.
(1997) 1 SCC 416
FACTS
In the current case, the Executive Chairman, Legal Aid Services, West Bengal, a non- political organisation registered under the Societies Registration Act, on 26-8-1986 addressed a letter to the Chief Justice of India drawing his attention to certain news items published in The Telegraph dated 20-7-1986, 21-7-1986 and 22-7-1986 and in the Statesman and Indian Express dated 17-8-1986 regarding deaths in police lock-ups and custody. The Executive Chairman after reproducing the news items submitted that it was imperative to examine the issue in depth and to develop “custody jurisprudence” and formulate modalities for awarding compensation to the victim and/or family members of the victim for atrocities and death caused in police custody and to provide for accountability of the officers concerned. While the writ petition was under consideration a letter addressed by Shri Ashok Kumar Johri on 29-7-1987 to the Hon’ble Chief Justice of India drawing the attention of this Court to the death of one Mahesh Bihari of Pilkhana, Aligarh in police custody was received. That letter was also treated as a writ petition and was directed to be listed along with the writ petition filed by Shri D.K. Basu.
ISSUE
Although there were multiple issues framed, the main issue pertaining to the current scenario reflected whether custodial violence and death violated the right to life and liberty as mentioned in article 21 of the constitution.
JUDGEMENT AND ANALYSIS
- This hon’ble court observed that the question of custodial deaths i.e. deaths in lock uos and the death in modalities for awarding the compensation to the members of the family of the deceased as well as to the victims subjected to police torture, has been considered in great depth. Many times, the police arrest a person without warrant in connection with the investigation of an offence, without recording his arrest. He is then subjected to torture to extract information from him for the purpose of carrying on further investigation. The torture and violence caused to the arrestee sometimes results in his death.
- The court stated that the “Custudial violence including torture and death in the lock ups, stikes a blow in the law, which shows that the powers of the executive should not only be derived by the law, but also be limited to the law.
- The court also observed that the “requirements to be followed by all cases of arrest or detention till legal provisions are made in that behalf as preventive measures.” It was further opined that the failure to comply with such requirements would not only render the officials liable for departmental action but also for contempt of court.
- The Court has emphasised that public law proceedings serve a different purpose than the private law proceedings. The purpose of the former is “not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved”. On the other hand, civil action for damages is a long drawn and cumbersome judicial process.
- The court also observed that relying on the right to life and liberty under article 21, this hon'ble court has given detailed directions to be followed by the police authorities against custodial violence and deaths in the police lockups.
CASES REFERRED
- In Joginder Kumar v. State of U.P, it was observed that “No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. ... No arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter”
- In Nilabati Behera v. State of Orissa, it was stated that prisoners and detenus are not denied of their fundamental rights under Article 21 and it is only such restrictions as are permitted by law, which can be imposed on the enjoyment of the fundamental rights of the arrestees and detenus.