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D.K BASU AND CUSTODIAL DEATHS

INTRODCUTION

The concept of death in custody is not particularly new, especially in India, where it has been practiced ever since Britain retained sovereignty over the country. The inability to hold law enforcement officers accountable for using brutal tactics and torture, which cites “duty” as a defense, demonstrates the lack of legal protections in our legal system. is showing. Police forces should be warned to use acceptable amounts of force to prevent incidents when police brutality leaves the accused with serious injuries. Custodial violence is also influenced by the impression the accused receives from the media.

When a suspect passes away before a trial or soon after being found guilty, it is referred to as a custodial death. Intentional or unintentional police conduct while in detention results in death. It includes deaths that take place not just in jails but also on private or business property, in a police or other vehicle, or even in a medical facility.

There are three categories of custodial deaths:

  1. The fatality took place in police custody
  2. The death took place in judicial detention
  3. The fatality took place, in the care of military or paramilitary personnel.

Deaths in custody can occur spontaneously without police involvement, such as when a suspect or suspect dies of an illness. Problems arise, however, when law enforcement becomes involved in the death of an individual while in custody.

Proving police guilt is extremely difficult because of the strategies they use in these situations. Defendants were even tortured by police authorities before the arrest, and police could argue that the injuries sustained by defendants were not the result of atrocities in custody, but had occurred previously. The term “fake encounter”, which is also a form of custody, has been making headlines lately. When such incidents occur, it is almost impossible to prove that they acted in bad faith because the police always have evidence. is very difficult to establish.

One of the most horrifying types of human rights violations is perceived as prison violence. The Indian Constitution guarantees the right to life and liberty for all and prohibits any form of torture when a person is being held to extract a confession. The security of prisoners and suspects in police and judicial detention centres is mandated by the Indian Constitution, but police and other authorities have violated these legal protections and resorted to torture and corporal punishment.[1]

PIL was brought to the Supreme Court in 1997 to legally challenge the ill-treatment of prisoners and suspects during police custody. Step D.K. Basu was the Chairman of Legal Aid Services of West Bengal, a non-political organization. A custodial death is a death that occurs while a person is in police custody, usually as a result of severe torture or other forms of physical, emotional, or mental harm.

Most prisoners were imprisoned and didn’t even appear before a judge in time. The provisions of sections 55A[2] and 57[3] CrPC that the accused must be brought before a judge within 24 hours is therefore completely irrelevant.[4]

However, due to the numerous historical struggles that India has faced, our Constitution is a representation of justice, fairness, and morality. One of the most significant decisions concerning the definition of custodial abuse that has expanded the scope of fundamental rights is D.K. Basu v. State of West Bengal (1997)[5].

D.K BASU CASE OVERVIEW

This case defined the rules for arresting someone and their rights, including those outlined in sections 41B[6], 41C[7], and 41D[8] of the Criminal Procedure Code.

As a step to prevent “Custodial Violence,” the court in this case established some fundamental guidelines that must be followed in all instances of arrest or detention until appropriate legal measures are developed.

According to the Supreme Court, “custodial violence is a direct assault on human dignity.” There have been many deaths and reports of torture in police custody, and they are continually increasing in number despite several recommendations and policies. The right to question a suspect and an arrested person must take precedence over the individual’s right to personal liberty, the report added. But for it to happen, the state’s behaviour must be just, fair, and moral. Although necessary, the interrogation must follow scientific principles, and third-degree torture techniques are completely unacceptable.

In this case, the Supreme Court ultimately decided that, in addition to the constitutional and statutory guarantees, police officers should be more vigilant about the rights of arrested persons, and that the police must undoubtedly abide by them. Guidelines have been issued.

