Case Analysis on Shri D. K. Basu, Ashok K. Johri vs State Of West Bengal, State Of U.P. Introduction
This case Shri D. K. Basu, Ashok K. Johri vs State Of West Bengal, State Of U.P.
was decided on 18 December 1996 in the Supreme Court of India, is a writ-petition which was earlier written as a letter to Chief Justice of India for drawing his attention towards the increasing deaths in police lock-ups and custody but later converted into a Writ-Petition on 9 February 1987 as it was an issue of a great concern for the nation. This case is a landmark judgment which thrashes out the problem by discussing many cases involving the same concern and provides many guidelines to rectify the same. Mainly involving Section 220, 330 and 331 of Indian Penal Code, which talk about the punishment of the officer authority for wrongful confinement and inflicting injuries for getting out the information. "Sec 220
- Commitment for trial or confinement by person having authority who knows that he is acting contrary to law. Sec 330
- Voluntarily causing hurt to extort confession, or to compel restoration of property. Sec 331
- Voluntarily causing grievous hurt to extort confession, or to compel restoration of property." Background
One more letter was written to Chief Justice of India for drawing attention towards a death of one Mahesh Bihari of Pilkhana, Aligarh in the police custody which was added under the case of D. K. Basu. This particular case involves many areas of law, areas being Constitutional Law, Indian Evidence Act, Tort Law etc. but it is discussed from the point of view of Criminal Law in this project. Custodial violence includes both, torture and death in the lock-ups. The thing which shocks here is that, how the people who are supposed to be the law protectors turn out to be the law breakers. It is not only the body pain but also the mental trauma which is inflicted upon the victim's mind whether is it physical assault or rape in the police custody which is the infringement of our Article 21 and 22 of the Constitution of India as the Fundamental Right of 'Right to life' is being provided even to the people in the police custody. Exercise of third degree base is mainly done at the time of interrogation and investigation to get the information out of them. In this case, this problem of custodial violence has been discussed from many aspects as to how are the innocents beaten to death even in the custody of the police? How the manipulation of facts and accounts is done? How are the officers using their legal duty for their malicious motives? And how are they still not been able to get any punishment for it? Presentation of the Court's Opinion
Certain guidelines have been provided by the Supreme Court in this regard of Custodial Violence so as to minimize this concern if not completely eradicate for having transparency in the records and putting accountability on the police officers for no such problem occur again. Guidelines are mentioned below: 1) That the investigators who interrogate should be properly trained to meet the challenge. 2) That there should be recordings and notifications of all the cases of arrest and detention. 3) That there should be proper preparation of the memo of the person's arrest in front of a witness who can be any member from the family or any respectable person of the locality from where the arrest is made with the counter signature of the arrestee. 4) That the person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained. 5) That there should be a record of people he is informing about his detention. 6) That the medical examination of the arrestee has to be made before the detention and has be to done after every 48 hours in the duration of his detention. 7) That the copies of all the documents including the memo of arrest have be sent to the illaga Magistrate for his record. 8) That the creation of police control room in every quarter has to be made for making the communication about the arrest and the place of custody of the arrestee. 9) That the arrestee should be allowed to meet his lawyer during his interrogation though not throughout the interrogation.
Through this case, court has tried to make an effort to clear out this problem. And also, 114B of Indian Evidence Act was suggested to be added to the provision after this case and if somebody would not comply with these guidelines will be charged for Contempt of Court. Analysis
The Court has been fair and just in giving these guidelines to the office authorities. It is thus true and disheartening at the same time that these law breakers remain unpunished under the protection of their so called legal duty. Many cases have been discussed for similar concern. Neelabati Behera vs State of Orrisa
being the first case of such kind after which many similar cases have been filed in the Court of law in this regard. The facts of the case are that the son of Neelabati was in the prison. At around 8 in the night, she went to meet his son and to give him his dinner where he was absolutely fine and healthy, but the next day she got to know that his son's dead body is obtained from railway track and then filed a writ petition for custodial death. The contention here given by the police officials is that he escaped from the jail authorities but the result of the post-mortem report said that he died of the injuries inflicted on his body and not from the railway track but none was taken and they were held liable for the offence they committed. Another case of State of Madhya Pradesh Vs. Shyamsunder Trivedi & Ors
., in which the defense taken by the respondent police officers at the trial was that Nathu Banjara, the deceased was released from the police custody immediately after the interrogation was done and also a death report was recorded the next day. And a story was cooked about an officer finding him near a tree by the side of the tank riggling with pain in his chest and that as a soon as he reached near him, the person died. In this, Trial and High Court, both believed in the story made by the officers but Supreme Court gave the right judgment by convicting the wrong doers. Furthermore in the case of In re Death of Sawinder Singh Grover
