Shri D.K. Basu,Ashok K.

Johri
VERSUS
State Of West Bengal,State Of U.P
Submitted in partial fulfilment of the requirements

Of the degree of Post Graduate Diploma in Intellectual Property Rights law

Submitted by:

Bansari Joshi

Roll No.: 18

Seat No.: 17

Date of submission: May 4th, 2019

Department of Law. University of Mumbai ,Fort Campus, Mumbai.

2018-2019
 ACKNOWLEDGEMENT

I take this opportunity to express my gratitude and thanks to University of Mumbai for the
kind support and encouragement and also thank all the people who co-operated with me in
doing my Research work and completing the Project in the way and manner it should
had to be completed. Without their cooperation it would have not been possible to
complete my report.

I am highly indebted to Prof . Vinay for his guidance and constant supervision as well as for
providing necessary information regarding the project and also for the support in completion of
the project .

Special thanks to My Friends who cooperated for the Project and truly cooperated
physically and mentally.

My thanks and appreciations also go to my colleague in developing the project and people who
have willingly helped me out with their abilities.
 CERTIFICATE

This is to certify that the Project entitled “Shri D.K. Basu,Ashok K. Johri

VERSUS

State Of West Bengal,State Of U.P

” is a bonafide Research on a happened case and is kindly being submitted by “Bansari

Joshi " (Roll NO. 18) submitted to the University Of Mumbai in Partial Fulfillment of the
requirement for the award of the degree of Post Graduate Diploma In Intellectual Property
Rights Law.

Also I Further Certify that this work of mine has not been submitted to any other University for the
purpose of Degree or Diploma .

Law Department,

Mumbai University , Fort

Mumbai : 400032
Citation :( 1997) 1 SCC 416

Judges: Kuldip Singh and A.S Anand

DATE OF JUDGMENT: 01/08/1997 BENCH: A.S. ANAND,

K.T. THOMAS

Respondent : State of West Bengal

Petitioner : Shri D.K. Basu

FACTS OF THE CASE :

Here in this case, a letter was received from the non-social organization regarding the matter
oflock up deaths in the state of West Bengal. This letter was treated as a writ petition and the
notice was passed. In counter to this, the state of West Bengal has filed a petition. They have
answered in this regard that, there were no lock-up deaths as such and if there were any there
was enquiry going on whoever has done it. After all this was done, the court came into the view
and decided that there should be control on police and there should be some set guidelines for
arresting a person.

ISSUES AT HAND :
 Are policemen arbitrary in arresting a person?

 Are there any prescribed guidelines while making a arrest?

Issues Answered:

 Policemen are not to act arbitrarily while arresting a person. There are some guidelines
that even a policeman has to follow.

 Yes, the Court had laid down a number of guidelines while arresting a person.

Judgment : -
The court in this case said that, the locks up deaths are to be reduced. It will directly take a tollon
the belief of public in law and order. the Supreme Court directed all the High Courts to checkon
the details and punishment that are being imposed on prisoners in the jails. They were askedto
give the detailed list of all the persons who were arrested and who ever were in lock ups.

Guidelines prescribed by the Court:

[1] The arrested person has the right to meet his lawyer.

[2] He has the right to medical examination for every 48hours.

[3] The arresting person has to inform the relatives regarding his arrest.

[4] He has to be produced before the magistrate within 24 hours.

[5] The arresting officer shall prepare the memo and has to be attested by at least one
witness.

[6] An entry must be made regarding his arrest in the diary.

 [7] A police control room should be set up in all the districts and in all the state
headquartersand the information regarding the persons arrest has to be communicated to
all the Districts

[8] All the documents including the memo of the arrest has to be sent to the magistrate.

[9] The arresting officer shall have the clear identification of his name, designation.

[10] The time, place, arrest, and the place of custody have to be notified to the
interested person or the friend or the relative.

[11] The person arrested has to be made aware of his right to have someone notified on
his behalf.

The Court emphasized that failure to comply with the said requirements shall apart from
rendering the concerned official 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. The requirements
flow from Articles 21 and Article 22 (1) of the Constitution and need to be strictly followed. The
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.

Right To Be Examined By A Medical Practitioner

Section 54 now renumbered as Section 54(1) provides:

54. Examination of arrested person by medical practitioner at the request of the arrested
personWhen a person who is arrested, whether on a charge or otherwise, alleges, at the
time when he is produced before a Magistrate or at any time during the period of his detention in
custody that theexamination of his body will afford evidence which will disprove the
commission by him of anyoffence or which will establish the commission by any other person of
any offence against his body, the Magistrate shall, if requested by the arrested person so to do
direct the examination ofthe body of such person by a registered medical practitioner unless the
Magistrate considers thatthe request is made for the purpose of vexation or delay or for defeating
the ends of justice

Right To Consult A Legal Practitioner

 Article 22(1) of the Constitution provides that no person who is arrested shall be denied the
rightto consult a legal practitioner of his choice. Further, as has been held by the Supreme Court
thatstate is under a constitutional mandate (implicit in article 21) to provide free legal aid to
anindigent accused person, and the constitutional obligation to provide free legal aid does not
ariseonly when the trial commences but also attaches when the accused is for the first time
produced before the magistrate, as also when remanded from time to time. It has been held by
the SupremeCourt that non- compliance with this requirement and failure to inform the accused
of this rightwould vitiate the trial. Section 50(3) also provides that any person against whom
proceedings areinstituted under the code may of right be defended by a pleader of his choice. The
right of anarrested person to consult his lawyer begins from the moment of his arrest. The
consultation withthe lawyer may be in the presence of police officer but not within his hearing.

