PRE-TRAIL DETENTION IN ACCUSTORIAL AND INQUSITORIAL

SYSTEM AND INDIAN CRIMINAL ADMINISTRATION

Under the supervision of

PROF. SMITA SATAPATHY

SUBMITTED BY - SAI SRINIVAS REDDY (0063)

COURSE – B.B.A LL.B

 PRE-TRAIL DETENTION IN ACCUSTORIAL AND
INQUSITORIAL SYSTEM AND INDIAN CRIMINAL
ADMINISTRATION

Lakhs and lakhs of accused people are mulling in jail for quite a long time, for months and
years either because of failure to apply for bail or due to indiscriminate refusal of bail by the
courtrooms or inferable to incapacity of the accused to furnish sureties and securities. The
basic jurisprudence would voice "Presumed innocent till proved guilty". This concept is
totally buried by the courtrooms of justice and the police.

In the double murder trial of O.J. Simpson, the pre-trail detention was brought to lime light
O.J. Simpson went through 90 days in jail before trail. He was proclaimed not guilty and
during trail he was spent another 12 months in prison. This 90 days pre-trail detainment was
firmly discussed and unequivocally went against. This is the circumstance in the United
States of America.

In the U.S. the Bail Reform Act approves the judge to keep an under trial in jail if the judge
detects
(i) That the accused may not show up at trail and
(ii)The accused may cause harm to local area.
However, jurists have communicated that pre-trial confinement framework has been
tormented with inadequacies since its inception in 1984. They contend that the pre-trail
detention contrarily has a negative impact on a jury's decision, the pre-trail prisoner is denied
admittance to legal representation and that this framework is trapped in emergency.
STATEMENT OF PROBLEM

Environmental pollution, Global Warming and ecological contamination compromise the

existence of mankind. Days, Months and years of the drawn out Pre-Trail conviction is the
burning topic of the Criminal law which issue questions the very presence of equity and the
topic picked is pre- Trail confinement in the criminal justice framework to feature the tragic
situation of the under trail detainees. Much is said about law. Law is magnificent, law is a
sea, nobody is above law, law is for individuals, and law is heavenly, etc. The main meaning
of law will be: Law isn't a dynamic thing; law is a living creature since it is applied on living
human creatures. The first demand from an adjudicator is of being humane. Law is to be
applied with its letter and soul. The lawmakers have outlined laws taking into the essential
consideration that it is applied on living people. The police and the courts of law will in
general become inconsiderate and rigid while applying the laws made for the common man.
This exploration is about the sufferings of the person and fundamentally about the forgotten
under pre-trial detention in the accusatorial and inquisitorial system and the Indian Criminal
Administration.
To fathom a law completely well one has to comprehend
its essentials and the intent of the lawmakers. Judge can't and ought not administer law in an
self-assertive, whimsical and harsh manner and the application ought to be correct, just and
fair.1 The judges and court of are not above law. The judges ought to learn law, understand
its essential structure and stay away from independent declarations. The judges are relied
upon not to probe into the reality of everything except rather to render a judgment that
depends on the evidence placed before them. In the vast majority of the decisions we find
judges arguing the case away from the concerned law as to support some body or to discredit
the law.
Much damage has been done in the area of the grant of bail in Accusatorial
and Inquisitorial system. The jail rooms and walls are lodging a greater number of detainees
than it could oblige. The Crime Bureau Records uncover that in almost in all prisons the
numbers of under-Trail prisoners are two-fold or three-fold than the convicts. The under trail
prisoners are in prison not for just days, for quite a long time. This isn't confinement but
conviction before judgment. How does judiciary justify this? Is it obliviousness of the law or
the wilful erroneous application of the law of the land? Article 13 of the Indian Constitution
proclaims that laws inconsistent with or in criticism of the fundamental rights are void.
Number of decisions of the Supreme Court and High Courts are absolutely in inconsistent of
and derogation with the fundamental rights. Who is to negate and invalidate these decisions?

