# D.K. BASU v. STATE OF WEST BENGAL

- **Citation:** [1996] Supp. 10 S.C.R. 284
- **Court:** Supreme Court of India
- **Decided:** 1996-12-18
- **Bench:** Kuldip Singh, Dr. A.S. Anand
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/d-k-basu-v-state-of-west-bengal-14667
- **Pages:** 37

## Headnote

Constitution of India, 1950 : Articles 21, 22 and 32.
Custodial violence-Torture, rape and death in police custody/lockC up-Infringes Art. 21 as well as basic human rights and strikes a blow at rule
of law-Torture involved not only physical suffering but also mental agony-It
was naked violation of human dignity and destruction of human personality-{nterrogation must be sustained and scientific-Third-degree
methods would be impennissible--Balanced approach needed to meet ends
D of justice so that criminals did not go scot-free-Custodial deaths was one of
the worst crimes in civilised socie~Transparency of action and accountability were two safe-guards to check abuse of police power-State terrorism
was no answer to terrorism-Victim of custodial violence and in case of his
death in custody, his f amity members entitled to col'l'!pensation under public
law in addition to remedy available under private law for damages for tortious
E act of police personnef-Mandatory 'requirements' issued by Supreme Court
shall be complied with by police personnel while arresting or detaining any
person-These were in addition to constitutional and statutory directions-The requirements would apply with equal force to all governmental
agencies-The requirements must be circulated to all police stations and
F publicised through mass media-Failure to comply with the requirements
would render the official concerned liable for departmental action as well as
contempt of court-Proceedings for contempt of court could be instituted in
High Court ha~ing tenitorial jurisdiction-Penal Code, 1860, Ss. 220, 330 and ·
331.
G
Fundamental Rights-Established invasion of-Compensation
for-Held : Compensation could be awarded under public law by Supreme
'
Court and by High Courts in addition to traditional remedies under private
law for tortious acts and pwiishment to wrongdoer under criminal law.
H
Public law proceedings-Object of-Held : Different from private law
284
D.K BASU v. STATE
285
proceedings-Award of compensation in public law proceedings, in a given A
case, could be adjusted against damages awarded in a civil suit.
The petitioner filed a petition-public interest-in this Court in the
wake of news items published in the Telegraph, the Statesman and the
Indian Express regarding deaths in police lock-up and custody. The
petition stated that efforts were often made to hush up the lock-up deaths B
and thus the crime went unpunished and "flourished".
On behalf of the petitioner it was submitted that modalities for
awarding compensation to the victim and/or family members of the victim
for attrocities and death caused in police custody and to provide for C
accountability of the officers concerned be formulated.
Disposing of the petition, this Court
HELD : 1.1. Custodial violence, including torture and death in the
lock ups, strikes a blow at the Rule of Law, which demands that the powers D
of the executive should not only be derived from law but also that the same
should be limited by law. Custodial violence is a matter of concern. It is
aggravated by the fact that it is committed by persons who are supposed
to be the protectors of the citizens. It is committed under the shield of
uniform and authority within the four walls of a police station or Jock-up, E
the victim being tofally hdpless. The Jlrotection of an individual from
torture and abuse by the police and other law enforcing officers is a matter
of deep concern in a free society. These petitions raise important issues.
concerning police powers, including whether monetary compensation
should be awarded for established infringement of the Fundamental
Rights guaranteed by Articles 21 and 22 of the Constitution of India. The F
issues are fundamental. (295-C-E]
1.2. 'Torture' of a human being by another human being is essentially
an instrument to impose the will of the 'strong' over the 'weak' by suffering.
The word torture today has become synoymous with the darker side of G
human civilisation. "Custodial torture

## Text

_Characters 0–39,829 of 89,510. This is a partial read: ask again with offset=39829 for what follows._

A
D.K. BASU
v.
STATE OF WEST BENGAL
DECEMBER 18, 1996
B
[KULDIP SINGH AND DR. A.S. ANAND, JJ.]
Constitution of India, 1950 : Articles 21, 22 and 32.
