ARNESH KUMAR V.

STATE OF BIHAR
1 Introduction
2 Details of the case
3 Background of the case
4 Facts of the case
5 Laws involved
◦ 5.1. Warrant
◦ 5.2. Section 41 of the Code of Criminal Procedure, 1973
◦ 5.3. Section 41A of the Code of Criminal Procedure, 1973
◦ 5.4. Article 21 of the Constitution of India
6. Proceedings before the High Court of Patna
6.1. Arguments of the parties
◦ 6.1.1. Petitioner
◦ 6.1.2. Respondent
6.2. Judgement by the Hon'ble High Court of Patna
7. Issues raised before the Supreme Court
8 Judgement by the Supreme Court
◦ 8.1. Rationale behind the judgement
◦ 8.2. Observations by the Apex Court
◦ 8.3. Effect of arrests
◦ 8.4. Observations by the Apex Court in relation to relevant provisions of the Code of Criminal
Procedure, 1973
8.5. Procedure to be followed for the detention of the accused
8.6. Section 41A of the Code of Criminal Procedure, 1973

◦ Guidelines for making an arrest (Arnesh Kumar guidelines)

◦ Effects of the Judgment
◦ Case Laws after the Arnesh Kumar case
◦ 11.1. Munawar vs. State of Madhya Pradesh (2021)
◦ 11.2. Kahkashan Kausar and Ors. vs. State of Bihar (2022)
◦ 11.3. Md Asfak Alam vs. State of Jharkhand & Anr. (2023)
9 Conclusion

Introduction

Arnesh Kumar vs. State of Bihar (2014) (hereinafter referred to as the 'Arnesh Kumar case) is a
historic case in criminal law. Indiscriminate arrests and extended detention were prevalent
throughout the country. Arrests even in petty offences, and offences punishable within seven
years of imprisonment were being carried out. The police arbitrarily exercised its powers of arrest,
resulting in a delay of justice, and overcrowding of prisons. Several fundamental rights of the
accused were being violated.
There were ubiquitous violations of the Right to life, movement, and freedom of the arrested. They
were illegally detained based on mere suspicion. Therefore, understanding the grave situation, the
Supreme Court, historically laid down guidelines to regulate arrests in the Arnesh Kumar case.
This case laid down comprehensive rules to be followed by the police during arrest and by the
magistrate while deciding upon the detention of the accused. It laid down the circumstances during
when an accused could be arrested and also provided a thorough interpretation of Section 41 of
Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC) - now, Section 35 of Bhartiya
Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as BNSS).

Further, this case also deeply analyses the misuse of Section 498A of the Indian Penal Code
(IPC), 1860 (Now, Section 85 of Bhartiya Nyaya Sanhita, 2023) (hereinafter referred to as BNS) or
cruelty and laid down guidelines to prevent them. Additionally, the Dowry Prohibition Act, 1961
was also briefly analysed in this case. Arnesh Kumar's case is renowned for ensuring the
protection of the incarcerated yet innocent accused. This case condones arbitrary arrests and lays
down strict rules to be adhered to by the police. It emphasises on protection of the rights of the
accused and the principle of "innocent until proven guilty'. It further emphasised that the power of
the police is limited and that the fundamental rights of a suspect or an accused need to be upheld
unequivocally. This case is rich in its interpretation of Section 41 of CrPC and Section 498A of IPC
and hence becomes an important precedent for defence counsels to look up to.

Details of the case

 Case name - Arnesh Kumar vs. State of Bihar
 Case no. - Criminal Appeal NO. 1277 of 2014
 Equivalent Citations - AIR 2014 SUPREME COURT 2756, 2014 AIR SCW 3930, (3) SCC
(CRI) 449
 Acts involved - Code of Criminal Procedure (CrPC),1973, Indian Penal Code, 1860, and the
Dowry Prohibition Act, 1961.
 Important provisions - Section 41, 41A and 57 of CrPC, Section 498A of Indian Penal
 Code (IPC), Article 21 of the Constitution, Article 22(2) of the Constitution, Section 4 of Dowry
Prohibition Act of 1961.
 Court - Supreme Court of India
 Bench - Pinaki Chandra Ghose, Chandramauli K.R Prasad
 Petitioner - Arnesh Kumar
 Respondent - State of Bihar
 Judgement date - 2nd July, 2014

# Note: The corresponding Sections in BNSS for 41, 41A and 57 of CrPC are Section 35(1)/(2),
35(3) to 35(6) and Section 58 respectively. The corresponding Section in BNS for Section 498A of
IPC is Section 85.

Background of the case

Prior to 2014, irrespective of the magnitude of the offence, punishment for the offence, and
culpability of the accused, arrest was the consequence. Even individuals with petty offences were
put behind bars. The Indian prisons are filled with persons who have not yet gone to trial, over
2/3rd of inmates are undertrials. The plight and magnitude of undertrials were accurately
highlighted during the outbreak of Covid-19. The situation of the accused prior to 2014 was bleak.
The situation that prevailed was akin to a police state where the police unnecessarily without
competent jurisdiction or authority or evidence indiscriminately arrested the accused. This was a
gross violation of the right to dignity and basic principles of natural justice. It also violated the
fundamental principle of "innocent until proven guilty" of the Indian legal system.

