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PUCL Bulletin, July 2003

PUCL Bhubaneswar And Cuttack Branches
Implementation of Supreme Court guidelines on arrest and detention

Background
In view of the increasing incidence of violence and torture in custody and protest against it by the concerned sections of the society, sometimes through seeking judicial redress, the Supreme Court of India, in D.K. Basu vs State has had to lay down some specific requirements to be followed by the police for arrest, detention and interrogation of any person, purportedly to obviate the possibility of torture in custody. The guidelines in nutshell are given in the Annexure -1 for ready reference. It may be mentioned here that even though the judgement in D.K Basu vs State was pronounced way back in December 1996 with the specific direction to all the State governments to strictly implement the guidelines it was put in the cold storage till the Supreme Court was moved again in August 1997.

The Supreme Court had to appoint a committee in each State consisting of some Judges of respective High Courts to oversee the implementation of such guidelines.

The apprehension of violence in custody has increased manifold in recent years in a hysteric atmosphere created in the name of containing terrorism and extremism, the police have acquired unfettered power with the passing of various draconian laws like TADA, POTA etc. at the national level and "anti-extremism" laws passed by various state governments. In this background PUCL at national level has undertaken a program to find out how far the guidelines issued by the Supreme Court are being implemented in various states. As part of this programme Bhubaneswar and Cuttack Units of PUCL had taken a sample survey of some police stations at their respective places, in July 2002 (the list of Police Stations visited and elaborate findings are given in Annexeure-2).

It may be mentioned here that just on the eve of the survey a workshop of OICs of Bhubaneswar and Cuttack police districts was organized by the Police Headquarters on the implementation of the above guidelines. PUCL teams, besides visiting various police stations had also visited respective Police Control Rooms. Later on they had also met the SP, Bhubaneswar and the Home Secretary to discuss their prima facie endings.

Besides, as a test case for the survey, the PUCL team had specifically investigated into a particular case of alleged illegal detention and torture by police of one Shri Lotus Samal at Bhubaneswar, which was incidentally reported in the press in November 2 while the report on the above survey was being finalised.

Summary of the findings
As already mentioned, the details of police station visited and elaborate finding therein are given in the Annexure.

However main findings of the survey are summarized below
1. Inspite of the Court directive the police continues to detain people without maintaining any record and tortures them during such illegal detentions. The right of the arrestees to be produced before a magistrate within 24 hours of the arrest is also continues to be grossly violated. In Laxmisagar Police Station of Bhubaneswar one Mr. Mahesh Kumar Sahoo was kept under police lockup reportedly for 22 hours (as at 6 pm on 23.7.2002) and there was no entry made in any of the police records. As told to the PUCL team by Mr. Alok Kumar Jena, Sub-Inspector of Police, Mr. Sahu was detained for interrogation.

It was clear that the detainee was not going to be produced before a magistrate in next two hours. Likewise Shri Arun Kumar Chowdhury, a juvenile was reportedly detained for 30 hours by the police in the same police station on the same day without producing him before the appropriate magistrate and without following any of the legal requirements for a juvenile detainee. In this case also no entry was made anywhere in the police record and the police control room was not informed of the arrest. The juvenile detainee was kept in a very humiliating and oppressive condition by chaining his leg to a table inside the police station in full view of the public.

The team also observed that both the detainees were physically tortured with Shri Sahoo having bruise marks on his body and with both his thighs heavily swollen.

Even while finalising this report some serious cases of abuse by the police, to the extent of maiming the detainee in the custody in the capital city itself, are being regularly reported in the media.

2. In none of the police stations the lockup rooms are provided with the basic minimum facilities required for a human being like proper ventilation, fan, light, bedding, toilet, mosquito net or coil which makes detention itself a torture.

3. The allocation for expenses on foods for detainees is ridiculously low. As reported by the Police Officials interviewed, the approved amount for a detainee's food expenses is Rs.2/- per meal.

4. Government does not provide funds to the police stations for meeting minimum expenses like printing of registers and formats to comply with the directives of the Supreme Court. The police officers reportedly get the stationeries printed by paying from their own pocket. In some police stations like Chandaka police stations they maintain the records in loose sheets with hand-written formats.

5. In none of the police stations the guidelines have been displayed on the wall or on a notice board for information and awareness of public even though the Supreme Court in their order have specially directed for displaying the same in every police station. The In-charges of Police Station plead that they have not been issued any specific instructions by the higher-ups in this regard nor is there any budget allocation for that.

