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Report No. 177

Chapter VIII

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 (3) in section 41 and for insertion of a new section, section 41A. 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 directionsin 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 41D 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, AIR 1952 SC 149 and State of Madhya Pradesh v. Reva Shankar, AIR 1959 SC 102). 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 41D of CrPC shall constitute an offence thereunder.



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