Author: Aashka Shah


CASE NO. –  WP(Crl.) No. 539/1986 with No. 592/1987

 

(Note: There are many Advocates involved in this case.)

V.R Reddy, Additional Solicitor General, Dr N.M Ghatate, Tapas Ray and Ms K. Amareshwari, Senior Advocates [Dr A.M Singhvi (Amicus curiae), Sushil Kumar Jain, Sudhanshu Atreya, P.K Bansal, P. Parameswaran, R.P Srivastava, S.K Nandy, I.S Goyal, Ms Indu Malhotra, Naresh Kumar Sharma, Ashok Mathur, Sakesh Kumar, Uma Nath Singh, A.S Bhasme, D.N Mukherjee, Ms Hemantika Wahi, Kailash Vasdev, Ms Alpana Kirpal, Raj Kumar Mehta, R.S Suri, G.K Bansal, A.S 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 Vishwanathan, B.K Prasad, T.V.S.N Chari, B.B Singh, Anip Sachthey, M. Raghuraman, K.R Nambiar, Indra Makwana, R. Mohan, Gopal Singh, Ms Kamini Jaiswal, D.N Goburdhun, C.V.S Rao, R. Sasiprabhu, S.K Agnihotri and R.B Misra, Advocates, with them] for the appearing parties.

BENCH- Kuldip Singh, A.S. Anand, JJ.

JUDGEMENT BY- Justice A.S. Anand.

Facts:

Mr. D.K. Basu, The Executive Chairman of West Bengal Legal Aid Services, a registered non-political organisation, wrote to the Chief Justice of India drawing his attention to deaths in police custody. The letter noted that efforts are often made to hush up the ‘lock-up’ deaths and thus the crime goes unpunished and ‘flourishes’. The letter stated that it was imperative that Court looks into the issue in depth, formulate modalities for awarding compensation to the victim and/or family members of the victim and to provide for the accountability of the officers concerned.

This letter was treated as a writ petition and notice was issued first to the State of West Bengal, and by a subsequent order to all the State Governments and to the Law Commission of India. The State of West Bengal denied the allegations and characterised the writ petition as misconceived, misleading and untenable in law. Further, Dr. A.M.Singhvi, Senior Advocate was appointed as Amicus Curiae to assist the Court.

Issues

  1. Growth in incidents of Custodial Torture and Deaths by Police
  2. Arbitrariness of Police in arresting a person

Observations by the Court

  1. A number of Constitutional and Statutory provisions seek to protect personal liberty, dignity and basic human rights of citizens. However, despite such provisions, the alarming growth in the number of the cases of custodial torture and deaths are questioning the credibility of rule of law and administration of criminal justice system.
  2. Article 21 guarantees the right to life and personal liberty and has been held to include the right to live with human dignity. It thus also includes a guarantee against torture and assault by the state or its functionaries.
  3. Article 22 guarantees protection against arrest and detention in certain cases. It provides that no individuals who are arrested shall be detained in custody without being informed of the grounds of arrest and that arrested individuals shall not be denied the right to consult and defend themselves by a legal practitioner of their choice.
  4. Article 20(3) provides that a person accused of an offence shall not be compelled to be a witness against himself or herself.
  5. Parliament’s attention is drawn to the urgent need to amend the rules of evidence regarding prosecution of police officials accused of custodial violence, in particular the recommendations of the Law Commission of India in its 113thReport regarding a shift in the burden of proof, with the introduction of a presumption of custodial violence if there is evidence that the detainee’s injury was caused during the period of detention, and the consideration by the court of all relevant circumstances.

Held

Relying on Nilabati Behera v State of Orissa (1993) 2 SCC 746, the Court stated that any form of torture or cruel, inhuman or degrading treatment falls within the ambit of Art 21, whether it occurs during investigation, interrogation or otherwise. The rights guaranteed by Art. 21 cannot be denied to undertrials, convicts, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions on the right as are permitted by law.

Even after laying down procedural requirements by this Court in Joginder Kumar v State of UP, it has come to the Court’s notice that police have arrested a person without a warrant in connection with the investigation of an offence, without recording the arrest, and the arrested person has been subjected to torture to extract information from him or her for the purpose of further investigation, recovery of case property or in order to extract a confession.

The Court felt that it would be useful and effective to structure appropriate machinery for contemporaneous recording and notification of all cases of arrest and detention to bring in transparency and accountability. The Court issued a list of 12 guidelines in addition to the Constitutional and Statutory Safeguards which are to be followed in all cases of arrest and detention. The guidelines are as follows: –

(i) Police personnel carrying out arrest and interrogation should wear accurate, visible and clear identification and name tags with their designations, the details of which should be recorded in a register;

(ii) A memo of arrest (including the relevant date and time) shall be prepared by the arresting police officer and shall be attested by at least one witness (either a relative of the arrestee or a respectable local person) and countersigned by the arrestee;

(iii)One friend or relative of the arrestee (or another person known to him or her who has an interest in his or her welfare) shall be informed, as soon as practicable, of the arrest and detention at the place in question;

(iv) Where the next friend or relative of the arrestee lives outside the district or town in question, he or she must be notified by the police of the time, place of arrest and venue of custody within 8 to 12 hours of the arrest;

(v) The arrestee must be informed of this right as soon as he or she is arrested or detained;

(vi) An entry must be made in the diary at the place of detention regarding the arrest of the person, including the name of the next friend who has been informed and the names and particulars of the police officers in whose custody the arrestee is detained;

(vii) On request, the arrestee should be examined for injuries at the time of arrest and provided with a copy of the resulting report, signed by both the officer and arrestee;

(viii) The arrestee should undergo a medical examination every 48 hours by a doctor from an approved panel;

(ix) Copies of all documents regarding the arrest are to be sent to the appropriate local Magistrate for his or her records;

(x) The arrestee may be permitted to meet with his or her lawyer during interrogation, though not throughout the interrogation;

(xi) A police control room must be established at all district and State headquarters where information regarding the arrest should be received within 12 hours of the arrest and displayed on a conspicuous notice board.

(xii) These requirements are in addition to existing safeguards and do not detract from other directions given by the courts on this matter. They will apply with equal force to the other governmental agencies which have the power to detain and interrogate individuals. They need to be followed strictly; failure to comply shall render the official concerned liable for departmental action and contempt of court proceedings.

Mere punishment of the offender cannot give much solace to the family of the victim and a civil action for damages is a long drawn and cumbersome judicial process. Monetary compensation for redressing the infringement of the indefeasible right to life of the citizen is, therefore, useful and at times perhaps the only effective remedy for the family members of the deceased victim, who may have been the breadwinner of the family. The state’s vicarious liability for the acts of public servants in infringing such rights. The quantum of compensation will depend upon the peculiar facts of each case and no rigid formula can be evolved.


About the author: Aashka is a 2016-21 B.B.A.LL.B student at Gujarat National Law University, Gandhinagar.


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