“HUMAN RIGHTS OF ACCUSED WITH REFERENCE TO CRIMINAL JUSTICE

SYSTEM IN INDIA”

KUSHAL KUMAR YADAV

Submission under the Guidance of: Prof. MOHIT MATHUR

This dissertation is submitted in partial fulfilment of the degree

of B.B.A., LL.B.

KUSHAL KUMAR YADAV

20190401055

United World School of

Law, Karnavati
University, Gandhinagar
2024
 DECLARATION

I declare that the dissertation entitled “Human Rights of Accused with reference to Criminal
Justice System in India” is the outcome of my own work conducted under the supervision of Prof.
MOHIT MATHUR, at United World School of Law, Karnavati University

I declare that the dissertation comprises only of my original work and due acknowledgement has
been made in the text to all other material used.

KUSHAL KUMAR YADAV

Date

2
 CERTIFICATE

This is to certify that the research work entitled “Human Right of Accused with reference to
Criminal Justice System in India” is the work done by KUSHAL KUMAR YADAV under my
guidance and supervision for the partial fulfilment of the requirement of B.B.A.LL.B degree at
United World School of Law, Karnavati University

MOHIT MATHUR

Assistant Professor

Date

3
 ACKNOWLEDGEMENT

I wish to express my sincere thanks to SM SOWJANYA Assistant Professor, School of Legal

Studies for providing me with all the necessary facilities for the research. I place on record, my
sincere thanks to for the continuous encouragement. I am extremely thankful and indebted to her for
sharing their expertise, and sincere and valuable guidance and encouragement extended to me. I take
this opportunity to express gratitude to all of the Department faculty members for their help and
support. I also thank my parents for the unceasing encouragement, support and
attention. I also place on record, my sense of gratitude to one and all, who directly or indirectly, have
lent their hand in this venture.

4
TABLE OF CONTENT

CHAPTER-1.....................................................................................................................................................12

INTRODUCTION........................................................................................................................................12

STATEMENT OF THE PROBLEM..........................................................................................................14

LITERATURE REVIEW............................................................................................................................15

RESEARCH METHODOLOGY................................................................................................................18

OBJECTIVES OF THE RESEARCH........................................................................................................19

RESEARCH QUESTION............................................................................................................................19

HYPOTHESIS..............................................................................................................................................20

CHAPTER- 2....................................................................................................................................................44

2.1. ARREST.................................................................................................................................................44

(2.1.1) Power of Arrest...............................................................................................................................44

(2.1.2) Police Discretionary Powers...........................................................................................................44

(2.1.3) Provisions under CrPC....................................................................................................................45

2.2. RIGHTS GUARANTEED TO THE ACCUSED UNDERCRIMINALPROCEDURE CODE.....49

(2.2.1) Transfer of case on request and dispense with personal appearance..............................................49

(2.2.2) Provision of Copies: Free of Charge...............................................................................................49

(2.2.3) Rights when Charge is altered........................................................................................................50

(2.2.4) Effects of Previous Cases...............................................................................................................50

(2.2.5) Discharge: Before framing of Charges...........................................................................................51

(2.2.6) Right to Defense.............................................................................................................................51

(2.2.7) Compensation to the Accused: False Accusation...........................................................................51

(2.2.8) Rights of Accused during Evidence................................................................................................52

(2.2.9) Compounding of Offences.............................................................................................................57

(2.2.10) Rights of Accused Person of Unsound mind................................................................................59

(2.2.11) Compensation to the Accused: Arrested Groundlessly................................................................59

5
 (2.2.12) Release on Probation....................................................................................................................60

(2.2.13) Right to Appeal against Conviction..............................................................................................62

(2.2.14) Bar to Appeal under Certain Circumstances.................................................................................62

(2.2.15) Transfer of Cases at the Request of the Accused or Otherwise....................................................62

(2.2.16) Implementation of Sentence.........................................................................................................63

(2.2.17) Bail................................................................................................................................................64

3.3. PLEA BARGAINING: A PRACTICAL SOLUTION.......................................................................64

CHAPTER-3.....................................................................................................................................................69

3.1. PRISONS IN INDIA..............................................................................................................................69

(3.1.1) Types of Prisons in India................................................................................................................70

(3.1.2) Position of Indian Prisons and Prisoners........................................................................................72

(3.1.3) Under-trials in Prisons:...................................................................................................................73

3.2. SPECIFIC ACTS FOR PRISONERS..................................................................................................75

(3.2.1) Officers of Prisons.........................................................................................................................79

(3.2.2) The Transfer of Prisoner Act, 1950................................................................................................81

(3.2.3) The Prisoners (Attendance in Courts) Act, 1955............................................................................82

3.3. CONSTITUTIONAL AND STATUTORY PROVISIONS FOR PERSONS IN CUSTODY.........85

(3.3.2) Protection for Accused Persons in Custody under Criminal Procedure Code...............................86

(3.3.3) Safeguards for accused persons under the Indian Evidence Act....................................................86

(3.3.4) Protection of Accused Persons under the Indian Penal Code........................................................87

3.4. JUDICIAL PROTECTION OF PRISONER RIGHTS.....................................................................87

CHAPTER-4...............................................................................................................................................102

4.1. INTRODUCTION.........................................................................................................................102

(4.1.1) Direct Access to Superior Courts..........................................................................................104

(4.1.2) Role of District Judiciary in Protection of Basic Rights.......................................................105

4.2. JURISDICTION AND SPECIAL POWER OF SUPREME COURT TO PROTECT

HUMAN RIGHTS
.........................................................................................................................................................
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 106

(4.2.1) Jurisdiction of the Supreme Court.......................................................................................106

(4.2.2) Special Powers of the Supreme Court.................................................................................108

(4.2.3) Types of Writs.....................................................................................................................114

4.3. BAIL IS RULE JAIL IS EXCEPTION.......................................................................................118

(4.3.1) Observations by the Apex Court...........................................................................................124

(4.3.2) Timely Justice Restores Trust in Society..............................................................................125

(4.3.3) Human Rights Denied in Overcrowded Jails.......................................................................127

4.4. LANDMARK JUDGMENTS ON JUDICIAL REVIEW AND PROTECTIONOF CITIZEN’S

RIGHTS
128

Nandini Sundar and Ors v. State of Chattisgarh..................................................................................129

Maneka Gandhi v. Union of India (1978)............................................................................................130

I R Coelho v. State of Tamil Nadu (2007)............................................................................................131

Minerva Mills Ltd. v. Union of India, 1980.........................................................................................132

State of West Bengal v. Committee for protection of Democratic Rights, (2010)..............................134

CHAPTER-5...................................................................................................................................................136

5.1. Conclusions...........................................................................................................................................136

BIBLIOGRAPHY....................................................................................................................................146

BOOKS.................................................................................................................................................146

CASES..................................................................................................................................................147

STATUTES..........................................................................................................................................151

ARTICLES...........................................................................................................................................152

REPORTS.............................................................................................................................................155

ONLINE SOURCES............................................................................................................................156

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 List of Abbreviations

A.I. Amnesty International

ACHR American Convention on Human Rights

ADR- Alternative Dispute Resolution

AFCHPR African Charter on Human Rights and People’s Rights

AIR All India Reporter

APCLC Andhra Pradesh Civil Liberties Committee

Art. Article

BSF Border Security Force

CBI Central Bureau of Investigation

CEDAW Convention of the Elimination of all Forms of Discrimination

against Women

CFD Citizen for Democracy

CID Criminal Investigation Department

CILAS Committee for Implementing Legal Aid Schemes

CISF Central Industrial Security Force

Cl. Clause

CPDRP Committee for the Protection Democratic Rights

Cr.L.J. Criminal Law Journal

Cr.P.C Criminal Procedure Code

CRPF Central Reserve Police Force

D.M. District Magistrate

e.g. Example gratia, For Example

8
E.U. European Union
ECHR European Convention on Human Rights

ECOSOC Economic and Social Council

Ed. Edition

FIR First Information Report

H.C. High Court

HRW Human Rights Watch

I.B. Intelligent Bureau

i.e. That is

I.G.P Inspector General Of Police / Prisons

I.O Investigation Officer

Ibid Same Reference Same Page

ICCPR International Covenant on Civil and Political Rights

Id Same Reference Different Page

INGOs International Non-Governmental Organization

IPC Indian Penal Code

ITBP Indo Tibetan Border Police

JILI Journal of Indian Law Institute

Jour. Journal

KCLC Karnataka Civil Liberties Committee

N.G.O Non-Governmental Organisations

NCRB National Crime Record Bureau

NHRC National Human Rights Commission

9
PIL Public Interest Litigation

POHRA Protection of Human Rights Act

PUCL People’s Union for Civil Liberties

PUDR People’s Union for Democratic Rights

RAW Research analysis Wing

S.C. Supreme Court

S.H.O Station House Officer

S.P. Superintendent of Police

SCC Supreme Court Cases

SCJ Supreme Court Journal

SCR Supreme Court Reports

Sec. Section

U.K. United Kingdom

U.S. United States

UDHR Universal Declaration of Human Rights

UNO United Nations organisation

Vol. Volume

10
 CHAPTER-1

INTRODUCTION

Under, Article 21 of the Constitution of India, the right to live with dignity is provided for, but
after 70 years of independence, the accused and under-trials are subjected to inhuman treatment
and struggle to protect their dignity in India. The key function of, the criminal justice system in
every civilized society is, to protect the members of that society. India is a parliamentary
democracy and a welfare state with a governance framework that is quasi- federal. The democratic
system relies on the freedom and protection of citizen’s rights. There is a comprehensive
framework for, protecting human rights and dignity of the accused, in custody. If these are
properly enforced, the United Nation conventions are fully capable of protecting the rights of an
accused. As a member of, the United Nations and a signatory to a number of human rights treaties,
India has ratified and enforced many of them, such as the ICCPR and ICESCR, but is yet to ratify
some crucial ones. Although there is an adequate legal framework, to protect the custodial dignity
of, the accused, its lack of proper implementation leads to inhumane treatment of the accused
under, the Criminal Justice System. India has an enabling structure for protecting the interests of
accused. As, a responsible member of the United Nations, India also complies with most UN
human rights resolutions and conventions guaranteeing the accused person's right to live with
dignity. The Indian criminal justice structure has a well-equipped legislative framework but the
condition of accused is wretched. It is necessary to, concentrate on new instruments and effective
implementation of existing law to protect the dignity of the accused. The researcher concluded
that, the role of Indian Judiciary in protecting the human rights of accused has been significant.
The guidelines, observations and landmark judgments of the Indian judiciary, especially of,
Supreme Court of India are fundamental active methods and mechanisms for protecting these
rights. Enforcement of, human rights by the judiciary has now become, an integral part of justice
system in India. Pursuant to Articles 32 and226, Supreme Court and the High Courts have greatly
extended scope of judicial review and have, developed new methods and strategies t

11
open the door to, justice for poor and oppressed through liberalized Public Interest Litigation. In order to
uphold human rights, the Indian Supreme Court has completely transformed the criminal justice system.
It has, liberalized various doctrines, invented new methods and techniques, gave comprehensive
interpretations to the provisions of Constitution, such as Article 21, and invented new means of
accountability for the executive. This involved a combination of courage and judicial
craftsmanship on the part of Judges.
A person should only be imprisoned under extreme circumstances in order to protect human integrity,
individual liberty, and the right to life, according to governmental institutions. Bail is the rule, and jail is
the exception. It is important to use the legal system in its whole context and not only as a means of
enforcing the law. The government and judiciary should take significant steps to ensure that the right to
bail in ordinary situations is upheld.

Several problems arise because of unjustified denial of bail, such as overcrowding in jails, increasing
custodial violence, compromising human dignity, mental harassment of the accused. The basic rights
outlined in the Indian Constitution guarantee everyone the right to live with dignity, hence it is required
of the adjudicating authority to use its discretion in a fair way.
In the event that an individual is incarcerated under regular conditions without any evidence of
misconduct, both the rule of law and human rights will be violated.

During this study, researcher found that, the lack of forensic procedures in investigations causes
harassment to the accused. Increasing dependence on objective forms of evidence, results-oriented
investigation based on scientific methods will prevent the accused from being harassed in vain.
Over the years, dramatic technological advancements have contributed to the evidence in criminal
proceedings, such as new scientific instrumentation, DNA typing and physical evidence databases
in forensic science. The need for forensic science is urgent in criminal investigations. There are
many loopholes in conventional investigative techniques, and third-degree techniques used for
confessions are contrary to people's basic human rights. Forensic science may be extremely
helpful in defending the accused's rights. Through effective policy & legal provisions,
government can draw on, skills of forensic experts and achieve the two-fold objective of,
protecting the innocent and punishing the guilty.

The police force is one of the least trusted institutions in India. In December 2004, the

12
Ministry of Home Affairs established a committee to review, the overall progress of
recommendations made by various, police reform committees. The Committee drafted 49
recommendations as crucial to the process of transforming the police into a professionally
competent and service- oriented organization. One of the recommendations, of the Review
Committee was the promulgation of the New Police Act to replace the Police Act of 1861. The
Model Act stressed the need for a professional police service that is efficient, effective, responsive
to people's needs and accountable to rule of law, in a democratic society. In general, rights
guaranteed by the Constitution are, being violated. The underlying cause of deprivation of rights is
their lack of awareness. Legal awareness is people's empowerment and helps to promote their
involvement in the formation of a stronger society. Effective implementation of, the rights laid
down in Constitution and legislations is only possible if, the objective of distribution of justice to
underprivileged groups is achieved. Government has a definite role to play in implementing the
different schemes provided by legislative provisions, based on, equal opportunities to achieve the
constitutional guarantee of justice, for all. For the administration of justice, the government must
make arrangement in the society for, easy access to enforcement agencies responsible for the
implementation of rights.

STATEMENT OF THE PROBLEM

The right to live with dignity is conferred on all human beings by international and national sources
of law, and includes those accused of crime under the Indian criminal justice system, but, still a
large section of the accused and under-trials are living their lives in vulnerable conditions faced with
severe inhumane treatment by state authorities and machinery. The rule of law is the founding stone
of, criminal justice system, which guarantees fair trial to accused person. Indian Constitution, under,
Article 21 provides for the right to live with dignity for all, but yet after 70 years of Independence of
India, accused and under-trials are subject to the inhuman treatment and are struggling to protect
their dignity. There are a number of challenges and problems in, the Criminal Justice system, such
as media trials, overcrowding in Indian prisons, extrajudicial killings, police

13
atrocities, delay in trial, under-trials, custodial violation and degradation, ignorance of the cardinal
principle of bail, delay in justice, unscientific investigation, involuntary confessions, lack of
awareness of rights, shortage of Judges and the Courts, lack of coordination between police and
prosecution, lack of professional ethics, and these harms the dignity of the accused and violates their
human rights. India has an adequate framework to protect interests of the accused. Being a
committed member of the UN, India likewise complies with the majority of UN human rights
accords and decisions., defending the accused person's rights, to live with dignity. However, despite
having such a well-equipped legislative system, the condition of the accused is miserable in Indian
Criminal Justice System and it is therefore requisite to focus on new tools and the impressive
implementation of law, in order to protect the dignity of the accused.

