Shri D.K. Basu, Ashok K. Johri Vs. State Of West Bengal, State Of U.P

The courts have an obligation to uphold the spirit of justice as well as to satisfy the civil aspirations

Case name:	Shri D.K. Basu,Ashok K. Johri V/s. State Of West Bengal, State Of U.P.
Case number/Citation:	WRIT PETITION (CRL) NO. 592 OF 1987
Court:	SUPREME COURT OF INDIA, CIVIL ORIGINAL JURISDICTION
Bench:	J. KULDIP SINGH, J. A.S. ANAND
Decided on:	December 18, 1996
Relevant Act/Sections:	Art. 21, 22 of Constitution of India, Chapter V of Crpc.

• BRIEF FACTS AND PROCEDURAL HISTORY:
• The Executive Chairman, Legal Aid Services, West Bengal, a non-political organisation registered under the Societies Registration Act, on 26th August, 1986 addressed a letter to the Chief Justice of India drawing his attention to certain news items published in the Telegraph dated 20, 21 and 22 of July, 1986 and in the Statesman and Indian Express dated 17th August, 1986 regarding deaths in police lock-ups and custody.
• The Executive Chairman after reproducing the news items submitted that it was imperative to examine the issue in depth and to develop “custody jurisprudence” and formulate modalities for awarding compensation to the victim and/or family members of the victim for atrocities and death caused in police custody and to provide for accountability of the officers concerned. It was also stated in the letter that efforts are often made to hush up the matter of lock-up deaths and thus the crime goes unpunished and “flourishes”. It was requested that the letter along with the news items be treated as a writ petition under “public interest litigation” category.
• Considering the importance of the issue raised in the letter and being concerned by frequent complaints regarding custodial violence and deaths in police lock up, the letter was treated as a writ petition and notice was issued on 9-2-1987 to the respondents. In response to the notice, the State of West Bengal filed a counter. It was maintained that the police was not hushing up any matter of lock-up death and that wherever police personnel were found to be responsible for such death, action was being initiated against them.
• While the writ petition was under consideration a letter addressed by Shri Ashok Kumar Johri on 29-7-1987 to the Hon’ble Chief Justice of India drawing the attention of this Court to the death of one Mahesh Bihari of Pilkhana, Aligarh in police custody was received. That letter was also treated as a writ petition and was directed to be listed along with the writ petition filed by Shri D. K. Basu.
• On 14-8-1987 the court issued notice to all the state governments in the matter and as well as to the law commission for their suggestions. In response to the notice, affidavits were filed on behalf of the States of West Bengal, Orissa, Assam, Himachal Pradesh, Madhya Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra and Manipur. Affidavits were also filed on behalf of Union Territory of Chandigarh and the Law Commission of India.

• ISSUE BEFORE THE COURT:

Whether monetary compensation should be awarded for established infringement of the Fundamental Rights guaranteed by Articles 21 and 22 of the Constitution of India?

• RATIO OF THE COURT:
• The court opined that “Custodial torture” is a naked violation of human dignity and degradation which destroys, to a very large extent, the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step backward. It further observed that “Custodial violence” and abuse of police power is not only peculiar to this country, but it is widespread. It has been concern of international community because the problem is universal and the challenge is almost global.
• The Universal Declaration of Human Rights in 1948, which marked the emergence of a worldwide trend of protection and guarantee of certain basic human rights, stipulates in Article 5 that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Despite the pious declaration, the crime continues unabated, though every civilised nation shows its concern and takes steps for its eradication. The court observed that despite a large number of constitutional and statutory provisions such as Art. 21, 22 and Chapter V of Cr.Pc the cases of custodial violence and deaths are prevalent.
• Joginder Kumar v. State, (1994) 4 SCC 260 : (1994 AIR SCW 1886) considered the dynamics of misuse of police power of arrest and opined (at pp. 1892 and 1893 of AIR SCW) : “No arrest can be made because it is lawful for the police officer to do so. The existence of the power of arrest it one thing. The justification for the exercise of it is quite another.”
• The court held that there can be no gain saying that freedom of an individual must yield to be security of the State. The right of preventive detention of individuals in the interest of security of the State in various situations prescribed under different statutes has been upheld by the Courts. The right to interrogate the detenus, culprits or arrestees in the interest of the nation, must take precedence over an individual’s right to personal liberty.
• The action of the State must be “right, just and fair”. Using any form of torture for extracting any kind of information would neither be ‘right nor just nor fair’ and, therefore, would be impermissible, being offensive to Article 21. Such a crime-suspect must be interrogated – indeed subjected to sustained and scientific interrogation – determined in accordance with the provision of law.
• Challenge of terrorism must be met with innovative ideas and approach. State terrorism is no answer to combat terrorism. State terrorism would only provide legitimacy to ‘terrorism’. That would be bad for the State, the community and above all for the Rule of Law. The State must, therefore, ensure that various agencies deployed by it for combating terrorism act within the bounds of law and not become law unto themselves. That the terrorist has violated human rights of innocent citizens may render him liable for punishment but it cannot justify the violation of his human rights except in the manner permitted by law.
• The court therefore held that there is a need to develop scientific methods of investigation and train the investigators properly to interrogate to meet the challenge to cure this menace within the system.
• The court observed that The increasing incidence of torture and death in custody has assumed such alarming proportions that it is affecting the creditibility of the Rule of Law and the administration of criminal justice system.
• The court further held that the punitive measures in case of such violations were insufficient. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the Courts too much, as the protector and custodian of the indefeasible rights of the citizen. The Courts have the obligation to satisfy the social aspirations of the citizen because the Courts and the law are for the people and expected to respond to their aspirations.
• Mere punishment of the offender cannot give much solace to the family of the victim – civil action for damages is a long drawn and cumbersome judicial process. Monetary compensation for redressal by the Court finding the infringement of the indefeasible right to life of the citizen is, therefore, a useful and at times perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the bread winner of the family.
• The court relied upon Nilabati Behera’s case (1993 AIR SCW 2366), it also observed that monetary redressal in such cases has been adopted by courts in Ireland to serve justice. Therefore, it is a well accepted proposition in most of the jurisdiction that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts.
• The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element.
• The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf.
• The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit.

• DECISION HELD BY COURT:

The court while disposing the petition issued the following guidelines:

1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
2. That 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 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.
3. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. 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.
4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or and through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
5. The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
6. 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.
7. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any, present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer affecting the arrest and its copy provided to the arrestee.
8. The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well.
9. Copies of all the documents including the memo of arrest, referred to above, should be sent to the (sic) Magistrate for his record.
10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
11. A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous police board.