LAndmark judgmentS

i. D K. Basu v. State of West Bengal

Citation: (1997) 1 SCC 416
Type:Writ Petition (Criminal) No. 539 of 1986
Coram: Kuldip Singh and Dr. A.S. Anand, JJ.
Author: Dr. A.S. Anand, J.
Decided on: December 18, 1996


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Facts
The Executive Chairman of Legal Aid Services, West Bengal, a non political organisation, wrote a letter to the Chief Justice of India, drawing his attention to certain news paper reports pertaining to deaths in police custody and lock-ups. It was prayed that the Court take cognizance of the issue of custodial violence and formulate guidelines for the grant of compensation to the victims or their kin and develop a mechanism to hold police officers accountable. The letter was treated as a writ petition. A subsequent letter pertaining to custodial torture by Mr. Ashok Johri was also treated as a writ petition and was listed with Mr. D. K. Basu’s. Notice was issued by the SC to all State Governments and the Law Commission of India to file suggestions. Affidavits were filed by some State Governments and the Law Commission forwarded a copy of its 113th Report.

Findings
On custodial violence and human rights Any form of torture or cruel, inhuman or degrding treatment would be violative of Art. 21 of the Constitution of India, 1950 regardless of whether it occurs during investigation, interrogation or otherwise. The right under Art. 21 is inderogable even for convicts, undertrials and other prisoners in custody, except according to reasonable restrictions imposed by the law. Even in cases of terrorism, torture or thrid degree methods cannot be used to extract information as it would be offensive to Art. 21. Guidelines issued The Court issued a list of very specific preventive measures to be implemented at the time of arrest. These include measures laying down the rights of an accused person at the time of their arrest, interrogation or detention as well as duties to be undertaken by a police official. The guidelines pertain to identification of police officials, preparation of the memo of arrest, notifying the accused’s family or friends about the arrest of the accused, and medical examination of the accused, among others. Compensation Compensation for violation of rights under Article 21 of the Constitution of India, 1950 is a remedy in public law remedy. Petitions for grant of compensation may be filed under Article 32 or 226 of the Constitution. The wrongdoer must be penalised and liability for the public wrong would be fixed on the State for failing to discharge its duty of protecting its citizen. Monetary or pecuniary compensation would be an appropriate remedy. The State would be liable for the acts of its servants and shall pay compensation to the victims or their families. It may, subsequently, recover the compensation amount from the wrongdoer.

ii. Nilabati Behera v. State of Orissa

Citation: (1993) 2 SCC 746
Type: Writ Petition (Civil) No. 488 of 1988
Coram: J.S. Verma, Dr. A.S. Anand, and N. Venkatachaliah, JJ.
Author: J.S. Verma, J. and Venkatachaliah, J.
Decided on: March 24, 1993


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Facts
The deceased was taken into police custody for investigation in a theft case. The next day, his body was found on the railway tracks and handcuff injuries were found on his wrists. The policemen claimed that the deceased had met with his death accidentally while trying to escape police custody. The mother of the deceased sent a letter alleging custodial death to the Supreme Court, which was admitted as a petition under Art. 32. On the Court’s direction, an investigation was conducted by a District Judge, who held that the death of the deceased was caused due to multiple injuries sustained while in custody.

Findings
On Compensation On finding that the cause of death was custodial death, the Court ascertained the liability of the state to pay compensation to the mother of the deceased. The State would be strictly liable for the contravention of Fundamental Rights and the defence of sovereign immunity would not apply. Payment of compensation for contravention of human rights is a constitutional remedy which is based on the principle of strict liability and is distinct from and in addition to a remedy in private law for a tort. The Court took into consideration the age (22 years) and monthly income (Rs. 1200 to 1500) and affixed a compensation of Rs. 1,50,000. State of Orissa was further directed to affix individual responsibility and prosecute the individuals.

iii. State of M. P. v. Shyamsunder Trivedi

Citation: (1995) 4 SCC 262
Type: Writ Petition (Civil) No. 217 of 1993
Coram: Dr. A.S. Anand and M.K. Mukherjee, JJ.
Author: Dr. A.S. Anand, J.
Decided on: May 9, 1995


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Facts
The deceased was killed by the police while he was being interrogated as a suspect in a murder case. He was beaten and tortured with the intent of extracting a confession of guilt. The post mortem report listed multiple injuries and the doctor observed that the deceased had died due to multiple external injuries. Eight persons were charged for various offences including murder. The Trial Court acquitted all the accused persons. The High Court overturned the acquittal of one, but held that he was not liable for murder. The acquittal of the offenders was challenged before the Supreme Court.

Findings
On Evidence The Court observed that the ground reality in cases of custodial violence is the lack of ocular evidence establishing the complicity of an accused police officer. Generally, only police personnel would be in a position to explain the circumstances in which a person in their custody would have died. Very often, police officials remain silent to protect their colleagues as they are “bound by brotherhood.” There should not be an “exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution” as this often results in the miscarriage of justice. Reference was made to the 113th Law Commission of India Report which had suggested that for injuries caused in custody, it may be presumed that they had been caused by police officials. The Court held that courts must exhibit sensitivity in such matters instead of adopting a narrow, technical approach so that the guilty may not escape.

iv. Dr. Ashwini Kumar v. Union of India, Ministry of Home Affairs

Citation: (2019) 12 SCALE 125
Type: Miscellaneous Application 2560/2018 in 738/2016
Coram: Ranjan Gogoi, L. Dinesh Maheshwari and Sanjiv Khanna, JJ.
Author: Sanjiv Khanna, J.
Decided on: September 5, 2019


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Facts
A petition was filed by former Law Minister, Dr. Ashwini Kumar pleading that the Central Government may be directed to enact a stand alone legislation on custodial torture based on the framework of the United Nationas Convention Against Torture (UNCAT).