RESEARCH METHODOLOGY

For adequate and systematic study, the application of correct tool, appropriate research method
and adoption of rational bend of mind are sine-qua-non. The study in hand comprises the
Doctrinal method of research with analytical approach of study. National, international and the
regional documents and sources of law have been used to achieve, the objective of study. In
order to fulfill the goal of, study in hand, the method of doctrinal research is more beneficial than
the empirical method of research. Some suggestions and techniques for, enhancing right to live
with dignity of the accused person have been mentioned at the conclusion of the research. For
the sake of this investigation, researcher has reviewed, the vast literature, International
conventions, regional convention, reports of Law Commission of India, National Human Rights
Commission reports and guidelines, apex court’s Landmark and latest judgments as well as
guidelines, National crime Bureau reports, Amnesty

14
International Reports, Articles of well-known intellectuals, newspapers, committees on Criminal
Justice System reforms, parliamentary proceedings, journals, commentaries of eminent jurist and
collected relevant data from, published and unpublished sources. The researcher also relied on
internet sources, United Nation’s reports, conventions and other documents and other reliable
sources of information, the title of the sources and the books have been mentioned in the
bibliography segment of the research.

OBJECTIVES OF THE RESEARCH

In this study, the researcher focuses on a thorough examination of the many aspects of the
accused's human rights as well as the underlying idea. The aim is to assess the influence of the
International Covenant on Civil and Political Rights on Indian law and court rulings, as well as
to examine the extent to which the Indian criminal justice system can protect the rights of those
who have been accused, and to examine the deficiencies that result in infringements of rights.
The aim of the research is to assess grounds for non-compliance with the doctrine of equal
protection of accused by law and, to study emerging issues in the Indian Perspective. To
objective is to examine the effective application of laws and guidelines related to the accused, by
studying under- trials, prisons, prisoners, custodial dignity, bail jurisprudence, fair investigation,
media, the government's and the courts' roles in enhancing the accused's human rights system,
and to recommend some potential remedial steps to ensure justice for the accused and to shield
them from excessive application of force, by law enforcement authorities.

RESEARCH QUESTION

1. Whether the Human Rights are comprehensive and capable of enhancing the
custodial dignity and rights of the accused.

2. Whether India's obligations under international law have motivated it to include human
rights into its own legal system in order to protect the right of the accused to live in dignity.

15
 3. Whether court action is necessary to improve accused people's rights in India.

4. Whether the cardinal principle of criminal jurisprudence is that bail is a rule and jail
is an exception, but it is still largely ignored by Courts.

5. To what extent the accused's rights were violated by the use of conventional investigative
procedures, and to what extent the employment of cutting-edge forensic investigation
techniques may stop such violations.

6. Whether the powers conferred on various authorities, in particular police agency, are the
primary reason why the accused's human rights are violated, and police reforms have the
power to alter the situation.

HYPOTHESIS

In this study, the following hypothesis would be examined:

Human Rights are comprehensive and capable of enhancing the custodial dignity and rights of
the accused. India has been motivated to integrate human rights into its domestic
jurisprudence in order to protect the accused's right to a dignified life by its obligations under
international law. In India, judicial activism is crucial to advancing the rights of the accused.
Although courts continue to mostly disregard it, the fundamental tenet of criminal law is that
bail is the rule and incarceration is the exception. Adopting cutting-edge forensic investigation
techniques can stop the accused from having their rights violated, as traditional methods of
inquiry are the primary source of these violations. The primary source of the accused's human
rights violations is the authority granted to different authorities, particularly the police agency.
However, police reforms have the potential to alter this situation.. Lack of awareness of rights
causes harassment of the accused.

CHAPTERIZATION

Chapter-1: INTRODUCTION

16
Chapter-2: HUMAN RIGHTS OF AN ACCUSED IN INDIA: POSITION AND

PROBLEMATICS Chapter-3: HUMAN RIGHTS AND THE TREATMENT OF AN ACCUSED

IN JAIL

Chapter-4: ROLE OF JUDICIARY AS SAVIOUR OF HUMAN RIGHTS OF

ACCUSED Chapter-5: CONCLUSION AND SUGESSTIONS

17
 CHAPTER- 2

HUMAN RIGHTS OF AN ACCUSED IN INDIA: POSITION AND PROBLEMATICS

2.1. ARREST

(2.1.1) Power of Arrest

Any private individual, a magistrate, or a police officer may make an arrest, but they must
follow the steps outlined in the CrPC. Armed forces personnel are not subject to arrest
under Section 45 of the CrPC for whatever they conduct while performing official
responsibilities, unless the government grants permission.
A private person may arrest a proclaimed criminal or someone who is committing an offense that
is cognizable and not subject to bail in his presence in accordance with Section 43. Furthermore,
a magistrate, whether executive or judicial, is authorized by Section 44 to make an arrest without
obtaining a warrant.

(2.1.2) Police Discretionary Powers

The exceptional discretionary powers conferred on the police in matters of arrest have led
to a substantial misuse of those powers. The same has been acknowledged in report of
National Police Commission, according to which most of the arrests made by the police
were unjustified. In order to curb such rampant misuse of powers of arrest, the 177th Law
Commission report also emphasized the urgent need to restrict such powers. With this view,
Section 41A was incorporated into the Criminal Procedure Code (Amendment) Act, 2008.
However, the provision proved to be detrimental to the interests of the accused, whom it
sought to protect.

The use of subjective terms, such as 'reasonable complaint,' 'credible information,'

'reasonable suspicion,' opens the way for the abuse of such powers and leaves an enormous
scope for the police to exercise their discretion. In addition, 41A (3) provides the police
with an opportunity to arrest a person even after the notice was being complied with, if
police officer considers that the arrest is necessary. The police also have the immediate
discretion

18
to decide whether the notice is complied with. In particular, this provision increases the scope
given to police officers to arrest without a warrant, extending it to offences that are not within
the scope of Section 41(1).32

(2.1.3) Provisions under CrPC33

- Section 41(1) CrPC provides that, anybody can be arrested by a police officer
without a warrant., in a cognizable offence & shall record in writing, his reasons for
making such arrest. If arrest is not made, by police officer, that reason shall also be
recorded in writing.

- Section 41(2) CrPC in accordance with Section 42's provisions (that is, arrest on
refusal to give name and residence), no person shall be arrested except under a
warrant or order of Magistrate in a non-cognizable offence.

- Section 41A CrPC where a person is not arrested under provisions of, sub section1
of section 41, and he complies with, the notice of appearance before the police
officer, then, He shouldn't be detained unless the police officer records a reason
why, in his judgment, he should be detained.

- Section 41B when a police officer makes arrest, at least one witness must certify to
the arrest memorandum, which the detained individual must countersign. He must
also be advised that, he can inform a relative or friend unless the arrest memo is
signed by a relative.

- Section 41D A person has the right to see the advocate of his choice when being
questioned by the police after being detained, but not while the questioning is going
on.

- Section 43 a private person, can also arrest any person when, a non-bailable and

32
Avishek Mehrotra & Renuka Mishra, Section 41A – An Antithetical Disposition, HNLU Student Bar Journal,
July 20, 2020
33
Code of Criminal Procedure, 1973

19
 cognizable offence is committed in his presence or when the person is a proclaimed
offender. After an arrest, the private person should hand that person, over to police
officer without delay. The police officer shall re-arrest that person ifhe comes under
the provisions of, section 41. But, if there is cause to suspect that the offense that
person committed is not cognizable, he will be dealt with under section 42's
provisions; but, if there is no reason to believe that he committed an offence, he will
be freed immediately.

- Section 44 An executive or judicial magistrate has the authority to detain or order

the detention of, an offender, when offence is committed in his presence and subject
to provisions to bail, commit the offender to custody, within his local jurisdiction. In
addition, a magistrate has the authority to issue a warrant for the arrest of someone
within his local jurisdiction at any moment while the individual is in his presence
and under his jurisdiction.

- Section 46 stipulates that a police officer must touch or restrain the subject of an
arrest, unless by word or action there is submission to the custody. A female can be
rested by a female officer only. A woman can be arrested during daytime only, save
in exceptional circumstances. Arresting someone can be done using any necessary
measures. However, this clause forbids killing someone who is not suspected of
committing a crime that carries a death sentence or life in prison.

- Section 49 stipulates that the detained individual shouldn't be subjected to more

restriction than what is required to keep him from fleeing.

- Section 50 provides that, when a police officer or other person makes an

unwarranted arrest of someone, they must promptly provide the individual with all
the information on the offense they were detained for as well as any further
justifications. When an individual is arrested without a warrant by a police officer
for a crime other than one for which there is no bail requirement, the officer is
required to notify the detained party of their right to be released on bond and their
ability to arrange sureties on their behalf.

20
 The requirements outlined in Section 50 of the Code must be followed. The Indian
Constitution's Article 22 provides the basic right to be free from arrest and
incarceration. The Constitution's Article 22(1) is in accordance with the provisions
of Section 50 of the Code. It is unconstitutional to arrest and detain a person if the
specifics of the offense are concealed. It is the prosecution's duty to make sure that
Section 50 of the Code is followed in cases where it is questioned whether the
requirements of Section 50(1) of the Code have been followed.

- Section 50A A friend or family of the person arrested should be informed about
the arrest and the location of the detention by the police officer or any other person
conducting an arrest under the CrPC. When brought to police station, the arrested
person should be informed about his rights. The name of person, who is informed
about the arrest, should be mentioned in the diary, kept at police station. It is a
magistrate’s duty, to confirm that, all the requirements have been complied after
arresting a person, when that arrested person is brought before him.

- Section 51 provides that, A police officer may conduct a search, seize all items,
place the detained individual in safe custody, and provide the arrested person with a
receipt proving the items they were in possession of.

- Section 53 If an individual is detained on suspicion of committing a crime and there

are good reasons to think that his examination will reveal information about the
crime, then, at the police officer's request, that person must be examined by a
licensed medical professional. Only a licensed female medical professional should
conduct an examination on a female accused person.

- Section 53A If a police officer requests it, a certified medical professional may
examine an individual who has been arrested for rape if there is probable cause to
believe that the examination may provide some evidence.

- Section 54 a person should be examined by medical officer after his arrest and if a
female is arrested she has to be examined by, female medical examiner only. An
examination report including marks of violence, injuries, and the relevant time they
may have been inflicted must be created. The doctor will provide a copy of this
examination to the individual who was arrested or to the person he designates.

21
- Section 54A If it is deemed essential for the purpose of an inquiry, the Court may
order an arrested person to submit to identification by any individual upon request
from the officer in charge of a police station.

- Section 55A It states that whomever is in charge of an accused person has an

obligation to take reasonable precautions for his well-being.

- Section 56 If a police officer makes an arrest without a warrant, they must transport
the suspect right away to the magistrate with jurisdiction over the matter or to the
officer in command of the police station.

- Section 57 when someone is arrested without warrant,he cannot be held in jail for
more than 24 hours, not counting the time needed to go from the scene of the arrest
to the magistrate's court, except, when a special order is passed by magistrate under
section 167.

- Section 58 the cases of all arrests without warrant shall be reported by the police to
the DM or SDM on the district concerned, even if that person has been admitted to
bail or not.

- Section 59 A person who is arrested can be released only by:

- His own bond

- On Bail

- Special order of a magistrate

- Section 70 A warrant of arrest is valid until:

- It is cancelled by the Court, which had issued it.

-Until it is executed.

- Section 71 The person who has been detained may be freed from detention if the
warrant's issuance court orders by endorsement if the arrested person provides the
required bail.

22
 - Section 75 When carrying out an arrest warrant, the person executing it must inform
the subject of its contents and, if necessary, show him the warrant.

- Section 76 When carrying out the arrest warrant, a police officer or any other
individual is bound by the regulations outlined in section 71. He must deliver the
detained individual before the magistrate's court in less than twenty-four hours, not
counting travel time.

- Section 80 The apprehended individual shall be brought to the local executive

magistrate, DSP, or CP if an arrest warrant is carried out outside the district in
which it was issued and the site of arrest is thirty kilometers from the court that
issued the warrant., subject to the provisions of section 71.

2.2. RIGHTS GUARANTEED TO THE ACCUSED UNDER CRIMINAL

PROCEDURE CODE

(2.2.1) Transfer of case on request and dispense with personal appearance

- Section 191 when a magistrate himself, takes cognizance of an offence, the accused
should be informed about it before taking evidence, that the case can be transferred to
some other magistrate on the application of the accused.

- Section 205 It empowers the magistrate to dispense the personal appearance of the
accused and to allow the accused to appear through his pleader.

- Section 206 taking cognizance of petty offences, the case may be disposed of
summarily by the magistrate, and the accused can be asked to appear in person or
through pleader.

(2.2.2) Provision of Copies: Free of Charge

- Section 207 When, proceedings on a police report have been instituted, the
Magistrate should provide the accused with a copy of each of the following without
delay, free of cost:

23
 The police report

 FIR under section 154

 The statements recorded in accordance with subsection (3) of section 161 of persons who
are to be examined by prosecution as witnesses

 The confessions and statements recorded pursuant to section 164, if any

 Any document which is forwarded to the magistrate with police report, under 173(5) CrPC

- Section 208 statements recorded under section 200 or 202, persons examined by
magistrate, statements and confessions under section 161 or 164 and other
documents produced before the magistrate should be furnished to the accused
without delay and no fee should be charged. These requirements must be met if the
case is not established on the basis of a police report and only the Sessions Court
has the power to try the case.

(2.2.3) Rights when Charge is altered

- Section 216 a court can alter or add to any charge before judgment is pronounced
and such change shall be read and explained to the accused. If the Court thinks that,
it can prejudice the accused or the prosecutor, the Court can either direct a new trial
or adjourn the trial as necessary.

- Section 217 if the charge is altered after commencement of trial, the accused and
prosecutor are allowed to recall and re-examine any witness, if in the opinion of
court it is not to cause delay or defeat ends of justice.

(2.2.4) Effects of Previous Cases

- An accused is liable to enhanced punishment, if he has been previously convicted of

an offence, it is provided under sub section (7) of section 211. It is made clear under
Section 236 CrPC, that the aforementioned provision is only relevant when the
accused is convicted for some previous offence charged on him either after pleading
guilty in Court or by the Court judgment.

24
(2.2.5) Discharge: Before framing of Charges

- When accused is brought before Court sessions and charges are described against
him, if after going through the records and documents and hearing submissions of
accused and prosecution, the judge finds no reason to proceed against the accused,
he shall with reasons to be recorded in writing, discharge the accused. The accused
can in this manner be discharged even before framing of charges by the Court under
Section 227. Similarly, an accused should be discharged by magistrate in trial of
warrant cases, with reasons to be recorded in writing, if the charge against the
accused is groundless as provided under Section 239 in cases instituted on a police
report and under Section 245 in cases instituted otherwise than on police report,
after taking evidence for prosecution, the magistrate can discharge the accused, if no
case against him is made out.

(2.2.6) Right to Defense

- If charges are framed against the accused by the court and he refuses to plead guilty
and not acquitted after the evidence for prosecution, he shall be given an opportunity
to enter on his defense by the court of sessions, as provided under section 233.

- An opportunity for defense shall be given to the accused by the magistrate as

provided by section 243, in trial of warrant cases by magistrate, instituted on police
report and by section 247 in cases instituted otherwise than on a police report and,
similar opportunity is given to accused by the Magistrate under Section 254, in trial
of summons cases.

- During the framing of charges under section 228 the accused shall be asked,
whether he wants to plead guilty of offence charged on him, or claims to be tried
and if he accepts the charges, the Court of Session can, at discretion, convict the
person thereon. If the accused claims to proceed the court shall proceed with
examination of witnesses.

(2.2.7) Compensation to the Accused: False Accusation

- Section 237 when the court discharges or acquits the accused and is of opinion that,

25
 there was no reasonable cause for making accusation, it can direct the person who
claimed to be the victim, to show cause, why compensation should not be paid by
him to the accused. The Court shall record the ground that may be demonstrated by
the person so directed and if, it is satisfied that there was no reasonable ground for
the accusation, the Court after recording the reasons, may order that be paid by that
person to the accused or to any or all of the accused or any of them, but it should not
exceed one thousand rupees.