The topic chosen for research is “ PRE-TRIAL DETENTION IN

THE ACCUSATORIAL AND INQUISTORIAL SYSTEM AND THE INDIAN
CRIMINAL JUSTICE SYSTEM”. It isn't pre-trail detention as it is usually called yet the
terminology must be changed as pre-trail conviction. Any confinement after the maximum
1
time of punishment endorsed under law sums to illicit confinement and detainment for
several years is named as pre-trail conviction.

SIGNIFICANCE OF STUDY
Disturbing reports are brought to spotlight about the prolonged Pre-Trail Detention.
Nepotism, Favoritism, debasement are profound established in grant of or refusal of bail in
adversarial. Pre-Trail conviction is the infringement of the golden principle of the criminal
law; infringement of the Constitutional protections; and infringement of the fundamental
rights ensured under the Universal Declaration of Human rights. Subsequently this study to
highlight the role totally negative played by the Criminal Justice Administration in
ACCUSATORIAL AND INQUISTORIAL SYSTEM.

RESEARCH QUESTION

1. Whether the basic of Criminal Jurisprudence is understood in a clairvoyant manner by the

judiciary and the police?
2. Who are responsible for the pre-trial detention of the accused in Accusatorial and
Inquisitorial System?
3. Whether the provisions of the Criminal Procedure Code are applied properly by the
judiciary and the police?

HYPOTHESES
1. Pre-Trial Detention is in total disregard for the law of the land since it is against the
safeguards provided under the law.
2. The police and the judiciary are responsible for pre-trial detention of the accused in Indian
Criminal Justice System.
3. Pre- trial detention is the effect of arbitrary arrest, automatic remand, refusal of bail and
the demand of sureties and securities that are not within the reach of the poor.

METHODOLOGY

The methodology applied is doctrinal and. Doctrinal methodology involves collection of

materials from statutes, judicial decisions, articles, newspapers, journals and internet.
LITERATURE REVIEW
In the book written Ainsworth in the year 2015. Unlike the inquisitorial system of justice,
where Judges play an active role, direct the court room debate, shoulder the role of the
principle interrogator of witnesses and defendant, inquire into the charges and asses all
pertinent evidence; in an adversarial system, the Judge merely acts as a umpire at the
hearing. The Judge ensures that the trial is conducted observing due process. Thereafter, it is
decided whether the defendant is guilty beyond reasonable doubt and hearing is conducted
on the sentence given. Lawyers are chiefly accountable for leading the evidences and
interrogating witnesses. At first, each witness gives their evidence-in-chief, thereafter they
may be cross-examined.

In the book written by Srikrishna in the year 2008. India follows an age-old criminal justice
system founded on the Penal system established by our colonial rulers. In an adversarial
system, the Judge acts as a neutral arbitrator without actively taking part in the legal battle
carried out in the court rooms. The liability of gathering evidence rests with the parties (the
prosecution and the defense) and a duty is vested on the court of sovereign appraisal of the
evidence collected during investigation.

In the book written byT. Pizzi in the year 1999 Adversarial system is regulated by the idea of
“Proof beyond reasonable doubt,” unlike the inquisitorial system where the appeasement of
the Judge towards attainment of truth holds greater value. Furthermore, right to silence
inherent in our Constitutional mandate of right against self-incrimination is an integral part
of this system. It is argued that here the defendant has got stronger protections and the role of
the victim is not prominent. The system does not differentiate between the police and the
prosecution. It creates a close knit between the police, prosecution, and the State which tries
to convict the defendant. The system fails to recognize the police as a separate authority
having responsibilities independent of the prosecution with relation to attainment of truth.
ACCUSATORIAL SYSTEM

