Rashmi Ramanath

BA LLB 2013
20131011

CASE SUMMARIES:

1) D.K Basu v. State of West Bengal- AIR1997SC610

Facts: This case came up before court after an increasing number of
custodial deaths were reported. Basu urged the Supreme Court to examine
the issue in depth and (i) develop custody jurisprudence and lay down
principles for awarding compensation to the victims of police atrocities (ii)
formulate means to ensure accountability of those responsible for such
occurrences.
Held: (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 handle interrogation of the arrestee must be
recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall
prepare a memo of arrest at the time of arrest and such memo shall be
attested by at least one witness, who may be either a member of the family
of the arrestee or a 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.

(3) A person who has been arrested or detained and is being held in custody
in a police station or interrogation center or other lock-up, shall be entitled
to have one friend or relative or other person known to him or 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.
(4) The time, place of arrest and venue of custody of an arrestee must be
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.
(5) The person arrested must be made aware of this right to have someone
informed of his arrest or detention as soon as he is put under arrest or is
detained.
(6) 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.
(7) 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.
(8) 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
concerned State or Union Territory. Director, Health Services should prepare
such a penal for all Tehsils and Districts as well.

(9) Copies of all the documents including the memo of arrest, referred to
above, should be sent to the Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation,
though not throughout the interrogation.
(11) 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.

Monetary or pecuniary compensation is an appropriate and indeed an

effective and sometimes perhaps the only suitable remedy for redressal of
the established infringement of the fundamental right to life of a citizen by
the public servants and the State is vicariously liable for their acts. The
claim of the citizen is based on the principle of strict liability to which the
defence of sovereign immunity is not available and the citizen must receive
the amount of compensation from the State, which shall have the right to be
indemnified by the wrong doer. In the assessment of compensation, the
emphasis has to be on the compensatory and not on punitive element. The
objective is to apply balm to the wounds and not to punish the transgressor
or the offender, as awarding appropriate punishment for the offence
(irrespective of compensation) must be left to the criminal courts in which
the offender is prosecuted, which the State, in law, is duty bound to do. The
quantum of compensation will, of course, depend upon the peculiar facts of
each case and no strait jacket formula can be evolved in that behalf. The
relief to redress the wrong for the established invasion of the fundamental
rights of the citizen, under the public law jurisdiction is, thus, in addition to
the traditional remedies and not in derogation of them.

2) Rudul Shah v. State of Bihar and Anr.- AIR1983SC1086

Facts:
The petitioner was acquitted by the Court of Sessions at Muzaffarpur but
was released from custody only 14 years after the date of acquittal. By a
Habeas Corpus petition, the petitioner asks for his release on the ground
that his detention in the jail is unlawful. He also asked for certain ancillary
reliefs like rehabilitation, reimbursements of expenses which he may incur
for medical treatment and compensation for the illegal incarceration. It was
not clear either from the affidavit filed by the Jailor or from the order of the
learned Additional Sessions Judge, Muzaffarpur as to what was the basis on
which it was stated in the affidavit that the petitioner was of unsound mind
or the reason why the learned Additional Sessions Judge directed the
detention of the petitioner in jail, until further orders of the State
Government and the Inspector General of Prisons. No medical opinion is
produced in support of the diagnosis that he was insane nor indeed is any
jail record produced to show what kind of medical treatment was prescribed
for and administered to him and for how long.

Question of Law:
Whether compensation should be awarded under article 32 by the state to a
person who had to undergo wrongful incarceration for several years?

Ratio:
The refusal of this Court to pass an order of compensation in favour of the
petitioner will be doing mere lip-service to his fundamental right to liberty
which the State Government has so grossly violated. Article 21 which
guarantees the right to life and liberty will be denuded of its significant
content if the power of this Court were limited to passing orders to release

from illegal detention. One of the telling ways in which the violation of that
right can reasonably be prevented and due compliance with the mandate of
Article 21 secured, is to mulct its violaters in the payment of monetary
compensation. Administrative sclerosis leading to flagrant infringements of
fundamental rights cannot be corrected by any other method open to the
judiciary to adopt. The right to compensation is some palliative for the
unlawful acts of instrumentalities which act in the name of public interest
and which present for their protection the powers of the State as a shield. If
civilisation is not to perish in this country as it has perished in some others
too well-known to suffer mention, it is necessary to educate ourselves into
accepting that, respect for the rights of individuals is the true bastion of
democracy. Therefore, the State must repair the damage done by its officers
to the petitioner's rights. It may have recourse against those officers.

