D.K. Basu v. State of W.B.(1997) 1 SCC 416[Kuldip Singh and Dr AS Anand, JJ]

Case Summary

Full Case Details

DR A.S. ANAND, J. – The Executive Chairman, Legal Aid Services, West Bengal, a nonpolitical organisation registered under the Societies Registration Act, on 26-8-1986 addressed
a letter to the Chief Justice of India drawing his attention to certain news items published in
The Telegraph dated 20-7-1986, 21-7-1986 and 22-7-1986 and in the Statesman and Indian
Express dated 17-8-1986 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.

2. 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.
3. 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 this Court made the following order:
   “In almost every State there are allegations and these allegations are now
   increasing in frequency of deaths in custody described generally by newspapers as
   lock-up deaths. At present there does not appear to be any machinery to effectively
   deal with such allegations. Since this is an all- India question concerning all States, it
   is desirable to issue notices to all the State Governments to find out whether they
   desire to say anything in the matter. Let notices issue to all the State Governments.
   Let notice also issue to the Law Commission of India with a request that suitable
   suggestions may be made in the matter. Notice be made returnable in two months
   from today.”
4. The importance of affirmed rights of every human being need no emphasis and,
   therefore, to deter breaches thereof becomes a sacred duty of the Court, as the custodian and
   protector of the fundamental and the basic human rights of the citizens. Custodial violence,
   including torture and death in the lock-ups, strikes a blow at the rule of law, which demands
   that the powers of the executive should not only be derived from law but also that the same
   should be limited by law. Custodial violence is a matter of concern. It is aggravated by the
   fact that it is committed by persons who are supposed to be the protectors of the citizens. It is
   committed under the shield of uniform and authority in the four walls of a police station or
   lock-up, the victim being totally helpless. The protection of an individual from torture and
   abuse by the police and other law-enforcing officers is a matter of deep concern in a free
   society. These petitions raise important issues concerning police powers, including whether
   304
   monetary compensation should be awarded for established infringement of the Fundamental
   Rights guaranteed by Articles 21 and 22 of the Constitution of India. The issues are
   fundamental.
5. “Torture” has not been defined in the Constitution or in other penal laws. “Torture” of
   a human being by another human being is essentially an instrument to impose the will of the
   “strong” over the “weak” by suffering. The word torture today has become synonymous with
   the darker side of human civilisation.
   “Torture is a wound in the soul so painful that sometimes you can almost touch it, but
   it is also so intangible that there is no way to heal it. Torture is anguish squeezing in
   your chest, cold as ice and heavy as a stone, paralyzing as sleep and dark as the
   abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy
   including yourself.” – Adriana P. Bartow
6. No violation of any one of the human rights has been the subject of so many
   Conventions and Declarations as “torture”- all aiming at total banning of it in all forms, but in
   spite of the commitments made to eliminate torture, the fact remains that torture is more
   widespread now than ever before. “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 – flag of humanity must on each such occasion fly half-mast.
7. In all custodial crimes what is of real concern is not only infliction of body pain but
   the mental agony which a person undergoes within the four walls of police station or lockup. Whether it is physical assault or rape in police custody, the extent of trauma, a person
   experiences is beyond the purview of law.
8. “Custodial violence” and abuse of police power is not only peculiar to this country,
   but it is widespread. It has been the 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.