, the Court took suo moto notice of the death of Sawinder Singh Grover during his custody with the Directorate of Enforcement. The Court after getting an enquiry, which disclosed a prima facie case for investigation and prosecution, directed the CBI to lodge an FIR and commence criminal proceedings and proceed against them. The Directorate of Enforcement was also directed to compensate the widow of the deceased by way of paying the sum of Rs. 2 lacs by means of the relevant provisions of law in order to protect the interest of arrested persons in these kind of cases too is a genuine need. The reason Trial and High Court acquitted those people in the case of State of Madhya Pradesh Vs. Shyamsunder Trivedi & Ors
., was that no proper evidences or witnesses were produced before the Court. And the main problem which arises in such cases is that the witnesses to these tortures are generally the police officers themselves and even if any of the officials feel like coming up and speaking for the justice, they choose not to, because of the fear of retaliation from the superior police officers working in the same quarter. All the three case discussed here, are examples of custodial deaths where those officers knew what they were doing was contrary to law but still they did it anyway for their malicious motives and they injured the innocents hurting them grievously at the time of investigation and interrogation for resorting the information out of them even after knowing that our law does not permit even the law protectors to use the third degree treatment for which our Indian Penal Code, 1860 penalizes those people under Section 220, Section 330 and Section 331. Like in Neelabati case, there was a malicious motive and they very smartly prepared all the fake things and cooked up the story not to get caught. They first beat him to death and then took his dead body to the railway tracks so that no one comes to know that it was the work of the officers and tried to show it to be a suicidal case. What these police officers do is to manipulate the accounts or register maintained in the police station and try to make every possible effort to dispose the matter off. Sometimes, by not showing anything in the records of the lock-up, sometimes, by disposing off the body or sometimes, by making out some fake case that the arrested person died after getting released from custody and if any complaint is done against such torture or death, it isn't even given any sort of attention by these officials. The use of Section 41 and Section 46 of CrPC are being misused by the police officers which confers them the power to arrest and the manner in which the arrest is made. The Court beautifully provided the guidelines and suggested in this case that cost involved in the training of the interrogators is not an expense but an investment which is going to pay off at some point. That there should be a full record and recording of the account of the arrestee so that nobody is misled and a full transparency is made. There should not only be the record of the person but also of the person he is informing about his detention so the information is not passed to a wrong person and which does not provide any harm in the long run to any other person in the society like what if he is a terrorist and informing some person to commit some wrong. Also such evidence and recording would help in the trial of the case. And about the medical examination, the court says that it should be done before the detention and also after every 48 hours in the custody. This guideline is made so that the police officers do not misuse their legal power and if they do, it is examined and people are at the end protected from such offence against them. The court in this case said that the State has a duty of care towards every citizen of the nation to protect them from any illegality and also to satisfy their social satisfaction. Our country does not provide any provision for giving monetary compensation to the victims for the breach of the fundamental rights unlike Ireland where they are awarded with monetary compensation for the failure of the State to protect their fundamental rights by developing a remedy by the Court of Ireland which is very much needed to be done. For achieving the success of eradicating this problem completely, only the guidelines are not going to help but also their outlook and attitude is needed to be changed. And by using the third degree method, these people are not only providing those innocents harm but also sacrificing upon the whole purpose of the interrogation process. Conclusion
In this case of, D. K. Basu, Ashok K. Johri vs State Of West Bengal, State Of U.P, two letters were converted into one writ-petition for the concern of custodial death and for which the Supreme Court gave many guidelines for the smooth functioning. This case was the first case in Indian Law in which proper and strict guidelines were provided by the Supreme Court of India for the problem of increasing of custodial violence and mainly torture done by the police officials. After this case, it has been cited in so many cases for the occurrence of similar circumstances for the reference point of view and has given light to many more judgments like Delhi Jal Board v National Campaign for Dignity, Rights of Sewerage and Allied Workers and others, in Peoples' Union for Civil Liberties, U.P. Bench v State of UP and Ors. etc. And also has impacted the future like after these guidelines these offences have been minimized since then as a check on the official authorities have been made by then as it was said in the case that whoever shall fail to comply with these guidelines shall be liable for the offence committed for contempt of court and these officers will have some fear of repeating the offence again. Prior to this case, in most the cases, the matter were not even recorded and sometimes fake cases were prepared. It is been done even in the governmental authorities like CRPF, BSF, Costal Board etc. The judgment has helped in keeping check but still not completely mitigating the purpose.
Indian Penal Code, 1860 
. K. Basu, Ashok K. Johri vs State Of West Bengal, State Of U.P.