Indian Kanoon - Search engine for Indian Law

12. The 177th report of the Law Commission on the law relating to arrest was forwarded by a letter dated 14.12.2001 to the Minister of Law and Justice by the then Chairman of Law Commission of India Hon. Mr. Justice B.P. Jeevan Reddy. The said recommendation included suggestions for implementing the decisions in D.K. Basu's case and was incorporated as Chapter VIII therein. The same is quoted herein below:

Chapter Eight Implementing the decision in D.K. Basu In para 3.3. of the Consultation Paper, it was proposed that the several directions/safeguards enunciated in the decision of the Supreme Court in D.K. Basu should be incorporated in the Code by appropriate amendments. There was in fact no opposition to this proposal at all. Indeed, there can't be any for the simple reason that the decision itself directs that the said decisions will be effective "till legal provisions are made in that behalf. More important, the decision also states that the directions/safeguards issued in the said decision" flow from articles 21 and 22(1) of the Constitution and need to be strictly followed", it was also made clear that the said requirements do not detract from the existing constitutional safeguards nor do they detract from various other directions given by the court from time to time in connection with the safeguarding of the rights and dignity of the arrested person. The eleven directions/safeguards issued in the said decision have already been set out in Chapter Three of this Report.

It may be mentioned that similar provisions have also been recommended by the Law Commission on previous occasions referred to in Chapter Four of this Report. We may refer in this connection to the recommendations contained in the 152nd Report on Custodial Crimes (1994) (four recommendations in all) and to the recommendations contained in 154th Report on code of Criminal procedure for insertion of a new Sub-section, Sub-section 93) in Section 41 and for insertion of a new section, Section 41 A. Reference may also be made to the "Guidelines for making arrests" contained in the Report of the National Police Commission (para 22.28). Indeed, the Criminal procedure Code (Amendment) Bill, 1994 proposed to insert Section 50A providing for giving information of the arrest of such persons as may be nominated by the arrested persons. The Parliamentary Committee which examined the said provision in the Amendment Bill has further recommended for making it more comprehensive and more effective as has been stated in Chapter Four. The proposals contained in the said Amendment Bill for insertion of a new sub-section, Sub-section (2) in Section 54, and the insertion of a new section, Section 54A, are equally relevant in this behalf. Accordingly, it is recommended that the aforesaid directions in D.K. Basu be incorporated in Chapter V of the Code of Criminal Procedure, along with the consequences for not complying with such directions/provisions. It is obvious that by incorporating the said directions into the code, the sanction now operating (contempt of Court) under and by virtue of the directions contained in the said decision, would not disappear. Evidently, the violation of the proposed provisions in Sections 41A to 4ID would constitute an offence within the meaning of Section 166 IPC, which not being a provision relating to contempt of subordinate courts would not also attract proviso to Section 10 Of the Contempt of Courts Act, 1971 (see Bathina Ramakrishna Reddy v. State of Madras and State of Madhya Pradesh v. Reva Shankar ). It would be a case of contempt under and by virtue of the directions aforesaid. Be that as it may, any violation of the provisions being made in terms of the decision in D.K. Basu would clearly constitute an offence within the meaning of and as defined by Section 166 of IPC apart from and in addition to constituting a contempt of court as laid down in D.K. Basu. It shall be open to a person affected by such violation or non-observance of the proposed provisions to lodge a complaint according to law. Section 166 IPC may also be suitably amended to clarify that violation of the provisions in Sections 41 to 4ID of Cr.P.C. shall constitute an offence thereunder.

19. Replying to the aforesaid contentions raised, the learned Advocate General Sri S.M.A. Kazmi, has urged that Section 50-A by itself is illustrative and not exhaustive. He further contends that the measures undertaken by the police authorities which are reflected in the Circulars issued by the Director General of Police clearly demonstrate that due care has been taken by the State Government to implement the guidelines contained in D.K. Basu's case in its letter and spirit and that the said measures are in addition to and supplement the amendments brought about in the Code of Criminal Procedure through Act No. 25 of 2005. He contends that D.K. Basu's case clearly spells out that these guidelines shall be followed till legal provisions are made. The contention on behalf of the State is that once the provisions have been incorporated in the Code of Criminal Procedure and measures have been undertaken by the State Authorities to implement the same through the police circulars referred to herein above, then the guidelines contained in D.K. Basu's case and measures for implementation thereof are not available to the applicant as appropriate legal provisions have been brought in existence for that purpose. Supplementing his submissions, he has urged that these guidelines were framed with the objective of preventing custodial violence and in case any violation is alleged, the same can be taken care of by institution of appropriate criminal proceedings against the officer concerned or resorting to departmental inquiry as any violation of law can be a ground to constitute misconduct. He contends that these guidelines were framed for meeting certain basic requirements for the protection of the fundamental rights guaranteed under Article 21 & 22 of the Constitution of India. According to him all the basic requirements as indicated in D.K. Basu's judgment have been taken care of by introducing the aforesaid legal provisions and administrative circulars and, therefore, no shelter is now available to be taken by an aggrieved person by invoking the contempt jurisdiction of this Court.

