Right of an arrested person

 

RIGHTS OF AN ARRESTED PERSON

D.K BASU  -VS-  STATE OF WEST BENGAL

[(1997)1SCC 416]

This case raised as a Criminal Writ Petition due to the custodial violence in police custody and lock-ups strikes a blow to rule of law and also is a violation of a human right. In this case, Executive Chairman of Legal Aid Services of West Bengal addressed the Chief Justice of India to drew his heed on the certain news items published in the Telegraph regarding the custodial deaths, deaths in police custody and lock-ups. Therefore, the letter was treated as the PIL which raised many questions with the respect to the custodial deaths and also a classical example of judicial activism, Custodial torture is a naked violation of human dignity and degradation with destroys, to a very large extent, the individual personality and is a calculated assault on human dignity.

FACTS OF THE CASE

In the present case, the parties are D. K. Basu as the petitioner and State of West Bengal is the respondent in this case. The Executive Chairman of Legal Aid Services, West Bengal, a

non-political organization, wrote a letter to the Chief Justice of India, drawing his attention to certain newspaper reports about deaths in police custody and lock-ups. It was prayed that the

Court takes cognizance of the issue of custodial violence and formulate guidelines for the grant of compensation to the victims or their kin and develop a mechanism to hold police officers accountable. The letter was treated as a writ petition. A subsequent letter about custodial torture by Mr.Ashok Johri was also treated as a writ petition and was listed with Mr. D. K. Basu’s. Notice was issued by the SC to all State Governments and the Law Commission of India to file suggestions. Affidavits were filed by some State Governments and the Law Commission

forwarded a copy of its 113th Report.

ISSUES INVOLVED IN THE CASE

I. Whether monetary compensation should be granted for established violation of the fundamental rights guaranteed by Article 21 and 22 enshrined in the Constitution?

II. Whether there is arbitrariness while a police officer is arresting the person?

III. Can a person's right to life be overshadowed when arrested?

IV. How do we check the manipulation and misuse of power by the police officer?

V. Whether the sovereign of immunity is there in the case of tortious act and contravention of fundamental rights in the case of Human Rights.

VI. Is constitutional remedy being available under Article 32 and 226 for the flouting of fundamental rights?

Plea of the petitioner

In all custodial crimes what is of real concern is not only for infliction of body pain, but the mental agony which a person undergoes within the four walls of the police station or lock-ups – whether it is a physical assault or rape in police custody, the extent of trauma, person experience’s is beyond the preview of

law. Despite, having the pious declaration, the crime continues unabated through every civilized nation shows its concern and takes steps for its eradication. On behalf of the respondent, they contended that the police were no hushing up any matter of lock-up death and that where even police personnel were found to be

responsible for such death, the action was being initiated against them. It characterized the writ petition as misconceived, misleading, and untenable in law and that everything was well, within their respective states.

LEGAL ASPECTS INVOLVED IN THE CASE

Constitution of India

• Article 21 enshrined in the constitution includes the “right to live with human dignity, thus it would also include a guarantee against torture or assault by the state or its functionaries. No person shall be deprived of his life or personal liberty except

according to procedure established by law”.

• Article 22 talks about ensuring the protection against detention and arrest in certain cases and also proclaims that no person which is arrested and detained in custody without informing about the grounds of arrest and shall not be denied the right to consult a legal representative and defend himself of his choice.

• Clause (2) of proviso 22 directs that within 24 hours after such detention, the person arrested and detained in custody is produced before the nearest Magistrate without any time from the place of arrest to the Court of the Magistrate.

• Article 20(3) of the Constitution stipulates that a witness against himself must not be forced to be the person charged with an offense. These are some of the constitutional safeguards offered to an individual to protect his or her freedom from unjustifiable

State attacks. Several statutory provisions also aim to promote the personal freedom, dignity, and basic human rights of citizens, together with the constitutional guarantee.

Indian Penal Code, 1860

• Sections 330, 331, 342, and 348 of the IPC have ostensibly been designed to deter a police officer, who is empowered to arrest a person and to interrogate him during an investigation of an offense from resorting to third-degree methods causing ‘torture.

• The punishment for an officer or authority who detain or contain a person for a corrupt or malicious reason as provided in Section 220.

• Sections 330 and 331 provide the sanction to extort confession or information on the commission of an offense for those who are inflicting injury to a person by causing grievous hurt.

Code Of Criminal Procedure, 1973

• Section 41, CrPC gives any police officer the authority to arrest a person under the circumstances specified without a judge's order or warrant.

• The method and manner of arrest are set out in Section 46. No formality is required under this section when a person is arrested

• The police shall not be permitted to use more restrictions per Section 49 than is necessary to allow more restraint to prevent the person's escape.