Custodial violence-Torture, rape and death in police custody/lockC up-Infringes Art. 21 as well as basic human rights and strikes a blow at rule
of law-Torture involved not only physical suffering but also mental agony-It
was naked violation of human dignity and destruction of human personality-{nterrogation must be sustained and scientific-Third-degree
methods would be impennissible--Balanced approach needed to meet ends
D of justice so that criminals did not go scot-free-Custodial deaths was one of
the worst crimes in civilised socie~Transparency of action and accountability were two safe-guards to check abuse of police power-State terrorism
was no answer to terrorism-Victim of custodial violence and in case of his
death in custody, his f amity members entitled to col'l'!pensation under public
law in addition to remedy available under private law for damages for tortious
E act of police personnef-Mandatory 'requirements' issued by Supreme Court
shall be complied with by police personnel while arresting or detaining any
person-These were in addition to constitutional and statutory directions-The requirements would apply with equal force to all governmental
agencies-The requirements must be circulated to all police stations and
F publicised through mass media-Failure to comply with the requirements
would render the official concerned liable for departmental action as well as
contempt of court-Proceedings for contempt of court could be instituted in
High Court ha~ing tenitorial jurisdiction-Penal Code, 1860, Ss. 220, 330 and ·
331.
G
Fundamental Rights-Established invasion of-Compensation
for-Held : Compensation could be awarded under public law by Supreme
'
Court and by High Courts in addition to traditional remedies under private
law for tortious acts and pwiishment to wrongdoer under criminal law.
H
Public law proceedings-Object of-Held : Different from private law
284
D.K BASU v. STATE
285
proceedings-Award of compensation in public law proceedings, in a given A
case, could be adjusted against damages awarded in a civil suit.
The petitioner filed a petition-public interest-in this Court in the
wake of news items published in the Telegraph, the Statesman and the
Indian Express regarding deaths in police lock-up and custody. The
petition stated that efforts were often made to hush up the lock-up deaths B
and thus the crime went unpunished and "flourished".
On behalf of the petitioner it was submitted that modalities for
awarding compensation to the victim and/or family members of the victim
for attrocities and death caused in police custody and to provide for C
accountability of the officers concerned be formulated.
Disposing of the petition, this Court
HELD : 1.1. Custodial violence, including torture and death in the
lock ups, strikes a blow at the Rule of Law, which demands that the powers D
of the executive should not only be derived from law but also that the same
should be limited by law. Custodial violence is a matter of concern. It is
aggravated by the fact that it is committed by persons who are supposed
to be the protectors of the citizens. It is committed under the shield of
uniform and authority within the four walls of a police station or Jock-up, E
the victim being tofally hdpless. The Jlrotection of an individual from
torture and abuse by the police and other law enforcing officers is a matter
of deep concern in a free society. These petitions raise important issues.
concerning police powers, including whether monetary compensation
should be awarded for established infringement of the Fundamental
Rights guaranteed by Articles 21 and 22 of the Constitution of India. The F
issues are fundamental. (295-C-E]
1.2. 'Torture' of a human being by another human being is essentially
an instrument to impose the will of the 'strong' over the 'weak' by suffering.
The word torture today has become synoymous with the darker side of G
human civilisation. "Custodial torture" is a naked violation of human dig·
nity and degradation which destroys, to a very large extent, the individual
personality. It is a calculated assault on human dignity and whenever
human dignity is wounded, civilisation takes a step backward- flag of
humanity must on each such occasion fly half- mast. In all custodial crimes
what is of real concern is not only infliction of body pain but the mental H
286
SUPREME COURT REPORTS[1996] SUPP. 10 S.C.R.
A agony which a person undergoes within the four walls of police station or
lock-up. Whether it is physical assault or rape in police custody, the extent of
trauma, a person experiences is beyond the purview of law. [295-F; 296-B-C]
1.3. Custodial death is perhaps one of the worst crimes in civilised
B society governed by the Rule of Law. The rights inherent in Articles 21 and
22(1) of the Constitution require to be jealously and scrupulously
protected. The expression "life or personal liberty" has been held to include
the right to live with human dignity and thus it would also include within
itself a guarantee against torture and assault by the State or its
functionaries. The precious right guaranteed by Article 21 of the ConstituC tion of India cannot be denied to convicts, undertrials, detenues and other
prisoners in custody, except according to the procedure established by law
by placing such reasonable restrictions as are permitted by law. It cannot
be said that a citizen sheds off his fundamental right to life, the moment
a policeman arrests him. Nor can it be said that the right to life of a citizen
D be put in abeyance on his arrest. Any form of torture or cruel, inhuman or
degrading treatment would fall within the inhibition of Article 21 of the