The provisions of CrPC were blatantly violated by the Executive. In the month of 1994, the first
respite was given, the Supreme Court observed in Joginder Kumar vs. State of Uttar Pradesh
(1994) that indiscriminate arrests violated constitutional provisions. The Court laid down arrest
guidelines to be strictly followed by the police. In the Jogider Kumar case, the Court observed that
60% of arrests at that time were unnecessary and unjustified. Further, in Siddharam Sarilingappa
Mehtre vs. State of Maharashtra and Ors (2010), the Supreme Court highlighted the menace of
indiscriminate arrests. The court re-emphasised adherence to Section 41 of CrPC. Thereafter, in
2014 the same issue was analysed deeply. The prevalence of arbitrary and groundless arrests
even after some precedents and guidelines, brought the need to analyse the question again and
introduced more comprehensive and stricter guidelines to curb unnecessary arrests. This was
extremely important to safeguard fundamental rights and provide proper Justice.
Facts of the case’

Laws involved

1. Warrant

A warrant is a legal document issued by the magistrate, judge, or some competent officer to the
police, allowing them to arrest, or search an accused. Warrants can also be issued to demand the
presence of the accused in the court. It is essential that the warrant be in writing, and possess the
seal of the court and the sign of the magistrate. Provisions pertaining to warrants of arrest are
mentioned under Sections 70-81 of the CrPC (Now, Sections 72 - 83 of the BNSS). 2(1)(z) of
BNSS defines a warrant case as relating to a case punishable with death, imprisonment for life, or
imprisonment for a term of more than 2 years.

2. Section 41 of the Code of Criminal Procedure, 1973

Section 41 of the CrPC enlists the circumstances when the Police can arrest an accused without a
warrant. This Section is one of the most comprehensive sections of CrPC. It contains 4 clauses
and multiple sub-clauses. Section 41 is one of the most violated provisions, where ensuring
adherence is difficult. Section 41 specifies that the police can arrest without a warrant in the
following cases:
 The offence was grave or serious and specified a punishment of 7 years or more. For example,
rape, murder, dacoity, hate crimes etc.
 Further, an accused found with possession of stolen goods can be arrested without arrest.
 Further, in some instances, an accused of an offence of punishment up to 7 years or less can
be arrested without a warrant.
 An accused of an offence punishable with less than seven years can be arrested provided that
the police officer received credible information or complaint regarding the commission of the
offence and reasonably believed that the accused committed the offence or that the arrest of
that accused was necessary.
 Further, an accused declared as a proclaimed offender by the State can be arrested without a
warrant. Proclaimed offenders are defined under Section 82 of the CrPC (Section 84 of BNSS,
2023). The proclaimed offender is an accused who is reasonably believed to be absconding
 and against whom a proclamation is issued by the magistrate ordering him to be present
before the court.
 An individual who has deserted the army or is suspected of deserting the army.
 When a released convict breaches the rules he is obliged to follow.
 An individual who obstructs the police officer from performing their duty or tries to escape from
lawful custody.
 An individual against whom reasonable apprehension exists that he could have committed an
offence outside India, and such an offence would be punishable under Indian laws if committed
in India. The law relating to extradition shall be applicable and the individual shall be detained
in India

The Section further states that in cases of non-cognizable offences, an arrest cannot be made
without a warrant. Non-cognizable offences refer to offences that are less serious in nature. They
are those offences where the police ought to obtain permission from the magistrate to investigate
the cases. (Section 2(1) of CrPC or Section 2(1)(o) of BNSS,2023)
Further, under Section 41 an accused can be issued a notice to appear before the police officer if
the case does not fall under the provisions of Section 41(1). The accused, if given the notice is
duty-bound to appear before the police, failing to do the same could lead to the arrest of the
accused without a warrant. However, if the accused appeared before the police officer as
instructed then the accused cannot be arrested without a warrant except with the reasons
mentioned. In the present case, the Supreme Court observed that Section 41 cannot be invoked to
arrest the accused. Further, the Apex Court also laid down guidelines for arrest under Section 41
in this case.

3. Section 41A of the Code of Criminal Procedure, 1973

Section 41A of CrPC specifies furnishing a notice to the accused to appear before the police. It
enables the police to order the appearance of the accused if arrest is not necessary. Further, if
there is a reasonable belief that the person has committed a cognizable offence, then a notice to
appear before the police may be given. Section 41A(2) specifies that once a notice is given the
accused is duty-bound to appear. Section 41A(3) enables the police to arrest the accused if he
fails to comply with the notice. Additionally, sub-section 4 mentions that subject to orders passed
by a competent court, the accused may even be arrested for the offence for which notice was
given.
In the present case, the court highlighted the misuse of Section 41A and ordered guidelines to
restrict indiscriminate arrests under Section 41.

4. Article 21 of the Constitution of India

Article 21 talks about the 'right to liberty and life'. Article 21 specifies that no person can be
deprived of his liberty except through the provisions established by law. Liberty refers to freedom
of speech, occupation, expression etc. The Apex Court and the High Courts in several judgments
have expanded the scope of Article 21. Article 21 was broadened to include the right to dignity, the
right to privacy, the right to a safe environment and the right to shelter.
The Supreme Court has explained the facets of liberty through several judgments. In A.K Gopalan
vs. State of Madras (1950), the court observed that liberty refers to liberty of the body, that is,
freedom from arrest or detention. In the case of Maneka Gandhi vs. Union of India (1978), the
court observed that Article 21 includes the right to dignity and life. In the case of Olga Tellis vs.
Bombay Municipal Corporation (1985), the right to livelihood is an essential part of the right to
liberty under Article 21. In the case of Puttaswamy vs. Union of India (2018), the Supreme Court
observed that the right to privacy was a part of Article
21. It was held that individual privacy cannot be compromised except by the procedure established
under law.