• Section 50 requires each police officer arresting a person without a warrant to inform him/her of all the details of his/her arrest and the reasons why he/she has been arrested. The police officer is also instructed to inform the arrested person of his or

her right to be released on bail and to arrange for guarantees for a non-living offense in the event of his or her arrest.

• Section 56 does provide for the mandatory arrest of the police officer without a warrant for the arrested person to be brought before the Magistrate without undue delay and Section 57 echoes Article 22(2) of the Constitution of India.

There are other provisions, such as Sections 53, 54, and 167, which seek to provide a person detained by police with procedural safeguards. Section 176 requires the Magistrate to hold and investigate the cause of death when an individual dies in custody of the police.

Indian Evidence Act, 1872

In its 113th Report, the Law Commission recommended that in the case of a police officer who was prosecuting an alleged offense of causing a person bodily injury if it was evident that the damage was being caused during the time the person was in police custody the Court could presume that the injury was caused by the custody of the individual during this period.

The Commission further recommended that the Court consider all applicable circumstances, including the victim's custody declaration, the medical evidence, and the evidence of the

magistrate, while also considering the question of presumption.

JUDGEMENT

The Hon’ble Court observed that on custodial violence and human rights. Any form of torture or cruel, inhuman, or degrading treatment would be violative of Article 21 of the Constitution

of India regardless of whether it occurs during investigation, interrogation, or otherwise. The right under Article 21 is interrogable even for convicts, under trials, and other prisoners in

custody, except according to reasonable restrictions imposed by the law. Even in cases of terrorism, torture or third-degree methods cannot be used to extract information as it would be offensive to Article 21.

It is carried out by those people who are supposed to be the guardians of the citizens. Additionally, the court also observed that it is committed under the shield of uniform and authority in the four walls of a police station or lockup, where the victim is up the creek. The Court found that in the Constitution or other criminal law, the term "torture" was not defined. The Court affirmed that "Torture by another human being of an individual is an essential tool for imposing the will of the 'strong on the 'weak' through suffering. Today's word torture is synonymous with the dark side of human culture." If the functionaries of the government become lawbreakers it's bound to breed contempt for

law and would encourage lawlessness and every man would tend to become a law into himself thereby leading to anarchy.

The Supreme Court as custodians and protector of the fundamental human rights of citizens cannot wish away the problems In quoting Article 21 of the Indian Constitution, the Hon'ble Court observed that "the fundamental rights of the Indian Constitution take a place of pride." The Court observed that

personal freedom under the Constitution of India is a sacred and cherished right. The word 'life or personal freedom' includes the right to live with human dignity, as well as a guarantee against torture and assault on the part of the State or its officials.

The right to interrogate the detenu’s, culprits, or arrestees in the interest of the nation, must take precedence over individual rights to personal liberty. The Latin maxim Salus Populi Suprema Lex (the safety of the people is a supreme law) and Salus republicae 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 doctrine that the welfare of an individual must yield to that of community. Police is, no doubt, obligated by a legal duty and has legitimate right to arrest a criminal and to interrogate him during the investigation of an offense but the law does not permit the use of third-degree methods or torture of the accused in custody during interrogation and investigation to solve the crime. The end cannot justify the means. The interrogation and investigation into a crime should be in a true sense purposeful to make the investigation effective. By torturing a person and using third-degree methods, the police would be accomplishing behind closed doors what the demands of our legal order forbid. No society

can permit it. In the case of death of Sawinder Singh (1995) relied on these 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.

The Court observed that No arrest can be carried out only because it is lawful at the judgment of Joginder Kumar v. State. The Court held that one thing is the power of arrest, which is

quite another justification. The court also noted that the denial of the freedom of the individual is a serious matter.

The court opined that custodial death is perhaps one of the worst crimes in a civilized society governed by the Rule of Law. No civilized society can permit to do so. Furthermore, the court also observed that any form of torture or cruel, inhuman, or degrading treatment would fall within the inhibition of Article 21 of the Constitution. The Court goes so far as to observe in harsh words that the Custodial Death is generally not shown in the lock-up records and that every effort is taken to clear the body or make a case that the person who was arrested died after release. The Court also found the criminals are encouraged and society suffers when the crime goes unpunished. The victims of crime or their friends and kids are frustrated and the law is disregarded.

In connection with the first issue, should monetary compensation be given for established violations of fundamental rights guaranteed by Articles 21 and 22 of the Indian Constitution or not? The Court of Hon'ble pointed out that the offender's mere punishment cannot give the family solace. The court observed that the violation of the citizens' unfeasible right to life is thus a useful and sometimes only effective remedy in the treatment of damage by the departed victim's families who may have won the family's bread.

