REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

CRL.M.P. NO.16086 OF 1997

IN

CRL.M.P. NO.4201 OF 1997

Dilip K. Basu …Petitioner

Versus

State of West Bengal & Ors. …Respondents

WITH

CRL.M.P. NO.4201 OF 1997, 4105 OF 1999, 2600 OF 2000, 2601 OF 2000, 480
OF 2001, 3965, 10385 OF 2002, 12704 OF 2001, 19694 OF 2010 IN CRL.M.P.
NO. 4201 OF 1997, CRL.M.P. NO. 13566 OF 2011 IN CRL.M.P. NO. 16086 OF
1997 IN CRL.M.P. NO. 4201 OF 1997, CRL.M.P. NO. 15490 OF 2014 & 15492
OF 2014 IN

WRIT PETITION (CRL.)NO. 539 OF 1986

JUDGMENT

T.S. THAKUR, J.

1. In D.K. Basu etc. v. State of West Bengal etc.[1] [D.K. Basu (1)]

this Court lamented the growing incidence of torture and deaths in police

custody. This Court noted that although violation of one or the other of

the human rights has been the subject matter of several Conventions and

Declarations and although commitments have been made to eliminate the

scourge of custodial torture yet gruesome incidents of such torture

continue unabated. The court described ‘custodial torture’ as a naked

violation of human dignity and degradation that destroys self esteem of the

victim and does not even spare his personality. Custodial torture observed

the Court is a calculated assault on human dignity and whenever human

dignity is wounded, civilisation takes a step backwards. The Court relied

upon the Report of the Royal Commission on Criminal Procedure and the Third

Report of the National Police Commission in India to hold that despite

recommendations for banishing torture from investigative system, growing

incidence of torture and deaths in police custody come back to haunt.

Relying upon the decisions of this Court in Joginder Kumar v. State of U.P.

and Ors.[2]; Smt. Nilabati Behera alias Lalita Behera v. State of Orissa

and Ors.[3]; State of M.P. v. Shyamsunder Trivedi and Ors.[4]; and the

113th report of the Law Commission of India recommending insertion of

Section 114-B in the Indian Evidence Act, this Court held that while the

freedom of an individual must yield to the security of the State, 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.

Having said that the action of the State, observed this Court, must be just

and fair. Using any form of torture for extracting any kind of information

would neither be right nor just or fair, hence, impermissible, and

offensive to Article 21 of the Constitution. A crime suspect, declared the

court, may be interrogated and subjected to sustained and scientific

interrogation in the manner determined by the provisions of law, but, no

such suspect can be tortured or subjected to third degree methods or

eliminated with a view to eliciting information, extracting a confession or

deriving knowledge about his accomplices, weapons etc. His constitutional

right cannot be abridged except in the manner permitted by law, though in

the very nature of things there would be a qualitative difference in the

method of interrogation of such a person as compared to an ordinary

criminal. State terrorism declared this Court is no answer to combat

terrorism. It may only provide legitimacy to terrorism, which is bad for

the State and the community and above all for the rule of law. Having said

that, the Court issued the following directions and guidelines in all cases

of arrest and/or detention:

“35. We therefore, consider it appropriate to issue the following

requirements to be followed in all cases of arrest or detention till legal

provisions are made in that behalf as preventive measures:

(1) The police personnel carrying out the arrest and handling the

interrogation of the arrestee should bear accurate, visible and clear

identification and name togs 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 a such memo shall be

attested by atleast 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.

(3) 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 town 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 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 he 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 effecting the arrest and its copy

provided to the arrestee.

(8) The arrestee should be subjected to medical examination by 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 Stare or Union Territory. Director, Health Services should

prepare such a penal 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 illaqa 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 notice board.”