6. Arrest registers are being maintained in all the police stations. However, some irregularities in issuing of Inspection and Arrest memos were noticed in one police station (Laxmisagar Police Station, Bhubaneswar).

7. The registers are maintained only from the month of May 2002. It seems (that prior to this there was no system to monitor whether the guidelines were being followed or not.

8. There is no separate lockup room, except in a very few police station, for the women detainees. In some police stations it is being used as garbage room.

9. List of the arrested people displayed at the Police Control Room is not updated on a day to day basis.

10. The Director of Health Services reportedly has not finalized the panel of doctors to whom the arrested persons shall be forwarded for medical examination immediately after arrest and during their detention.

11. The Supreme Court had directed the state governments for widely publicising its directives in TV and radio and by issuing pamphlets in vernacular language for creating awareness among people as an antidote to abuse of rights of people by the police. Even though for some time immediately following the court order it was displayed in TV and radio but thereafter it has been blissfully forgotten. Till date no pamphlet in vernacular language has been issued by the Govt. of Orissa.

Conclusions
Even though the directives of the Supreme Court were aimed at containing the violation of rights of common people by the police, from the above sample survey with all its limitations it may be concluded that these are going to be a failure and may ultimately end up in another exercise in technicalities mainly due to the following reasons:
i) Technical loopholes - There is no safeguard if the police arrests someone without warrant or simply picks up and detains in the lockup without any record and tortures the detainee, as has been detected in Laxmisagar Police Station during the survey. In view of the many arbitrary powers given to the police under law the police has ample scope to manipulate the technical safeguards devised by the Court - it can manipulate the arrest witness by influence or intimidation, influence the doctor examining the detainees and can even intimidate the victim of torture not to testify against the police before the doctor or the magistrate.

Besides the doctors and magistrates are found to be dealing with such cases of custodial torture very mechanically. While subsequently investigating into a concrete case of alleged torture of one Shri Lotus Samal by the police at Bhubaneswar reported in the press (Dharitri - 17.11.2002) during the finalization of this report PUCL team has found that the arrest witness in that case most likely has been made to sign the arrest memo duress due to the compulsions of his day-to-day working relation with the police. The medical report of the doctor of government hospital who reportedly certified the victim to be OK while signing the Inspection Memo of the victim is totally opposite to that recorded by the Jail Medical Officer on the same day.

Even though actually the victim had injuries and was paralysed in the same part of his body as recorded by the JMO, the SDJM before whom the victim was produced by the same day has not mentioned anything about the case record nor has he taken any cognizance of it. The victim alleged that he was intimidated by the police not to disclose about his torture in the custody otherwise he would be implicated in more serious charges. The victim also levelled some specific allegation against the concerned judicial officer in this regard.

If this type of gross violation of the directives could take place in the capital city itself and immediately following the workshop on implementation of the directives than the situation in the rural and other backward regions can be well guessed. That speaks volume for implementation of the guidelines.

(ii) Absence of monitoring agency - No well-defined independent and regular monitoring agency to oversee the proper implementation of the directives has been provided for in the directives of the court. Even though the Supreme Court has appointed one committee in each state consisting of judges of High Courts to oversee the implementation it may not be as much effective for obvious reasons.

(iii) Lack of earnestness by the government - It need not be mentioned further how the government's attitude remains frustrating in implementing the directives. While the government is eloquent about modernisation of police and appears to be prepared to spend any thing for it in the name of improving law and order situation, it remains quite unconcerned about implementing any preventive steps against the umpteen cases of violation or basic civil rights by the police. When the PUCL team met the state home secretary Shri Tarun Kanti Mishra on 5.9.2002 it seemed he was quite unaware of such directives by the court and as such of any obligation of the government in this regard. When he was reminded by the team of the obligations of the government he had the stock answer that the Government didn't have enough fund to provide for implementation of the directives, in spite of obliquely and reluctantly admitting the reported cases of violation of basic rights by the police.

(iv) Ingrained Feudal attitude of the police - The police takes any talk of citizen's rights as an anathema and affront to its authority. During the survey the police officers in many police stations have picked up arguments with the teams that the human rights groups are out to protect the criminals only and the implementation of Supreme Court directives would severely impair the effectivity of the police in containing crime and taming the criminals. The police officers including SP, Bhubaneswar opened that the police sometimes had to resort pressure on accused only in cases of dacoity and robbery to recover the stolen property and they defended it in the name giving justice to the people suffering the loss of property.
But the police officers including the SP didn't have any answer when specifically asked why in three recent deaths in police custody in the state Chandanpur, Bhadrak, and Balasore and urinating in the mouth of a detainee by the police in Bheden police station the victims were only from the lowest strata of the society like petty traders and accused of petty thefts like lifting a bicycle or suit case etc.