Proceedings before the High Court of Patna

Arguments of the parties
Petitioner
• The petitioner submitted that he is a software engineer and denied all allegations of dowry
demands put forth by the respondents. The Petitioner alleged that a prima facie case does not
exist and that the allegations of torture or dowry demand have not been substantiated by the
respondent at the Court. Further, it was submitted that no injury reports were presented to prove
the claims of injury and that therefore, he should be given anticipatory bail.
Respondent
• It was alleged that the Husband had tortured the wife, stating that the wife faced dowry
harassment and physical torture while staying with her husband in Hyderabad. Further, it was
alleged that the husband was having an illicit relationship with another woman.
Furthermore, it was stated that the wife was physically and mentally assaulted over the non-
fulfilment of the dowry demand.

Judgement by the Hon'ble High Court of Patna

Looking into the serious allegations levelled against the appellant-accused, the Hon'ble High Court
dismissed the anticipatory bail application of the accused, dismissing the above-mentioned
averments made by the counsel for the appellant-accused. Being aggrieved by the dismissal of
anticipatory bail, the appellant-accused preferred an appeal before the Apex Court.
Now, let's discuss the issues that were before the Apex Court, followed by the judgement of the
High Court.

Issues raised before the Supreme Court

 Whether anticipatory bail ought to have been given to the appellant or not?
 Whether indiscriminate arrests were prevalent or not?
 Whether guidelines to curb indiscriminate arrests were necessary or not?

Judgement by the Supreme Court

Rationale behind the judgement
The judgement of this case is very important for guiding police and the judiciary while arresting the
accused. This case laid down guidelines which continue to be followed to date.
This case has been relied upon by the Supreme and High Courts in several other judgments.

Observations by the Apex Court

 The court observed a 'phenomenal increase' in the number of matrimonial disputes in the
country. It further observed the sacred nature of marriages in the country.Commenting upon
the purpose of Section 498A, the court observed it was introduced to tackle the harassment of
the wife by her husband or his relatives.
 However, although the purpose of Section 498A was good, the Section is becoming prone to
misuse. The court observed that because Section 498A is a cognizable and non-bailable
offence, the same has led to misuse of the provision as a shield for disgruntled wives. The
simplest form to get back at the husband or harass him was to get him and his relatives
arrested under this provision.
 Highlighting the extent of misuse, the court observed that in several cases even bedridden
grandmothers, grandfathers of the husband, and sister living abroad are arrested.This case
came to appeal before the Supreme Court in 2014, therefore the Court analysed the Crime in
India report of 2012, published by the National Crime Records Bureau, Ministry of Home
Affairs. The report specified that 1,97,762 persons were arrested under Section 498A, which is
9.4% more than the 2011 statistics. The court observed that this amounted to 6.5% of the total
number of arrested individuals.
 Further, it was pointed out that the rate of filing charge sheets under Section 498A was as high
as 93.6%. However, the conviction rate was merely 15%. Further, the report highlighted that
 3,72,706 cases are pending trial of which on the current estimate, nearly 3,17,000 are likely to
result in acquittal. This depicts the vulnerability of Section 498 A and its misuse.

Effect of arrests
 The court observed that arrests bring with them several ill-effects. The court observed that
arrests bring unhealed scars. Although both police and lawmakers are well aware of the ill
effects of arrests, indiscriminate arrests often happen. The court reprimanded the police stating
that despite 6 years of independence the police failed to shed its colonial nature. The court
pointed out that police. The court observed that arrest was used as a tool for harassment. It re-
emphasized that although CrPC mandates to cautiously exercise the power of arrests, neither
the police nor the magistrate abides by it.Further, the court observed that arrests had become
a handy tool for police officers with ulterior motives or extremely insensitive.
 The court went on to explain the blatant violations of legal provisions by indiscriminate arrests
by the police officers.
 The court observed that law commission reports and court judgements have held that balance
between the right to arrest, maintenance of law and order and protection of individual rights
and liberty.
 The court further observed that the police officers believe that they possess the right to arrest
however the court observed to the contrary. The court held that merely because the offence is
cognizable and non-bailable, arrests cannot be made. Reasonable justification for arrest needs
to be specified. The court laid down that arrests cannot be made routinely because of a mere
allegation of offence.
 The court pointed out that the legislature, even after these grave situations, has not introduced
any changes. Further, based on the 177th Law Commission, the parliament intervened and
passed section 41 of CrPC. Further, the court observed that Section 41 was necessary to curb
indiscriminate arrests.