9. Fundamental Rights occupy a place of pride in the Indian Constitution. Article 21
   provides “no person shall be deprived of his life or personal liberty except according to
   procedure established by law”. Personal liberty, thus, is a sacred and cherished right under the
   Constitution. The expression “life or personal liberty” has been held to include the right to
   live with human dignity and thus it would also include within itself a guarantee against torture
   and assault by the State or its functionaries. Article 22 guarantees protection against arrest
   and detention in certain cases and declares that no person who is arrested shall be detained in
   custody without being informed of the grounds of such arrest and he shall not be denied the
   right to consult and defend himself by a legal practitioner of his choice. Clause (2) of Article
   22 directs that the person arrested and detained in custody shall be produced before the
   nearest Magistrate within a period of 24 hours of such arrest, excluding the time necessary for
   the journey from the place of arrest to the Court of the Magistrate. Article 20(3) of the
   305
   Constitution lays down that a person accused of an offence shall not be compelled to be a
   witness against himself. These are some of the constitutional safeguards provided to a person
   with a view to protect his personal liberty against any unjustified assault by the State. In tune
   with the constitutional guarantee a number of statutory provisions also seek to protect
   personal liberty, dignity and basic human rights of the citizens. Chapter V of the Criminal
   Procedure Code, 1973 deals with the powers or arrest of a person and the safeguards which
   are required to be followed by the police to protect the interest of the arrested person. Section
   41 CrPC confers powers on any police officer to arrest a person under the circumstances
   specified therein without any order or a warrant of arrest from a Magistrate. Section 46
   provides the method and manner of arrest. Under this section no formality is necessary while
   arresting a person. Under Section 49, the police is not permitted to use more restraint than is
   necessary to prevent the escape of the person. Section 50 enjoins every police officer
   arresting any person without warrant to communicate to him the full particulars of the offence
   for which he is arrested and the grounds for such arrest. The police officer is further enjoined
   to inform the person arrested that he is entitled to be released on bail and he may arrange for
   sureties in the event of his arrest for a non-bailable offence. Section 56 contains a mandatory
   provision requiring the police officer making an arrest without warrant to produce the arrested
   person before a Magistrate without unnecessary delay and Section 57 echoes clause (2) of
   Article 22 of the Constitution of India. There are some other provisions also like Sections 53,
   54 and 167 which are aimed at affording procedural safeguards to a person arrested by the
   police. Whenever a person dies in custody of the police, Section 176 requires the Magistrate
   to hold an enquiry into the cause of death.
10. However, in spite of the constitutional and statutory provisions aimed at safeguarding
    the personal liberty and life of a citizen, growing incidence of torture and deaths in police
    custody has been a disturbing factor. Experience shows that worst violations of human rights
    take place during the course of investigation, when the police with a view to secure evidence
    or confession often resorts to third-degree methods including torture and adopts techniques of
    screening arrest by either not recording the arrest or describing the deprivation of liberty
    merely as a prolonged interrogation. A reading of the morning newspapers almost everyday
    carrying reports of dehumanising torture, assault, rape and death in custody of police or other
    governmental agencies is indeed depressing. The increasing incidence of torture and death in
    custody has assumed such alarming proportions that it is affecting the credibility of the rule of
    law and the administration of criminal justice system. The community rightly feels perturbed.
    Society’s cry for justice becomes louder.
11. The Third Report of the National Police Commission in India expressed its deep
    concern with custodial violence and lock-up deaths. It appreciated the demoralising effect
    which custodial torture was creating on the society as a whole. It made some very useful
    suggestions. It suggested:
    “An arrest during the investigation of a cognizable case may be considered
    justified in one or other of the following circumstances:
    (i) The case involves a grave offence like murder, dacoity, robbery, rape
    etc., and it is necessary to arrest the accused and bring his movements under
    restraint to infuse confidence among the terror-stricken victims.
    (ii) The accused is likely to abscond and evade the processes of law.
    306
    (iii)The accused is given to violent behaviour and is likely to commit further
    offences unless his movements are brought under restraint.
    (iv) The accused is a habitual offender and unless kept in custody he is likely
    to commit similar offences again. It would be desirable to insist through
    departmental instructions that a police officer making an arrest should also record
    in the case diary the reasons for making the arrest, thereby clarifying his
    conformity to the specified guidelines. …”
    The recommendations of the Police Commission reflect the constitutional concomitants of the
    fundamental right to personal liberty and freedom. These recommendations, however, have
    not acquired any statutory status so far.