Constitution, whether it occurs during investigation, interrogation or
otherwise. If the functicnaries of the Government become law breakers, it
is bound to breed contempt for law and would encourage lawlessness and
every man would have the tendency to become law unto himself thereby
E leading to anarchism. No civilised nation can permit that to happen. This
Court as the custodian and protector of the fundamental and the basic
human rights of the citizens cannot wish away the problem. The right to
interrogate the detenues, culprits or arrestees in the interest of the nation,
must take precedence over an individual's right to personal liberty. The
F latin maxim salus popule est suprema lex (the safety of the people is the
Supreme law) and sallus republicae est suprema lex (safety of the State is
the supreme law) co~exist and are not only important and relevant but lie
at the heart of the doctrine that the welfare of an individual must yield to
that of the community. The action of the State, however, must be "right,
just and fair". Using any form of torture for extracting any kind of inforG mation would neither be 'right nor just and fair' and, therefore, would be
impermissible, being offensive to Article 21. Such a crime-suspect must be
interrogated - indeed subjected to sustained and scientific interrogation -
determined in accordance with the provisions of law. He cannot, however,
be tortured or subjected to third degree methods or eliminated with a view to
H elicit information, extract confession or derive knowledge about his ac-
D.K BASUv. STATE
2B7
.. complices, weapons etc. His Constitutional right cannot be abridged except A
in the manner permitted by law, though in the very nature of things there
would be qualitative difference in the method of interrogation of such a
person as compared to an ordinary criminal. Challenge of terrorism must
be met with innovative ideas and approach. State terrorism is no answer
to combat terrorism. State terrorism would only provide legitimacy to B
'terrorism'. That would be bad for the State, community and above all for
the Rule of Law. The State must, therefore, ensure that various agencies
deployed by it for combating terrorism act within the bounds of law and
not become law unto themselves. That the terrorist has violated human
rights of innocent citizens may render him liable for punishment but it
cannot justify the violation of his human rights except in the manner C
permitted by law. Need, therefore, is to develop scientific methods of
investigation and train the investigators properly to interrogate to meet
the challenge. [301-F-G; 298-B-C; 302-A-B; 301-G-H; 309-D-F; 310-A-B]
Joginder Kumar v. State, [1994] 4 SCC 260; Neelabati Bahera v. State D
of Orissa, [1993] 2 SCC 746 and State of M.P. v. Shyamsunder Triwedi &
Ors., [1995] 3 Scale 343, relied on.
Miranda v. Arizona, 384 US 436, referred to.
Chambers v. Florida. 309 US 227, cited.
2.1. Police is, no doubt, under a legal duty and has legitimate right
to arrest a criminal and to interrogate him during the investigation of an
offence but it must be remembered that the law does nor permit use of
third degree methods or torture of accused in custody during interrogation
E
and investigation with a view to solve the crime. End cannot justify the F
means. The interrogation and investigation into a crime should be in true
sense purposeful to make the investigation effective. By torturing a person
and using third degree methods, the police would be accomplishing behind
the closed doors what the demands of our legal order forbid. No society
can permit it. [307-B-D]
G
2.2. It is true that in case of "too much" emphasis on protection ·of
fundamental and human rights of hardened criminals, such criminals may
go scot-free without exposing any element or iota of criminality with the
result, the crime would go unpunished and in the ultimate analysis the
society would suffer. The concern is genuine and the problem is real. To H
288
SUPREME COURT REPORTS(1996] SUPP.10 S.C.R.
A deal with such a situation, a balanced approach is needed to meet the ends
of justice. This is all the more so, in view of' th~ expectation of the society
that police must deal with the criminals in an efficient and effective
manner and bring to book those who are involved in the crime. The cure
cannot, however, be worse than the disease itself. [308-F-G]
B
2.3. To check the abuse of police power, transparency of action and
accountability perhaps are two possible safeguards which this Court must
insist upon. Attention is also required to be paid to properly develop work
culture, training and orientation of the police force consistent with basic
human values. Training methodology of the police needs restructuring.
C The force needs to be infused with basic human values and made sensitive
to the constitutional ethos. Efforts must be made to change the attitude
and approach of the police personnel handling investigation so that they
do not sacrifice basic human values during interrogation and do not resort
to questionable forms of interrogation. With a view to bring in transparency, the presence of the counsel of the arrestee ?t some point of time during
D ti.e interrogation may deter the police from u~ing third degree methods
during interrogation.
, 3. It is, therefore, appropriate to issue the following requirements to
be followed in all cases of arrest or detention till legal provisions are made
E · in that behalf as preventive measures :
(1) 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
F recorded in a register.
(2) 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 be either a member of the family
G 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.