In an accusatorial system, the state, through its police force, registers an F.I.R. and conducts
an investigation to find the offender after a complaint is filed about the commission of a
crime. After then, the criminal is put into police custody for further investigation. The
accused is then brought before the appropriate judicial magistrate within 24 hours of his or
her arrest, and the latter remands the accused to judicial custody, thus sending him or her to
prison. This legal detention period is only 15 days long. Every time this judicial custody is
extended, it is for an additional 15 days. No magistrate shall authorise the detention of the
accused, according to Section 167 (2) (a) of the Criminal Procedure Code (i) 90 days if the
offence is punishable by death, life imprisonment, or a term of imprisonment of not less than
10 years; (ii) 60 days if the offence is punishable by death, life imprisonment, or a period of
imprisonment of not less than 10 years.
Chapter IV delves more into the subject. Collection of materials near the crime scene,
locating the weapon used, sending materials for chemical analysis, conducting a Post
Mortem in the case of death, medical attention and examination of the injured persons, and
recording statements from the victims and witnesses are all part of the investigation. In a
nutshell, investigation is the gathering of material facts that, when submitted to a court, form
evidence. Following the conclusion of the investigation, the police file a final report alleging
the accused person's crimes. The magistrate or the sessions judge next draughts the charges,
which detail the alleged crime committed by the accused. When the accused deny the charge
or charges, the trial begins, and the State is represented by the Public Prosecutor or Assistant
Public Prosecutor. This system is known as the accusatorial system because the state takes
up the matter and accuses the accused of committing an offence or offences. The main aspect
is that the burden of proving accusation lies on the state through the police and prosecutors.
The accused is defended by advocate of his choice. Our Indian criminal justice system is
based on the accusatorial system.
INQUISITORIAL SYSTEM

An inquisitorial system is the general set of laws where the examination of an offense is
done by the court rather than the accusatorial system where examination is done by the
police and the job of the court is that of an unprejudiced umpire between the prosecutor and
defence. In inquisitorial system the exploring capacity vests with the Procurat General. The
Public Procurator is helped by the legal police. The Public Procurator alludes the cases to the
investigating magistrates and last investigates the case with the assistance of the police.
The primary element of the inquisitorial system that is applied in France and different
nations is the working of the investigating judge. This appointed judge investigates severe
crime and behaviors complex inquires. Being individual from the legal executive this
adjudicator is free and not constrained by the executives.
The adjudicator questions witnesses, investigates, suspects, and orders search, examines. His
role isn't to arraign the accused person, however to accumulate realities, and as such his
obligation is to search for all proof (àchargé à dechargé), implicating or exculpatory. Both
the prosecution and the defence might ask for the adjudicator to act and may appeal the
judge’s decisions before an appellate court.. The extent of the inquiry is restricted by the
command given by the prosecutor's office: the examining judge can't open a criminal
investigation voluntarily.
In the past examining judge could arrange committal of the accused, this power being liable
to appeal. Notwithstanding, this is no longer the case, and other judges need to support a
committal order.
If the examining judge concludes there is a legitimate argument against a suspect, the
accused is sent for adversarial preliminary by jury. The examining judge doesn't sit on the
trial court which attempts the case and is in fact prohibited from sitting for future cases
involving the same defendant. The case is attempted under the watchful eye of the court in a
way like that of adversarial courts: the prosecution looks for the conviction of blamed, the
safeguard endeavors to disprove the prosecution claims, and the adjudicator and jury reach
their inferences from the proof introduced at the trail.
Examining judges are utilized for serious crimes/violations, e.g., rape and murder, and for
less serious however complex violations, like theft, abuse of public assets, and defilement.
JURISDICTION OF COURTS IN FRANCE

Juge des Libertéset de la Détention (JLD):

The judge of the freedoms and opportunity is vested with the power of remanding the
accused, and expanding the remand time frame. When any serious wrongdoing has been
submitted it is alluded by the public procurator to the analyzing magistrate who will
investigate the case and send it to the trail court.

Chambre de l'Instruction:
Any decision taken by the examining Magistrate and by the judge of freedoms and
detainment is challenged before this court.

Tribunal de Police:
This court is vested with the power of making a decision about minor offenses and force
certain limitation.

Tribunal Correctionnel:
This court has the power of passing judgment on people who have committed crime for
which the maximum punishment is 10 years detainment.

Courd'Assises:
This court has the power to pass judgment on most serious crime as murder or rape where
the base punishment is 10 years.

Courd'Appel:
The choice made by Courd'Assises are challenged before this court by method of an allure.