Observations by the Apex Court in relation to relevant provisions of the Code of Criminal
Procedure, 1973
 Interpreting Section 41, the Apex Court observed that a person arrested for an offence
punishable with a sentence of less than seven years or seven years cannot be arrested by the
police officer based on mere allegations. The Apex Court further observed that it has to be
necessary that the police officer can arrest in the above situations only once they are satisfied
that the arrest is necessary to prevent the commission of further offences, or tampering with
evidence, or when the person arrested cannot be produced before the court.
 The Apex Court observed that the law mandates the police officers to mention reasons why
they have or have not arrested the accused. Therefore, the Apex Court held that police cannot
indiscriminately arrest but can exercise only after prudently analysing whether it is necessary,
helps fulfil the purpose, and analyse the weight of the evidence.In simple words, the police
must be satisfied that the arrest is required under Sections 41 (a) to (e).

Procedure to be followed for the detention of the accused

 The Apex Court held that an accused arrested without a warrant must be produced before the
magistrate within 24 hours, and noncompliance would lead to violations of Article 22(2) of the
Constitution and Section 57 of the CrPC (Section 58 of BNSS,2023)
 After the accused is arrested, he must be produced before the magistrate and the police officer
must furnish details of the offence, and the reasons behind the arrest However, an arrest
cannot be made just because the police thought it was needed, the officer is required to submit
relevant details before the magistrate the reasons as to why the arrest was needed and the
same shall be perused by the magistrate to decide upon authorising the detention.
 Only if the reasons recorded by the police are relevant and conclusive to decide upon the
necessity of arrest, only then the magistrate must approve detention.
 An accused can be detained for investigation for a period exceeding 24 hours only after
permission from the magistrate, as mandated by Section 167 of CrPC (Section 187 of
BNSS,2023). Highlighting the negative effects of detention, the Court observed that it needs to
be cautiously exercised as it affects the liberty and freedom of individuals.
 However, the court pointed out that persons were not detained with caution, instead careless
detention was a routine operation carried out by police officers.
 Furthermore, it was held that the magistrate can authorise detention only in limited
circumstances. The court held that arrests may be authorised only when the arrest is legal,
essential, and adequately substantiated with reasons. If it is found that the arrest was
unnecessary, then the magistrate can order the release of the accused.

Section 41A of the Code of Criminal Procedure, 1973

 This provision was introduced through Section 6 of the CrPC Amendment Act, 2008. This
Section empowers the police to call upon the accused after the issuance of legal notices to be
present at a particular place and time. If the accused appears as per mandated he/she cannot
be arrested.
 The Apex Court observed that if the privileges granted of arresting without warrant were
carefully exercised then the wrongs committed by the police and their consequent rights
violations would be reduced. This would ultimately decrease the caseload of the courts.
 Therefore, the Apex Court emphasised that increasing unreasonable arrests and the misuse of
Section 41A was unhealthy and must be discontinued.

Guidelines for making an arrest (Arnesh Kumar guidelines)

The Apex Court laid down guidelines for the arrest of the accused by the police in non-cognisable
offences.
 State governments have to pass instructions to check arrests. State governments have to
order police officers to exercise their power of arrests cautiously. Arrests under Section 498A
must be made only if it has been satisfied that it is necessary and after following provisions of
Section 41 of CrPC.
 The state is obligated to provide all police officers with a checklist containing the sub-clauses of
Section 41 which need to be adhered to before arrests.
 While presenting the accused before the magistrate for detention, the police officer is obliged
to furnish the checklist and the reasons that necessitated the arrest.
 The magistrate is required to prudently analyse the checklist, reasons and other documents put
before him while granting or rejecting detention.
 Further, any decision not to arrest the accused must be forwarded to the magistrate within two
weeks of initiation of the case.
 The notice must be mandatorily given to the accused before initiating the case, in accordance
with Section 41 of CrPC.
 Failure to issue notice can lead to departmental action against the police, and contempt of
court that can be initiated by the High Court possessing territorial jurisdiction.
 Failure on the part of the magistrate to properly evaluate the reasons put forth and substantiate
the detention can make him/her liable for contempt of court.
 Further, authorising detention without recording reasonable reasons shall render the
magistrate for departmental action from the High Court.
 The court held that these guidelines shall be applicable in all non-cognisable offences
punishable with a maximum of seven years imprisonment and not in the offences of domestic
violence or dowry deaths as in the present case.
 Further, the court directed the order to be forwarded to the Director General of Police of all
states and union territories and the registrar of police of all High Courts.
Effects of the Judgment
This judgement had several ramifications for police officers, jurists, and the members of society.
This was the first time the court laid down comprehensive guidelines recognising the existence
and negative effects of indiscriminate arrests. The court also specified severe consequences of
not adhering to the established guidelines. This judgement has been the guiding light for several
cases. The court in subsequent cases, analysed compliance with the guidelines laid down in the
Arnesh Kumar case and on violation dismissed the arrest.
Further, this case also impacted the law enforcement bodies. Law enforcement bodies are being
forced to abide by these guidelines to avoid departmental action. Several law enforcement bodies
have actively begun adhering to these guidelines fearing the negative consequences. Additionally,
this case establishes a three-layered protection against misuse of power to arrest. First, it laid
down guidelines for the police to follow, secondly, this case also mandates supervision by the
magistrate while allowing or dismissing the police's application for detention. Thirdly, this case also
laid down a checklist of guidelines that the court needs to look for while deciding the application for
bail or illegal arrests.
Case Laws after the Arnesh Kumar case
 Munawar vs. State of Madhya Pradesh (2021)
 Kahkashan Kausar and Ors. vs. State of Bihar (2022)
 Md Asfak Alam vs. State of Jharkhand & Anr. (2023)