(3) A person who has been arrested or detained and is being held in
custody in a police station or interrogation centre or other lock-up, shall
H be entitled to have one friend or relative or other person known to him or
D.K BASUv. SfATE
289
having interest in his welfare being informed, as soon as practicable, that • A
he has been arrested and is being detained at the particular place, unless
the attesting witness of the memo of arrest is himself such a friend or a
relative of the arrestee.
( 4) 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 B
lives outside the district or town through the Legal Aid Organisation in
the District and the police station of the area concerned telegraphically
within a period of 8 to 12 hours after the arres~.
(5) The person arrested must be made aware of this right to have C
someone informed of his arrest or detention as soon as h~ is put under
arrest or is detained.
(6) An entry must be made in the diary at the place of detention
regarding the arrest of the person which shall also disclose the name of
the next friend of the person who has been informed of the arrest and the p
names and particulars of the police officials in whose custody the arrestee
1
is.
(7) The arrestee should, where he so requests, be also examine!f at
the time of his arrest and major and minor injuries, if any present on
his/her body, must be recorded at that time. The "Inspection Memo" must E
be signed both by the arrestee and the police officer effecting the arrest
and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a
trained doctor every 48 hours during his detention in custody by a doctor F
on the panel of approved doctors appointed by Director, Health Services
of the concerned State or Union Territory. Director, Health Services
should prepare such a penal for all Tehsils and Districts as well.
(9) Copies of all the documents including the memo of arrest,
referred to above, should be sent to the illaqa Magistrate for his record.. G
(10) The arrestee may be permitted to meet his lawyer during inter·
rogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and state
headquarters, where information regarding .the arrest and the place of H
290
SUPREME COURT REPORTS[l996] SUPP. 10 S.C.R.
A 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. [310-D-F; 311-A-H; 312-A]
B
4.1. Failure to comply with the requirements hereinabove mentioned
shall apart from rendering the concerned official liable for departmental
action, also render him liable to be punished for contempt of court and the
_{Jroceedings for contempt of court may be instituted in High Court of the
country, having territorial jurisdiction over the matter. [312-B]
4.2. The requirements, referred to above flow from Articles 21and22(1)
C of the Constitution and need to be strictly followed. These would apply with
equal force to the other Governmental agencies also like Directorate of
Revenue Intelligence, Directorate of Enforcement, Coastal Guard, Central
Reserve Police Force (CRPF), Border Security Force (BSF), the Central Industrial Security Force (CISF), the State Armed Police, Intelligence Agencies
like the Intelligence Bureau, RAW, Central Bureau of Investigation (CBI),
D CID, Traffic Police, Mounted Police and ITBP. [307-G-H; 308-A-B]
Re Death of Satwinder Singh Grover [1995] Supp. 4 SCC 450, relied
on.
4.3. These requirements are in addition to the constitutional and
E statutory safeguards and do not detract from various other directions
given by the courts from time to time in connection with the safeguarding
of the rights and dignity of the arrestee. [312-C-DJ
4.4. The requirements mentioned above shall be forwarded to the
Director General of Police and the Home Secretary of every State/Union
F Territory and it shall be their obligation to circulate the same to every
police station under their charge and get the same notified at every police
station at a conspicuous place. It would also be useful and serve larger
interest to broadcast the requirements on the All India Radio besides being
shown on the National network of Doordarshan and by publishing and
G distributing pamphlets in the local language containing these requirements
for information of the general public. Creating awareness about the rights
of the arrestee would be a step in the rights direction to combat the evil of
custodial crime and bring in transparency and ccountability. [312-D-FJ
5.1. UBI JUS /BI REMEDIUM - There is no wrong without a remedy.
H The law wills that in every case where a man is wronged and endamaged
..
-
D.K. BASU v. STATE
291
he must have a remedy. A mere declaration of invalidity of an action or A
finding of custodial violence or death in lock-up, does not by itself provide
any meaningful remedy to a person whose fundamental right to life has
been infringed. Much more needs to be done. There is indeed no express
provision in the Constitution of India for grant of compensation for
violation of a fundamental right to life, nonetheless, this Court has judi- B
cially evolved a right to compensation in cases of established unconstitutional deprivation of personal liberty or life. (312-G-H; 313-A; H; 314-A]
Rudul Shah v. State of Bihar [1983] 4 SCC 141; Sebastian M. Hongrey
v. Union of India (1984] 3 SCC 339; Bhim Singh v. State of J & K [1984]
Supp. SCC 504; Saheli v. Commissioner of Police, Delhi [1990] 1 SCC 422 C
and Kasturi Lal Ralia Ram Jain v. State of U.P. (1965] 1 S.C.R 375, relied
on.