Cour de Cassation:
The decision by the cour d' Appeal is challenged before this court by way of second allure.
This court is known as Supreme Court of appeal. This court will analyze just the law applied.
LAW OF REMAND AND LAW OF BAIL IN THE FRENCH JUSTICE
ADMINISTRATION
The French police have the power to arrest or detain the accused and report the same to the
Public Prosecutor and the latter will choose the future course of action. Under the French
Law an individual is assumed innocent till proved guilty and usually they stay free. Anyway
judges have the ability to remand an individual to custody just when he faces a crime having
at least 3 years sentences or if the other hand if the charged has disregarded the condition
imposed in bail. For delits the most extreme time of remand is 4 months under specific
conditions. This period of remand can be restored under another 4 months. In drug
trafficking offences the maximum period of remand is 2 years which can likewise be
stretched out by an additional 4 months. For other crimes the most extreme time of remand is
1 year and extendable by another 6 months. When the crime conveys with it a punishment of
20 years the remand time frame is for 2 years and if the punishment is over 20 years the
remand is intended for a period of 3 years and 4 years. The JLD has the ability to remand the
accused and he needs to record justification behind denying the bail. Prior to passing orders
the JLD needs to hear the Public prosecutor and the defence attorney. The order for remand
by JLD can be pursued before the chamber de l' Instruction within 10 days and the appellate
court must pass orders within 10 days. The accused needs to stay in custody till the remand
is cancelled.

BAIL IN FRANCE

Bail is granted by EM or JLD, the accused remaining free till trail. He needs to pay
guarantee sum demanded by the court and he ought not to disregard the conditions imposed
by the court or probably he will be put in custody. The foreign nationals detained in France
are not generally granted bail fearing that the denounced would abscond in case bail is
conceded. When a large amount of money is kept as a security and the accused ought to stay
in France till the end of trail then bail is granted. When the accused is on remand he can
move bail with subtleties of his status, his character, his business, monetary status, home and
family convenience, the court will take into consideration the period of incarceration, the
nature of offences, the risk of absconding. Bail is filed before the EM and in the event that
EM rejects the application he needs to advance it to the JLD who needs to decide within 3
days. If the accused is to be tired, by Courd'Assises and the individual is staying in authority
till trail and he must be tried within a year. The individual can stay in custody for a period of
2 year. If after the enquiry by EM in case there is no proof the accused can claim for
remuneration for his passionate pain and loss of income. Bail is the indispensable part of
rights to defence granting bail the court considers the following:
1. Innocent individuals ought not endure.
2. Detainment without trail is disregarding law.
3. It is costly to hold under under trail in jail
4. The dependent will not be able to work and his family will endure monetarily.
5. Individuals in custody don't have appropriate freedom to prepare for defence.
While granting bail, it is done on personal bond, third party surety/ guarantee, cash bond,
individual bond, and property bond or guarantee bond the purpose for the bail is just one
ought not be denied freedom before being found guilty. In most circumstances bail is
conceded pending trail just when an individual is risk to the general public or he will escape
justice, bail is denied.
CRIMINAL JUSTICE ADMINISTRATION IN INDIA

Man is a social animal, and all humans have an inborn and intrinsic animal or vicious
inclination. Man himself must restrain, restrict, and regulate this animal urge. Three
institutions that mould man, namely the family, school, and religion, should guide him in the
proper direction. However, these three institutions have recently failed horribly in their core
mission of moulding man into a civilised member of society. Families have disintegrated
into small groups in a wild dash for materialistic wealth, and even the divided family has
further splintered when husband and wife live apart for a variety of reasons. The child is
deprived of the attention and affection that he or she deserves and is exposed to the world of
viles where hatred, intolerance prevail. Educational institutions that made it their primary
mission to offer moral and physical education have gone astray, Thanks to the modern
society's thirst for education, they have been able to deviate from their original course that
would produce engineers, doctors, company administrators, and other professionals. The
belief or religion system preaches but never practises what they preaches. Intolerant seeds
are being sown by religious leaders and the idea of a secular state may soon be forgotten and
buried. Under the guise of faith several wars have been fought in the past, and many fear that
history may repeat again. As a result, In such an atmosphere, man's animal instincts are free
to roam, and crime rates are certain to rise. Maintaining societal order and crime control
necessitates a broad and expansive approach to be conferred on state to administer the
criminal justice system.
The goal of the criminal justice system is to strike a balance between maintaining law and
order (social order) and protecting individual liberty. The state has coercive powers to reduce
crime and bring criminals to justice. At the same time, legislation and the judiciary are used
to impose punishment if someone is found guilty, at the same time ways and means are
provided in one place to prevent its arbitrary and capricious application powers.
The International Covenant on Civil and Political Rights 2, Article 14(2)
specifies: Everyone alleged with a criminal offence shall have the right to be presumed
innocent until proved guilty according to law. Article 14 of the Constitution India's
constitution would read Equality before law. The state shall not deny any person equality
before the law or equal protection under the law in India's territory. The Indian Constitution
states in Article 21: "Protection of life as well as personal liberty.” No one's life or personal
liberty shall be taken away from them, Unless there is a legal procedure in place. The Indian
Supreme Court ruled that the procedure envisioned in Article 21 3 must pass the test of
reasonableness in order to be in compliance with Article 14. The procedure established by