12. This Court in Joginder Kumar v. State of U.P. [(1994) 4 SCC 260] (to which one of
    us, namely, Anand, J. was a party) considered the dynamics of misuse of police power of
    arrest and opined:
    “No arrest can be made because it is lawful for the police officer to do so. The
    existence of the power to arrest is one thing. The justification for the exercise of it is
    quite another. … No arrest should be made without a reasonable satisfaction reached
    after some investigation as to the genuineness and bona fides of a complaint and a
    reasonable belief both as to the person’s complicity and even so as to the need to
    effect arrest. Denying a person of his liberty is a serious matter.”
13. Joginder Kumar case involved arrest of a practising lawyer who had been called to
    the police station in connection with a case under inquiry on 7-1-1994. On not receiving any
    satisfactory account of his whereabouts, the family members of the detained lawyer preferred
    a petition in the nature of habeas corpus before this Court on 11-1-1994 and in compliance
    with the notice, the lawyer was produced on 14-1-1994 before this Court. The police version
    was that during 7-1-1994 and 14-1-1994 the lawyer was not in detention at all but was only
    assisting the police to detect some cases. The detenu asserted otherwise. This Court was not
    satisfied with the police version. It is noticed that though as on that day the relief in habeas
    corpus petition could not be granted but the questions whether there had been any need to
    detain the lawyer for 5 days and if at all he was not in detention then why was this Court not
    informed, were important questions which required an answer. Besides, if there was detention
    for 5 days, for what reason was he detained. The Court, therefore, directed the District Judge,
    Ghaziabad to make a detailed enquiry and submit his report within 4 weeks. The Court voiced
    its concern regarding complaints of violations of human rights during and after arrest. It said:
    “The horizon of human rights is expanding. At the same time, the crime rate is
    also increasing. Of late, this Court has been receiving complaints about violations of
    human rights because of indiscriminate arrests. How are we to strike a balance
    between the two?
    A realistic approach should be made in this direction. The law of arrest is one of
    balancing individual rights, liberties and privileges, on the one hand, and individual
    duties, obligations and responsibilities on the other; of weighing and balancing the
    rights, liberties and privileges of the single individual and those of individuals
    collectively; of simply deciding what is wanted and where to put the weight and the
    emphasis; of deciding which comes first – the criminal or society, the law violator or
    the law abider ….”
    307
14. Custodial death is perhaps one of the worst crimes in a civilised society governed by
    the rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be
    jealously and scrupulously protected. We cannot wish away the problem. Any form of torture
    or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the
    Constitution, whether it occurs during investigation, interrogation or otherwise. If the
    functionaries of the Government become law-breakers, it is bound to breed contempt for law
    and would encourage lawlessness and every man would have the tendency to become law
    unto himself thereby leading to anarchanism. No civilised nation can permit that to happen.
    Does a citizen shed off his fundamental right to life, the moment a policeman arrests him?
    Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the
    spinal cord of human rights’ jurisprudence. The answer, indeed, has to be an emphatic “No”.
    The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to
    convicts, undertrials, detenus and other prisoners in custody, except according to the
    procedure established by law by placing such reasonable restrictions as are permitted by law.
15. In Nilabati Behera v. State of Orissa [(1993) 2 SCC 746] (to which Anand, J. was a
    party) this Court pointed out that prisoners and detenus 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 detenus. It was
    observed:
    “It is axiomatic that convicts, prisoners or undertrials 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 right by such
    persons. It is an obligation of the State to ensure that there is no infringement of the
    indefeasible rights of a citizen to life, except in accordance with law, while the
    citizen is in its custody. The precious right guaranteed by Article 21 of the
    Constitution of India cannot be denied to convicts, undertrials or other prisoners in
    custody, except according to procedure established by law. There is a great
    responsibility on the police or prison authorities to ensure that the citizen in its
    custody is not deprived of his right to life. His liberty is in the very nature of things
    circumscribed by the very fact of his confinement and therefore his interest in the
    limited liberty left to him is rather precious. The duty of care on the part of the State
    is strict and admits of no exceptions. The wrongdoer is accountable and the State is
    responsible if the person in custody of the police is deprived of his life except
    according to the procedure established by law.”