- Under section 240, during framing of charges in trial of warrant cases by

magistrate, the accused can plead guilty or claim to be tried.

- Section 250 when a case is instituted upon complaint or information given to police
or magistrate which is triable by magistrate and upon hearing the case the magistrate
discharges or acquits the accused, then, if the magistrate thinks that there was no
reason to make accusation, it can ask the complainant to show cause, why he should
not pay compensation to the accused.

The Magistrate shall record and consider any cause which the complainant or the
informant may prove and after satisfying himself that there was no reasonable
ground for the accusation, the Magistrate may, for reasons to be recorded, order that
compensation not exceeding the amount which that magistrate has power to impose,
as he may determine, be paid to the accused by that complainant or the informant.

- Section 251 in the trial of summons cases by magistrates the particulars of offence
are stated to the accused and an opportunity is provides to either accept them or
make defense.

(2.2.8) Rights of Accused during Evidence

- Section 273 states that, unless otherwise expressly provided, all evidence taken in
the course of a trial or other proceeding shall be taken in the presence of the accused
or, in the presence of his pleader if accused is not present.

Provided that when recording evidence of a woman below the age of eighteen whois
alleged to have been subjected to rape or to other sexual offence, the court may take
appropriate measures for ensuring that, the woman is not confronted by the accused,

26
 while at the same time ensuring that the accused can cross-examine.

- Section 278 As the evidence of each witness referred to in section 275 or section
276 has been completed, it shall be read to him in the presence of the accused, if he
is present, or of his pleader, if the pleader appears to be present, and shall be
corrected if necessary.

- Section 279 Where any evidence is given in a language not understood by the
accused and in his presence in court, it shall be interpreted in the open court in a
language understood by the accused.

- Section 281 Where the accused is examined by the Metropolitan Magistrate, the
Magistrate shall make a memorandum of the substance of the examination of the
accused in Court’s language, which shall form part of the record, and:

- The record shall where practicable, be in the language, in which the accused was
examined.

- The record shall be shown or read to the accused and when accused is unable to
understand it, it shall be interpreted to him.

- The accused have a liberty to explain or add to his answers.

- It has to be signed by the accused.

- It does not apply in examination of accused in summary trial.

- Section 291 it provides that the deposition of a medical witness can be taken in
evidence, in any inquiry, trial or other proceeding, if:

- It is taken and attested by magistrate in the presence of the accused, even though the
deponent is not called as a witness.

- And such deponent shall be summoned and examined on the application of the
prosecution or the accused, or if the Court thinks fits so.

- Section 294 states that, no formal proof of certain documents filed in the court by
the prosecution or accused is required, when their genuineness is not disputed and
they can be taken in evidence in any inquiry, trial or proceeding under CrPC.

27
- Section 299 provides that if the accused has absconded, and there is no immediate
prospect to arrest him:

- The court can examine the witnesses, produced by prosecution, and record
their depositions.

- The depositions recorded by the Court can be given in evidence against

accused person, after his arrest, if the deponent is dead or incapable of giving
evidence.

- If, the identity of person, who committed the offence is not known, the court can
hold an inquiry and examine witnesses and any dispositions so taken, may
begiven in evidence against the person subsequently accused of the offence if the
deponent is either dead, incapable or giving evidence or beyond the limits of India.
The accused looses the opportunity to cross examine witnesses
in theaforementioned circumstances.

- Section 300 provides that if a person is convicted or acquitted for an offence, he

shall not be tried again for the same.

- As provided under Section 303 when a person is accused of an offence before the
Criminal Court, or against whom proceedings are brought pursuant to provisionsof
CrPC he has a right to be defended by pleader of his choice.

- Section 304 provides that when no pleader is representing the accused in a trial
before the Court of Session and it appears to the Court that the accused does not
have sufficient means of recruiting a pleader, the Court should at expense of the
State appoint a pleader for the defence of accused.

- Section 305 provides, where the corporation or registered society is an accused it

can appoint a representative, for the purpose of inquiry or trial which need not be
under the seal of the corporation.

- Section 306 provides that, on application by the accused, he shall be furnished a

copy of record, free of cost, when the Court, for obtaining evidence of any person
concerned with an offence, tender a pardon to such person.

- Section 311A provides that, magistrate can order for the specimen signature or
handwriting of the accused for the purpose of investigation or proceeding, but onlyif
28
 the accused is arrested in connection with the investigation or proceeding of the case.

- Section 313, the accused can be examined by the Court at any stage, without
previously warning him.

It provides that the Magistrate / Sessions Judge holding the trial shall have wide and
extensive powers to ask the accused any question at any time without giving him any
warning/ notification. Such wide-ranging powers are conferred on the Court so that the
accused is given the opportunity for explaining circumstances behind a particular event
oragainst the evidence brought by the prosecution which may incriminate him with the
offence for which he is charged. The rationale for having the above-mentioned provision is
that the Court may at any time ask the version of the accused with regard to a specific
statement / evidence led by the prosecution. It is appropriate to note that the statement made
by the accused pursuant to that provision is not in the form of an oath and he cannotbe
compelled to make a statement. Furthermore the accused cannot be punished if hedoes not
answer any such question.34

Avtar Singh v. State of Punjab35 The apex court observed that it is well established that
object of the examination referred to in Section 313 is giving the accused an opportunity to
explain circumstances that appear in the evidence against him.

Phula Singh v. State of Himachal Pradesh36 in this case the Supreme Court held:

- The accused has a duty under section 313 to furnish explanation in his statement
for any

- incriminating material produced against him.

- An accused has right to remain silent during investigation, before court and
even during recording of statement under section 313.

34
Alabhya Dhamija, Examination of an Accused under Section 313 CrPC, Tilakmarg.com, June 26,2020
35
(2002) 7 SCC 419
36
Criminal Appeal No. 2271 of 2011

29
 - If the accused chooses to remain silent while recording statement under article 313,
the court is entitled to draw inference, which can be adverse inference against the
accused, as permissible in law.

- Section 315 provides that an accused person may be a competent witness before a
criminal court. He can be:

- Witness for defence.

- Can give evidence on oath.

- He can be witness only on his request in writing and cannot be called upon to be a
witness by anyone else.

- Failure to give evidence by accused should not be a subject for comments by anyone.

- If the accused fails to provide evidence, it will not inevitably lead to any
presumption against him.

Sarbeswar Panda v. State of Orissa 37 No Court can compel the accused to giveevidence
and it is only possible through a request made in writing by the accused.

- Section 316 provides that an accused should not be influenced by some promise or
threat to disclose any matter in his knowledge, except tender of pardon to
accomplice and direction for such tender by the Court.

- Section 317 Inquiry or trial can continue in the absence of accused when he is
represented by a pleader, when:

- The magistrate is satisfied that personal attendance of the accused is not necessaryin
the interest of justice, and the reasons are recorded in writing, or

- If the Court proceedings are disturbed persistently by the accused.

- Section 319 provides that when the accused is unable to understand Court
proceedings though he has a sound mind and if the proceedings result in his
conviction, a report of proceedings has to be forwarded to the High Court which
will

37
1997 I OLR 401
30
 pass an order as it thinks fit.

(2.2.9) Compounding of Offences:

- Section 320 provides with a list of offences which are punishable under the
provisions of Indian Penal Code, which can be either compounded by the person
specified in the list or with permission of the Court.

Offences can be divided into the following two categories:

i) Compoundable offences

ii) Non- Compoundable offences

Compounding offences means establishing a compromise between two parties where the
complainant agrees to drop charges against the accused. Depending upon the nature of offence and
permission required, they are further divided into two categories, where:

i) Compounding without the permission of the Court

ii) Compounding with the permission of the Court

In, Bhagyan Das v. the State of Uttarakhand 38the Supreme Court has noted that, even if
the offence is compoundable under Section 320 of the Criminal Procedure Code, a court
has discretion of rejecting the plea to compound an offence, if compounding it, can have
some negative social effect. Although, offence is compoundable under Section 320 CrPC,
the court can still exercise discretion with regard to the nature of the offence.

Gian Singh v. State of Punjab 39 the Supreme Court has held that if the offence which is
involved is serious in nature or if the public interest is involved, High Court must refrain
from quashing criminal proceedings. However, if the offence is merely a civil matter, the
offences arising from commercial transactions may be quashed, if the offence is of a
personal nature and the parties have settled their dispute. If the possibility of conviction
isremote and

38
Criminal Appeal No. 465 of 2019
31
39
(2012) 10 SCC 303)

32
the continuation of the criminal case would cause the accused extremeinjustice, the
criminal proceedings may be quashed by the high courts.

On March 5 2019, In, State of Madhya Pradesh v. Lakshmi Narayan and others40 The
Supreme Court provided, Guidelines for exercising, in accordance with Section 482 of the
CrPC, the inherent power of High Court while quashing criminal proceedings in the event
of non-compoundable offences, as under:

- Under Section 482 of the CrPC, the power conferred on high courts to quash
criminal proceedings for non-compoundable offences pursuant to Section 320 of the
CrPC can be exercised where the offence involved is merely a mainly civil
andcommercial matter.

- High courts must refrain from quashing criminal proceedings in respect of offences
of a serious nature which have a negative impact on society.

- If the offence is covered by a special statute, such as the Prevention of Corruption

Act, or if it is committed by a public servant while working in that capacity, the
High Court must refrain from quashing the criminal proceedings on the basis of a
compromise between the victim and the offender.

- Although the offence referred to in Section 307 of the IPC falls within the category
of heinous and serious offences and is against society, the high court maynot rely
solely on the fact that the offence at issue is covered by Section 307 of theIPC. The
high court can examine that whether the incorporation of Indian Penal Code, Section
307 was necessary and if there is sufficient evidence available to prove it. The high
court may examine, for this purpose, the nature of the injury, whether the injury is
on a vital part of the body, the nature of the weapon used, etc.Only after the
evidence is gathered and the charge-sheet is filed / charge framed and/or during the
trial would this be permissible. When the matter is under investigation, it is not
allowed.

- Where the offences involved are private in nature, the high court, while exercising
its jurisdiction under Section 482 of the CrPC with regard to non-compoundable

33
40
Criminal Appeal No 349 of 2019 along with Criminal Appeal No 350 of 2019

34
 offences on the ground that there is a compromise / settlement between the victim
and the accused, is required to take account of the background and conduct of
accused.

(2.2.10) Rights of Accused Person of Unsound mind

- Section 330 provides that, if it is found that a person is incapable of entering the
defence under section 328 or section 329 because of unsoundness of mind or mental
retardation, the Magistrate or the Court, should pass an order for releasing that
person on bail whether or not the case is one in which bail may or may not be taken.

- Section 334 provides, where a person is acquitted on the ground that when the
offence was committed, he or she, by reason of lack of soundness of mind was
unable of knowing the nature of act which constituted the offence or that if it was
wrong or contrary to law. The Court finding should mention specifically, whether or
not the person so acquitted has committed the act or not.

(2.2.11) Compensation to the Accused: Arrested Groundlessly

- Section 358 provides for compensation to the accused person, Whenever any person
causes another person to be arrested by a police officer, if it appears to the
Magistrate who heard the case that there was no sufficient ground for causing
sucharrest, the Magistrate may award such compensation, not exceeding one
thousand rupees, to be paid by the person thus causing the arrest, for the loss of time
and expenses.

- Section 359 provides, Whenever any complaint relating to a non-cognizable offence

is lodged with the Court, if the accused is convicted finally then the Court may, in
addition to the penalty imposed on accused, order him to pay the complainant, in
whole or in part, the costs incurred by the complainant in the prosecution, and may
further order the accused, in default of payment, to besubject to simple
imprisonment which should not exceed thirty days. In revision, the Appellate Court,
Sessions Court or High Court may make a similarorder.

35
 (2.2.12) Release on Probation

Release of convict on Probation subject to period of good behaviour or after Admonition:41

- Section 360 Taking into account the age, character or background of the offender
and the circumstances in which the offence was committed, if the court convicting
the accused person finds it appropriate to release the offender on probation of good
conduct (instead of promptly sentencing the offender to any punishment), it may
order the offender to released, with or without sureties, upon entering into a bond.
When called upon during such period (not exceeding three years), to appear and
receive a sentence as may be decided by the court and in the meantime, to maintain
peace and good conduct.

The following conditions are to be satisfied for this:

- No prior conviction against the offender has been proven.

- If the convicted person is a woman of any age, or any male below the age of 21 and
the offence he or she is convicted of is not punishable by death or life
imprisonment.

- If the convicted person is not under the age of 21 years, and the offence for which he
is convicted is punishable only by a fine or with imprisonment for a term whichcan
be seven years or less.

The word probation comes from the Latin word probare, which means testing or proving. It
is a treatment device, developed as a non-custodial alternative that is used by the judiciary
where guilt is established, but it is considered that it would not do any good to impose a
prison sentence.

Taking into account the age, character, background and physical as well as mentalcondition
of the offender and the trivial nature of the offence, the circumstances under which it was

41
Soumya Singh Chauhan, UILS, Chandigarh, “Probation under Criminal Law”, Academike, February 14, 2015

36
 committed, the court can release the accused after admonition, even after he is convicted.
Regarding it, he following conditions need to be satisfied:

- In any previous case, the accused should not have been convicted, and

- In the present case, if he has been convicted for the offence of theft, theft in some
building or dishonest misappropriation, or is punishable under the IPC with
imprisonment of not more than 2 years or is punishable by fineonly.

If the Court fails to record the special reasons, as required by section 361, it will only be
considered as an irregularity and may require the court of appeal or revision to set aside the
sentence handed down by the lower court if the irregularity has resulted in a failure
tojustice.

In Santa Singh v. State of Punjab,42 There is no doubt that section 360 is one among the
important parts of the criminal procedure and failure to comply with it ex-facie vitiatesthe
order in which the person is sentenced. Even if it is regarded as an irregularity, theprejudice
caused to the accused will be inherent and implicit in the infringement of rules of natural
justice incorporated in this statutory provision.

- Section 363 provides:

- If the accused is sentenced to imprisonment, a copy of the judgment shall be givento

him without charging a fee and immediately after the judgment is pronounced.

- Upon the request of the accused, a certified copy of the judgment or, if he so wishes,
a translation in his own language, if practicable or in the language of the Court, shall
be provided without delay and shall, when the judgment is appealable to the
accused, be given free of cost.

- Provided that, when a death sentence is passed or confirmed by the High Court, a
certified copy of the judgment shall immediately be given to the accused free of
cost, whether or not it applies for the same.

- Section 364, The original judgment shall be entered in the record of the proceedings
and, where the original judgment is recorded in a language which is different from

42
1976) 4 SCC 190

37
 the Court’s language and if the accused makes a request for translation of the
original judgment into the language of the Court, it should be done and added to the
Court record.

(2.2.13) Right to Appeal against Conviction:

Under Section 374:

- Any person convicted in a trial held by High Court in its original criminal
jurisdiction can make an appeal to the Supreme Court.

- If a person is convicted in a trial held by Sessions Judge or Additional Sessions

Judge or in a trial held by any other court where a sentence of imprisonment of
more than seven years has been imposed may appeal to the High Court of Justice.

- If a person is convicted in a trial by a Metropolitan Magistrate or by an Assistant

Session Judge or a Magistrate of first Class or of the Second Class or sentenced
pursuant to section 325, or for whom an order or sentence has been handed down
pursuant to section 360 by any Magistrate, may appeal to the Court of Session.

(2.2.14) Bar to Appeal under Certain Circumstances

Accused does not have right to appeal, when:

- The accused has pleaded guilty and the High Court convicts him on such plea.

- The Sessions Court, Metropolitan Magistrate or magistrate of first class or

second class convicts the accused on pleading guilty.

He can only appeal for the extent or legality of sentence which is provided undern Section
375.

