dk basu CASE ANALYSIS-1996

    illegal detention
    A prisoner behind the jail cell bars .-dk basu case
    https://indiankanoon.org/doc/501198/
    https://indiankanoon.org/doc/1628260/
    
    
    

    dk basu, Ashok K Johri Vs. West Bengal Of UP Bench- Kuldip Singh A.S Anand

    Facts-dk basu

    A letter was written to the chief justice of India by the executive chairman, legal aid services addressing the issues of custodial death of prisoners in police station as per the news published on 20, 21 an 22 July 1986 in telegram, India express and statesman.

    The executive director, through his letter raised issue in letter regarding the custody jurisprudence and providing compensation to the victim’s family that died due to police in police custody.

    The letter and the content of the news items were taken as the writ petition in category of public interest litigation on 9-02-1987.

    The notice was issued against respondent and the respondent conceives the writ misappropriate as if any custodial happen in police station, strict action were taken in states like Madhya Pradesh, Uttar Pradesh, Bihar, Ramil Nadu, Haryana, Manipur, Uttrakand And Chattisgarh and other states.

    Another person named Shri Ashok K Johri wrote directs letter to the chief justice of India, regarding the death of Mahesh bihari, Aligarh in police custody. However the letter entertained as writ petition and listed along with the dk basu case.

    The court heard the need of amicus curiae. In this case, the court introduces Dr A.M Singhvi, senior advocate as amicus curiae.

    The 113 report of law commission of India stated that to there is a need to enter section 114B in Indian evidence at regarding the incorporate of suggestions and person affected in police custody by excessive injuries.

    However custodial death is the violation of human right. The torture and excessive beating raised and emerged the rule of law that says the excessive power to execute must be limited by statues and law.

    The person who acts as an protecting shield against the wrong doer are the person hiding behind the four walls of police station wearing the uniform for injustice dine to prisoners by giving them custodial death. Every custodial punishment results in mental disorder, either mentally or physically.

    The UDHR, 1948 that protects the human right under article 5 that says every person must be protected to torture or cruelty, inspire of punishment and treatment.

    Fundamental right is the foremost right that protects the person from violation of any human right, whereas in context of this case based on custodial death of prisoners, prisoners fundamental right were violated by the police, the victims affected as the right to seek redresses anytime for violation of fundamental right.

    Article 20(3) if a person, charged with curtails offences, such accused cannot be witness of its own case.

    Article 21-if any person right to personal liberty and life violated. Such person has the right to approach the court, except in case where the procedure is being enacted by the law such as cases related to rape, dacoits and murder.

    The right to personal liberty is the right against the torture, harassment by the police, other official or by the state that protects the human dignity of the victims.

    Article 22 it provides the protection of the person for being informed during the time of arrest and the person arrested must know the grounds. The person in detention or custody has the right to consult legal practitioner of own choice.

    Article 22(2) any person arrested must be present before the magistrate within stipulated time of 24 hours except in cases where the person arrested from other place, necessary time needed for the journey. In CRPC section 53, 54, 167 empowers the person with the procedure to safeguard from arrest where under the criminal procedure code, 1973 the right to protection of victims and arrested person, as the measures taken by the police as stated under chapter V.

    Section41, CRPC it gives power to the police officer to arrest the person without any prior order or warrant from magistrate but under specific circumstances.

    Section 46- the procedure of how to arrest a person is stated under this section. If any arrest is made under this section then no formality is needed to arrest the person.

    Section 50– the police officer has the power to arrest the person without any warrant but the police authority has to communicate the full description of the offence committed by the person on such ground that result in arrest. The police officer must inform the person, entitlement o bail or the non bail able offences committed by the person.

    Section 56

    It empowers the police officials to produce, the detained person without any warrant before the magistrate stipules time period.

    Section 176– provides the magistrate to hold the inquiry if any person died during the time of jail lockdown or detention.