16. Instances have come to our notice where the police has arrested a person without
    warrant in connection with the investigation of an offence, without recording the arrest, and
    the arrested person has been subjected to torture to extract information from him for the
    purpose of further investigation or for recovery of case property or for extracting confession
    etc. The torture and injury caused on the body of the arrestee has sometimes resulted in his
    death. Death in custody is not generally shown in the records of the lock-up and every effort
    is made by the police to dispose of the body or to make out a case that the arrested person
    died after he was released from custody. Any complaint against such torture or death is
    generally not given any attention by the police officers because of ties of brotherhood. No
    first information report at the instance of the victim or his kith and kin is generally entertained
    308
    and even the higher police officers turn a blind eye to such complaints. Even where a formal
    prosecution is launched by the victim or his kith and kin, no direct evidence is available to
    substantiate the charge of torture or causing hurt resulting in death, as the police lock-up
    where generally torture or injury is caused is away from the public gaze and the witnesses are
    either policemen or co-prisoners who are highly reluctant to appear as prosecution witnesses
    due to fear retaliation by the superior officers of the police. It is often seen that when a
    complaint is made against torture, death or injury, in police custody, it is difficult to secure
    evidence against the policemen responsible for resorting to third-degree methods since they
    are in charge of police station records which they do not find difficult to manipulate.
    Consequently, prosecution against the delinquent officers generally results in acquittal.
    State of M.P. v. Shyamsunder Trivedi [(1995) 4 SCC 262], is an apt case illustrative of the
    observations made by us above. In that case, Nathu Banjara was tortured at police station,
    Rampura during the interrogation. As a result of extensive injuries caused to him he died in
    police custody at the police station. The defence set up by the respondent police officials at
    the trial was that Nathu had been released from police custody at about 10.30 p.m. after
    interrogation on 13-10-1981 itself vide entry Ex. P/22-A in the Roznamcha and that at about
    7.00 a.m. on 14-10-1981, a death report Ex. P/9 was recorded at the police station, Rampura,
    at the instance of Ramesh Respondent 6, to the effect that he had found “one unknown
    person” near a tree by the side of the tank wriggling with pain in his chest and that as soon as
    Respondent 6 reached near him, the said person died. The further case set up by SI Trivedi,
    Respondent 1, in charge of the police station was that after making a Roznamcha entry at 7.00
    a.m. about his departure from the police station he (Respondent 1-Shyamsunder Trivedi) and
    Constable Rajaram respondent proceeded to the spot where the dead body was stated to be
    lying for conducting investigation under Section 174 CrPC. He summoned Ramesh Chandra
    and Goverdhan – respondents to the spot and in their presence prepared a panchnama Ex. P/27
    of the dead body recording the opinion therein to the effect that no definite cause of death was
    known.
17. The First Additional Sessions Judge acquitted all the respondents of all the charges
    holding that there was no direct evidence to connect the respondents with the crime. The State
    of Madhya Pradesh went up in appeal against the order of acquittal and the High Court
    maintained the acquittal of Respondents 2 to 7 but set aside the acquittal of Respondent 1,
    Shyamsunder Trivedi for offences under Sections 218, 201 and 342 IPC. His acquittal for the
    offences under Sections 302/149 and 147 IPC was, however, maintained. The State filed an
    appeal in this Court by special leave. This Court found that the following circumstances had
    been established by the prosecution beyond every reasonable doubt and coupled with the
    direct evidence of PWs 1, 3, 4, 8 and 18 those circumstances were consistent only with the
    hypothesis of guilt of the respondents and were inconsistent with their innocence:
    “(i) that the deceased had been brought alive to the police station and was last
    seen alive there on 13-10-1981; (ii) that the dead body of the deceased was taken out
    of the police station on 14-10-1981 at about 2 p.m. for being removed to the hospital;
    … (iv) that SI Trivedi, Respondent 1, Ram Naresh Shukla, Respondent 3, Rajaram,
    Respondent 4 and Ganniuddin, Respondent 5 were present at the police station and
    had all joined hands to dispose of the dead body of Nathu Banjara; (v) that SI
    Trivedi, Respondent 1 created false evidence and fabricated false clues in the shape
    of documentary evidence with a view to screen the offence and for that matter, the
    309
    offender; (vi) SI Trivedi – respondent in connivance with some of his subordinates,
    respondents herein had taken steps to cremate the dead body in hot haste describing
    the deceased as a ‘lavaris’ though the identity of the deceased, when they had
    interrogated for a sufficient long time was well known to them.”