The following are the guidelines:

  1. “Police officers who perform the arrest and interrogate the person who has been apprehended must wear distinctive, evident, and legible identification, as well as labels indicating their designations.
  2. At the time of the arrest, the arresting police officer will prepare a memo of arrest, which at least one witness must sign. This witness may be a relative of the person being detained or a prominent member of the community where the arrest is being made. It must be signed by the detainee and include the time and date of the arrest.
  3. A person has the right to be informed as soon as possible that they have been arrested and are being held in a specific location by a friend, relative, or other person known to them or who has an interest in their well-being if they have been arrested or detained at a police station, interrogation centre, or other places of confinement unless the witness who is credited with the arrest memorandum is also a friend or relative of the arrested.
  4. Ifthe detainee’s closest friends or relatives live outside the county or city, police must notify the detainee through the county legal aid office of the time, place, and location of  Within 8 to 12 hours of his arrest, local police in the affected areas were contacted by telegraph.
  5. Immediately after arrestor detention, detainees must be informed of their right to be informed of their arrest or detention.
  6. At the placeof detention, keep a record of the arrest in a case diary. The note should also include the name of a close friend of the person notified of the arrest and the name and contact details of the police officer currently in charge of the arrestee.
  7. Uponrequest, an arrested person must also be examined while under arrest, and if serious or minor bodily injuries are found, these injuries will be recorded during this Both the arresting officer and the arrested person must sign the inspection note, and the arrested person must receive a copy.
  8. While in custody, detainees arerequired to undergo a medical examination every 48 hours by a licensed physician on a list of licensed physicians selected by the Director of Health Services of the State or Union Territory concerned.
  9. For registration, the Magistrate must receive copies of all paperwork, including the arrest memo.
  10. Although not for the duration of the questioning, the Arrestee may be permitted to consult with his lawyer during that time.
  11. All central countyand state offices are required to have police dispatch centers where arrest officers must report arrest details and persons detained there within 12 hours of the  guide sign.”[9]

The supreme court further states that “custodial abuse, torture, rape, and death in police custody is a subject of great concern, it violates the fundamental human rights as well as article 21[10] of the Indian constitution and undercuts the rule of law.”

Since there were no particular prohibitions against custodial abuse in the CrPC, the Supreme Court established these guidelines to restrain the police’s arbitrary use of force.

CONCLUSION

The Right to Life and Personal Liberty, which affirms a person’s ability to live fully in freedom and dignity, is one of the most important fundamental rights in the Indian Constitution. The general public is occasionally not at all given these rights, though. Torture in detention and death in custody are two contentious issues at the moment. Custody torture, sometimes known as “custody death,” is the act of the police abusing those who are being held or imprisoned. These tortures also carry the risk of death for the victims. They get harsh punishments, such as beatings and other gruesome and violent types of physical and mental torture, as well as harassment.

The Supreme Court of India has issued a number of suggestions in the historic D.K. Basu case[11] ruling regarding how persons who are detained by the police or incarcerated should be treated. One international agreement that addresses the subject is the Agreement Against Torture[12], which also outlines a number of guidelines regarding the same. The established rules are occasionally not entirely adhered to or put into practice in a particular circumstance. All pertinent laws must be properly followed in order to protect persons who are detained and to give them the greatest protection of their rights to life and personal liberty.

Author(s) Name: Polly Bhardwaj (Rajasthan School of Law for Women)

References:

[1] Mohammad Sahil Khan, ‘Custodial Deaths’ (iPleaders, 22 July 2022) <https://blog.ipleaders.in/custodial-deaths/> accessed 25 January 2023.

[2] Code of Criminal Procedure 1973, s 55A

[3] Code of Criminal Procedure 1973, s 57

[4] Garv Singh, ‘DK Basu Guidelines on Custodial Violence and Its Relevance in Present Times’ (YLCube, 25 July 2020) <https://ylcube.com/c/blogs/dk-basu-guidelines-custodial-violence-and-its-relevance-present-times/> accessed 27 January 2023.

[5] D.K Basu v. State of West Bengal (1997) SC 610

[6] Code of Criminal Procedure 1973, s 41B

[7] Code of Criminal Procedure 1973, s 41C

[8] Code of Criminal Procedure 1973, s 41D

[9] ‘D.K. Basu Case Guidelines’ (Barnala Police, 2021) <https://barnala.punjabpolice.gov.in/d-k-basu-case-guidelines/> accessed 25 January 2023.

[10] Constitution of India 1950, art 21

[11] D.K. Basu (n 5)

[12] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984