2
International Covenant on Civil and Political Rights
3
Indian Constitution, 1950
Law must be proper, just, and fair, not arbitrary, whimsical, or capricious oppressive Union
of India v. Manaka Gandhi. 4
The study of Criminal justice Administration reveals that the concept of human rights is
related to the period one lives. In ancient times the social and judicial functions were carried
out by Village Panchayat or by the ruler himself. According to Hindu Philosophy the
accused were believed to be unwanted social elements and to be eliminated, the then
criminal justice administration laid no emphasis on the rights of the accused. The Muslim
concept of criminal justice administration is based on the scriptures and tenets of the Quran.
It believed in the deterrent punishment, the .accused is a sinner and deserves social
deprivation. Then came the social change-, with advent of British common law which saw
several legislation made to curb the abuse of law. The Criminal Procedure Code prescribed
the rights of the accused also. The Universal Declaration of Human Rights 1948 and the
International Covenants that followed ushered in the new era of Criminal Justice
Administration in which the rights of the accused played the pivotal role. The guiding
principle of the Universal Declaration of Human Rights to which the municipal laws of all
countries are bound to follow, provides for a fair and just trial to the accused. The very
preamble of the United Nations Charter of 1945 states: to affirm faith in fundamental Human
Rights and the equal rights of men and women. The Geneva Convention of 1985 highlighted
the mass violations of the human rights of the under trials and convicted persons in about 85
countries. Detention without charge or trial was prevalent in most countries. India which
plays a leading role in voicing Human Rights on the international floor is also one of the
offenders. Recent survey exposed that most of under - trials were in custody for a period
more than the maximum punishment they could get if proved guilty.

INDIAN CRIMINAL JUSTICE SYSTEM

Individuals have given up their rights to sovereignty in order that their life and individual
freedom are ensured. The ancient man with the energy to ensure his individual, family, his
clan, their ownership, was forced to use violence. Might turned out to be correct and more
vulnerable ones were unprotected. The state emerged as the defender and protector out of the
social agreement. To guarantee harmony and social order, laws were sanctioned to endorse
the particular boundaries of conduct. Certain acts were named as crimes or offenses against
the state. Indeed, even the offenses against people were considered as offenses against the
state. The state launched the prosecution to bring the wrongdoer under the steady gaze of law
to be tried and if found guilty to be condemned. The convicts were sent to custody by the
Court of Law.
The main objectives of the Criminal Justice System are:
1) To prevent and restrict degenerate conduct;
2) To identify deviant behaviour;
4
Maneka Gandhi v. Union of India AIR 1978 S.C.597
3) To assess the degree of the deviancy;
4) To arbitrate the damages;
5) To prescribe punishment;
6) To employ correctional process.
Accordingly, the aim of the Criminal Justice System is to reform the freak member of the
society. To prevent discretion and to provide equal justice to all, the Criminal Justice System
has embraced the idea of due which demand that the accused be given reasonable and fair
opportunities to safeguard the accusation and to prove his innocence. There are several
safeguards in the Criminal Justice System to secure the Human Rights. 5
The following are the regions in which the Human Rights are violated in the Criminal Justice
System:
1. Non-registration of cases;
2. Arbitrary arrest and brutal treatment of the captured individual;
3. Custodial brutality;
4. No Compensation to victims of crime;
5. The appalling states of Indian Jails;
6. Delay of courts;
7. Abuse of force by the executives
In this paper, the working of lower courts, the working of the constitutional Courts and the
Independence of Judiciary will be described. Criminal law seems to be dying. The Judges
ought to learn and comprehend the law and avoid wrong application.