    and opined that:
    “The observations of the High Court that the presence and participation of these
    respondents in the crime is doubtful are not borne out from the evidence on the
    record and appear to be an unrealistic over simplification of the tell-tale
    circumstances established by the prosecution.”
    One of us (namely, Anand, J.) speaking for the Court went on to observe:
    “The trial court and the High Court, if we may say so with respect, exhibited a
    total lack of sensitivity and a “could not care less” attitude in appreciating the
    evidence on the record and thereby condoning the barbarous third-degree methods
    which are still being used at some police stations, despite being illegal. The
    exaggerated adherence to and insistence upon the establishment of proof beyond
    every reasonable doubt, by the prosecution, ignoring the ground realities, the factsituations and the peculiar circumstances of a given case, as in the present case, often
    results in miscarriage of justice and makes the justice delivery system a suspect. In
    the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in
    police custody, which of late are on the increase, receive encouragement by this type
    of an unrealistic approach of the courts because it reinforces the belief in the mind of
    the police that no harm would come to them, if a prisoner dies in the lock-up,
    because there would hardly be any evidence available to the prosecution to directly
    implicate them with the torture. The courts must not lose sight of the fact that death
    in police custody is perhaps one of the worst kind of crimes in a civilised society,
    governed by the rule of law and poses a serious threat to an orderly civilised society.”
    This Court then suggested:
    “The Courts are also required to have a change in their outlook and attitude,
    particularly in cases involving custodial crimes and they should exhibit more
    sensitivity and adopt a realistic rather than a narrow technical approach, while
    dealing with the cases of custodial crime so that as far as possible within their
    powers, the guilty should not escape so that the victim of the crime has the
    satisfaction that ultimately the majesty of law has prevailed.”
18. The State appeal was allowed and the acquittal of Respondents 1, 3, 4 and 5 was set
    aside. The respondents were convicted for various offences including the offence under
    Sections 304 Part II/34 IPC and sentenced to various terms of imprisonment and fine ranging
    from Rs 20,000 to Rs 50,000. The fine was directed to be paid to the heirs of Nathu Banjara
    by way of compensation. It was further directed:
    “The trial court shall ensure, in case the fine is deposited by the accused
    respondents, that the payment of the same is made to the heirs of deceased, Nathu
    Banjara, and the court shall take all such precautions as are necessary to see that the
    money is not allowed to fall into wrong hands and is utilised for the benefit of the
    members of the family of the deceased, Nathu Banjara, and if found practical by
    deposit in a nationalised bank or post office on such terms as the trial court may in
    consultation with the heirs of the deceased consider fit and proper.”
