TITLE D.K basu Vs State of west bengal
Submitted to
Sunmitted by:-
Mrs. Deepshikha
Abhinav Malik
Asst.professor
BBA.LLB
Faculty of law
Enrollment no.
SRM University Haryana
45415210002 Semester 5th
ACKNOWLEDGEMENT I, Abhinav Malik, owe a great many thanks to a great many people who helped and supported me during the writing of the project. My deepest thanks to our law Lecturer “Mrs.Deepshikha”, “Mrs.Deepshikha”, the guide of the project for guiding and correcting various documents of mine with attention and care. He has taken pain to go through the project and make necessary correction as and when needed. I express my thanks to the DEAN for extending his support. My deep sense of gratitude to all my friends and guidance for their support. I would also thank my university and my faculty members without whome this project would have been a distant reality. I also extend my heartfelt thanks to my family and well wishers for their encougement and cooperation.
CERTIFICATE
This is is to certify that “Abhinav Malik” of BBA.LLB (5 thSemester) of LAW stream of SRM University, Sonipat has completed his project during the time allotted and was found dedicated and hard worked. He has taken proper care and full interest and also showed utmost sincerity in completion of the project. I certify that this project is up to my expectation and as per the guidelines issued by me (Mrs. Deepshikha)
Citation :( 1997) 1 SCC 416 Judges : Kuldip Singh and A.S Anand Number of Judges : 2 Respondent : State of West Bengal Petitioner : Shri D.K. Basu
ISSUE:Here in this case, a letter was received from the non-social organization regarding the matter of lock up deaths in the state of West Bengal. This letter was treated as a writ petition and the notice was passed. In counter to this, the state of West Bengal has filed a petition. They have answered in this regard that, there were no lock-up deaths as such and if there were any there was enquiry going on whoever has done it. After all this was done, the court came into the view and decided that there should be control on police and there should be some set guidelines for arresting a person. 1. Are policemen arbitrary in arresting a person? 2. Are there any prescribed guidelines while making a arrest?
Issues Answered: 1. Policemen are not to act arbitrarily while arresting a person. There are some guidelines that even a policeman has to follow. 2. Yes, the Court had laid down a number of guidelines while arresting a person.
Judgment: The court in this case said that, the locks up deaths are to be reduced. It will directly take a toll on the belief of public in law and order. the Supreme Court directed all the High Courts to check on the details and punishment that are being imposed on prisoners in the jails. They were asked to give the detailed list of all the persons who were arrested and who ever were in lock ups.
Guidelines prescribed by the Court: 1. The arrested person has the right to meet his lawyer. 2. He has the right to medical examination for every 48hours. 3. The arresting person has to inform the relatives regarding his arrest. 4. He has to be produced before the magistrate within 24 hours. 5. The arresting officer shall prepare the memo and has to be attested by at least one witness. 6. An entry must be made regarding his arrest in the diary. 7. A police control room should be set up in all the districts and in all the state headquarters and the information regarding the persons arrest has to be communicated to all the Districts. 8. All the documents including the memo of the arrest has to be sent to the magistrate. 9. The arresting officer shall have the clear identification of his name, designation. 10. The time, place, arrest, and the place of custody have to be notified to the interested person or the friend or the relative. 11. The person arrested has to be made aware of his right to have someone notified on his behalf.
The Court emphasized that failure to comply with the said requirements shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of Court and the proceedings for contempt of Court may be instituted in any High Court of the country, co untry, having territorial jurisdiction over the matter. The requirements flow from Articles 21 and Article 22 (1) of the Constitution and need to be strictly followed. The requirements are in addition to the constitutional and 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.
Right To Be Examined By A Medical Practitioner Section 54 now renumbered as Section 54(1) provides:
54. Examination of arrested person by medical practitioner at the request of the arrested person
When a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of an y offence or which will establish the commission by any other person of any offence against his body, the Magistrate shall, if requested by the arrested person so to do direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of justice.