5.2. The claim in public law for compensation for unconstitutional
deprivation of fundamental right to life and liberty, the protection of which D
is guaranteed under the Constitution, is a claim based on strict liability
and is in addition to the claim available in private law for damages for
tortious acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation
for established infringement of the indefeasible rights guaranteed under
Article 21 of the Constitution is a remedy available in public law since the E
purpose of public law 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. Grant of compensation in
proceedings under Article 32 or 226 of the Constitution of India for the
established violation of the fundamental rights guaranteed under Article F
21, is an exercise of the Courts under the public law jurisdiction for
penalising the wrongdoer and fixing the liability for the public wrong on
the State which failed in the discharge of its public duty to protect the
fundamental rights of the citizen. (314-H; 315-A-C]
5.3. The old doctrine of only relegating the aggrieved to the remedies G
available in civil law limits the role of the courts too much, as the protector
and custodian of the indefeasible rights of the citizens. The courts have
the obligation to satisfy the social aspirations of the citizens because the
courts and the law are for the people and expected to respond to their
aspirations. A court of law cannot close its consciousness and aliveness to H
292
SUPREME COURT REPORTS(1996) SUPP. 10 S.C.R.
A stark realities. Mere punishment of the offender cannot give much solace
to the family of the victim - civil action for damages is a long drawn and
cumbersome judicial process. Monetary compensation for redressal by the
Court finding the infringement of the indefeasible right to life of the citizen
is, therefore, a useful and at times perhaps the only effective remedy to
B apply balm to the wounds of the family members of the deceased victim,
who may have been the bread winner of the family. [315-D-F]
Nilabti Behera v. State of Orissa [1993) 2 SCC 746, relied on.
The State (At the Prosecution of Quinn) v. Ryan (1965) IR 70; Byrne
C v. Ireland (1972) IR 241; Maharaj v. Attorney General of Trinidad and
Tobago (1978) 2 All E.R. 670 and Simpson v.Attomey General (1994) NZIR
667, referred to.
6. Awarding appropriate punishment for the offence (irrespective· of
compensation~ must be left to the criminal courts in which the offender is
D prosecuted, which the state, in law, is duty bound to do. The award of
compensation in the public law jurisdiction is also without prejudice to
any other action like civil suit for damages which is lawfully available to
the victim or the heirs of the deceased victim with respect to the same
matter for the tortious act committed by the functionaries of the State. The
· .-
E quantum of compensation will, of course, depend upon the peculiar facts
of each case and no strait jacket formula can be evo.,ved in that behalf.
The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus,
in addition to the traditional remedies and not in derogation of them. The
amount of compensation as awarded by the Court and paid by the State
F to redress the wrong done, 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. [320-C-F]
CRIMINAL APPELLATE JURISDICTION: Writ Petition (CrL)
G No. 539 of 1986 Etc.
(Under Article 32 of the Constitution of India.)
V.R. Reddy, Additional Solicitor General, Dr. N.M. Ghatate, Tapas
Ray, Ms. K. Amareswar~ Dr. A.M. Singhvi, (AC.), Sushil Kr. Jain, SudH hanshu Atreya, P.K. Bansal, P. Parmeswarilll, R.P. Srivastava, S.J5.:. Nandy,
-
'
D.K BASUv. STATE [DRANAND,J.]
293
(I.S. Goyal) for Ms. Indu Malhotra, Naresh K. Sharma, Ashok Mathur, A
Sakesh Kumar, Uma Nath Singh, AS. Bhasme, D.N. Mukherjee, Ms.
Hemantika Wahi, Kailash Vasdev, Ms. Alpana Kirpal, Raj Kumar Mehta,
R.S. Suri, G.K. Bansal, AS. Pundir, Dilip Singh, Krishnamurthi Swami,
P.K. Manohar, G. Prabhakar, M. Veerappa, Ms. S. Janani, G. Prakash,
M.T. George, K.V. Venkataraman, K.V. Viswnathan, B.K. Prasad,, B
T.V.S.N. Chari, B.B. Singh, Anip Sachthey, N. Raghuraman, K.R. Nambiar,
Indra Makwana, R. Mohan, Gopal Singh, Ms. Kamini Jaiswal, D.N.
Goburdhan, C.V.S. Rao, R. Sasiprabhu, S.K. Agnihotr~ R.B. Misra for the
appearing parties.