22. These provisions appeared to have been incorporated by the insertion of Section 50-A. The direction Nos. 4, 5 & 6 in D.K. Basu's case also appear to be taken care of in the aforesaid provisions.

23. Chapter V of the Code of Criminal Procedure also indicates measures which are to be taken at the time of arrest and even thereafter in order to ensure that a person receives a fair treatment. However, the shortcomings in the aforesaid provisions were sought to be remedied keeping in view the mandate of Article 21 of the Constitution in D.K. Basu's case. The introduction of Section 53A and the amendment in Section 53 as also the amendments in Section 54 indicate medical examination being made with specific reference to rape cases in order to avoid any such shortcoming. These amendments were brought about presumably keeping in view the aforesaid directions contained in D.K. Basu's case. Apart from this, the police circulars which have been referred to herein above as applicable in the State of U.P., it is evident that the State of U.P. has taken care of such situations through the said circulars. Not only this, the aforesaid directives have been indicated to be compulsorily carried out in the Circulars dated 29.3.1997 and 14.4.2002. The proforma which has to be filled and has been quoted herein above also indicates the compliance of the aforesaid basic requirement indicated in D.K. Basu's case. The proforma of the F.I.R. has ; also been suitably modified to indicate the aforesaid information and ensure compliance thereof. With the support of these Circulars the learned Advocate General has urged that they supplement the provisions of Section 50-A of the Code and are in addition to it. It is for this reason that it has been urged that Section 50-A is illustrative and not exhaustive. The object of the judgment of D.K. Basu's case was to provide for proection against unlawful detention. Such basic requirements have to be fulfilled even during the process of carrying out the arrest. The contention of the learned Counsel for the applicant Sri P.K. Singh to this extent appears to be correct that these are measures suggested for preventive detention in order to avoid custodial violence. The question, therefore, is do these requirements as enumerated under the Criminal Procedure Code as amended up to date and the Circulars referred to herein above substantially comply with the judgment in D.K. Basu's case. It would be useful to remind ourselves that the judgment of a Court of law cannot be read like a Euclid's Theorem. It is the pith and substance of the intention of the Court which has to be focussed on. The intent as expressed in the judgment of D.K. Basu's case is to provide for ample insulation from the abuse of powers by the authorities and preventing them from acting in any manner which may amount to custodial violence. Another point that deserves to be considered is that the aforesaid decision of the Supreme Court and the reports of the Law Commission were very much before the Parliament when the amendments as suggested were formally incorporated in the shape of legal provisions. The legislature will be presumed to have considered the impact of the aforesaid provisions making room for sufficient protection from instances and occurrences of custodial violence. Most of the provisions substantially engraft the basic requirement as contained in the guidelines of D.K. Basu's case. The judgment of the Supreme Court has not to be read like a Statute. However, it has to be further examined as to whether there are certain grey areas which require to be substantially incorporated in the Act itself. To a certain extent, learned Counsel for the applicant Sri P. K. Singh is right in saying that the provisions do not indicate the bodily lifting of the guidelines and placing it word by word in the amendments brought about. At the same time, however, one cannot ignore the police circulars dated 29.3.1997 and 14.4.2002 which exactly adopt all the said guidelines and direct its compliance by the police authorities. In such a situation, the arguments of the learned Advocate General appear to be appealing that adequate care has been taken atleast by the State Authorities to make a provision lawfully by the issuance of police circulars making provisions as desired by the Apex Court. He contends and rightly so that the said police circulars still continue to be in force and supplement the provisions contained in the Criminal Procedure Code. In view of this, even if the guidelines in D.K. Basu's case have not been quoted in verbatim in the Statute, it can be safely presumed that the State Government has taken care of the situation by itself issuing the circulars which continue to be in force even today in addition to the amendments brought about in the Criminal Procedure Code.