5
Justice B.P. Jeevan Reddy “ Judiciary in India- Constitutional Perspectives” Available in Judiciary in India – Constitutional
Perspectives- Asia Law House 2009.
CONCLUSION

Who are all responsible for pre-trial conviction?

Pre trial conviction is unquestionably the responsibility of the police and the judiciary. Police
indiscriminate arrests, Friday remands, judicial refusals to grant bail, and judicial demands
for large/higher bonds cause the accused to linger in prison for months, years, and even
decades maximum retribution Even for small offences, the accused is arrested right away
and brought before the courts to be automatically remanded. Statistics establish the Schedule
castes, Schedule tribes, and Muslims are all victims of this indiscriminate arrest. The
majority of the accused are daily wage employees who live in poverty and without any legal
expertise. These people can't afford to hire a lawyer to help them get bail. They can poorly
afford to provide sureties and security even if they manage to hire a lawyer. The amended
law prohibits the arrest of those accused charged with crimes that entail sentences of seven
years or less. The officer is expected to write down the reason for the arrest. The law
mandates that the accused person be served with a notice to appear at the police station for
interrogation. There is no need for an arrest if the person obeys the notification and
cooperates with the investigation. The arrest of a person is not required under current law if
the police determine that the accused will not flee justice and will cooperate with the
investigation. Overcrowding behind prison walls of under trails prisoners can be avoided if
the police have the sense of justice.
Similarly, automatic remand by the courts is prohibited. In the Arnesh Kumar case,
the Supreme Court warned against taking action against the police and judiciary If they
engage in unwarranted arrest and remand. Police and judiciary should follow the dictum laid
by the supreme court, Reduce the suffering of those who are facing trials and those who
have been accused. As a result of the preceding, observation it becomes clear that the police
and the judiciary violate the law of the land and are responsible for the pre-trial detention of
the accused.

Whether basics of Criminal Jurisprudence understood in the clairvoyant manner by the

Judiciary and the Police?

The Supreme Court of India has provided magnificent judgements on the fundamentals of
criminal law, but it currently appears that the judiciary and the police do not have a good
understanding of the fundamentals of criminal law. The police wield the law of the land. The
police are persuaded by their investigation, but they are unsure how to persuade a court of
law. If Section 27 of the Evidence Act is repealed, the police will be left to fend for
themselves in order to conclude the investigation. In investigating crimes, the police use only
crude, non-scientific procedures which exposes that they are ignorant of the fundamentals of
criminal law.
We hear convicting and acquittal judges in the courts. These two names informs that certain
judges are very particular, in basing conviction and the other judges are bent in according
benefit of doubt to the accused. The benefit of the doubt is the golden rule of criminal law,
and conviction can only be made when there are no reasonable doubts. The weapons or
objects should be linked to the crime, and the crime should be linked to the accused. When
there is a missing connection, a conviction cannot be made.
The higher courts have repeatedly concluded that courts of law are not to inquire into the
truth of anything, but rather to issue a judgement that is a final determination based on the
evidence presented to the court. In some of the rulings, the judges play the role of public
prosecutor in arguing the case in the prosecution's favour.
The judges of the trial court, the High Court, and the Supreme Court record that there is
prima facie evidence and that bail cannot be granted. This observation is ridiculous because
the complaint, the F.I.R., 161 statements, purported confession leading to recovery, and
seizure of materials are all papers that can't be considered evidence while moving bail.
Material facts become evidence only when they are submitted before a court of law during a
trial, and the courts should grasp this. The fact that the police and the judges do not
understand the principles of jurisprudence is demonstrated by the foregoing observation. If
this is properly understood there will not be indiscriminate arrest and automatic remand that
causes overcrowding the prisons with more under trial prisoners.