The Judgment of the Court was delivered by
c
DR. ANAND. J. The Executive Chairman, Legal Aid Services, West
Bengal, a non-political organisation registered under the Societies
Registration Act, on 26th August, 1986 addressed a letter to the Chief
Justice of India drawing his attention to certain news items published in
the Telegraph dated 20, 21 and 22 of July, 1986 and in the Statesman and D
Indian Express dated 17th August, 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 atE
trocities and death caused in police custody and to provide for accountability of the officers concerned. It was also stated in the letter that efforts
are often made to hush up the matter of lock-up deaths and thus the crime
goes unpunished and "flourishes". It was requested that the letter alongwith
the news items be treated as a writ petition under "public interest litigation"
category.
F
Considering the importance of the issue raised in the letter and being
concerned by frequent complaints regarding custodial violence and deaths
in police lock up, the letter was treated as a writ petition and notice was
issued on 9.2.1987 to the respondents.
G
In response to the notice, the State of West Bengal filed a counter.
It was maintained that the police was not hushing up any matter of lock-up
death and that whereever police personnel were found to the responsible
for such death, action was being initiated against them. The respondents
characterised the writ petition as misconceived, misleading and untenable H
294
SUPREMECOURTREPORTS[l996] SUPP.10 S.C.R.
A in law.
B
c
.D
'
While the writ petition was under consideration a letter addressed
by Shri Ashok Kumar Johri on 29.7.87 to 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 alongwith the writ
petition filed by Shri D.K. Basu. On 14.8.1987 this Court made the following order:
"In almost every states there are allegations and these allegations
are now increasing in frequency of deaths in custody described
generally by newspapers as lock-up deaths. At present there does
not appear to be any machinery to effectively deal with such
allegations. Since this is an all India question concerning all States,
it is desirable to issue notices to all the State Governments to find
out whether they are desire to say anything in the matter. Let
notices issue to all the State Governments. Let notice also issue to
the Law Commission of India with a request that suitable suggestions may be made in the matter. Notice be made returnable in
two months from today."
E
In response to the notice, affidavits have been filed on behalf of the
States of West Bengal, Orissa, Assam, Himachal Pradesh, Madhya
Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra and Manipur.
Affidavits have also been filed on behalf of Union Territory of Chandigarh
and the Law Commission of India.
F
" During the course of hearing of the writ petitions, the Court felt
necessity of having assistance from the Bar and Dr. AM. Singhvi, senior
advocate was requested to assist the Court as amicus curiae.
Learned counsel appearing for different States and Dr. Singhvi, as a
friend of the court, presented the case ably and though the effort on the
G part of the States initially was to show that "everything was well" within
their respective States, learned counsel for the parties, as was expected of
them in view of the importance of the issue involved, rose above their
respective briefs and rendered useful assistance to this Court in examining
various facets of the issue and made certain suggestions for formulation of
H guidelines by this Court to miniml.se, if not prevent, custodial violence and
•
D.K BASU v. STATE [DR. ANAND, J.]
295
for award of compensation to the victims of custodial violence and the kith A
and kin of those who die in custody on account of torture.
The Law Commission of India also in response to the notice issued
by this Court forwarded a copy of the 113th Report regarding "Injuries in
police custody and suggested incorporation of Section 114-B in the Indian
Evidence Act."
B
The importance of affirmed rights of every human being need no
emphasis and, therefore, to deter breaches thereof becomes a sacred duty
of the Court, as the custodian and protector of the fundamental and the
basic human rights of the citizens. Custodial violence, including torture and C
death in the lock ups, strikes a blow at the Rule of Law, which demands
that the powers of the executive should not only be derived from law but
also that the same should be limited by law. Custodial violence is a matter
of concern. It is aggravated by the fact that it is committed by the persons
who are supposed to be the protectors of the citizens. It is committed under
the shield of uniform and authority in the four walls of a police station or D
locK-up, the victim being totally helpless. The protection of an individual
from torture and abuse by the police and other law enforcing officers is a
matter of deep concern in a free society. These petitions raise important
issues concerning police powers, including whether monetary compensation should be awarded for established infringement of the Fundamental E
Rights guaranteed by Articles 21 and 22 of the Constitution of India. The
issues are fundamental.
"Torture" has not been defined in the Constitution or in other penal
laws. 'Torture' of a human being by another human being is essentially an
instrument to impose the will of the 'strong' over the 'weak' by suffering. F
The word torture today has become synonymous with the darker side of the
human civilisation.
"Torture is a wound in the soul so painful that sometimes you can
almost touch it, but it is also such intangible that there is no way G
to heal it. Torture is anguish squeezing in your chest, cold as ice
and heavy as a stone paralyzing as sleep and dark as the abyss.