Conclusion
The case of Arnesh Kumar vs. State of Bihar (2014) is an important judgement for constitutional
and criminal cases. The court recognised the menace of arbitrary arrests even in non-cognisable
offences. Further, the court analysed the misuse of Section 498A of IPC and Section 4 of the
Dowry Prohibition Act by wives seeking to get back at their husbands or their relatives. The court
observed the vulnerability of misuse of these Sections and observed that it was necessary to lay
down guidelines. Though this case related to the offence of Domestic violence, the court laid down
universal guidelines to be followed while arresting and detaining persons accused of offences
punishable with seven years or lesser imprisonment. The court laid down that the police officers
must prepare a checklist, specifying reasons for arrest in accordance with Section 41A of CrPC.
Further, magistrates are also required to properly peruse the reasons provided by the police with
the application for detention and state proper reasons for allowing or dismissing the same.
Non-compliance by the police or magistrate with the above guidelines would lead to strict
departmental action against them.

D.K. Basu v. State of West Bengal

1. Introduction
6 1.1. Causes of Custodial Violence
7 1.2. Types of Custodial Violence
2. Background of DK Basu vs. State of West Bengal (1997)
2.1. Definition of custodial violence.
◦ Facts of DK Basu vs. State of West Bengal (1997)
◦ Issues of the case
◦ Contentions raised by the petitioner
◦ Contentions raised by the respondent
◦ Argument raised in DK Basu vs. State of West Bengal (1997)
◦ 7.1. Presented by petitioners
◦ 7.2. Presented by respondents
8. Judgement in DK Basu vs. State of West Bengal (1997)
1 8.1. The following was observed by the Apex Court
2 8.2. The guidelines given by the Apex Court in cases of arrest and detention
3 8.3. Effectiveness of DK Basu guidelines
4 8.4. Contribution of the 113th Law Commission Report
5 8.5. Compensation for the families of the victims
◦ Aftermath of DK Basu vs. State of West Bengal (1997)
◦ Analysis of the judgement
◦ 10.1. Positive Effects of the Judgement
◦ 10.2. Drawbacks of the Judgement
Conclusion

Introduction

Police officers being a very important part of law enforcement have a duty to enforce laws and
prevent crimes along with that. It is also the duty of the police officers to get hold of the law
violators and present them before a magistrate for a fair trial. But for ages, we have seen that the
policemen have misused the powers conferred upon them. We have seen innumerable custodial
violence which has occurred due to the turning of protectors into perpetrators. Throughout the
world, third-degree torture by police officers has always been a topic of great concern and debate.
In this article, I endeavour to articulate how the Supreme Court of India has tried to curb custodial
violence through its guidelines laid down in DK Basu Vs State of West Bengal (1997). It is
considered to be a landmark judgement in criminal jurisprudence.

Causes of Custodial Violence

Even though Section 25 of the Indian Evidence Act 1872 clearly says that confessions made in
front of police officers do not hold any evidentiary value in the eyes of the law, police officers exert
pressure on the prisoners either to solve cases quickly or for personal bias.
Common problems that lead to custodial violence are-

 Many police orricers are totally unaware or the tact that contessions collected by them in
custody do not have any validity in the eyes of law.
 Many officers are not even properly trained to handle and interrogate the inmates properly.
 Certain psychological factors like stress, trauma and unchecked bias lead to this aggressive
behaviour by the police officers.
 Medical negligence and lack of proper medical treatment of ill inmates is another major reason
for custodial deaths. Lack of proper administrative functions also makes the environment in
which an inmate lives unhealthy.

Types of Custodial Violence

Custodial violence can be broadly classified into three categories

 Physical violence includes injuries inflicted on the body of an individual in custody by the police
authorities
 Psychological/Mental violence includes threatening and causing certain acts that would be
detrimental to the mental health of the individual. With the passage of time, physical injuries
heal to some effect, but these psychological harms make an individual incompetent to live the
life of an ordinary person even after they are out of custody.
 Sexual violence includes rape, sodomy or any kind of sexual assault caused on women by
police authorities on an individual while he is in custody.

Background of DK Basu vs. State of West Bengal (1997)

Definition of custodial violence.

Custodial violence is defined as, any violence including torture, death, or rape by police authorities
on inmates while their stay in the judicial or police custody. Violence includes both physical and
mental torture, and in many cases we have seen that it has resulted in the death of the individual.
One of the very basic fundamentals of criminal justice jurisprudence is that a person is assumed to
be innocent until he is proven guilty. But in most of the cases we have observed that as soon as a
police officer gets hold of an individual on the basis of an FIR or complaint, inhumane harassment
is inflicted on the person till the date of the judgement.

Most of the time we have seen individuals who are not proven to be guilty at the end and get
acquitted have suffered unnecessary harassment. Even though they become free to go back to
their normal lives, the mental and physical harm they suffered while being in custody, keeps them
haunting forever throughout their lives. Custodial violence is considered one of the worst crimes
happening in a civilised society.