The police also didn't have any answer when, at least for arguments sake, the question was put that why the accused in a petty theft have to suffer the torture and death in custody or have to indefinitely languish behind bars as under-trials while a number of builders or the promoters of non banking financial companies etc are let off the books of law even after considerably swindling the general public; how far the police has been able to restore the property swindled by them. And how come the people from higher echelons of society with track records of heinous crimes make it to be the MPs and MLAs.

Suggestions
It is a fact that in the absence of any social awareness and social movement against it no court order can exert any pressure on the police, not to speak of preventing it from violating the civil rights of the people,

However to make it effective to whatever extent possible the following suggestions can be made:
1) Periodical publicity of the directives at regular interval should be given in the mass media.

2) The directives should be displayed in vernacular language not only in the police stations but also in all visible public places like stations, bus stands, parks, weekly markets, and panchayat offices in the rural area. More emphasis should be given on publicity in rural areas since people in rural areas are more vulnerable to police atrocities.

3) Pamphlets in vernacular languages be issued and distributed through panchayats.

4) Police records regarding arrest and detentions and police haajats should be made more accessible to human rights groups and public surveillance instead of shielding them behind iron curtain on the spacious plea of secrecy and security.

5) Exemplary action should be taken against police officials found to he guilty of abusing and torturing the detainees to have deterrent effect against such abuse.

6) It should be made mandatory for judicial magistrates to pay periodic surprise visits to police stations under their jurisdiction and meet the detainees in the lockup and record their observations which should be made accessible to the public.

7) Director of health service should immediately prepare a panel of doctors from among the private practitioners besides the government doctors available under every police station area to whom the detainees shall be referred for medical examination. Such panel of doctors should be made public and records of medical examination in government hospitals or private clinic should be duly signed by the examinee and be made available to him. The empanelled doctors should be given proper orientation about human rights of the detainees against possible physical and mental torture and the doctor's obligations and accountability in this regard. The Indian Medical Council should also issue specific code of conducts for the medical practitioners in this regard.

8) The supply of formats of arrest and inspection memos to police stations be supplied with clearly marked centralised serial number to prevent their manipulation or fabrication. On the technical side, the details of the arrest witness like his present and permanent address, profession, his relation to the arrestee or the situation of arrest should he clearly mentioned in the Arrest Memo, the details of the doctor with his address and registration no. clearly mentioned in the Inspection Memo and copy of each should be handed over to the arrestee and invariably to his relative or well-wisher also. If such persons are not available then it should be sent by registered post with AD in their address.

9) Adequate provision for basic amenities like food, proper ventilation, fan, light, bedding, toilet, mosquito net or coil, should be made available in all the lockups, which would not make detention itself a torture and humiliation. Detention should be in keeping with the established dictum of law that an accused is presumed to be innocent till he is proved to be guilty.

Pramodini Pradhan, Convenor, PUCL Bhubaneswar Branch; Prashant Jena, Convenor, PUCL Cuttack Branch, Advocate Orissa High Court.

Annexure 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 interrogate the arrestee must be recorded in a register.
That the police officer carrying out the arrest of the arrestee shall prepare a memo of the arrest at the time of arrest and such memo shall be attested by at least one witness, who either be a member of the family of the arrestee or 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.

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 of 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.

The time, place of arrest and venue of custody of an arrestee must he 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.

The person arrested must be made aware of his right to have someone informed of his arrest of detention as soon as he is put under arrest or is detained.

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.
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 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.

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.

Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.

The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

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."

Annexure-2 List of Police Stations visited and details of our findings:

Bhubaneswar
1. Laxmisagar Police Station; 2. Lingaraj Police Station; 3. Capital Police Station; 4. Kharavela; 5. Chandaka.

Cuttack
1. L. Cantonment Police Station; 2. Lalbag Police Station; 3. Purighat Police Station; 4. Mahila Police Slaton; 5. Bidansi Police Station; 6. Mangalabag Police Station; 7. Malgodam Police Station; 8. District Police Control Room; 9. State Police Control Room.
Date of Visit to Police Control Room & SP, Bhubaneswar: 20.8.02
Dale of Visit to Home Secretary, Govt. of Orissa: 5.9.02
Laxmisagar Police Station
Date of Visit: 23rd July 2000.

Talked to Sub Inspector Mr. Alok Kumar Jena (senior most officer present).