Torture is despair and fear and rage and hate. It is a desire to kill
and destroy including yourself.
- Adriana P. Bartow H
296
SUPREME COURT REPORTS[1996] SUPP. 10 S.C.R.
A
No violation of any one of the human rights has been the subject of
so many Conv_entions and Declarations as 'torture' - all aiming at total
banning of it in all forms, but inspite of the commitments made to eliminate
torture, the fact remains that torture is more widespread now than- ever
before. "Custodial torture" is a naked violation of human dignity and
B degradation which destroys, to a very large extent, the individual personality. It is a calculated assault on human dignity and whenever human
dignity is wounded, civilisation takes a step backward - flag of humanity
must on each such occasion fly half-mast.
In all custodial crimes what is of real concern is not only infliction
C of body pain but the mental agony which a person undergoes within the
four walls of police station or lock-up. Whether it is a physical assault or
rape in police custody, the extent of trauma, a person experiences is beyond
the purview of law.
D
"Custodial violence" and abuse of police power is not only peculiar
to this country but it is widespread. It has been the concern of international
community because the problem is universal and the challenge is almost
global. The Universal Declaration of Human Rights in 1948, which rnarked
the emergence of a worldwide trend of pro~ection and guarantee of certain
basic human rights, stipulates in Article 5 that "No one shall be subjected
E to torture or to cruel, inhuman or degrading treatment or punishment."
Despite the pious declaration, the crime continues unabated, though every
civilised nation shows its concern and takes steps for its eradication.
In England, torture was once regarded as a normal practice to get
. p
information regarding the crime, the accomplices and the case property or
to extract confessions, but with the development of common law and more
radical ideas imbibing human thought and approach, such inhuman practices were initially discouraged and eventually almost done away with,
certain aberrations here and there notwithstanding. The police powers of
arrest, detention and interrogation in England were examined in depth by
G Sir Cyril Philips Committee · 'Report of a Royal Commission on Criminal
Procedure' (Command · Papers 8092 of 1981). The report of the Royal
Commission is, instructive. In regard to the power of arrest, the Report
recommended that the power to arrest without a warrant must be related
to and limited by the object to be served by the arrest, namely, to prevent
H the suspect from destroying evidence or interfering with witnesses or
I
'·
_,
•'
•
D.K BASU v. SfATE [DR ANAND, J.)
297
warning accomplices who have not yet been arrested or where there is a A
good reason to suspect the repetition of the offence and not to every case
irrespective of the object sought to be achieved.
The Royal Commission suggested certain restrictions on the power
of arrest on the basis of the 'necessity principle'. The Royal Commission
sfild:
B
" ..... we recommend that detention upon arrest for an offence
should continue only on one or more for the following criteria :
(a) the person's ~willingness to identify himself so that a s~o11s C
may be served upon him;
(b) the need to prevent the continuation or repetition of that
offence;
( c) the need to protect the arrested person himself or other D
persons or property;
( d) the need to secure of preserve evidence of or relating to that
offence or to obtain such evidence from the suspect by questioning
him· and
·
,
E
( e) the likelihooii of the' person ffilling to appear at court to answer
any charge made agfilnst him."
The Royal Cominission also suggested :
"To help to reduce the use of arrest we would also propose the F
introduction here of a scheme that is used in Ontario enabling a
police officer to issue what is called an appearance notice. That
procedure can be used to obtain attendance at the police station
without resorting to arrest provided a power to arrest exists, for
example to be finger printed or to participate in an identification G
parade. It could also be extended to attendance for interview at a
time convenient both to the suspect and to the police officer
investigating the case ..... "
The power of arrest, interrogation and detention has now been
streamlined in England on the basis of the suggestions made by the Royal H
•
298
SUPREME COURT REPORTS(1996) SUPP.10 S.C.R.
A Commission and incorporated in Police and Criminal Evidence Act, 1984
and the incidence of custodial violence has been minimised there to a very
great extent.
Fundamental rights occupy a place of pride in the Indian ConstituB tion. Article 21 provides "no person shall be deprived of his life or personal
liberty except according to procedure established by law". Personal liberty,
thus, is a sacred and cherished right under the Constitution. The expression
"life or personal liberty" has been held to include the right to live with
human dignity and thus it would also include within itself a guarantee
against torture and assault by the State or its functionaries. Article 22
C guarantees protection against arrest and detention in certain cases and
declares that no person who is arrested shall be detained in custody without
being informed of the grounds of such arrest and he shall not be denied
the right to consult and defend himself by a legal practitioner of his choice.