- An appeal does not lie against petty offences, provided for under Section 376.
(2.2.15) Transfer of Cases at the Request of the Accused or Otherwise

38
- Section 406 provides that on application by an interested party, which includes an
accused, if the Supreme Court is convinced that it is expedient for ends of justiceto
transfer a criminal case or an appeal from one court to some other, it can make an
order under this section.

- The High Court can also transfer cases and appeals on application of the accused,
under Section 407 when it is necessary for fair and impartial inquiry, trial or
expedient for the ends of justice.

- Section 408 provides that when it appears to Sessions Judge that an order under this
sub-section is expedient for the purposes of justice, it may order the transfer ofany
particular case from one Criminal Court to the other in its Session Division. The
Sessions Judge may act either on the report of the lower court, or on application of
the party concerned or on his own initiative.

(2.2.16) Implementation of Sentence

The sentence shall run in the following mode:

- When a person is already convicted and sentenced to imprisonment, any further

sentence of imprisonment imposed upon him by the Court will commence, after the
the expiry of imprisonment to which he has previously been sentenced. The Court
can direct that the subsequent sentence will run simultaneously with that previous
sentence, provided under Section 427.

- When a person is sentenced to life imprisonment is subsequently sentenced to

imprisonment, for a term or to life imprisonment then the subsequent sentence shall
run concurrently with that previous sentence, Section 427.

- Where, on conviction, an accused person is sentenced to imprisonment, the periodof

detention, if any, which he has undergone in the same case and before the date of
that conviction, shall be set off for the term of imprisonment imposed on him, and
liability of person to be imprisoned for that conviction will be limited to the
remainder of that period, provided under Section 428.

39
 - If an application is made to the appropriate government, they government may
suspend the execution of sentence or remit all or any of the part of punishment,
under Section 432.

(2.2.17) Bail

- Section 438 provides for Anticipatory bail which is usually sought, when a person
anticipates arrest. Anticipatory bail, issued even before the individual is arrested,is a
way to release a person on bail. It can only be issued by the Court of Sessions and
the High Court.

- Under the Sections 437 and 439, regular bail is granted to an accused, and he is
entitled for release from custody, after ensuring his presence in trail. It is granted by
the a Court other than the Court of Sessions and High Court under Section 437 and
by the Court of Sessions or High Court under Section 439.

- The Supreme Court has held that Court can grant Interim Bail to a person, when a
final disposal of regular or anticipatory bail is pending before the same, before thatis
finally disposed off.

- Bail shall be on the merits only, with the exception of the default bail provided for
in Section 167(2) of Code of Criminal Procedure, 1973, in which the Court grants
bail for failing to file charge sheet by police, within the statutory period following
the arrest of the accused.

- If the offence is punishable with death, life imprisonment or imprisonment not less
than 10 years, the maximum permissible period for custody is 90 days and in other
cases it is sixty days.

- In any event, no person should be detained for more than the maximum period of
imprisonment, permissible in law for any offence, during investigation or trial. Itis
provided under Section 436A.

2.3. PLEA BARGAINING: A PRACTICAL SOLUTION

Plea bargaining is an agreement where the accused agrees to plead guilty of a charge in

40
exchange of certain concessions by prosecution. This bargaining is used for encouraging
confessions in USA. It is comparatively a new concept in Indian system and inculcated to
reduce long standing burden of matters. The Malimath Committee pointed out the success
of this system in USA and recommended its inclusion in India and so a draft bill was
introduced in 2003 in parliament and it was enforced in 2006.

For reducing delay in the disposition of criminal cases, the 154th Report of the Law
Commission recommended for the introduction of 'plea bargaining' as alternative method to
deal with large arrears of criminal cases. The recommendation of Law Committee finally
found support in report submitted by the Malimath Committee. The NDA Government
formed a committee headed by the former Chief Justice of the Karnataka and Kerala High
Courts, Justice V.S. Malimath, to come up with some suggestions to address the ever-
increasing number of criminal cases. In its report, the Malimath Committee recommended
the introduction of a system of plea bargaining in Criminal Justice System to facilitate early
disposition of criminal cases and reducethe burden on courts. In strengthening its argument,
the Malimath Committee also highlighted the success of United States plea bargaining
system. The draft Criminal Law (Amendment) Bill, 2003 was thereafter introduced in
Parliament.43

A new chapter XXIA (Plea Bargaining) was instituted by amendment in CrPC in 2006
containing Sections from 265A to 265L.

This chapter applies in respect of an accused when:

- When a report is forwarded by police under section 173, which alleges that an
offence seems to be committed by accused and is not punishable with death, life
imprisonment, or of term exceeding 7 years.

- When cognizance of an offence has been taken by Magistrate on complaint, whichis

not punishable with death, life imprisonment or imprisonment exceeding 7 years,
and the complainant and witnesses have been examined under Section 200 and

43
Soura Subha Ghosh, Plea Bargaining- An analysis of the Concept, July 29, 2020,
http://www.legalserviceindia.com/articles/plea_bar.htm

41
 process has been issued under Section 204.

Plea bargaining does not apply to the following offences:

- Offences which affects socio-economic condition of nation

- Offences committed against women

- Offences committed against child below 14 years of age.

The accused person may submit an application for plea bargaining to the Court if the trialis
pending for the offence charged against him. The application shall have:

- A brief description of case in respect of which the application is filed.

- Affidavit sworn by the accused, that he has voluntarily preferred this application
and understands the nature and punishment provided under law for the offence

- He is convicted in any previous case for the same offence.

Procedure to be followed after application for plea bargaining by the accused:

- The Court issues notice to the public prosecutor or complainant of the case and to
the accused to appear of the date fixed . The accused is examined by the court in
camera on a fixed date in the absence of other party, to satisfy that the application
has been filed voluntarily by him.

- When the court is satisfied that the application is voluntary, time is provided to the
Public Prosecutor or complainant and the accused to, work out a mutually
satisfactory disposition of the case, which may include compensation and other
expenses to the victim by the accused.

- If the application is found to be involuntary or if the accused had previously been

convicted for the same offence, the process of plea bargain is discontinued.

- For mutually satisfactory disposition of the case, the court calls upon the victim and
the accused for a meeting and they have an option of appearing with pleaders, in
such meeting.

- When there is satisfactory disposition of case in the meeting a report has to be

prepared by the court of such disposition and when no such disposition is worked

42
out,

43
 the observations regarding it should be recorded by Court.

- When a satisfactory disposition is worked out, the court should dispose the case
after awarding compensation to the victim as agreed in disposition, hear the
partieson quantum of punishment, releasing the accused on probation of good
conduct or admonition and may sentence the accused to reduced punishment.

Judgment in Plea Bargaining:

- The judgment shall be delivered in open court.

- The Judgment is final and no appeal lies against it, except:

(i) Special Leave Petition filed under Article 136 of Constitution.

(ii) Writ Petition under articles 226 and 227 of the Constitution.

- The provisions of Section 428 apply, to set off the period of detention undergone
by the accused.

- Statement of accused in the application for plea bargaining cannot be used for
any other purpose, except for plea bargaining only.

In, State of Gujarat v. Natwar Harchanji Thakor44 the Gujarat High Court observed that
basic reforms are inevitable because the very purpose of the law is to, provide easy, cheap
and expeditious justice by resolving disputes, including the prosecution of criminalcases.
Taking into account the current realistic profile of the pendency and delay in disposal in the
administration of law and justice, nothing static ought to be there. It can therefore be said
that it is truly a measure and a remedy as it will add a new dimension to the field of judicial
reform.

Plea bargaining helps to:

- Ensure speedy trial

- Saves litigation cost

44
(2005) Cr. L.J. 2957

44
 - Ends uncertainty of outcome

- Prolonged imprisonment of under trials is avoided

- Overcrowding of prisons can be controlled

- Offenders can start life a fresh.

The Central Government has determined the offences which affects the socio-economic
condition in India, the immoral traffic (Prevention) Act, the commission of Sati Prevention
Act,1987, offences mentioned in the protection of Civil Rights Act,1955, The
cinematograph Act, 1952, Scheduled castes and Scheduled Tribes(Prevention of Atrocities)
Act,1989 to name a few.

45
 CHAPTER-3

HUMAN RIGHTS AND THE TREATMENT OF AN ACCUSED IN JAIL

3.1. PRISONS IN INDIA

The administration of prisons is an essential aspect of justice system. Prison institutions are
known in various countries by various names, such as ‘Correctional Facilities’, ‘Detention
Centre’, ‘Jails’, ‘Remand Centre’ and others. Prisons and their administration is the subject
of the States, provided at entry number 4 of the State List, in the Seventh Schedule, of the
Constitution of India. Prison management and administration falls exclusively within the
domain of the governments of the state and is governed by the Prisons Act, 1894 and the
Prison Manuals of the respective governments of the state. States have the primary role,
responsibility and authority to change existing prison laws, and regulations. 45 The Central
Government provides assistance to States to improve prison security, repair and renovation
of old prisons, medical facilities, development of borstal schools, facilities for women
offenders, vocational training, modernization of prison industries and training to prison
personnel. The implications of pre-trial detention are severe. An accused shall be presumed
innocent, but is subjected to psychological and physical harassment in prisons, sometimes
under more burdensome circumstances than, those put on convicted criminals. If the
accused is imprisoned, he loses his job or source of income and is unable to plan his
defense in an effective manner. Equally significant, the burden of his imprisonment also
falls heavily on innocent members of his family.46 Under-trial inmates make up a large
majority of the prison population.

The Supreme Court of India has, established three broad principles regarding imprisonment
and custody, in its judgments on various aspects of prison administration. They are:

- A prisoner does not become a non-person.

45
India-The Penal System, August 12, 2020, http://www.country-data.com/cgi-bin/query/r-6166.html
46
Moti Ram and Ors v. State of Madhya Pradesh, AIR 1978 SC 1594

46
 - A person in prison shall, have all human rights within the limits of imprisonment.

- There is no justification for worsening the suffering already inherent in the

imprisonment process.

‘Prison’ as defined under, section 3 of, The Prisons Act, 1894 means any jail or place which
under the general or special orders of the State Government, is permanently or temporarily
used for the detention of prisoners and covers all the land and buildings connected to it. It
does not include:

- Any place where prisoners who are exclusively in police custody are confined.

- Any place specifically appointed under section 541 of, the Code of Criminal
Procedure 1882, by the State Government.

- Any place which, by general or special order, the State Government has declared to
be a subsidiary jail.

Prison is, also defined, in Chapter XXII (Attendance of persons, confined or detained in
Prisons), Section 266 of the CrPC, 1973. Prison includes any place which, by general or
special order, the State Government has declared to be a subsidiary jail and any
reformatory, Borstal institution or other body of a similar nature.

47
 3.2. SPECIFIC ACTS FOR PRISONERS

The Prisons Act, 1894

The prisons act, 1894 came into force on 1 st July 1894 and extends to the whole of India
except territories comprised in Part B States and the civil jails outside the city of Bombay
which is administered under the Bombay Act II of 1874.

Bombay Act II of 1874 (The Civil Jails Act 1874) 50 provides that, there should bea
civil jail at the seat of District Court for each district and the State Government can
establish civil jails at other convenient places.

- The District Judge under the directions of the State Government shall appoint a
nazir (supervisor) of the District Court or the Chief Civil Court who shall be the ex-
officio keeper of the Civil Jail.

- The Nazir should be responsible for, the safe custody of prisoners, cleanliness and
good order in the jail and among prisoners.

- The Civil Jail has to be visited by the District Judge or Assistant District Judge,
where it is located, once a month.51

- A medical officer will be appointed by the state government and that officer will
advice the District Judge regarding the sanitary condition of jail and prisoners.
Remedies to the sick shall be allowed to the sick at state’s expense and the civil
prisoners are allowed to consult doctor of their choice at their own expense.

- Visitors shall be allowed between 9 am- 3 pm and beyond that with permission of
the concerned officers.

- If the Civil prisoner is unable to arrange for self with bedding, the nazir should
supply it, and the civil prisoner should not be detained for default of its payment.

In a Landmark judgment in 2018, Justice Gautam Patel of the Bombay High Court ordered

50
Bombay Act II of 1874 ,The Civil Jails Act 1874, September 02, 2020
51
The Prision Acts 1894 (ACT No. 9 of 1894)

48
that Krishna Rana, who was sentenced to three months in civil prison for making false
statements and failing to comply with court orders, should be released before his term in
prison ends. Rana claimed that although, he was sentenced to civil prison, but washeld in
prison with criminals, in the Byculla Jail. He was also not allowed to interact withhis
family, since he surrendered 39 days ago. In response the government told the court that,
only persons convicted of petty crimes were kept with Rana and due to space constraints,
he was not kept, in a civil prison. The Court refused to accept this contention saying, that
separation has to be between civil and criminal prisoners and there is no issueof minor or
heinous crimes of inmates in the present case. The Maharashtra government was pulled up
by the Bombay High Court for not establishing civil prisons and keeping civil prisoners
with criminal prisoners. The Court observed:

The petitioner is not seeking any preferential treatment or luxury.

- The Prison Act 1894, section 27(4) states that civil prisoners are to be separated
from criminal prisoners.

- The Prison Manual Rule 3 states that civil prisoners are to be kept in civil jail or a
portion of criminal set apart from criminal prisoners.

- Section 31, of The Prison Act provides that, civil prisoner or unconvicted criminal
prisoner is permitted to purchase or receive food, clothing, bedding and other
necessary items from private sources at proper hours.

- Providing separate prison space for civil prisoners is not a matter of government
discretion.52

The prisons act, 1894 has 62 sections some of which are repealed and are divided in 12
chapters. The Section 3(1), of the act, defines prison as any jail or place authorized by state
for detention of prisoners. In definitions under section 3 a distinction is made between
criminal prisoner, convicted criminal prisoner and a civil prisoner. A criminal prisoner is

52
High Court dismisses case, Published on May 03, 2018, last accessed September 04, 2020,
https://www.mid-day.com/articles/high-court-dismisses-case-against-offender-for-lack-of-civil-jail-to-
lodge-him/19383182

49
duly committed to custody under the writ, warrant or order of any court or authority which
is exercising a criminal jurisdiction or by order of a court marshal. Acivil prisoner is one
who is not a criminal prisoner.

There is “remission system” in jail which means the rules in force awarding marks to the
prisoners and consequently shortening their sentence in jail. “History-ticket” exhibits
information, in respect of each prisoner mandated by, the act and rules. There is an
Inspector General of prisons and a Medical Subordinate as per the requirements of, the Act.
“Prohibited article” are not allowed to be introduced or removed from prisons.

Separation of Prisoners, as per Section 27 of, the Prisons Act:

- Unconvicted criminal prisoners to be kept apart from convicted criminal prisoners.

- If a prison contains both male and female prisoners, the females are to be
imprisoned in separate buildings or separate part of same building.

- Male prisoners below 21 years of age to be kept separate from otherprisoners.

- Civil prisoners and criminal prisoners should be kept separate.

Facilities for Unconvicted Criminal Prisoners and Civil Prisoners in Jail:

- A civil prisoner or an unconvicted criminal prisoner shall be allowed to keep food,

clothing, bedding and other necessaries, but subject to examination and to, the rules
as may be approved by the Inspector General, and to purchase or receivefrom
private sources at the proper time.

- Every civil prisoner and unconvicted prisoner who is unable to provide himself with
sufficient clothing and bedding shall be provided by the Superintendent with such
clothing and bedding as may be necessary.

- The Civil prisoners, with the permission of the Superintendent, may work and
pursue any trade or profession.