In the case of State of M. P. v. Shyamsunder Trivedi: “On Evidence, The Court observed that the ground reality in cases of custodial violence is the lack of ocular evidence establishing the complicity of an accused police officer. Generally, only police

personnel would be in a position to explain the circumstances in which a person in their custody would have died. Very often, police officials remain silent to protect their colleagues as they are “bound by the brotherhood.”

The Hon’ble Court cited the judgment of Maharaj v. Attorney General of Trinidad and Tobago and remarked that the:

“In sum, it is now well accepted in many jurisdictions that monetary or pecuniary compensation is an adequate and effective and, at times, perhaps the sole appropriate way in which public officials and the State can rectify the established infringement of the basic right to the life of a citizen. The citizen's claim is based on the principle of strict responsibility, which does not allow the defence of sovereign immunity, and the citizen must get the amount of compensation from a state that is entitled to be repaired by the wrongdoer." In addition, the Court noted that the focus should be on the compensatory element and not the

punitive one. The goal is to treat injuries with salt and not punish the offender or the transgressor.

For the second and third issue, a citizen has withdrawn his fundamental right to life as soon as he is arrested by a police officer, and Can a citizen's right to life be alerted when he is

arrested? The Hon'ble Court pointed out in the Negative that, except in the procedure established by the law by making the reasonable restrictions that are permissible by law, the priceless right guaranteed by Article 21 of the Constitution of India shall not be denied to convicts, detainers, and other detainees in custody under trials.

In the case Nilabati Behara v State of Orissa – the court pointed out that the prisoners and detenues are not denuded of their fundamental rights under Article 21 and it is only such restrictions as are permitted by law, which can be imposed on the enjoyment of the fundamental rights of the arrestees and detenues.

The issue in Miranda v Arizona is instructive –the court said: A recurrent argument made in those cases is that society’s need for interrogation outweighs the privilege. In Chambers v Florida- the whole thrust of one foregoing discussion demonstrates that the Constitution has prescribed the rights of the individual when confronted with the power of government. When it provided in the fifth amendment that an individual cannot be abridged. Furthermore, the Hon’ble court while answering the issue raised on ‘How do we check the abuse of police power’, Hon’ble Court observed that the Transparency of action and accountability are two possible safeguards which this Court must insist upon.

In addition, the Court noted that the force should be inspired by fundamental human values and sensitive to the constitutional ethos. The Court noted that the efforts should be made to alter the attitude and approach of police investigations to prevent them from sacrificing fundamental human values and recourse to questionable forms of interrogation. The Court observed that the presence of the arrest man's counsel at one stage in the interrogation may prevent the police from using 3rd-grade methods while they are interrogated to ensure transparency.

Moreover, while responding that "whether sovereign immunity may be enforced in the event of a breach of the fundamental right or basic human rights, the Court pointed out that for the torture of public officials and the established violation of the rights guaranteed by Article 21 of the Constitution, the defense of sovereign immunity cannot be made available to the State."

Furthermore, the court issued the following guidelines which must be followed in all cases of arrest or detention :

• Police arresting and interrogating suspects should wear “accurate, visible and clear” identification and name tags, and details of interrogating police officers should be recorded in a register.

• A memo of arrest must be prepared at the time of the arrest. This should: Have the time and date of arrest, be attested by at least one witness who may either be a family member of the person arrested or a respectable person of the locality where the arrest was made, and be counter-signed by the person arrested.

• The person arrested, detained, or being interrogated has a right to have a relative, friend or well-wisher informed as soon as practicable, of the arrest and the place of detention or custody. If the person to be informed has signed the arrest memo as a

witness this is not required.

• Where the friend or relative of the person arrested lives outside the district, the time and place of arrest and venue of custody must be notified by police within 8 to 12 hours after arrest

• The person arrested should be told of the right to have someone informed of the arrest, as soon as the arrest or detention is made.

• An entry must be made in the diary at the place of detention about the arrest, the name of the person informed and the name and particulars of the police officers in whose custody the person arrested are.

• The person being arrested can request a physical examination at the time of the arrest. Minor and major injuries if any should be recorded. The "Inspection Memo" should be signed by the person arrested as well as the arresting police officer. A copy of this memo must be given to the person arrested.

• The person arrested must have a medical examination by a qualified doctor every 48 hours during detention. This should be done by a doctor who is on the panel, which must be constituted by the Director of Health Services of every State.

• Copies of all documents including the arrest memo have to be sent to the Area Magistrate (ilaqa Magistrate) for his record.

• The person arrested has a right to meet a lawyer during the interrogation, although not for the whole time.

• There should be a police control room in every District and State headquarters where information regarding the arrest and the place of custody of the person arrested must be sent by the arresting officer. This must be done within 12 hours of the arrest.

It is stated by the Hon'ble Court that the failure to respect the Directives will be punished for contempt of the court and the disdain proceedings and the disdain proceedings may be opened at any High Court of the country with territories.