Maintaining a register since 20/5/2002, after the workshop, in which 10 columns are there. Name of the arrestee is not entered, instead a case number is entered. Name of the arresting and interrogating officer is not entered in it.

The Supreme Court Guidelines are not displayed anywhere.

A separate arrest register and memo register is maintained. We were told that Medical Inspection is being done if the arrestee wants.

One arrested: named Rajesh Parida at 10.40 of the 22nd July as mentioned in the register but the control room has not been informed yet. The reason as told to us was due to blocking of channel.

Relatives outside station are intimated only through the respective police stations in that area. No follow up system exists to ascertain the information.

Met two people under lock-up.
1. Mahesh Kumar Sahu, Age 28+,
Offence: Suspected of arms supplying
Address: Upper Bazar/Mahavir Chhak / Lohardaga / Father's name: Monoharlal Sahu.

Arrested on the night of 22nd at 8pm. Our interview time was 6pm of 23rd. No entry has been made anywhere in police records regarding the arrest of Mahesh Sahu. No witness has been intimated/ the arrestee was not asked by the police to have any witness. He has been beaten up, as reported by the arrestee but the police officer denied any torture. His custody memo not prepared. Not sent for medical examination.

2. Arun Kumar Choudhary: Age 16/17, Father's name: Pratap Ch. Dalei. Home-Vill: Balijhari in Narsingpur block of Cuttack district. Arrested on the 22nd of July at 10 am. He was caught carrying a stolen stereo on the 21st night. He has been beaten up.

The police officer said he would be sent to the juvenile court next day that is on the 24th.


Lingaraj Police Station
Date of visit: 23rd July 2000
Met IIC: Mr. Sanatan Panigrahi
The other officer met: Mr. Chakrapati Kanhar, ASI

Guidelines not displayed. Using the new register since 23rd June 2000; No separate register maintained for the interrogating officer.
SD CASE NO. 700: No inspection memo and memo of arrest available. Reason for arrest is not described in the inspection memo, only Section under which the person has been arrested is mentioned, which is not understood by common people.

There is no special lock up room for women. They are kept in the office room itself. For one woman arrested two police women are required to stay with them and they all live in the office.

Capital Police Station
Date of visit: 24.7.02
Talked to the Assistant Sub-Inspector of Police: Mr. Rabindranath Muduli.
The guidelines are not displayed on the wall/board. Police said that they are not aware of the fact that these guidelines need to be displayed and that the arrestees/detainees need to be informed of their rights by the police. Maintaining the new register since 02.6.02.

Verified case no. 652 and 691 from the station diary and found that arrest memos and inspection memos have been issued. Reasons for arrest is not described in the inspection memo, only Section under which the person has
been arrested is mentioned - which is not understood by common people.

No contingency money available at the police station. The register has been prepared by the police from their pocket money.

Even simple white paper is not available.

Kharavela Nagar Police Station

Date of visit: 24.7.02
Talked to Mr. Rabindra Kumar Dash, Inspector-in-Charge.
Guidelines not displayed and the Police station has not received any instruction to display it on the wall.
Haajat facilities:
No bedding, not even a mat has been supplied for the lock up room. The government sanctioned amount per meal for a detainee is Rs.2/- per meal.
Chandaka Police Station:
Date of visit: 27.7 02
Talked to Mr. Sudhir Ranjan Patnaik, Officer in Charge.
We were told that no printed register is available from the Government. The one maintained by them is prepared by spending money from their own pocket. To verify whether the right procedures are maintained or not the OIC refused to show us the Station Diary.

We were also told by the OIC that there is no doctor available nearby for medical examination of the arrestees. There is no financial provision available for the expenditure incurred in going to the Capital Hospital.

Visit to the Police Control Room/Meeting with SP, Mr. Arun Kumar Sarangi
Date of visit: 20.8.02
The SP told us that no instruction has been issued to the Police Stations to display the guidelines since there are no financial provisions available for this. He also reported that the Government is not printing the stationeries required in this regard.

We checked the control room notice board and the last date for which the arrestee details were displayed was of 2.8.02. We checked the list of arrestees for 19.8.02 and found that the control room does not receive the information regarding the arrest of a person within 12 hours of arrest, as required by the Supreme Court direction. For instance, in the following case, the name of the arrestee was recorded in the register of the control room only on the 3rd day of arrest.

Case no. 33/02 (Shaheed Nagar Police Station); Name: Siba Sankar Majhi; Arrested on-16.8.02; Court forwarded on - 17.8.02.
Recorded on the police control room list on 19.8.02.
Not displayed on 20.8.02 at the time of our visit. "


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