Whether the provisions of the Criminal Procedure Code are applied properly by the
judiciary and the police?
Section 27 of the Evidence Act is the one section that police prefer since it allows them to
record confessions that lead to the discovery of facts, while the other sections are almost
unknown to them. The police frequently exploit Section 154 of the Cr. P.C. to force cases by
inserting the names of innocent people in the F.I.R. alongside the accused. The fact that the
court of law recorded a prima facie case made of, or that there is substantial evidence in this
case demonstrates the judiciary's misunderstanding of the Indian Evidence Act and the
Criminal Procedure Code.
THE SUGGESTIONS

1. The law is majestic, but its majesty is being soiled by the police and judiciary's
illegitimate actions. As the Indian Supreme Court has suggested and several Indian High
Courts, as well as police and judicial officers, should receive legal training in order to
comprehend the requirements of the law and the intent of the law the legislators who enacted
the laws. The police and the judiciary in most cases follow well-worn paths, resulting in
arrest and remand automatic. With relation to the recent amendments to the Criminal
Procedure Code, Section 41 A of the Criminal Code was added to the legislation of arrest.
The insensible arrest, and automatic remand should all be stopped.
2. The courts of law should be lenient when it comes to granting bail to the accused. Bail can
only be denied if the court believes the accused will avoid justice and pose a threat to
society. In such circumstances, the courts have the authority to impose any restriction
necessary to keep the accused from evading justice and posing a threat to society. In the
event that the accused violates the court's requirements, the court might always order his
arrest.
3. On seeing the F.I.R. and 161 statements, the Constitutional Courts must stop recording
"the prima facie case made out." F.I.R. and 161 statements are just material facts, not
evidence. Bail should not be denied based on this flimsy reason should be avoided.
4. Section 438 of the Criminal Procedure Code declares grant of bail even to persons
apprehending arrest. The legislator is aware of the negative connotations associated with
arrest and remand. Consequently, rejecting bail under sections 437 and 439 of the Criminal
Procedure Code is arbitrary and should be prohibited.
5. The courts have stated that they must strike a balance between a person's liberty and the
safety of society, and so, they are refusing bail to those who pose a threat to society. The
safety of society is the primary concern of the executives. Of course, the judiciary can
consider society and impose severe conditions on the accused in order to protect society. If
the conditions are being violated, the court has the authority to cancel the bail. The courts
have the authority to instruct the police to keep an eye on the accused who has been released.

7. Courts imposing pre-trial imprisonment on accused by denying bail is against the golden
rule “Presumption of innocence till proved guilty is highly erroneous.”
8. The term "non-bailable" in section 437 of the Criminal Procedure Code is used to avoid
bail being granted. The term conditionally bailable should be used instead of non-bailable.
This section's purpose is to establish conditions if they are necessary.
9. "Law is not an abstract entity; it is a living organism because it is applied to living human
beings," as stated above. The police and the judiciary should keep this in mind and adopt a
more humanitarian approach.

BIBLIOGRAPHY
Primary Sources Statutes
1. The criminal Procedure Code 1973 (with amendment act of 2013)
2. The Indian Penal Code 1860
3. The Constitution of India as Amended by the Constitution (One Hundredth
4. The Indian Evidence Act 1872
5. Juvenile Justice (Care and Protection of children Act, 2000)
7. The French Code Penal
8. The French Criminal Procedure Code

Articles
1. Mathurina, “Under trial prisoners and the Criminal Justice system”. Journal section 2010
2 SCC P. 25)
2. Justice H.R. Khanna “Freedom of expression with particular reference to Freedom of the
Media”, (1982) 2 SCC (Jour) 1.
3. Justice B.P. Jeevan Reddy “ Judiciary in India- Constitutional Perspectives” Available in
Judiciary in India – Constitutional Perspectives- Asia Law House 2009.
4. Justice A. Seetha Ram Reddy “ National Seminar on India Higher Judiciary in 21st
Century- Constitutional Perspectives” Available in Judiciary in India – Constitutional
Perspectives- Asia Law House 2009.

Other Sources
News Papers
1. Sanker Sen. “Plight of under trial prisoners in India” Legal News, July 1997
2. The New Indian Express (Madras) 13 October 2016.
3. The New Indian Express ( Madras) 5 August 2014