Order:
Taking into consideration the great harm done to the petitioner by the
Government of Bihar, we are of the opinion that, as an interim measure, the
State must pay to the petitioner a further sum of Rs. 30,000 (Rupees thirtythousand) in addition to the sum of Rs. 5,000 (Rupees five thousand)
already paid by it.

3) Shri Bodhisattwa v.Subhra Chakraborty- AIR1996SC922

Facts:
The facts set out in the complaint lodged against Bodhisattwa Gautam
indicate that Bodhisattwa Gautam told Subhra Chakraborty that he was in
love with her and ultimately succeeded, on the basis of his assurances to
marry her, in developing sexual relationship with her with the tragic result

that Subhra Chakraborty became pregnant. While in that state, she

persuaded Gautam to marry her, but he, deferred the proposal on the plea
that he had to take his parents' permission. He, however, agreed to marry
her secretly. Consequently, on 20th September, 1993, Bodhisattwa Gautam
took her before the God he worshiped and put Vermilion on her forehead
and accepted her as his lawful wife. In spite of the secret marriage, he,
through his insistence, succeeded in motivating her for an abortion. Subhra
Chakraborty became pregnant second time and at the instance of
Bodhisattwa Gautam she had to undergo abortion again in April.
Question of law:
The question is whether any further order can be passed in the case and
Gautam can be compelled to pay maintenance to Subhra Chakraborty
during the pendency of the Criminal Case for which Show Cause Notice has
been issued to him?

Ratio:
The Court noted its expansive authority under Article 32 of the Indian
Constitution to enforce and protect individuals fundamental rights,
including

its

power

to

award

compensation

for

violations,

Chakraborty did not raise a fundamental rights issue.

even

if

It found that

Gautams actions violated Chakrabortys fundamental right to liberty, and

the Article 21 right to life, defined as the right to live with human dignity.
Noting the social barriers women face in India, and particularly the
psychological and social consequences for rape victims, the Court ordered
the creation of a Criminal Injuries Compensation Board to cover losses
experienced by victims of sexual assault. It also issued a set of guidelines to
help indigent rape victims who cannot afford medical, psychological and
legal services.

(1) The complainants of sexual assault cases should be provided with legal
representation. It is important to have someone who is well-acquainted with
the criminal justice system. The role of the victim's advocate would not only
be to explain to the victim the nature of the proceedings, to prepare her for
the case and to assist her in the police station and in court but to provide
her with guidance as to how she might obtain help of a different nature from
other agencies, for example, mind counselling or medical assistance. It is
important to secure continuity of assistance by ensuring that the same
person who looked after the complainant's interests in the police station
represent her till the end of the case.
(2) Legal assistance will have to be provided at the police station since the
victim of sexual assault might very well be in a distressed state upon arrival
at the police station, the guidance and support of a lawyer at this stage and
whilst she was being questioned would be of great assistance to her.
(3) The police should be under a duty to inform the victim of her right to
representation before any questions were asked of her and that the police
report should state that the victim was so informed.
(4) A list of advocates willing to act in these cases should be kept at the
police station for victims who did not have a particular lawyer in mind or
whose own lawyer was unavailable.
(5) The advocate shall be appointed by the court, upon application by the
police at the earliest convenient movement, but in order to ensure that
victims

were

questioned

without

undue

delay,

advocates

would

be

authorised to act at the police station before leave of the court was sought or
obtained.
(6) In all rape trials anonymity of the victims must be maintained, as far as
necessary.
(7) It is necessary, having regard to the Directive Principles contained under
Article 38(1) of the Constitution of India to set up Criminal Injuries

Compensation Board. Rape victims frequently incur substantial financial

loss. Some, for example, are too traumatized to continue in employment.
(8) Compensation for victims shall be awarded by the court on conviction of
the offender and by the Criminal Injuries Compensation Board whether or
not a conviction has taken place. The Board will take into account pain,
suffering and shock as well as loss of earnings due to pregnancy and the
expenses of the child but if this occurred as a result of the rape.

Order:
The Court ordered Gautam to pay Rs. 1000 per month in maintenance costs
for Chakrabortys livelihood during the pending criminal case, starting from
the date the complaint was filed.

4) State of Maharashtra v. Rajendra Jawanmal GandhiAIR1997SC3986

Facts:
In this case, the prosecutrix, a student of fourth class, while returning from
private tuition in the morning was accosted by the accused and asked to
help him with his Maruti car. As soon as she approached the car, she was
forcibly pushed into it and the accused pulled down her nicker and laid her
on the seat in the car. She did try to resist but the accused then opened the
zip of his pant and started pressing his penis on her private part. Thereafter
the accused urinated on her.