Right to be taken before a Magistrate within 24 hours

Irrespective of the fact, that whether the arrest was made with or without a warrant, the
personwho is making such arrest has to bring the arrested person before a judicial officer without
anyunnecessary delay. Further, the arrested person has to be confined in police station only and
nowhere else, before taking him to the Magistrate. These matters have been provided in
Cr.P.C.under sections 56 and 76 which are as given below: Section 56 of Cr.PC. states that
“Person arrested to be taken before Magistrate or officer in
charge of police station- A police officer making an arrest without warrant shall, without
unnecessary delay and subject to the provisions herein contained as to bail, take or send
the person arrested before a Magistrate having jurisdiction in the case, or before the officer in
charge of a police station.

Section 76 of Cr.PC. states that “Person arrested to be brought before Court without delay
-
The police officer or other person executing a warrant of arrest shall (subject to the provisions of
section 71 as to security) without unnecessary delay bring the person arrested before the Court
before which he is required by law to produce such person”.
Further, it has been mentioned in the proviso of Section 76 that such delay shall not exceed
24hours in any case. While calculating the time period of 24 hours, the time necessary for
the journey is to be excluded. The same has been enumerated in the Constitution
as a FundamentalRight under Article 22(2). This right has been created with a view to
eliminating the possibilityof police officials from extracting confessions or compelling a person
to give information.If the police officials fail to produce an arrested person before a magistrate
within 24 hours of thearrest, the police officials shall be held guilty of wrongful detention

The arresting officer shall have the clear identificationof his

name, designation
The police personnel carrying out the arrest and handling the interrogation of
thearrestee should bear accurate, visible and clear
identification and name tags withtheir designations. The particulars of all such police personnel
who handleinterrogation of the arrestee must be recorded in a register and the case diary.

The arresting officer shall prepare the memo and hasto be

attested by at least one witness
The police officer carrying out the arrest of the arrestee shall prepare a memo ofarrest at the time
of arrest and such memo shall
be attested by at least onewitness, 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.

The person arrested has to be made aware of his rightto

have someone notified on his behalf
A Person who has been arrested or detained and is being held in custody in a policestation or
interrogation centre or other lock-up, shall be entitled to have one friend orrelative or other
person known to him or having interest in his welfare being informed, assoon 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 ofthe arrestee.

An entry must be made regarding his arrest in the diary

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 beeninformed of the
arrest and the names and particulars of the police officials in whosecustody the arrestee is.
CONCLUSION

It is generally believed that in spite of the various safeguards in

the Cr.P.C. as well as the inthe Constitution, the power of arrest
given to the police is being misused till this day. It is
also believed that the police often use their position of power to
threaten the arrested persons and take advantage of their office
to extort money. There have also been innumerable reports on
custodial violence that lead many to believe that deprivation of
basic rights of the arrested persons has become commonplace
now a days. The Mallimath Committee in its Report on the
reforms in the Criminal Justice System has stated that the
accused has the right to know the rights given to him under law
and how to enforce such rights. There have also been criticisms
that the police fail to inform the persons arrested of the charge
against them and hence, let the arrested persons flounder in
custody, in complete ignorance of their alleged crimes. This has
been attributed to the Colonial nature of our Criminal Justice
System where the duty of arrest was thrust upon the Indian
officers while the Britisherss drew up the charge against the
accused. Thus, it is entirely possible that the English origins of
the Indian Criminal Justice system may have resulted
unwittingly in the rights of the arrested persons falling through
the cracks. There is imminent need to bring in changes in
Criminal Justice Administration so that states should recognize
that its primary duty is not to punish, but to socialize and reform
the wrong doer and above all it should be clearly understood that
socialization is not identical with punishment, for its comprises
prevention, education, care and rehabilitation within
the framework of social defence. Thus, in the end we find that
Rule of law regulates the functionary of every organ of the state
machinery, including the agency responsible for conducting
prosecution and investigation which must confine themselves
within the four corners of the law. It is the duty of the police
to protect the rights of society. It must be remembered that this
society
includes all people, including the arrested. Thus, it is still the
police’s duty to protect the rights of
the arrested person. Hence, in light of the discussed provisions, a
police officer must make sure that handcuffs are not used
unnecessarily, that the accused is not harassed needlessly, that
the arrested person is made aware of the grounds of his arrest,
informed whether he is entitled to bail and of course,
produced before a Magistrate within twenty-four hours of his
arrest.
BIBLIOGRAPHY

[1] Legalservicesindia.com

[2] Tilakmarg.com

[3] The Code Of Criminal Procedure,1973

[4] Indiankanoon.org

[5] Indian Penal Code , 1860

[6] R.N.Chaturvedi