- Rules should be made for allowing entry into prison, of persons whom, the civil
prisoners and unconvicted criminal prisoners may wish to communicate, in due
time
50
 and subject to proper restrictions. Taking care that, it is consistent with the interests
of justice, prisoners under trial may consult their duly qualified legal advisers
without the presence of any other person.

Rules for all Prisoners (including convicted criminal prisoners):

- Whenever a prisoner is imprisoned, he is searched and all weapons and prohibited

articles are removed from him.

- Each criminal inmate shall be examined, as soon as possible, after admission, in

accordance with the general or special orders of the medical officer, who shall enter,
or cause to be entered in a book, to be kept by the jailer, a record of healthof the
prisoner and of any injuries or marks on his person, the class of labour for which he
is fit for, if sentenced to strict imprisonment, and any observationthereof.

- The search and examination of female prisoners should be carried by matron, under
the general and special orders of, the medical officer.

- Any money or other articles in respect of which no order is given, by the competent
court and which may, with due authority, be brought to prison by any criminal
prisoner, or sent to prison for his use, shall be placed under the custodyof, the jailer.

- All prisoners must be examined by the Medical Officer before being transferred to
any other prison.

- Whenever the Medical Officer has reason to believe that a prisoner's mind is or is
likely to be, harmfully affected, by the discipline or treatment to which, he is
subjected, the Medical Officer shall notify the Superintendent about this, in writing,
together with any observations that, he may consider appropriate. This report shall
be, sent forthwith to the Inspector General for information, with the orders of the
Superintendent on it.

- On the death of a prisoner, the particulars are recorded in a register by the Medical
Officer.

- Solitary confinement has many restrictions.

- A prisoner under death sentence shall be kept apart from other prisoners but that does

51
 not mean solitary confinement.

- No criminal prisoner sentenced to work or employed on his own initiative, except in

an emergency with a written sanction from the Superintendent, shall be kept to work
for more than nine hours in any one day.

- The medical officer shall, from time to time, examine the labouring prisoners while
they are employed, and shall, at least once in every fifteen days, record on the
history- ticket of each prisoner employed in the labour force the weight of that
prisoner at that time.

- If the medical officer is, of the opinion that, the health of any prisoner suffers from
employment in any kind labour, the prisoner shall not be employed in that labour
but shall be, placed on such other kind or class of labour as, the medical officer may
consider appropriate for him.

- Provision shall be made by the Superintendent for the employment (as long as they
so wish) of all criminal prisoners sentenced to simple imprisonment; but no prisoner
not sentenced to rigorous imprisonment shall be punished for neglecting work
except by such alteration of the scale of the diet as may be established by the prison
rules in the event of neglect of work by such prisoner.

- The names of prisoners, wishing to see, the Medical Subordinate, or appearing in

mind or body, out of health, shall be reported to the Jailer without delay by, the
officer, in immediate charge of such prisoners.

3.2.1 Officers of Prisons:

- Inspector General - The Inspector General shall be appointed in respect of the

territories subject to each State Government and, subject to the orders of the
Government of the State, shall exercise general control and supervision over all the
prisons situated in the territories covered by that Government.

- A Superintendent, a Medical Officer (who may also be the Superintendent), a

Medical Subordinate, a Jailer and other officers shall be appointed for each
prison,as the State Government considers necessary.

52
- Superintendent - The Superintendent shall, subject to the orders of, the Inspector
General, administer, the prison, in all matters of, discipline, labour, expenditure,
punishment and control. All prison officers shall comply with the Superintendent's
instructions; all officers subordinated to the Jailer shall perform such duties as the
Jailer may impose on them with the Superintendent's sanction or be prescribed by
the rules under section 59 of, the Prisons Act. The Superintendent, of a prison, other
than a central prison or, a prison located in a presidency town shall, subjectto the
general or special directions that, may be given by the State Government, comply
with all orders not inconsistent with this Act or any rule there under that may be
issued by the District Magistrate with respect to the prison, and shall report, all such
orders and actions taken, to, the Inspector General.

Records to be kept by Superintendent:

a) Register of prisoners admitted

b) Book having details of release date of each prisoner
c) Punishment – book with details of punishment inflicted on prisoners forprison-
offences.

d) Visitor book with observations made by visitors regarding administration

of prison

e) Details of money and other articles taken from prisoners.

f) All such records as may be mandated by the State Government as per Section
59 of the Act.

- Jailer - The jailer shall, reside in the prison only, else, permitted by, the
superintendent in writing to reside at some other place and shall not be concerned
in, any other employment without the Inspector General’s sanction in writing.

53
 Duties of Jailer:

a) Upon death of a prisoner, notice shall immediately be given to Superintendent

and the Medical Subordinate.

b) Has responsibility for the safe custody of records kept under section 12, for
commitment warrants and other documents confided to his care, money and
articles taken from the prisoners.

c) To reside in jail, and to be present at night.

d) Not to be absent from prison without permission in writing from Superintendent.

- Medical Officer - The Medical Officer shall, subject to the supervision of the
Superintendent, be responsible for the sanitary administration of the prison and
perform such duties, as may be, prescribed by the rules laid down by the State
Government, in accordance with, section 59 of, the Prisons Act. As per section 14
of, the Prisons Act, 1894. If a medical officer has reason to believe that a prisoner’s
mind is, likely to be, injuriously affected by treatment in jail, he shall report that in
writing to the superintendent, who shall send the report to theInspector General for
information.

- There is also provision for Deputy and assistant jailers, subordinate officers and
gate- keepers defining their duties.

- Convict Officers – The Prisoners who have been appointed as officers of prisons,
within the meaning of the Indian Penal Code shall be deemed to be public servants.

(3.2.2) The Transfer of Prisoner Act, 195053

The Act provides for removal of persons confined in a prison from, one state to another.
The definition of Court, in this Act, includes any officer who is, lawfully exercising
civil,criminal or revenue jurisdiction and Prison as any place declared by the State
Government to be a

54
53
The Transfer of Prisoner Act, 1950 (Act No.29 of 1950)

55
 subsidiary jail.

Removal of Prisoners from, one State to the other is provided under, Section 3, of the Act.
When a person is confined in prison in a state:

- under death sentence

- Sentence of imprisonment or transportation

- Default of payment of fine

- Default of giving security for keeping peace or for maintaining good behaviour.

With the consent of, the Government of, any other State, the Government of that State may,
by order, provide for, the removal of the prisoner from that prison to, any prison located in
the other State.

The officer in charge of the prison to which any person is discharged shall receive and
detain him, until that such person may be discharged in due course of law, in accordance
with the requirements of any writ, warrant or order of the court by which such person has
been committed.

(3.2.3)The Prisoners (Attendance in Courts) Act, 195554

This act provides for the attendance of persons confined in prisons in courts to obtain their
evidence or to respond to criminal charges.

Section 3(1) states that any civil or criminal court may order the officer-in-charge of the
prison in the form set out in the First Schedule, if it considers that the evidence of any
person confined in any prison is material in any matter pending before it. But no civil court
can make such order in respect, a person confined in a prison which is situated outside that
state. Section 3(2), of the act, provides that, any criminal court may make an order in the
form set out in the Second Schedule, directed to the officer-in-charge, of the prison, if a
charge of an

54
The Prisoners (Attendance in Courts) Act, 1955 ( Act No. 32 of 1955)
56
offence against a person, confined in any prison is, made or pending before it. No order
made by a civil court which is, subordinate to a District Judgepursuant to section 3 shall
have effect unless it is countersigned by a District Judge; and no order made by a Criminal
Court pursuant to this section which is inferior to that of a First Class Magistrate shall have
effect unless it is countersigned by a District Magistrate to whom that court is subordinate
or subordinate.

Under Section 4, The State government can by general or special order, can exempt any
person or class of person from the operation of Section 3, but shall have regard to the
following:

- The nature of the offence, in respect of, the person or class of persons, for whichor
on the grounds on which confinement has been ordered.

- The probability of, public order disturbance, if, the person or class of persons is
allowed to be removed from the jail.

- The public interest, in general.

According to section 6, the prison officer may refrain from carrying out a court order under
section 3 of the Act, when:

- Where the prisoner, in accordance with, the rules where he is confined, is unfit to be
removed by reason of sickness or infirmity.

- Is under committal for trial.

- Where the prisoner is, under remand pending trial or is, pending a preliminary
investigation.

- He is in custody for a period that expires before, the expiry of the time required
under this Act, to remove him and to take him back to, the prison where he is
confined.

For the reasons, mentioned above, the officer-in-charge of, the prison, shall abstain from the
execution of the order and shall send a statement of reasons for abstaining from that orderto
the Court from which the order was issued. The officer-in-charge, of prison, shall not

57
abstain from carrying out, the orders of Court under section 3, if:

58
 - The order is made by a criminal court and,

- The person is confined under committal for trial or remand pending trial or
preliminary investigation and is fit to be removed from prison according to the rules
in that behalf and

- The place where evidence of the prisoner is required is not more, than 5 miles from,
the prison.

According to section 7 of the Act, if it appears to the civil court that in any event, the
evidence of a person in prison is material and the presence of such a prisoner cannot be
secured by reason of section 6 of the Act or where the district judge declines to countersign
an order for removal of prisoner for evidence, or where the prisoner is confined in another
state or at a distance of more than 50 miles, the civil court can issue acommission under the
provisions of CPC, 1908 for the examination of person in the prison itself where he is
confined.

Section 8 provides that provisions of CrPC, 1973 and CPC, 1908 apply in relation to
examination on commission, of person confined in prison as they apply to, any other
person, if they are, consistent with this act and rules made there under.

Chapter 22 of, the Code of Criminal Procedure, 1973 55 complements the provisions of the
prisoners attendance act, 1955. Under section 266-271 of CrPC, 1973, detainedperson and
prison is defined and power of the court to require attendance of prisoners is granted.
Section 268 powers the state government to exclude certain prisoners from appearance on
court order under section 267. Section 269 sets out the conditions under which the prison
officer may refrain from carrying out court orders. Section 270 provides that the prisoner
must be brought in custody, in court, and to be kept in custody in or near court until
examination and to be taken back to custody where he was confined or detained when the
court so authorizes.

Section 271 provides for the power of court to issue commission for examination, of
witness in prison, and it shall be without prejudice to section 284 (where attendance of
witness may be dispensed with and commission issued). For the purpose of examination
in prison the
59
55
The Code of Criminal Procedure, 1973 ( Act 2 of 1974)

60
 provisions in part b of chapter 23 of CrPC, 1973 shall apply.

In the case of, Mohammad Daud Alias Mohd Saleem v. Superintendent Of District Jail 56
an accused was arrested and detained in Maharashtra under the Narcotic Drugs and
Psychotropic Substances Act, 1985 (NDPS Act), and brought to Moradabad in UP in
connection with another case, it was held that, after the end of the trial in Moradabad, he
had to be transferred back to the prison from which he had been taken and that his detention
under the NDPS Act does not end merely on transfer for appearing in another case in a
different state.

In the matter of, Smt Bharti Sachdeva v. State and Ors57a person detained in Indore jail,
was brought to Kota, under a production warrant for investigation of another offence,which
was found, to be unlawful, because the production warrant could be issued only forinquiry,
trail or other proceedings or for answering charges or for being examined as a witness and
not for investigation of another offence.

3.3CONSTITUTIONAL AND STATUTORY PROVISIONS FOR PERSONS IN CUSTODY

(3.3.1) Constitutional provisions for persons to be taken in custody:

- Article 20(3) provides that a person accused of any crime shall, not be forced to
become a witness against himself. The accused has the right, to remain silent and not
to disclose his defence, before the trial.

- Article 21 states that without following the procedure prescribed by law, nobody can
be deprived of his life and liberty. Supreme Court has consistently held that, right to
life is violated by custodial torture.

- Article 22 Provides protection in certain cases against arrest and detention. It prohibits
the detention of any person without being informed of the reasons for his arrest, and
gives right to consult legal practitioner, of his choice.

56
1993 Cri LJ 1358
57
1996 CriLJ 2102, 1996 (2) WLC 262

61
 - Article 39A under Part IV mentions the Directive Principles of State Policy, which
were added to the constitution by 42nd amendment in 1976. They provide that, the
State must ensure the functioning of the legal system promotes, justice on the basis of,
equal opportunities and shall in particular provide, free legal aid through appropriate
legislations and schemes, or in any other way, in order to ensure, that no citizen is
denied the opportunity to obtain justice because of, economic and other disabilities.

(3.3.2) Protection for Accused Persons in Custody under Criminal Procedure Code

Code of Criminal Procedure, provides, protection for accused persons, in custody,

pursuant to the following sections:

- According to section 46(3) and section 49, CrPC, Detainees who are not charged with,
an offence punishable by death or with life imprisonment, cannot be subjected to more
restraint than is necessary to prevent them from escaping.

- Section 54 extends the protection against any infliction of custodial torture and
violence by providing for the examination of a person arrested by a medical officer.

- Section 176 provides for, a mandatory magisterial inquiry into the death of accused, in
police custody.

- Section 358 provides that, whenever any person causes a police officer to arrest
another person, the Magistrate may award such compensation if it appears to the
Magistrate by whom the case is heard that there was no sufficient reason to cause such
arrest.

(3.3.3) Safeguards for accused persons under the Indian Evidence Act

Indian Evidence Act, 1872 provides safeguard to accused:

- Section 24 provides that any confession obtained or made by an accused byinducing,

threatening or promising to prevent any evil of, a temporal nature, wouldnot be
relevant in criminal proceedings.

62
 - Section 25 provides that a confessional statement of the accused person to the police
officer, is not admissible in evidence, and cannot, be recorded by theprosecution in
order to obtain conviction.

- Section 26 mentions that the confession of accused while in police custody cannot be
proved against him unless he is subject to cross-examination or judicial scrutiny.

- Section 27 states that recoveries shall not be permitted, to be obtained by torture.

(3.3.4) Protection of Accused Persons under the Indian Penal Code

Indian Penal Code 1860 makes punishable the offence of causing hurt in order to extort
confession:

- Section 330 provides that, voluntary causing harm to extort confession or tocompel
property to be restored shall be punished by imprisonment of either description for a
period of up to seven years, and shall, also be liable for fines.

- Section 331 states that, voluntarily causing grievous hurt to extort confession or to
compel property to be restored, shall be punished with imprisonment, for a term that
may extend to 10 years, and shall, also be liable for fines.

India remains one of the only eight countries yet to ratify the Convention, out of 170
signatories to, United Nations Convention, against Torture and other Cruel, Inhuman and
Degrading Treatment or Punishment.58

3.4 JUDICIAL PROTECTION OF PRISONER RIGHTS

Sunil Batra v. Delhi Administration:59 Via a letter to one a judges of Supreme Court, the
complainant, a convict under death sentence, alleged that abuse was inflicted on another
inmate by a jail warder to obtain money from the victim via his visiting relatives. The letter

58
Prevention of Torture Bill – the forgotten law, Published on 07 December 2019, last accessed on 22
September,2020, https://sabrangindia.in/article/prevention-torture-bill-forgotten-law
59
AIR 1579, 1980 SCR (2) 557

63
was turned into a proceeding for habeas corpus. A notice was given by the Court to the
State and to the officials concerned. It also appointed amicus curiae and approved them to
visit the prison, to meet the prisoner, see the relevant documents and interview the
appropriate witnesses so that they could be aware of the circumstances and the scenario of
the events themselves.