Clause {2) of Article 22 directs that the person arrested and detained in
D custody shall be produced before the nearest Magistrate within a period
of 24 hours of such arrest, excluding the time necessary for the journey
from the place of arrest to the court of the Magistrate. Article 20(3) of the
Constitution lays down that a person accused of an offence shall not be
compelled to be a witness against himself. These are some of the constitutional safeguards provided to a person with a view to protect his personal
E liberty against any unjustified assault by the State. In tune with the constitutional guarantee a number of statutory provisions also seek to protect
personal liberty, dignity and basic human rights of the citizens. Chapter V
of Criminal Procedure Code, 1973 deals with the powers of arrest of a
person and the safeguards which are required to be followed by the police
F to protect the interest of the arrested person. Section 41, Cr.P.C. confers
powers on any police officer to arrest a person under the circumstances
specified therein without any order or a warrant of arrest from a
Magistrate. Section 46 provides the method and manner of arrest. Under
this Section no formality is necessary while arresting a person. Under
Section 49, the police is not permitted to use more restraint than is
G necessary to prevent the escape of the person. Section 50 enjoins every
police officer arresting any person without warrant to communicate to him
the full particulars of the offence for which he is arrested and the grounds
for such arrest. The police officer is further enjoined to inform the person
arrested that he is entitled to be released on bail and he may arrange for
H
sureties in the event of his arrest for a non-bailable offence. Section 56
D.I<. BASU v. SfATE [DR. ANAND, J.]
299
contains a mandatory provision requiring this police officer making an A
arrest without warrant to produce the arrested person before a Magistrate
without unnecessary delay and Section 57 echoes Clause (2) of Article 22
of the Constitution of India. There are some other provisions also like
Sections 53, 54 and 167 which are aimed at affording procedural safeguards
to a person arrested by the police. Whenever a person dies in custody of B
the police, Sectioii 176 requires the Magistrate to hold an enquiry into the
cause of death.
However, inspite of the constitutional and statutory provisions· aimed
at safeguarding the personal liberty and life of a citizen, growing incidence
of torture and deaths in police custody has been a disturbing i factor. C
Experience shows that worst violations of human rights take place during
the course of investigation, when the police with a view to secure evidence
or confession often resorts to third degree methods including torture and
adopts techniques of screening arrest by either not recording the arrest or
describing the deprivation of liberty merely as a prolonged interrogation. D
A reading of the morning newspapers almost everyday carrying reports of
dehumanising torture, assault, rape and death in custody of police or other
governmental agencies is indeed depressing. The increasing incidence of
torture and death in custody has assumed such alarming proportions that
it is affecting the creditibility of the Rule of Law and the administration of
criminal justice system. The community rightly feels perturbed. Society's E
cry for justice becomes louder.
The Third Report of the National Police Commission in India expressed its deep concern with custodial violence and lock-up deaths. It
appreciated the demoralising effect which custodial torture was creating
F
on the society as a whole. It made some very useful suggestions. It suggested:
'' .... An arrest during the investigation of a cognizable case may
be considered justified in one or other of the following circumstances :-
(i) The case involves a grave offence like murder, dacoity, robbery,
rape etc., and it is necessary to arrest the accused and bring his
movements under restraint to infuse confidence among the terror
G
stricken victims.
H
300
A
B
c
SUPREME COU~T REPORTS[l996] SUPP.10 S.C.R.
(ii) The. accused is likely to abscond and evade and the processes
of law.
(iii) The accused is given to violent behaviour and is likely to
commit further offences unless his moveinents'are brought under
restraint.
(iv) The accused is a habitual offender and unless kept in custody
he is likely to commit similar offences aiain. It would be desirable
to insist through· departmental instructions that a police officer
making an arrest should also tecord in the case diary the reasons
for making the arrest, thereby clarifying his conformity to the
specified guidelines ..... "
The recommendations of the Police Commission (supra) reflect the constitutional concomitants of the fundamental right to personal liberty and
freedom. These recommendations, however, have not acquired any
D statutory status so far.
.
'
E
F
This Court in loginder Kumar v. State, [1994] 4 SCC 260, (to which
one of us, namely, Anand, J. was a party) considered the dynamics of
misuse of police power of arrest and opined :
''No arrest can be made because it is lawful for the police officer
to do so. The existence of the power of 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 about the genuineness and bonafides of a complaint and a reasonable belief both as to the person's complicity
and even so as to the need to effect arrest.