Findings
The Court invoked the doctrine of separation of powers. It drew a distinction between the power of interpretation of statutes and adjudication by courts and the power of enacting legislations by the legislature. It also drew a distinction between the power of a court to direct the enactment of a legislation and the guidelines issued by courts in judgments to supplement existing legislations or fill temporary voids, till the time proper legislations are enacted. It was held the enactment of an anti-torture legislation was already being consider by the Parliament and it would be improper for the Supreme Court to enforce its opinion on it. Ensuring effective rights of prisoners could be done by creatively expanding existing laws on a case-by-case basis. Highlighting the jurisprudence and framework laid down by the Court in cases such as Nilabati Behera v. State of Orissa and D. K. Basu v. State of West Bengal, the petition was rejected.

v. Prakash Kapadia v. Commissioner of Police (Ahmedabad City)

Citation: 2014 SCC OnLine Guj 11365
Type: Writ Petition (PIL) 200 of 2012
Coram: Akhil Kureshi and J.P. Pardiwala, JJ.
Author: J.P . Pardiwala, J.
Decided on: September 24, 2014


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Facts
The petitioner filed a PIL directing the notice of the Court to mulltiple instances of custodial torture. To curb the instances of torture, the Court opined that the installation of CCTV cameras ought to be done in police stations and asked the state government to inform of its feasibility. The stance of the State Government was that CCTV cameras be installed in police stations across the state.

Findings
The Court held that the tender process for the installation of the cameras should be finalised at the earliest and the state government should ensure that the cameras are installed. B. On Self Incrimination

i. M. P. Sharma and Ors. v. Satish Chandra

Citation: AIR 1954 SC 300
Type: Original Petition Nos. 372 and 375 of 1953
Coram: M.C. Mahajan, C.J., B.K. Mukherjea, S.R. Das, Vivian Bose, Ghulam Hasan, N.H. Bhagwati, B. Jagannadhadas and T. L. Venkatarama Aiyar, JJ.
Author: B. Jagannadhadas, JJ..
Decided on: March 15, 1954
*Partly overruled in K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (on the right to privacy under the Constitution of India, 1950)

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Facts
Charges of fraud and embezzlement of funds were levelled against Dalmia Jain Airways Ltd. after an investigation had been conducted following its liquidation. A search and seizure order was passed to obtain documents belonging to the Director of the company and documents of some other companies controlled by the Dalmia group.

Findings
Article 20(3) of the Constitution of India, 1950 Article 20(3) encapsulates the protection of the right of a person accused for an offence against self-incrimination. The use of the phrase ``to be a witness” in Article 20(3) implies that the protection would include in its ambit any compulsory process or direction for the production of evidentiary documents that would incriminate the accused. The bench, while relying on American jurisprudence, also drew a distinction between seizure of documents on search and production of documents before courts as evidence and held that the former was not in violation of any fundamental rights.

Context
Article 20(3) of the Constitution of India, 1950 guarantees the right against self incrimination. It states that, “No person accused of any offence shall be compelled to be a witness against himself.” It safeguards against the use of torture by the police or other investigative agencies. However, Section 27 of the Indian Evidence Act, 1872 permits the admissibility of any confession made in the presence of a police officer if such confession leads to the discovery of a fact. The misuse of Section 27 facilitates the back door entry of torture. By using the leeway provided under this section as a guise, police officers often torture those in their custody to extort confessions and secure convictions. The following cases are some of the landmark judgments on self incrimination.

ii. The State of Bombay v. Kathi Kalu Oghad

Citation: AIR 1961 SC 1808
Type: Criminal Appeal Nos. 110, 111 and 146 of 1958 and 174 of 1959
Coram: B.P. Sinha C.J., Syed Jafar Imam, S.K. Das, P.B. Gajendragadkar, A.K. Sarkar, K. Subba Rao, K.N. Wanchoo, K.C. Das Gupta, Raghubar Dayal, N. Rajgopala Ayyangar, and J.R. Mudholkar, JJ.
Author: B.P. Sinha C.J. and K.C. Das Gupta, J.
Decided on: August 4, 1961


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Facts
The 11 judge bench was constituted to re-examine questions of law discussed in M. P. Sharma v. Satish Chandra as it was felt that some propositions of law might have been too widely stated. The discussion in the present case was restricted to Article 20(3) of the Constitution of India, 1950. All appeals had one common thread- that fingerprints or signatures of the accused persons were obtained while they were in custody for corroboration. The question to be decided was whether collecting fingerprints and handwriting samples would amount to compelling an accused to be a witness against themselves, thereby violating Article 20(3). In addition the constitutional validity of a few provisions was challenged, one of which was Section 27 of the Indian Evidence Act, 1872.

Findings
The Court held that the prohibition under Article 20(3) of India, 1950, which protects an accused from self incrimination, includes oral testimonies as well as written statements of a witness. However, the Court disagreed with one of the observations in M. P. Sharma v. Satish Chandra and held that though the collection of fingerprints and handwriting samples may amount to furnishing evidence in a larger sense, they would not be tantamount to compelling an accused to be a witness. For such samples to qualify as self-incriminatory, they must by themselves have the tendency to incriminate the accused.

Context
Article 20(3) of the Constitution of India, 1950 guarantees the right against self incrimination. It states that, “No person accused of any offence shall be compelled to be a witness against himself.” It safeguards against the use of torture by the police or other investigative agencies. However, Section 27 of the Indian Evidence Act, 1872 permits the admissibility of any confession made in the presence of a police officer if such confession leads to the discovery of a fact. The misuse of Section 27 facilitates the back door entry of torture. By using the leeway provided under this section as a guise, police officers often torture those in their custory to extort confessions. The following cases are some of the landmark judgments on self incrimination.