The Court noted in the report, that the Prison of Tihar has, an environment of stress, trauma,
tantrums and violent, filthy and corrupt crimes and the contamination of the pre- trial
accused with habitual and injurious prisoners of foreign gangs happens to top it all. The
crowning piece is that the prison officers themselves are reportedly in league with the
criminals in the cells. That is, there is a wide network of offenders, officials and non-
officials in the house of correction. The ingenious "slave system" in the jail was even more
shocking than the corruption. Many young boys were employed as helpers. These boys
were prisoners under trial, many had been there for eight months, and at least one, was
there for two years. Justice Krishna Iyer and Justice Chinnappa Reddy held where the rights
of a prisoner are violated, either under the Constitution or under other legislation, the court's
writ power can and should run to his rescue. A warrant is in place for this vigil. The court
process places the convict in prison, and the deprivation of his liberty is, not a blind prison
affliction, but an illuminated institutionalization aimed at the social good. The court has a
continued responsibility to ensure that the prison administration does not defeat the
constitutional purpose of the deprivation.

Directives for which, with the exception of the urgency of implementation, no specific time
limit has been set by the Court:

- The State shall take early steps, to prepare a Prisoner's Handbook in Hindi and to
circulate copies in order to bring legal awareness among prisoners. Periodic jail
bulletins stating how improvements and social work programmes are brought into
the jail can create a tension-relieving fellowship. Prisoner’s wallpaper, which will
freely ventilate complaints, will also reduce stress. These are all implementations of
s. 61 of the Act on Prisons

64
 - The State shall, take steps to comply with, the recommendations of United Nations
Standard Minimum Rules for Treatment of Prisoners, in particular those relating to
work and wages, treatment with dignity, community contact methods and
correctional strategies.

- The Prisons Act needs rehabilitation and total revision of the Prison Manual, even
with the Model Manual out of focus with healing goals. For prison staff to inculcate
constitutional values, therapeutic approaches and tension-free management, a
correctional-cum orientation course is necessary.

- The rights of prisoners shall be, protected by the court through its writ jurisdiction
and by power of contempt. In order to make jurisdiction viable, free legal services
for prisoner programmes are to be promoted by professional organizations
recognized by the Court, e.g. Free Legal Aid Society (Supreme Court). The District
Bar is recommended to keep a prisoner relief cell In this connection and free legal
assistance to prisoners offered by the Faculty of Law, the University of Delhi was
appreciated.

Sunil Batra Etc v. Delhi Administration and Ors60 The Court held:

- Section 30(2) of, the Prison Act, does not empower the prison authority to, place a
prisoner under a death sentence in solitary confinement. Even prison discipline
inhibits solitary confinement as a measure of prison punishment.

- It is well established that convicts are not denuded of the fundamental rights they
otherwise possess for mere reason of conviction.

- A convict has the right, by virtue of the precious right guaranteed by Article 21, not
to be deprived of his or her life or personal liberty, except, in accordance with, the
procedure provided for by law.

- There is no doubt in Sections 73 and 74 of the Indian Penal Code that solitary
confinement is in itself a substantive punishment that a court of law can impose.
This cannot be left, to the whim and caprice of authorities in prison. The Penal Code
strictly prescribes that limits of solitary confinement can be imposed under, order of

60
1978 AIR 1675, 1979 SCR (1) 392
65
 the Court.

- That explanation for s. 44(8) of the Prisons Act makes it clear that an individual is
not wholly segregated from, other inmates, and is not removed from, the sight of
other inmates and is entitled to have his meals with one or more other inmates. Even
separate confinement of this kind cannot exceed three months.

- Section 30(2) merely, provides for the confinement of inmate under Death sentence
in a cell apart from other inmates. Such confinement cannot be cellular orseparate
confinement, and it cannot be solitary confinement in any case.

- In the context of s.30(2) a "prisoner under sentence of death" can only beunderstood
to mean a prisoner whose sentence of death has become final, conclusive and
indefeasible, which, by any judicial or constitutional procedure, cannot be annulled
or avoided. Depending on circumstances of each case orrejection of application for
mercy by the President or the Governor, there is an excessive time lag between the
sentence of death passed by the Sessions Judge andfinal disposal of appeal by the
High Court or the Supreme Court. It is, not possibleto say, that under s. 30(2) such a
prisoner must be confined apart from, other prisoners, from, the time the death
sentence is awarded by the Sessions Judge.

D.K Basu v. State of West Bengal:61 A letter addressed to Chief Justice of India on 26
August 1986 by the Executive Chairman, Legal Aid Services, West Bengal, a non- political
organisation registered under the Societies Registration Act, drew his attentionto certain
news items published regarding deaths in police lock-ups and custody. It was requested that
the letter be treated as a writ petition under the "public interest litigation" category. In view
of the importance of the issue raised in the letter concerning frequent complaints about
custodial violence and police lock-up deaths, the letter was treated as a writ petition and the
respondents were notified.

61
Writ Petition (Crl) No. 592 of 1987

66
In all cases of arrest or detention, the following directions of the Supreme Court must befollowed
until legal provisions are made in that name as preventive measures:

- Police personnel should bear accurate, visible and clear name tags with their
designations, while carrying out arrest and handling of the arrestee's interrogation.
Details of police personnel handling the arrestee's interrogation must be recorded in
register.

- The police officer carrying out the arrest shall, prepare a memo of arrest, at the time
of arrest, which shall be attested by atleast one witness who, may either be a
member of the family of arrested person or a respectable person of the locality from
which, the arrest is made. It shall be counter-signed by the arrested person, and shall
include date and time of arrest.

- A person who, is arrested, detained, held in custody, in a police station, interrogation

centre or lock-up, shall be, allowed to inform a person as soon as possible, of his
arrest and the place where he is being held. That person may, be a friend or relative
or other person known to him and having interest in his welfare.

If such a person attests to the memo of his arrest, there is no such requirement to
inform later.

- Time, place of arrest and custody of arrested person shall be notified telegraphically
by the police, through the District Legal Aid Organization and the police station of
the area concerned, within 8-12 hours of arrest, to the next friend or relative of the
arrested person, if, they live outside the district or city.

- The person arrested must be informed that he or she is entitled to inform someone
about his or her arrest.

- Entry must be made in the diary about the place of detention of the personarrested,
the name of the next friend who has been informed of arrest and the details of the
police officers in whose custody, the person arrested is being held.

- Where requested, the arrestee should be examined after arrest, and major or minor
injuries present on his body should be recorded. The ‘Inspection Memo’ should be
signed by both the arrestee and arresting police officer, and a copy must be

67
 supplied to the arrestee.

- During his detention in custody, the arrested person should be examined in every 48
hours by, a trained doctor on the panel of approved doctors appointed by Director,
Health Services of State or Union Territory concerned, and Health Services Director
shall prepare such a penal for every Tehsil and District.

- Copies of all documents should be sent to the Magistrate for Records and the arrest
memo must be included in those documents.

- At the time of interrogation, the arrestee may be allowed to meet his lawyer, but not
during the entire interrogation.

- Every district and state headquarters should have police control room, where,
information about arrest and the place of custody of arrested person should be

communicated by the arresting officer within 12 hours of arrest, and that

information should be displayed on the notice board in police control room.

The requirements are derived from, Articles 21 and 22(1) of the Constitution and must be
followed strictly. The failure to comply with, the requirements referred to above shall, not
only make the person concerned officially liable for departmental action, but also make him
liable for contempt of court, and proceedings for contempt may be brought beforethe High
Court having territorial jurisdiction in the matter.

Hussainara Khatoon & Ors v. Home Secretary, State of Bihar:62 It is a landmark

judgement on a speedy trial of cases which has been recognised as a fundamental right of
every accused person. The constitutional obligation on the State to protect rights of
individuals pursuant to Article 21 includes the obligation to ensure a speedytrial of cases.It
also ensures the right of access to free legal services to poor as, an essential part of Article
21 and 39A of the Constitution.

The writ petition was brought before the Court to hear the release of under-trial prisoners in
the state of Bihar. The Court held that, the procedure under which, a person may, be
deprived of his or her life or liberty should be 'reasonable fair and just.' Free legalservices
to

62
1979 AIR 1369, 929 SCR (3) 532

68
the poor and needy are an essential element of any 'reasonable fair and just procedure.' A
prisoner who seeks his release through a court case should have legal services at his
disposal. Article 39A also points out that free legal service is an inalienable element of
'reasonable, fair and just procedure without which a person suffering from economic or
other disabilities will be deprived of the opportunity to obtainjustice. The right to a free
legal service is an essential part of the 'reasonable, fair and just'procedure for an accused
person and must be held implicit in the guarantee of Article 21. The Court emphasises the
urgent need for the Government of India, as well as the Governments of the State, to
establish a dynamic and comprehensive programme of legal services. It is not only the duty
of the State to ensure equal justice, implicit in Article 14, as well as the right to life and
liberty conferred by Article 21, but also the obligation of constitutional directive laid down
in Article 39A.

Khatri and Others v. State of Bihar and Others:63 Right to free legal service to an accused
is covered under Article 21, of Constitution of India. Court held:

- Right to free legal services is clearly an essential part of a reasonable, fair and just
procedure for an accused person and is implicit in the guarantee of Article 21.

- The State has a constitutional mandate to provide a lawyer to accused if

circumstances of case and needs of justice so require, provided that the accused
person does not object to the provision of that lawyer. The State should grant free
legal aid to an accused person who, because of indigence, is unable to secure legal
services, and whatever is necessary for this purpose must be done by the State.

- The State is, under a constitutional obligation to provide free legal services not only
at the stage of the trial, but also at the stage when the accused is first brought before
the magistrate, as well as when he is remanded from time to time.

- For an indigent accused, right to free legal services would be illusory unless the
magistrate or the Sessions Judge before whom he is brought informs him of that
right. The only condition is that, the offence charged against accused is such that
itmay result, in imprisonment, on conviction and is of such a nature that
circumstances of the case and the requirements of social justice warrant that free
legal counsel should

69
63
1983 AIR 1086, 1983 SCR (3) 508

70
 be provided to him. Cases involving offences such as economic offences or offences
against laws preventing prostitution or child abuse, and the like, can occur where
social justice can demand that the State does not need to offer free legal services.

Rudul Shah v. State of Bihar and Another:64 In accordance with Article 32 of the
Constitution, the petitioner who was detained in prison for more than 14 years following his
acquittal filed a habeas corpus petition praying for his release on the ground that his
detention in prison was unlawful. It was held, that the petitioner's detention in prison
afterhis acquittal was wholly unjustified:

- Article 32 confers on the Supreme Court the power to, issue directions or orders or
appropriate writs to enforce rights conferred by the Constitution under Part III.

- Article 21, which guarantees right to life and liberty will, be deprived of its
substantive content if the Court's jurisdiction is limited to the issuance of orders for
release from illegal detention. Mulcting its violators in the payment of monetary
compensation is one of the convincing ways in which the infringementof that right
can reasonably, be prevented and due compliance with, the mandateof Article 21 is
secured.

- The right to compensation is a preventive measure for the unlawful acts by state in
the name of the public interest. The true bastion of democracy is respect for the
rights of individuals. The State must, therefore, repair the damage to the rights of
people caused by its officers.

R.D. Upadhyay v. State Of A.P. & Ors:65 The judgment was announced on13th April 2006.
The issue was about the development of children who are in prison with their mothers, who
are either in confined as undertrial prisoners or convicts. Children have to remain in prisons
with their mothers for none of their faults, but by force. Sometimes because of tender age or
when there is nobody to look after them. The Court Observed.

64
1981 SCR (2) 408, 1981 SCC (1) 627
65
Writ Petition (civil) 559 of 1994

71
- The jail environment is certainly not favorable for development of children.

- Special and specific provisions have been made in both Part III and IV of the
Constitution of India for the care, welfare and development of children, in additionto
other provisions that are also important. In our Constitution, the best interest of the
child has been seen as a primary consideration.

- Under Article 15, discrimination on grounds of religion, race, caste, sex or placeof
birth is prohibited. Article 15(3) provides that this shall not prevent any special
provision from being made by the State for women and children. Article 21A
inserted by 86th Constitutional Amendment provides for, free and compulsory
education for, children aged between six and 14 years of age. Article 24 prohibits
the employment of children under, 14 years of age, in any factory or mine or inany
other hazardous work.

- The other provisions are Article 14, 21 and 23 of part III. Article 14 provides thata
person shall not, be denied equal rights before law or equal protection of laws within
the territory of India by the State. Article 21 provides that a person should not be
deprived of life and personal liberty, other than by, a procedure established by law.
Article 23 prohibits human trafficking and forced labour.

- In this respect, certain provisions in, Part IV of Constitution, are provided. Article
39(e) requires that, State should ensure that there is no abuse of health of workers.
Children of tender age should not be compelled to join professions, unfit for their
age or strength, only for the sake of economic necessity. Article 39(f) requires, State
to ensure, that children have the opportunity and facilities to grow, in a healthy
manner and under conditions of freedom and dignity, and to ensure that children and
young people are, protected from exploitation and against moral and material
abandonment. Article 42 provides that, State shall ensure, just and humane working
conditions and provide for maternity relief. Article 45 provides that the State shall
endeavour to provide early childhood care and education to all children until they
reach the age of six. Article 46 provides that the State shall promote, educational
and economic interests of the weaker segments, in particular of scheduled castes and
scheduled tribes, and shall protect them from exploitation. Article 47 provides
that the State
72
 shall consider, improving public health and the standard of living of its people as
one of its primary responsibilities and shall endeavor, in particular, to prohibit the
consumption of intoxicating drinks and drugs harmful to health, except for
medicinal purposes.

- In addition to, constitutional provisions, there is a wide range of existing legislation

on children's issues.

The following guidelines were issued by the Court:

- A child kept in prison along with his / her mother, should not be, treated as a
convict. Such a child is entitled, as a matter of right, to food, shelter, medical care,
clothing, education and recreational facilities.

- Regarding pregnancy: Before sending a pregnant woman to jail, the authorities must
ensure that it has basic facilities for child delivery and pre-natal, post-natal care. If a
woman is found or suspected to be pregnant at the admission time or thereafter, it
shall be reported to the superintendant and necessary arrangements shall be ensured
at District Government hospital.

- Child birth in prison: Arrangements for parole should be made as far as possible to
enable an expectant prisoner to have her delivery outside the jail. It can only be
denied in exceptional cases. The registration of birth shall be made at the local
registration office and the place of birth shall not be recorded in the certificate as,a
prison, but only the place of birth shall be indicated. All facilities for naming rites of
children born in prison shall be extended as far as possible.

- A female prisoner shall be allowed to keep children, with them, till they attain the
age of 6 years and not after that. Upon completing the age of 6, the child shall be
handed to suitable surrogate or suitable institution run by Social Welfare
Department in the same town or city as far as possible until their mother is released
or the child attains such age as to earn own livelihood. Children kept under such
protective custody under the department of social welfare shall be allowed to meet
their mother, at least, once a week on a date fixed by Superintendent of Prisons. If a
female prisoner dies, leaving behind a child, the superintendent shall inform the
District Magistrate concerned, who shall arrange for proper care of child. If the

73
concerned relatives are unwilling to

74
 support the child, the child should be placed in government approved institution or
handed over to a responsible person for care and maintenance.

- Adequate food, clothing, medical care and shelter should be provided to children
according to the scales laid down by the State/U.T government. The children shall
have the right of visitation. In special cases the Prison Superintendent is empowered
to admit children, below the age of 6 years, to prison without court orders.

- Proper facilities for education and recreation shall be provided for the children of
female prisoners.

- Women prisoners with children shall not be kept in sub-jails unless proper facilities
are ensured.

- Children's stay in crowded barracks among women convicts, undertrials, offenders

related to all types of crimes, including violent crimes, is certainly harmful to their
personality development. Therefore, on a priority basis, children deserve to be
separated from such atmosphere.

- A dietary chart is provided and arrangements shall be made accordingly to ensure

macronutrients and micronutrients are available to child in adequatequantities.