    310
19. It needs no emphasis to say that when the crime goes unpunished, the criminals are
    encouraged and the society suffers. The victim of crime or his kith and kin become frustrated
    and contempt for law develops. It was considering these aspects that the Law Commission in
    its 113th Report recommended the insertion of Section 114-B in the Indian Evidence Act. The
    Law Commission recommended in its 113th Report that in prosecution of a police officer for
    an alleged offence of having caused bodily injury to a person, if there was evidence that the
    injury was caused during the period when the person was in the custody of the police, the
    Court may presume that the injury was caused by the police officer having the custody of that
    person during that period. The Commission further recommended that the court, while
    considering the question of presumption, should have regard to all relevant circumstances
    including the period of custody, statement made by the victim, medical evidence and the
    evidence which the Magistrate may have recorded. Change of burden of proof was, thus,
    advocated. In Shyamsunder Trivedi case this Court also expressed the hope that the
    Government and the legislature would give serious thought to the recommendation of the
    Law Commission. Unfortunately, the suggested amendment, has not been incorporated in the
    statute so far. The need of amendment requires no emphasis – sharp rise in custodial violence,
    torture and death in custody, justifies the urgency for the amendment and we invite
    Parliament’s attention to it.
20. Police is, no doubt, under a legal duty and has legitimate right to arrest a criminal and
    to interrogate him during the investigation of an offence but it must be remembered that the
    law does not permit use of third-degree methods or torture of accused in custody during
    interrogation and investigation with a view to solve the crime. End cannot justify the means.
    The interrogation and investigation into a crime should be in true sense purposeful to make
    the investigation effective. By torturing a person and using third-degree methods, the police
    would be accomplishing behind the closed doors what the demands of our legal order forbid.
    No society can permit it.
21. How do we check the abuse of police power? Transparency of action and
    accountability perhaps are two possible safeguards which this Court must insist upon.
    Attention is also required to be paid to properly develop work culture, training and orientation
    of the police force consistent with basic human values. Training methodology of the police
    needs restructuring. The force needs to be infused with basic human values and made
    sensitive to the constitutional ethos. Efforts must be made to change the attitude and approach
    of the police personnel handling investigations so that they do not sacrifice basic human
    values during interrogation and do not resort to questionable forms of interrogation. With a
    view to bring in transparency, the presence of the counsel of the arrestee at some point of time
    during the interrogation may deter the police from using third-degree methods during
    interrogation.
22. Apart from the police, there are several other governmental authorities also like
    Directorate of Revenue Intelligence, Directorate of Enforcement, Coastal Guard, Central
    Reserve Police Force (CRPF), Border Security Force (BSF), the Central Industrial Security
    Force (CISF), the State Armed Police, Intelligence Agencies like the Intelligence Bureau,
    RAW, Central Bureau of Investigation (CBI), CID, Traffic Police, Mounted Police and ITBP,
    which have the power to detain a person and to interrogate him in connection with the
    investigation of economic offences, offences under the Essential Commodities Act, Excise
    and Customs Act, Foreign Exchange Regulation Act etc. There are instances of torture and
    311
    death in custody of these authorities as well. Death of Sawinder Singh Grover, Re,
    [1995 Supp (4) SCC 450] (to which Kuldip Singh, J. was a party) this Court took suo motu
    notice of the death of Sawinder Singh Grover during his custody with the Directorate of
    Enforcement. After getting an enquiry conducted by the Additional District Judge, which
    disclosed a prima facie case for investigation and prosecution, this Court directed the CBI to
    lodge an FIR and initiate criminal proceedings against all persons named in the report of the
    Additional District Judge and proceed against them. The Union of India/Directorate of
    Enforcement was also directed to pay a sum of Rs 2 lakhs to the widow of the deceased by
    way of ex gratia payment at the interim stage. Amendment of the relevant provisions of law
    to protect the interest of arrested persons in such cases too is a genuine need.