    Relevance from cases-dk basu

    Joginder Kumar Vs. State [1]

    joginder-In this case the lawyer invited in police station for some inquiry, but the lawyer kept in detention by the police for 5 days. Before the court, the police denied the fact of detention of lawyer instead told the court about they need assistance from him to investigate the case, whereas the family member put habeas corpus before the court. The court was not satisfied with the said version of the police and allowed the session court to submit the report within 4 weeks. In this case the court gave more emphasis on the violation of human right of prisoners during the time of detention.

    In another case of Neelabati Behera V State Of Orrisa [2] case in this case the record shows that without any proper procedure person detained and becomes victims of custodial death, the police officers protected by others police officers, no authority speaks against the injustice served to the person in jail. During the death in custody due to third degree torture results in death custody, it very difficult to raise the evidence, against police.

    Such injustice leads to Supreme Court in dk Basu to make certain guidelines that protect the interest of the arrested or detained person in custody and prison. However these guidelines enacted till the time legislature passes the law for protection of prisoners from excessive power of the police authority.

    Supreme Court Guidelines-dk basu case

    The police officer, on duty to make arrest of arrestee must wear proper uniform with clear name tags and tongs of post. The police officers that are responsible for any interrogation must register and maintain as records.

    During the time of arrest the memo must be compulsory filled and attested by any family member, friend, relatives or any reputed person of locality, the same memo must be attested by the arrestee during the time of arrest, mandatory police must record the date and time of arrest.

    During the time of detention, interrogation held in police custody the police officer. The person or the arrestee must assist with any of the family, friend or any person sharing the interest with the arrestee.

    If any person arrested by the police, do not have any friend or relative during the time of arrest, then police with the help of legal service and or with inform the family or relative with the telephonic call from police station, that provides the information of arrest to relatives or friends staying away to some other district or city and a time period of 8- 12 hours must be given to the relatives, so that they can travel and assist the arrestee during interrogation and arrest.

    During the time of arrest the person must be aware of the right to call out for assistance and help during the time of detention.

    Every entry of the arrested person must be maintained by the police station, including the place of arrest, name of arrestee, name of relative friend or family, call by the police, date and time and the name of police officer, who’s on duty to arrest the person.

    Prior to the arrest, the arrestee is allowed to examine the major and minor injury including internal and external injuries. During the time of arrest, kept as the recording, the arrestee and the police man both have to sign a man, one copy of such memo submitted to the arrestee.

    The director’s health services in Tehsil, District or Union Territory must conduct the medical examination of arrestee within 48 hours, during the time in custody detention; such permission for arrest must be approved by director of health and services.

    All the copies must be attested by the arrestees, and the relatives and the memo submitted by the police, FIR must be submitted before the magistrate by the police officer.

    Every person arrested must has the right to approach the lawyer for legal help, the lawyer must not interfere during the interrogation without any person, after interrogation the arrestee and the lawyer can discuss about the incident and how arrest is made, or any injuries during the time of arrest.

    Every district and the state head quarters must have a police control room and during the interrogation and 12 hours of arrest the information regarding arrest of place must be conveyed to officers as soon as possible.

    Conclusion-

    There is a need to aware the people about the illegal detention, the people must know what exactly then can do during the time of such uncertain consequences, the people must know about the punitive measures such as the punishment given to the police officer for illegal detention or through decisive manner and tricks to arrest the person.dk basu case stands as a pillar in support to stop illegal detention.

    Under sanction 330 of Indian penal code of grievous hurt that includes the place of crime, extort information through third degree torture.

    International convention of civil and political rights article 9(5) this right is given to the person arrested in custody or detention illegally or forcefully by the police officers, the person died in custody due to third degree torture granted compensation to family member of the deceased person or disabled person reason of disability caused by the police excessive beating or punishment.

    Whereas in most Indian judiciary cases the compensation given by the government to the victim of illegal detention the only bread earner in the family died or disabled in prison die to excessive third degree torture, in such cases mostly the family of such person is economically weak and not able to fulfill the basic needs of the life, but in such cases compensation would only given to the victim’s family where the victim is innocent and do not involved in any criminal activities

    1. 1994,(4) SCC 260

    2. 1993, (2) SCC, 746

    REFERENCES FOR dk basu CASE-

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