Shabnam v. Union of India and Anr 66: To protect certain rights of even death convicts,the
Supreme Court has gone far, holding that they cannot be executed until all available
constitutional and statutory remedies, have been exhausted. It is held that once, human
dignity is recognized properly, it does not come to an end, with the confirmation of death
sentence but goes beyond and is still valid till the convict meets his/her destiny. So, from
confirmation of death sentence, by Supreme Court, till its execution, the convict shouldbe
treated with human dignity to the extent reasonable and permissible by law.124

Selvi & Ors v. State Of Karnataka & Anr67: Legal issues concern the involuntary
administration of certain scientific techniques, namely narcoa nalysis, polygraph

66
Writ Petition (Criminal) No. 88 of 2015
67
Criminal Appeal No. 1267 of 2004

75
 examination and the test of the Brain Electrical Activation Profile (BEAP) to improve
investigation efforts in criminal cases. Some relevant questions were raised about the
meaning and scope of, fundamental rights that all citizens have at their disposal. The Court
held that:

- No person should be forcibly subjected to any of the techniques at issue, whetherin

the context of criminal investigations or otherwise. Doing so would mean an
unjustified intrusion into personal liberty.

- In context of criminal justice, room is left for the voluntary administration of the
impugned techniques, provided that certain safeguards are in place.

- Although, the subject has consented to undergo the tests, the test results alone
cannot be accepted as evidence because, during the administration of the test, the
subject does not exercise conscious control over the responses.

- However, in accordance, with Section 27 of, the Evidence Act, 1872, any
information or material subsequently discovered with the help of voluntarily
administered test results can be admitted.

- In 2000, 'Guidelines for the Administration of Polygraph Test (Lie Detector Test)
on an Accused' was published by the National Human Rights Commission. Such
rules should be strictly followed and similar safeguards should be adopted.

Arvinder Singh Bagga v. State of U.P68: It has been asserted that torture is not merely
physical, but may even consist of mental and psychological torture, calculated to create fear
in order to comply with the demands of the police. In this judgment, the SC providedthat all
persons illegally detained and humiliated for no fault of their own should be compensated
by State only.

Dr.Mehmood Nayyar Azam v. State Of Chattisgarh And Ors 69: The Court has established
compensatory jurisprudence by which, in the exercise of powers under writ jurisdiction,

68
1995 AIR 117, 1994 SCC (6) 565
69
Civil Appeal No 5703/2012 (Arising out of SLP (C) No. 34702 of 2010)

76
 compensation is, granted to those who have suffered custodial torture or to, the children and
relatives of those who have died in police custody or in fake encounters.70

D. Bhuvan Mohan Patnaik & Ors v. State Of Andhra Pradesh & Ors 71: Article 21, 32, 13
of the constitution along with the Prison Act, 1894 were analyzed in the judgment. The
issues involved:

- Whether prisoners have fundamental rights

- The validity of live wire mechanism atop jail walls

- Validity of police posted outside jail

Not merely for the sake of conviction, convicts are denuded of all the fundamental rights
they otherwise possess. Prisoners are deprived of fundamental rights, such as right to move
freely throughout the Indian Territory or right to practice a profession. The prisonerhas
access to other freedoms, such as, right to acquire, hold or dispose of property. He is also
entitled to the right guaranteed by Article 21 that, except as provided for by law, he shall
not be deprived of his life or personal liberty.

Prem Shankar Shukla v. Delhi Administration72: The petitioner complains that when he is
escorted from the prison house to the court building, where he is being tried for a criminal
offence, and when taken back from the court building to jail, he is unnecessarily
handcuffed. He maintains that there is no justification for handcuffing him. The
Superintendent of Central Jail, Tihar, where the petitioner is detained, points out on behalf
of the respondent that the police authorities take charge of the prisoners from the main gate
of the prison for the purpose of escorting them to the court building and back, and that the
prison authorities have no control over the way in which the prisoners are treated during
such custody.

70
Supra Note 124, At 16
71
1974 AIR 2092, 1975 SCR (2) 24
72
1980 AIR 1535, 1980 SCR (3) 85
77
78
 CHAPTER-4

ROLE OF JUDICIARY AS SAVIOUR OF HUMAN RIGHTS OF ACCUSED

4.1. INTRODUCTION

The system which does not keep pace with the changing society cannot survive long.
Indeed, the Indian Judiciary has realized the changing situation and has shed the traditional
method of administering justice by developing a new kind of jurisprudence known as
"Judicial Activism." The role of the judiciary in giving human rights a concreteshape
through its activism cannot be overlooked. The judiciary's enforcement of human rights has
now become an integral part of the judicial system in India. By virtue of Articles 226 and
32, the High Court and Supreme Court have greatly extended the scope of judicial review
and have developed new methods and strategies to open the door of justice to the poor and
oppressed through liberalized public interest litigation. In order to protect human rights of
the individuals, Supreme Court of India revolutionized the criminal justice system and
liberalized various doctrines and techniques, invented new methods, gave extensive
interpretations regarding the provisions of Indian Constitution, such as Article 21 and
developed new means to make executive accountable. Thisrequired a combination of
courage and judicial craftsmanship on the part of judges.

In India, the Supreme Court and High Courts have vast powers, including powers to
overturn both legislative and executive actions. The Apex Court, in the famous
Kesavananda Bharati Case,76 invented the "Doctrine of Basic Structure" and observed that,
even Constitutional amendment can be struck down by the Courts if they violate the basic
structure. The Courts are attempting to translate the Constitutional philosophy of human
rights jurisprudence into reality by making strenuous efforts. In order to make them
meaningful and realistic, the judiciary has made historical judgments that are in lineand
tempered with legislative intent while keeping pace with time and zealously protecting and
developing the dimensions of the

76
Keshwananda Bharati v. State of Kerala (1973) 4 SCC 225
79
 citizen's fundamental human rights.

The International Institute of Human Rights in Strasbourg has divided the cherished rights
i.e. human rights into 3 generations:

- According to the institute, the first generation of human rights cover, political and
civil rights. The rights were also strongly individualistic.

- The Second-generation human rights are basically economic, social and cultural in
nature, guaranteeing, equal treatment and conditions for different affiliates of the
citizenry.

- The Third-generation human rights refer to the right of self-determination. Further,it

also refers right to development.

Working towards protection of human rights is required to be the primary objective of any
National Court. Some barriers which are to be set aside are as follows:77

• A large number of laws.

• Legal procedures are expensive.

• The legal system is avoided due to economic reasons or fear.

• Insufficient Legal Aid Systems.

• People are unaware about laws and their rights.

•Legal systems lack remedies that are preventive, just, non-discriminatory

and appropriate.

• The fewer participation of public in reform movements.

The verdict in the case of ADM Jabalpur v. Shivakant,78 popularly known as the case of

77
Justice P.Sathasivam, Judge, Supreme Court of India, Role of Courts in Protection of Human Rights, Address at
Tamil Nadu State Judicial Academy on February 25, 2012.
78
1976 AIR 1207, 1976 SCR 172

80
Habeas Corpus, set the tone for innumerable arrests under the Preventive Detention Act –a
provision whereby defendants could not claim their liberty under extenuating
circumstances. It is one of the most criticized judgments of the Supreme Court because it
denied the basic rights to the citizens, but the Apex Court changed its stand in later
judgments and has maintained the supremacy of fundamental rights.

(5.1.1) Direct Access to Superior Courts

Dr. Ambedkar, in his speech in the constituent assembly, which was referred to draft Article
25 and corresponds the present Article 32 stated that if, he was asked to name any particular
article in the Indian Constitution as the most important one, he would name no other but
Article 32, an article, whose absence would render this Constitution be a nullity.It is very
soul and very heart of the Constitution, and he was pleased that the House has realized the
significance of it.

Alladi Krishnaswami Aiyar, lawyer and constituent assembly member also commented
during the debates in the Constituent Assembly that the future development of the Indian
Constitution will depend to a large extent on the approach of Supreme Court and the
direction so provided to it by the Court, whereas its function may be to interpret the
Constitution, but, the social, economic and political tendencies of the time that providethe
necessary background cannot be ignored in the discharge of its duties. Such forecasts have
come true. In order to obtain rapid relief against the state for breach of any fundamental
right, any aggrieved individual could have direct access to superior courts. In addition to the
provisions set out above, Article 142 allows the Supreme Court to makesuch orders as are
necessary in order to bring full justice to the case; as per article 141 law professed by
Supreme Court is binding on lower courts; and Article 144 requires all authorities to act in
aid of the Supreme Court.

With its broadest interpretation of human rights, the Indian judiciary has contributed to the
progress of this nation and towards the objective of making India, a lively and vibrantstate.

81
 A positive implication was definitely created by the court's intervention on issues involving
economic, social and cultural rights.

The locus standi (the right to bring an action in Court) was only available to the affected
parties. There was no locus standi for non-aggrieved persons to file and continue litigation.
As a result, there was hardly any link between, rights guaranteed by theConstitution of India
and the laws established by the legislature on the one hand, and, on the other, the vast
majority of illiterate citizens. However, post emergency, when the Supreme Court
addressed the issue of access to justice for individuals through radical changes and altered
the requirements of locus standi, all these scenarios gradually changed. Justice P N
Bhagwati and Justice V R Krishna Iyer's splendid efforts were instrumental in this eighties
judicial revolution to convert India's apex court into asupreme court for all Indians. As a
result, in all cases where the interests of the general public or a section of the public are at
stake, any citizen of India or any consumer groupor social action group can approach the
country's apex court seeking legal remedies. Furthermore, without the investment of heavy
court fees as required in private civil litigation, public interest cases could be filed.

As to Adversarial System of litigation, a trial does not involve the pursuit of reality by any
means whatsoever. The method adopted is the adversary system and the role of the judge in
that system is to maintain balance between the contending parties without taking part in
their disputations. It is not an inquisitorial role in which he seeks himself on either side to
remedy the shortcomings of the case.

Provisions granting power to enforce fundamental rights is provided to, the Supreme Court
and High Court, in the broadest possible terms. The Constitution of India conferson the
Supreme Court, pursuant to Article 32, the power to issue a direction, required writs viz.
habeas corpus, prohibition, mandamus, quo warranto, certiorari or order, whichever may be
appropriate, for the exercise of any fundamental rights.79

(5.1.2) Role of District Judiciary in Protection of Basic Rights

The judiciary at the District plays an active role in the dispensation of justice; it has a massive

79
Sankarshan Biswas, Various aspects of PIL in India, October 05, 2020,
http://www.legalservicesindia.com/article/1065/Various-Aspects-of-Public-Interest-Litigation-In-India.html

82
 duty to protect the citizen’s constitutional rights. The District Judicial Officers are
responsible, with few limitations, for all matters, including the application and
interpretation of constitutional provisions such as Articles 14, 19, 21, etc. The legislature
has enacted the Human Rights Act, 1993 recognizing the task done by district level judicial
officers. The Formation of Human Rights Courts at every district level is one among other
main objectives of the said Human Rights Act, 1993. Section 30, of this Act allows the
State Government, to make Human Rights Court at Sessions level in each District. This task
has to be done in consonance of chief justice of respective High Court. The purpose behind
the provision is to provide a speedy trial of offences resulting from human rights violations.
To get the human rights protected and realized at grassroots level, Human Rights Court are
established in Districts.

The Government of West Bengal was the first to establish Human Rights Courts in all 19
districts of the State on 9 September 2011 ensuring the speedy disposal of human rights
cases. These courts operate from the headquarters of the district and are under the
DistrictSessions Judge. Each District Human Rights Court will have separate public
prosecutors. This has been provided under Section 31.80

4.2. JURISDICTION AND SPECIAL POWER OF SUPREME COURT TOPROTECT

HUMAN RIGHTS

(4.2.1) Jurisdiction of the Supreme Court

The Supreme Court jurisdiction can be broadly categorized in the following:81

1) Appellate Jurisdiction:
- The appeals which are permitted under articles 132,133 and 134 of
the constitution.

80
Supra Note 136
81
Handbook on Practice and Procedure and office Procedure, Supreme Court of India, October 07, 2020,
https://main.sci.gov.in/practice-and-procedure

83
 - Appeals arising out of statutes or any law being in force.

- The appeals which arise in reference to section 2 of, the Supreme

Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970

- Appeals allowed, by way of special leave, under Article 136 of, the
Constitution of India.

2) Extra-Ordinary Appellate Jurisdiction:

- Petitions which are filed as per special leave under Article 136 of
the Constitution.

3) Original jurisdiction:

- Petitions filed under the umbrella of article 32 of the constitution for issuing
directions, orders or writs in the nature of quo warranto, prohibition, habeas
corpus, mandamus, and certiorari to enforce fundamental rights.

- Original suits as under article 131 of the constitution, in disputes of government

of India, states.

- Petitions regarding transfer of cases involving substantial or same questions of

law from High Courts to the Supreme Court.

- Transfer of cases from high court to high court.

- Transfer of civil suits from one state to court in another state, if petition is
filed under S. 25 of the Civil Procedure Code, 1908.

- Petitions under section 406, CrPC 1973 for transfer of appeal or case from
one high court or criminal court which is subordinate to high court, to the
other.

- Disputes regarding election of President and Vice-President.

- Appointments of the required arbitrators by Chief Justice of India Scheme,

1996.

84
 4) Extra-Ordinary Original Jurisdiction:
- Petitions filed under Article 32 of the constitution are entertained as Public
Interest Litigation, to seek reprisal of public injury or for vindicating interest of
public nature.

5) Advisory Jurisdiction:
- To advice the President of India and Governor of the concerned state when
reference is made in that behalf and also the income tax tribunal and other
central government tribunals when referred by them.

6) Inherent and Plenary Jurisdiction:

- Petitions to regulate contempt proceedings.

- Applications for review

- Curative Petitions.

- Applications for enforcement of Supreme Court orders.

All the appeals, petitions, original suits, advisory, inherent and plenary jurisdictions of the
Supreme Court are exercised in accordance with relevant orders and rules of the Supreme
Court Rules, and other relevant acts.

85
- Article 132 provides that, an appeal shall be brought before the Supreme Court by
any decree, judgment, or final order of the High Court, whether in civil, criminal or
other proceedings, took place in territory of India, where the High Courtcertifies,
pursuant to Article 134A, a case involving substantial question of law, as regardsthe
interpretation of this Constitution. When, such a certificate is issued, concerned
party to the case can appeal to Supreme Court, when, the question referred to above
has been, wrongly decided. The expression ‘final order’ containsan order declaring
a question which, if it were decided, in favour of appellant, would be sufficient to
bring the case to a final conclusion.

86
- Article 133 states that, an appeal shall lie before Supreme Court as to any decree,
judgment, or final order in civil proceedings of a High Court in the Indian territory,
provided that the High Court certifies, pursuant to Article 134A, that the case
involving a substantial question of law which is of general importance and that, in
the opinion of the High Court, the Supreme Court must decide thatquestion.

- Article 134 provides, An appeal shall be brought before Supreme Court from any
final order, judgment, or sentence in the criminal proceedings of the High Court
inthe territory of India, where the High Court reversed the order of acquittal and
sentenced him to death by appeal; or has withdrawn, before itself, for trial a case
from any court subject to its jurisdiction and has convicted the accused person in
such trial or where High Court certifies under article 134A that it is a fit case for
appeal in the supreme court subject to the proviso.

- Article 136 provides that, Notwithstanding the provisions of Chapter IV of the

Constitution, the Supreme Court may, at its discretion, grant special leave to appeal
against any decree, judgment, determination, sentence or order which is passed or
made by any court or tribunal within the territory of India in any causeor matter,
except in respect of an order which is made by any court or tribunal established
under any law relating to the Armed Forces.