Before the DK Basu case, the police could not be held liable for their misuse of powers in custody.
The victims of custodial violence even though they were awarded compensation, there were no
specific guidelines for that. In prominent cases like Rudul Shah vs. State of Bihar (1983), the
convicted man was illegally detained for a time period more than his prescribed punishment. This
case deals with illegal detention and is an important case relating to compensation in cases of
unlawful detention. The court granted compensation to the sufferer, and it was held that the illegal
detention of an individual amounts to an infringement of fundamental rights enshrined in our
Constitution, especially Article 21.
Even though the court granted compensation in the matter, they did not follow any proper
guidelines for doing the same.

Another prominent case in this field is Nilabati Behera vs. State of Orissa (1993) which deals with
the custodial death of an individual alleged to have committed offence of theft.
The judgement given in this case is established as a precedent for holding states liable in cases of
custodial deaths. The Apex Court also awarded compensation to the mother of the victim but did
not follow any proper guidelines for that. Even while deciding the above-mentioned cases, there
were no proper guidelines for the police officers to follow while arresting and treating an individual
in prison. A series of custodial deaths and the various decisions given in various judgements
caused a lot of dissatisfaction in Indian society. Then came the DK Basu case in 1997, which is
considered the most remarkable judgement on custodial violence and death.

Facts of DK Basu vs. State of West Bengal (1997)

The matter of custodial violence was brought before the court by Dr D.K. Basu, executive
chairman of the Legal Aid Services of West Bengal to the Chief Justice of India through a letter.
On 26th August 1986, Mr Basu posted this letter based on news of custodial violence given in a
newspaper. He sent a letter to the then Chief Justice of India, Justice Ranganath Mishra after
several deaths in 1986 and recommended that the Court should develop
"custody jurisprudence" and formulate modes for awarding compensation. The CJI considered it
as a matter of grave concern and treated it as a writ petition invoking the Court's original
jurisdiction under Article 131 of the Constitution of India.

Another letter was followed from the Aligarh province detailing a death in police custody. The letter
mentioned sending notices to all state governments and law commissions for suggestions. The
Supreme Court considered both the letters addressed to it and appointed Mr Abhishek Manu
Singhvi as the amicus curiae for assisting the court in addressing this issue of custodial violence.
The Apex Court also took notice of the widespread allegations relating to custodial violence arising
from different states, finally giving very important suggestions and guidelines.

Issues of the case

 Whether custodial violence and death violate the right to life and personal liberty mentioned
under Article 21 of our Constitution?
 Is there a need for well-framed rules and guidelines to be followed by police officers while
arresting?
 Do prisoners have a right to life even while they are behind bars and does custodial death and
violence constitute a violation of Article 21?
 Can police officers be made liable for causing custodial violence?
 On what basis compensation will be awarded to the victims?

Contentions raised by the petitioner

 Excessive use of physical power by police officers on detainees to get confessions should be
prevented. Use of third degree methods should be curbed.
Violence including rape and physical assault causes severe mental trauma to the detainees which
extend beyond what the law tries to address. Causing violence leads to misutilisation of the
powers conferred upon the police authorities.
Contentions raised by the respondent

 Counsel representing different states asserted that everything relating to the concerned issue
was already well established within their respective states.
 The state argued that there is no need for legal counsel at the time of arresting an individual.
 The state emphasised that they were already framing steps to control the problem of custodial
violence.
 The responsibility of the police officers in case of custodial violence was discussed. The state
contended that action was initiated against the police who misused their power.

Argument raised in DK Basu vs. State of West Bengal (1997)

Presented by petitioners

The petitioners argued that there was a need to have proper guidelines to stop the violence in
custody as it violated human rights. They also argued that the right to life and personal liberty
enshrined under Article 21 of the Constitution of India. The prisoners even though arrested and
are behind the bars have the fundamental right to live. It was also argued that the state should
perform its duty to protect the rights of all individuals including those who are arrested and
detained. If the state fails to perform its duty, it should be made vicariously liable for the wrongful
acts of the police authorities.
The petitioners highlighted the pathetic scenario of ill treatment that goes behind the bars.
Presented by respondents

The respondents on the other hand argued that there is necessity of these custodial procedures
and it is necessary for proper enforcement of law and to prevent crimes.
Imposing restrictions on the powers of the police authorities will cause hindrance on their part to
properly implement the laws. It was also claimed that the conduct of the officers were presumed to
be in accordance with the law until and unless proven otherwise. The various challenges faced by
the law enforcement authorities like inadequate training, limited resources, pressure to solve a
case within limited time were highlighted.
The respondents tried to justify their actions and practices in custody by emphasising the need for
a number of procedures for law enforcement purposes.

Judgement in DK Basu vs. State of West Bengal (1997)

The judgement by the bench of Justice A.S. Anand and Justice Kuldip Singh was composed of
two parts: establishing procedural safeguards and elaborating a system of compensation for
victims of police abuse. The judgement emphasized the global effort against torture. It was also
upheld that detainees have their fundamental rights protected, only legally permissible restrictions
can be imposed on the enjoyment. A number of important guidelines were laid to be followed by
the police officers while arresting someone.
The following was observed by the Apex Court

 Custodial violence including rape, torture and death in police custody infringes Article 21 of The
Constitution of India as well as basic human rights.
 Article 22(1) gives the right of the arrested persons to be informed about their grounds of arrest
and the right to be defended by a legal practitioner of his choice. The court held that it also
violated the fundamental right enshrined under Article 22(1) of The Indian Constitution.
 Interrogation though essential must be conducted on scientific and humane principles: third-
degree methods are totally impermissible.
 Transparency and accountability in the police actions, while they are arresting an individual,
should be there to check the abuse of police power.
 Regarding compensation in cases of custodial violence by public servants, the State will also
be vicariously liable for their act. The arrested persons also do have their rights which the
police authorities must respect.
 Proper training including the way of arresting an individual and the treatment of that individual
in custody should be given to the police officers before carrying out their arrest duties.