Question of law:
Whether the accused has committed an offence under Section 376/511
I.P.C., and what is the nature of punishment to be awarded.

Ratio:
A rapist not only violates the victim personal integrity but leaves indelible
marks on the very soul of the helpless female. The girl of 8 years must have
undergone a traumatic experience. The question of imposition of sentence
after lapse of 11 years of the offence troubled our mind a great deal. Keeping
the objects of the amendment to I.P.C. in view and the law as it exists today,
the decisions of this Court referred to above on the question of sentence, the
message is loud and clear that no person who commits or attempts to
commit rape shall escape punishment.

Order:
While imposing sentence of fine and directing payment of whole or certain
portion of it to the person aggrieved, the court has also to go into the
question of damage caused to the victim and even to her family. A sentence
of five years rigorous imprisonment and fine of Rs. 40,000/-was awarded.
Out of that Rs. 25,000/- was awarded to the father of the victim.

5) Delhi Domestic Working Womens Forum v. Union of India and

Ors.- 1995 SCC (1) 14
Facts:
This PIL is at the instance of the petitioner Delhi Domestic Working Women's
Forum to espouse the pathetic plight of four domestic servants who were
subject to indecent sexual assault by seven army personnel. Six women, by
name, were travelling by the Muri Express where 7 army jawans committed
rape on them.

Question of law:

This case invokes the benign provision of Article 32 of the Constitution of

India.

Ratio:
Firstly, complaints are handled roughly and are not given such attention as
is warranted. The victims, more often than not, are humiliated by the police.
The victims have invariably found rape trials a traumatic experience.
The experience of giving evidence in court has been negative and
destructive. The victims often say, they considered the ordeal to be even
worse than the rape itself. Undoubtedly, the court proceedings added to and
prolonged the psychological stress they had had to suffer as a result of the
rape itself.
In this background certain broad parameters were provided in assisting the
victims of rape.
(1)The complainants of sexual assault cases should be provided with legal
representation. It is important to have someone who is well- 20 acquainted
with the criminal justice system. The role of the victim's advocate would not
only be to explain to the victim the nature of the proceedings, to prepare her
for the case and to assist her in the police station and in court but to
provide her with guidance as to how she might obtain help of a different
nature from other agencies, for example, mind counseling or medical
assistance. It is important to secure continuity of assistance by ensuring
that the same person who looked after the complainant's interests in the
police station represent her till the end of the case.
(2)Legal assistance will have to be provided at the police station since the
victim of sexual assault might very well be in a distressed state upon arrival

at the police station, the guidance and support of a lawyer at this stage and
whilst she was being questioned would be of great assistance to her.
(3)The police should be under a duty to inform the victim of her right to
representation before any questions were asked of her and that the police
report should state that the victim was so informed.
(4)A list of advocates willing to act in these cases should be kept at the police
station for victims who did not have a particular lawyer in mind or whose
own lawyer was unavailable.
(5)The advocate shall be appointed by the court, upon application by the
police at the earliest convenient moment, but in order to ensure that victims
were questioned without undue delay, advocates would be authorised to act
at the police station before leave of the court was sought or obtained.
(6)In all rape trials anonymity of the victim must be maintained, as far as
necessary.
(7)It is necessary, having regard to the Directive Principles contained under
Article 38(1) of the Constitution of India to set up Criminal Injuries
Compensation Board. Rape victims frequently incur substantial financial
loss. Some, for example, are too traumatised to continue in employment.
(8)Compensation for victims shall be awarded by the court on conviction of
the offender and by the Criminal Injuries Compensation Board whether or
not a conviction has taken place. The Board will take into account pain,
suffering and shock as well as loss of earnings due to pregnancy and the
expenses of child birth if this occurred as a result of the rape.
It was also held that in cases where fines and compensation orders were
given together, the payment of compensation should take priority over the

fine. These developments signified a major shift in penological thinking,

reflecting the growing importance attached to restitution and reparation over
the more narrowly retributive aims of conventional punishment. The
Criminal Justice Act, 1988 furthered this shift. It required courts to
consider the making of a compensation order in every case of death, injury,
loss or damage and, where such an order was not given, impose a duty on
the court to give reasons for not doing so. It also extended the range of
injuries eligible for compensation. These new requirements mean that if the
court fails to make a compensation order it must furnish reasons. Where
reasons are given, the victim may apply for these to be subject to judicial
review.
Order:
The court ordered a call for special studies or investigations into specific
problems or situations arising out of discrimination and atrocities against
women and identify the constraints so as to recommend strategies for their
removal and thereupon directed that Thereupon, the Union of India, will
examine the same and shall necessary steps for the implementation of the
scheme at the earliest.