23. There is one other aspect also which needs our consideration. We are conscious of the
    fact that the police in India have to perform a difficult and delicate task, particularly in view
    of the deteriorating law and order situation, communal riots, political turmoil, student unrest,
    terrorist activities, and among others the increasing number of underworld and armed gangs
    and criminals. Many hardcore criminals like extremists, terrorists, drug peddlers, smugglers
    who have organised gangs, have taken strong roots in the society. It is being said in certain
    quarters that with more and more liberalisation and enforcement of fundamental rights, it
    would lead to difficulties in the detection of crimes committed by such categories of hardened
    criminals by soft peddling interrogation. It is felt in those quarters that if we lay too much of
    emphasis on protection of their fundamental rights and human rights, such criminals may go
    scot-free without exposing any element or iota of criminality with the result, the crime would
    go unpunished and in the ultimate analysis the society would suffer. The concern is genuine
    and the problem is real. To deal with such a situation, a balanced approach is needed to meet
    the ends of justice. This is all the more so, in view of the expectation of the society that police
    must deal with the criminals in an efficient and effective manner and bring to book those who
    are involved in the crime. The cure cannot, however, be worst than the disease itself.
24. There can be no gainsaying that freedom of an individual must yield to the 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 Latin maxim salus populi
    suprema lex (the safety of the people is the supreme law) and salus republicae suprema lex
    (safety of the State is the supreme law) coexist and are not only important and relevant but lie
    at the heart of the doctrine that the welfare of an individual must yield to that of the
    community. The action of the State, however, 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 provisions of law. He cannot, however, be tortured or subjected to
    third-degree methods or eliminated with a view to elicit information, extract confession or
    derive knowledge about his accomplices, weapons etc. His constitutional right cannot be
    abridged in the manner permitted by law, though in the very nature of things there would be
    qualitative difference in the method of interrogation of such a person as compared to an
    ordinary criminal. Challenge of terrorism must be met with innovative ideas and approach.
    State terrorism is no answer to combat terrorism. State terrorism would only provide
    312
    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 to
    punishment but it cannot justify the violation of his human rights except in the manner
    permitted by law. Need, therefore, is to develop scientific methods of investigation and train
    the investigators properly to interrogate to meet the challenge.
25. In addition to the statutory and constitutional requirements to which we have made a
    reference, we are of the view that it would be useful and effective to structure appropriate
    machinery for contemporaneous recording and notification of all cases of arrest and detention
    to bring in transparency and accountability. It is desirable that the officer arresting a person
    should prepare a memo of his arrest at the time of arrest in the presence of at least one witness
    who may be a member of the family of the arrestee or a respectable person of the locality
    from where the arrest is made. The date and time of arrest shall be recorded in the memo
    which must also be countersigned by the arrestee.
26. 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 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 either be 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 countersigned 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 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
    313
    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 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 State or Union Territory concerned.
    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 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.
27. Failure to comply with the requirements hereinabove mentioned shall apart from
    rendering the official concerned liable for departmental action, also render him liable to be
    punished for contempt of court and the proceedings for contempt of court may be instituted in
    any High Court of the country, having territorial jurisdiction over the matter.
28. The requirements, referred to above flow from Articles 21 and 22(1) of the
    Constitution and need to be strictly followed. These would apply with equal force to the other
    governmental agencies also to which a reference has been made earlier.
29. 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.

Also read Dilip K. Basu v. State of West Bengal [(1997) 6 SCC 642], in which the court
observed:
“3. More than seven months have elapsed since the directions were issued. Through
these petitions, Dr Singhvi, the learned amicus curiae, who had assisted the Court in the
main petition, seeks a direction, calling upon the Director General of Police and the
Home Secretary of every State/Union Territory to report to this Court compliance of the
above directions and the steps taken by All India Radio and the National Network of
Doordarshan for broadcasting the requirements.

4. We direct the Registry to send a copy of this application, together with a copy of
   this order to Respondents 1 to 31 to have the report/reports from the Director General of
   Police and the Home Secretary of the State/Union Territory concerned, sent to this Court
   regarding the compliance of the above directions concerning arrestees. The report shall
   indicate in a tabular form as to which of the “requirements” has been carried out and in
   what manner, as also which are the “requirements” which still remain to be carried out
   and the steps being taken for carrying out those.
5. Report shall also be obtained from the Directors of All India Radio and
   Doordarshan regarding broadcasts made….”
   314
   FUNDAMEN