Guidelines given by the apex court in cases of arrest and detention

 The police officer who arrests a person should bear proper name tags and designations so that
they can be easily identified. The particulars of the officers who will interrogate must be
recorded in a register.
 An arrest memo should be prepared by the police officer carrying out the arrest. The memo
shall also be attested by at least one witness including either a family member or a respectable
person of the society from where the arrest is made.
 The person arrested will have the right to inform any of his close friends or relatives about his
arrest as early as possible.
 Every detail regarding the arrest like the time, place of arrest and venue of custody of the
arrestee must be notified by the police. Where the next friend or relative of the arrestee lives
outside the district or town, they should also be informed within a period of 8 to 12 hours after
the arrest through the legal aid organisation in the district and the police station of the area
concerned telegraphically.
 An entry must be made in the diary at the place of detention regarding the arrest of the person
as well as the particulars of the friend or relative who has the information about the arrest. The
police officers under whose custody the arrestee is shall also be mentioned.
 On request, examination can be conducted on the arrestee and every detail regarding any
major or minor injury on the body of the arrestee shall be recorded. The inspection memo must
be signed by both the arrestee and the police officer affecting the arrest and its copy must be
provided to the arrestee.
 Within 48 hours of detention, a medical examination should be performed on the arrestee by a
trained doctor. The medical examination can also be performed by a doctor appointed by the
Director of Health Services of the concerned state.

 The arrestee may be permitted to meet his lawyer during interrogation though not throughout
the interrogation.
 A police control room should be set up at all districts and state headquarters so as to collect
information regarding the arrest and place of custody of the arrestee. The information shall be
communicated by the officer causing the arrest within 12 hours of effecting the arrest and it
should be displayed conspicuously on the notice board of the police control room.
 The court mentioned forwarding the required guidelines to the Director General of Police and
the Home Secretary of every State/Union Territory, and it shall be their duty to circulate the
same to every police station under their charge and get the same notified at every police
station at a conspicuous place. Broadcasting of the guidelines through All India Radio National
Network of Doordarshan was suggested by the court so that the guidelines could reach the
maximum number of people. Distribution of pamphlets in the local language was another
method suggested by the Apex Court to spread awareness.

Effectiveness of DK Basu guidelines

If we properly study the number of custodial deaths, we will see a good decrease in the number of
cases. But still, the graph keeps on fluctuating every year. 2019-20 saw a decrease in custodial
violence and deaths as compared to the statistics of 2018-19. Again the graph showed an
increase in the rate of violence and deaths in 2021-22. The guidelines do have brought changes in
the scenario but proper implementation of certain guidelines is still required to eradicate this
practice. Though awareness has been circulated to a great extent, but still traces of unawareness
are quite profound at the grassroots level, especially in rural areas. Many cases even go
unreported due to lack of proper enforcement. Resource plays an important role in the
implementation of the guidelines, India being a poverty-stricken country is always scarce with
money. These resource constraints lead to limited staffing and inadequate training facilities for the
authorities.
Recent cases like Jayaraj and Bennicks Case (2020) have shown alleged police brutality on these
two individuals while they were in custody for violating COVID-19 lockdown restrictions. These
points out the loopholes which are present in the guidelines and are required to be overcome. DK
Basu case guidelines have been effective to some extent in protecting the rights of the individuals
in custody but still, there's room for improvement.

Contribution of the 113th Law Commission Report

The 113th Law Commission's Report focuses on the injuries suffered by individuals while in
custody. This was presented after the observation of the Apex Court in State of UP vs Ram Sagar
Yadav (1985). The law commission responded to the notice sent by the Apex Court by proposing
the suggestions given by the 113th Law Commission Report. The incorporation of section 114B
was suggested but unfortunately, it was not included in The Indian Evidence Act. With the
introduction of the concept of presumptive liability for police authorities causing violence, the report
had made the scope of future development impacting significantly the guidelines enunciated in the
DK Basu case. Even the Apex Court has acknowledged the influence of the Law Commission's
recommendations on the guidelines.
Compensation for the families of the victims

Though the Supreme Court has stated that every state would be liable for any kind of violence in
custody and adequate compensation is to be provided to them, the amount and procedure for
compensation varies from state to state. Various judicial directives and legal mechanisms have
been framed to deal with the compensation to be granted to the victim or his family members in
case of violence in custody. The amount of compensation depends on the type and amount of
injury suffered, the nature and extent of torture inflicted and other related factors. The
compensation will also be based on the amount of funds required for the treatment of the injuries
and rehabilitation of the victim. Other factors like the financial background of the victim will also be
considered while compensating a victim of custodial violence. So the compensation varies from
case to case and there is no straight jacket formulae to calculate the amount of compensation.
It's a well-established fact that in most jurisdictions the pecuniary compensation is regarded as the
best form of compensation. The State is held vicariously liable for the wrong acts committed by the
public servants. We can say that the concept of strict liability is applicable here to which the
defence of sovereign immunity is not available. The victim gets the right to revive the
compensation from the state itself, but that shall be indemnified by the wrongdoer later.