Right To Consult A Legal Practitioner Article 22(1) of the Constitution provides that no person who is arrested shall be denied the right to consult a legal practitioner of his choice. Further, as has been held b y the Supreme Court that state is under a constitutional mandate (implicit in article 21) to provide free legal aid to an indigent accused person, and the constitutional obligation to provide free legal aid does not arise only when the trial commences but also attaches when the accused is for fo r the first time produced before the magistrate, as also when remanded from time to time. It has been held by the Supreme Court that non- compliance with this requirement and failure to inform the accused of this right would vitiate the trial. Section 50(3) also provides that any person against whom proceedings are instituted under the code may of right be defended by a pleader of his choice. The right of an arrested person to consult his lawyer begins from the moment of his arrest. The consultation with the lawyer may be in the presence of police officer but not within his hearing.
Right to be taken before a Magistrate within 24 hours Irrespective of the fact, that whether the arrest was made with or without a warrant, the person who is making such arrest has to bring the arrested person before a judicial officer without any unnecessary delay. Further, the arrested person has to be confined in police station only and nowhere else, before taking him to the Magistrate. These matters have been provided in Cr.P.C. under sections 56 and 76 which are as given below: Section 56 of Cr.PC. states that “Person arrested to be taken before Magistrate or officer in charge of police station- A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station”.
Section 76 of Cr.PC. states that “Person arrested to be brought before Court without delaydelay- The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 71 as to security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person”. Further, it has been mentioned in the proviso of Section 76 that such delay shall not exceed 24 hours in any case. While calculating the time period of 24 hours, the time necessary for the journey is to be excluded. The same has h as been enumerated in the Constitution as a Fundamental Right under Article 22(2). This right has been created with a view to eliminating the possibility of police officials from extracting confessions or compelling a person to give information. If the police officials fail to produce an arrested person before a magistrate within 24 hours of the arrest, the police officials shall be held guilty of wrongful detention.
The arresting officer shall have the clear identification of his name, designation The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name their designations.
The
particulars
of
all
tags with
such police personnel who handle
interrogation of the arrestee must be recorded in a register and the case diary.
The arresting officer shall prepare the memo and has to be attested by at least one witness 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 be
attested by
at
least
one
witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.
The person arrested has to be made aware of his right to have someone notified on his behalf 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 be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that 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.
An entry must be made regarding his arrest in the diary 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 names and particulars of the police officials in whose custody the arrestee is.
CONCLUSION It is generally believed that in spite of the various safeguards in the Cr.P.C. as well as the in the Constitution, the power of arrest given to the police is being misused till this day. It is also believed that the police often use their position of power to threaten the arrested persons and take advantage of their office to extort ex tort money. There have also been innumerable innu merable reports on custodial violence that lead many to believe that deprivation of basic rights of the arrested persons has become commonplace nowadays.
The Mallimath Committee in its Report on the reforms in the Criminal Justice System has stated that the accused has the right to know the rights given to him under law and how to enforce such rights. There have also been criticisms that the p olice fail to inform the persons arrested of the charge against them and hence, let the arrested persons flounder in custody, in complete ignorance of their alleged crimes. This has been attributed to the Colonial nature of our Criminal Justice System where the duty of arrest was thrust upon the Indian officers while the Britishers drew up the charge against a gainst the accused. Thus, it is entirely possible that the English origins of the Indian Criminal Justice system may have resulted unwittingly in the rights of the arrested persons falling through the cracks.
There is imminent need to bring in changes c hanges in Criminal Justice Administration so that state should recognize that its primary duty is not to punish, but to socialize and reform the wrongdoer and above all it should be clearly understood that socialization is not identical with pu nishment, for its comprises prevention, education, care and rehabilitation within the framework of social defence. Thus, in the end we find that Rule of law regulates the functionary of every organ of the state machinery, including the agency responsible for conducting prosecution and investigation which must confine themselves within the four corners of the law.
It is the duty of the police to protect the rights of society. It must be remembered that this society includes all people, including the arrested. Thus, it is still the police’s duty to protect the rights of the arrested person. Hence, in light of the discussed provisions, a police officer must make sure that handcuffs are not used unnecessarily, unnec essarily, that the accused is not harassed needlessly, that the
arrested person is made aware of the grounds of his arrest, informed whether he is entitled to bail and of course, produced before a Magistrate within twenty-four hours of his arrest.
BIBLIOGRAPHY
1. WIKIPEDIA.COM 2. Legalservicesindia.com 3. Tilakmarg.com 4. The Code Of Criminal Procedure,1973 (Universal’s) 5. Indiankanoon.org 6. Google scholar 7. Lawbrief.in 8. Lawn.com 9. Sangurupolice.in