Aftermath of DK Basu vs. State of West Bengal (1997)

The Supreme Court has laid down guidelines in a detailed manner to be followed by the Central
and State Investigating security agencies in all cases of arrest and detention. While the guidelines
were intended to ensure the protection of the rights of the detainees, their implementation varied
across the different states over time. An Anti torture bill was discussed in 2010 in parliament but
was unfortunately not passed, but the guidelines established in DK Basu vs. State of West Bengal
have been integrated into the Criminal Procedure Code 1973, through the Code of Criminal
Procedure (Amendment) Act 2008, effective from November 1, 2010. This amendment brought
changes like allowing video conferencing technology to record evidence of witnesses and speedy
trials including the establishment of special courts. We have seen changes in the pattern of arrest
by the police officers and the procedure to be followed by them after arrest. These guidelines have
increased awareness among law enforcement agencies. Various training programs have been
initiated to educate police officers about the guidelines and ensure compliance with them. After the
DK Basu case, police could be held liable for inflicting any kind of harm on the prisoners. Prisoners
too have their right to life and it should be protected under Article 21 of the Constitution.
Severe issues like control of police brutality and abuse of powers and the need for enhanced
safeguards to control this was the main concern in this case. The Apex Court also directed that
these guidelines shall be widely circulated amongst the concerned authorities.
The court also held that in case of any kind of disobedience on the part to follow the guidelines will
attract punishment for contempt of court.

Analysis of the judgement

 After analysing the scenario before and after the pronouncement of the guidelines and their
implementation in the Indian scenario, a few positive effects, as well as drawbacks of the
judgement, can be framed.
 Positive Effects of the Judgement
 India being a Common Law Country gives a lot of importance to precedents. A landmark
judgement on this severe crime was very much required to control the abuse of powers by the
police officers. The guidelines provided give a detailed answer as to the conduct of the police
authorities while dealing with undertrial prisoners. Besides that the guidelines have also
highlighted the rights of the individuals behind bars.
 The judgement raised awareness about the torture made by policemen in custody among the
law enforcement agencies as well as the public at large.
 Earlier many cases of custodial violence were not reported, but after the pronouncement of the
guidelines, the conduct of the police officers is properly scrutinised and any misbehaviour on
their part is recorded and reported.

Drawbacks of the Judgement

 Loopholes in the Legal framework like delays in the procedure of investigation have resulted in
ineffective implementation of the guidelines pronounced in the judgement.Due to this delay in
the legal framework, many perpetrators have escaped punishment.
 The lack of literacy and resources in our country has caused insufficient awareness among the
public and proper training facilities among the police authorities. Many times we have observed
that a police officer is unaware of the method of treatment of prisoners similarly individuals
behind bars are not aware of their rights. Many times it is also observed that neither a victim
nor his family members are aware of their right to compensation for the damage suffered.
 We all know that law and society are interlinked with each other. So law should also be
dynamic with the changing needs of the society. The guidelines in this judgement were laid
down a long time back so its update with the change in society is very much required. With the
evolution of the norms of society there is a need to review and update the guidelines given. But
no such updates have been observed.

Conclusion

Third degree torture by the officers could be controlled to some extent after the pronouncement of
these guidelines. This judgement made it clear that failure to comply with the guidelines should,
apart from rendering the official concerned liable for departmental action, also render him liable to
contempt of the court and the proceedings for contempt may be instituted in any High Court of the
country, having territorial jurisdiction over the matter.
Even though we have observed a reduction in custodial deaths and violence, this problem has not
been entirely eradicated as some of the guidelines are more of theoretical regulations. We have
seen instances of how police torture detainees only to show their power. Famous bollywood
movies like "Gangajal" and "Jai Bhim" have portrayed police brutality and custodial deaths. Police
officers in rural areas should be trained about these guidelines more properly. People residing in
rural areas are not so aware of their rights so officers there get a chance to overpower them.
Illiteracy is always a curse on society.
Besides the officers, the detainees should be also aware of their rights while they are detained.
Knowing of the individual rights properly and proper implementation of the guidelines given in DK
Basu would definitely help us to overcome this problem.

What are the consequences for the non-compliance of the DK Basu Judgement? (FAQ)
The court held that non-compliance with the guidelines laid down by this case would initiate:
 Departmental actions against the alleged police officer and he would also be held liable for
contempt of court. This can lead to legal proceedings ultimately resulting in the conviction of
the alleged police officer.
 Disobedience of the guidelines by the authorities can attract reputational damage to the entire
law enforcement agency. Police authorities are there for the public, any misconduct on their
part can undermine the public trust in the police personnel.
 The individual victim who suffered the violence or any of his family members can file a suit for
compensation for the damages caused. The amount of damages varies from case to case
depending on a number of factors like the amount of pain and suffering caused, the effect on
the loss of livelihood of the victim, the psychological impact on the victim and various other
relevant factors.