Article 136 does not confer so called ‘right to appeal’. It confers a discretionary
power on the Supreme Court, through which it may interfere in suitable cases. The
jurisdiction by article 136 can be divided into:

a) First stage has its passage to disposal of prayer for special leave,
b) Second stage, which commences when the leave to appeal is granted by
the Supreme Court and the Special Leave Petition, is matured into an
appeal.

‘Doctrine of Merger’ applies to 2nd stage only.

- Article 137 – as per this article Supreme Court can review any of its judgments or
orders as per Article 137 of the Constitution. That implies that the Court is not
permitted to take new stock of cases, but to correct serious errors which lead to
miscarriage of justice.
87
- Article 139A

(1) When cases which involves substantially same questions of law are pending
before the Supreme Court and High Court/courts and the Supreme Court being
satisfied on its own motion or when an application is made by the Attorney General
of India or by a party to the case, stating that such questions havetendency of being
substantial questions of general importance, the Supreme Court can withdraw cases
pending before the High Court or High Courts and dispose of all the cases itself.

Provided that the Supreme Court on determining the said questions of law canreturn
the case so withdrawn with a copy of its judgment attached to it on such questions
to the High Court from where case was withdrawn, and the High Court would
proceed to dispose the case in the conformity with judgment so given by supreme
court.

(2) The Supreme Court, if deems expedient so to do in the interest of justice can
transfer the appeal, case, or other proceedings which is pending before any High
Court to any other High Court.

- Article 141 states that the law which has been declared by Supreme Court is binding
on all the courts within territory of India.

- Article 142: As per this article Supreme Court exercising its jurisdiction, in any case
or matter which is pending before it, can issue an order or decrees as necessary to do
complete justice. Any decree so passed or order so issued will be enforceable
through the territory of India in the manner as prescribed by law madeby
Parliament. If such provision is not made then in the manner as prescribed by
Presidential order. Moreover, subject to any provisions made by Parliament in this
behalf, the Supreme Court can make any order for the purpose of ensuring the
discovery or production of any document and attendance of any person, the, or the
investigation or punishment of its contempt.

- Article 143 If, at any time, it appears to the President that a question of law, or of
fact is likely to arise or has arisen, which is of such a nature and of such public
importance that it is appropriate to obtain opinion of the Supreme Court, the
88
President may refer the question to SC for consideration, and the Court may, after
the hearing as it deems

89
 appropriate, share its opinion to the President thereon.

- Article 144 provides that, all judicial and civil authorities which are in theterritoryof
India are required to act in aid and assistance of the Supreme Court.

- Article 145 The Supreme Court may after approval of president, keeping in view
any law made by Parliament, lay down rules governing the general procedure and
practice of the Court, including:

a) Rules as to the Court's proceedings for enforcing any of the rights which are
conferred by Part III.

b) Rules concerning the granting of bail

Rupa Ashok Hurra v. Ashok Hurra on 10th April, 200287 Even after a review petition filed
under article 137 is rejected by the Supreme Court it may still review the case (civil or
criminal) under its inherent power but on very restricted grounds only. The Court ruledin
the present case that while certainty of law is indispensable in India, the same cannotbe
done at the cost of justice.

The Court held that to prevent abuse if its process, for curing gross miscarriage of justice,it
may reconsider its judgments while exercising its inherent power. Such a curative petition
under the court’s inherent power can be filed seeking review of a final decision, after the
dismissal of a review petition under article 137 of the constitution. It has to be filed on very
strong grounds, such as:

- When there was violation of the principle of natural justice – like audi alterm partem
was denied either because the notice was not served or the person was not heard
during the proceedings.

- When there is a question of bias – it might be when a judge who participated in the
decision making, did not disclose his links with a party to the case.

- When there is abuse of process of the court.

The court has observed that the grounds mentioned in the judgment are not exhaustive as it

87
2002 (4) SCC 388

90
is not possible to enumerate all the grounds on which a petition can be entertained.

Some conditions imposed by the court before entertaining a curative petition are:

- It shall specifically contain that no new grounds have been taken in the curative
petition and the grounds are similar to those taken in application for review, which
was dismissed by circulation.

- A certificate by a senior advocate that the petition meets the requirements for filing
it.

- Exemplary costs may be imposed on the petition, when it appears at any stage while
considering the curative petition that it does not have merit and is vexatious.

- The petition is to be sent to the three senior judges and judges of the bench who
have passed the judgment affecting the petition, if available. If the majority of the
judges on the bench above agree that the matter needs to be heard, it will (as far
aspossible) be sent to the same bench.

- Article 32:

The Supreme Court can issue directions or orders or writs including writs enforcing
any of the rights as conferred by Part III (fundamental rights) of the constitution.

Jumman v. State of Uttar Pradesh88 the court stated that after a death sentence has
been confirmed which is not open to review also, Supreme Court can under Article
32 read with article 21 of the Constitution commute the death sentence intolife
imprisonment on the ground of undue delay in execution of death after its
confirmation.

4.3. BAIL IS RULE JAIL IS EXCEPTION

Criminal Jurisprudence is in favor of the principle, Bail is Rule and Jail is Exception. The
Supreme Court has consistently emphasized this, but the lower courts seldom follow itfor a
range of factors. Due to the lack of expertise and flaws at varying stages of investigation,
the undue lengthy process, lack of personnel and required skills needed, inadequate use of
forensic techniques, accused has to suffer. In certain cases, even though they are proven
91
innocent after an investigation, society does not recognize them as law- abiding people.
Where appropriate for justice, the accused should be placed behind bars, but the Rule is
Bail and the Courts should exercise privilege of incarceration only after the due process is
followed, as it has a detrimental effect on the person and society at large. The dignity of
individuals should not be sacrificed in vain without the evidence of their guilt.

The three basic principles of criminal jurisprudence are:

- Prosecution should prove the case beyond reasonable doubt,

- Accused would be presumed innocent until he is proven to be guilty and,

- The prosecution's responsibility never shifts.

92
 Granting bail also has a direct correlation with the principle of 'presumption
ofinnocence until proven guilty,' which is a fundamental principle underpinning
criminal jurisprudence, enshrined in Article 11(1) of UDHR i.e. Universal
Declarationof Human Rights. The Supreme Court has already held in many cases that
bail is person's right and liberty is important until proven guilty. The statute provides for
releasing an accused on different types of bail from the date of filing of FIR until the
trial is completed and the decision of a case is delivered. The term 'bail' comes froman
old French verb 'bailer' meaning 'giving'. Bail refers to the accused's provisional release
in a criminal case where the court is yet to announce the judgment. The term 'bail'
means the security that is deposited to secure the accused's release. Taking into account
the true meaning and application of personal liberty and the right to life, the right to bail
is undoubtedly a fundamental and important guarantee. Justice Krishna Iyer has many
groundbreaking verdicts to his credit, and one of the most important among them is the
1977 judgment of the State of Rajasthan v. Balchand,90 The Justice held that:

- ‘The basic rule may perhaps be tersely put as bail, not jail’.

- In pronouncing this landmark judgment, the Justice focused on various protections

granted to the accused by the country's supreme law, the Constitution of India, and
the most significant among them is the fundamental right to liberty secured under
Article 21 of Indian Constitution.

- An individual's detention must be avoided, unless it is necessary.

- Justice Krishna Iyer has noted that personal liberty of the person is deprived if heis refused
the bail. Article 21 of the Indian Constitution guarantees right to life andpersonal liberty;
refusal of bail may constitute a violation or deprivation of the personal liberty of an
individual in the absence of exceptional circumstanceswhere custody is justified. The Court
must balance the rights of the accused and interest of prosecution and society.

- (4.3.1) Provisions for Bail91

90
State of Rajasthan v. Balchand, 1977 AIR 2447, 1978 SCR (1) 535
91
Granting Bail is the rule, Published on February 16, 2020, last accessed on October 10, 2020,

93
- Section 41 of the CrPC sets out categorically the grounds where a person may bearrested.
No definition of the term "bail" is provided for in Code of Criminal Procedure, 1973.
Sections 436 to 450 CrPC, Chapter XXXIII, deals with the provisions concerning bail and
bonds. It is a clear law that granting bail or denying it is dependent upon discretion of the
Court. Such discretion, however, must be "judicial," that is, a sound discretion guided by
law.

Bails are broadly classified as under:

- Anticipatory Bail

On the recommendation of Law Commission of India in its 41st Report of

24.09.1969, the Parliament adopted a new clause in the form of "anticipatory bail"
under Section 438 of the CrPC. Anticipatory bail is usually sought when a person
anticipates arrest. Section 438 of the CrPC deals with anticipatory bail and readsthat
if any person has reason to believe that he can be arrested on allegations of having
committed a non- bailable offence, he may apply for a direction under this section to
High Court or the Court of Session; and that court may, if it finds fit, order that he
be released on bail in the event of such arrest. And in basic words, anticipatory bail
may be referred to as a bail in lieu of detention. Essentially, the explanation why
such a clause is inserted into the CrPC is multiple. An individual's independence is a
fundamental right and therefore sacred, and it should not be violated for frivolous
purposes.

According to the Law Commission, the requirement of issuing "anticipatory bail"

occurs because often prominent people seek to implicate their competitors in false
cases for the purpose of disgracing them or for certain reasons by keeping them in
prison for a few days. The core premise in criminal jurisprudence: "Innocence
Presumption of Innocence". A person seeking an anticipatory bail must pass a test
known as the triple test for granting a pre-arrest bail. He must show that he has no

https://www.newindianexpress.com/opinions/2020/feb/16/granting-bail-is-the-rule-and-jail-is-an-exception-
94
2104171.html

95
 intention of fleeing the country, to tamper with the evidence or to influence the
witnesses.

Supreme Court in, Sushila Aggarwal v. State (NCT of Delhi)92 maintains that:

- The protection granted to an individual under Section 438 CrPC should not be
invariably limited to a fixed period, it should inure in favor of the accused without
any time limit. Standard conditions should be placed under section 437(3) read in
agreement with, section 438(2). Where there are unique facts or featuresinvolvingan
offense, it is open to the court to impose any necessary conditions.

- It was held that the life or length of the anticipatory bail order does not usually endat
the time and stage at which the accused is summoned by the court, or when charges
are set out, but can continue until the trial is concluded. Where there are some
unusual or exclusive features that allow a court to extend duration of an anticipatory
bail, it is open to that court to do so.

Regular Bail

If a person commits a cognizable and non-bailable offence, that person is taken into
custody by police. After the expiry of the period of police custody, if any, the
accused is sent to jail. An accused is permitted to be released from custody by the
provisions of section 437 and 439 CrPC, provide for the Magistrate and court of
session andthe High Court to grant regular bail, respectively after ensuring presence
in the trial. If a person is detained on the charges of commission or suspicion of a
crime for which the prescribed penalty is not death or life imprisonment, that person
may apply for release on bail. If the Court is of the opinion that it is appropriate to
release him on bail, it may pass such an order.After completing the required
formalities, the accused is released from jail.

While dealing with the matter of regular bail, The Court's duties include:

92
Sushila Aggarwal vs State (Nct of Delhi) on 29 January, 2020, SLP (Criminal) Nos.72817282/2017

96
 - Maintaining a balance between the interests of the victim and the accused

- Shielding society against the misadventures of the accused and

- Presumption of the innocence of accused until he is found guilty.

Interim Bail93

Article 21 provides that a person should not be deprived of his life or personal
liberty except according to a procedure established by law. The concept of bail is
directly linked to article 21 of Constitution. The Hon'ble Supreme Court has, on
many occasions, recognized that bail is a safeguard of the right to personal liberty
enshrined in Article 21 of the Constitution. The Hon'ble Apex Court has
acknowledged that in the power to grant bail, the court concerned can exercise the
inherent power to grant an ‘interim bail’ to an accused pending final disposalof the
regular/anticipatory bail application.

Statutory Bail (Default Bail)94

- Bail shall be on merit only, with the exception of the default bail provided for in
Section 167(2) of Code of Criminal Procedure, 1973, in which the trial Court grants
bail on account of failure to file charge sheet by the police within the statutory
period after the accused has been arrested.

- Sub-section (a) (i) of Section 167(2) provides that 90 days would be the maximum
permissible custody if the investigation concerned 'an offense punishable by death,
life imprisonment or imprisonment of not less than 10 years.'

93
Varun Sharma and Abhishek Goyal, India: Ins and Outs of Interim Bail: Use and Abuse thereof, mondaq,
Published on April 23, 2020, last accessed October 12, 2020, https://www.mondaq.com/india/crime/914262/ins-
and-outs-of-interim-bail-use-and-abuse-thereof
94
Vivek Narayan Sharma, Know your rights: ‘Default Bail’, Published on July 29, 2018, last accessed on
October12, 2020, https://timesofindia.indiatimes.com/blogs/lawtics/know-your-rights-default-bail/

97
 - Sub-section (a) (ii) of Section 167(2) provides that the maximum period of the
custody for any other offense not punishable by death, life imprisonment or
imprisonment for a term not below 10 years would be 60 days.

The accused would be entitled to release on bail and the order passed pursuant to Section
167(2) would constitute an order under Section 437(1) or (2) [when bail may be taken in the
event of a non-bailable offense] or Section 439(1) [Special powers of the High Court or
Sessions Court for bail]. As Section 167 does not authorize the revocation of the bail only
Section 437(5) or Section 439(2) of CrPC have provisions for cancellation of bail. The bail
may then be cancelled on the basis of considerations that are valid for cancellation of bail
granted under section 437(1) or (2) Section 439(1). Once charge sheetis filed, the default
bail right is lost. Default bail is a kind of remedy available whenpolice fails to complete
inquiry and submit the final report within 90 or 60 days of arrest of accused.

In, Aslam Babalal Desai (1992) case,95 The Apex Court held:

- The requirements of Code, in particular Sections 57 (person arrested not to be

detained for more than 24 hours) and 167 (detention, remand & default bail),
express the legislative anxiety that once a person's freedom has been interfered with
by the police arresting him without a court order or warrant; the investigation shall
be conducted as a matter of utmost urgency and shall be completed within the
maximum period permitted by proviso (a) of Section 167(2) of the Code.

Section 482 CrPC96- Inherent powers of the High Court under Section 482 of CrPC is
sometimes seeked as remedy for an interim bail/security. Though in this regard, the Hon'ble
Apex Court has repeatedly clarified that the power of High Court(s) underSection 482 CrPC

95
Aslam Babalal Desai v. State of Maharashtra (1992), AIR 1993 SC 1
96
Pushkraj Deshpande, Overview of Section 482 CrPC vis- a- vis the landmark judgments of the Supreme Court
ofIndia, mondaq, published on May 01, 2018, last accessed on 0ctober 19, 2020,
https://www.mondaq.com/india/trials-appeals-compensation/697362/overview-of-section-482-crpc-vis-vis-
the- landmark-judgments-of-the-supreme-court-of-india

98
 cannot be exercised where there are specific provisions in law to redress the grievance of
the party concerned or where alternative remedies are available. High Court’s power u/s
482 CrPC is partly administrative and partly judicial. The Hon'ble Supreme Court in State
of Karnataka v. Muniswami97 held that the Section 482 provides for 3 circumstances in
which the inherent jurisdiction may be exercised, thatis:

- to give effect to an order under CrPC,

- to prevent abuse of court proceedings,

- And, to secure the ends of justice.

Inherent powers of High Court u/s 482 CrPC include powers to quash FIR, investigation or
any criminal proceedings pending before High Court or a subordinate court and areof wide
scope.

Section 436A CrPC has been introduced into Code of Criminal Procedure, 1973 by an amendment
in 2005. Where a person has been detained for a period of up to one-half of the maximum period of
punishment specified for that offense by law during the period of investigation, inquiry or trial (not
being an offense for which the death penalty is specified as one of the punishments under that law),
that person be released on his personal bond with or without sureties by the Court. No such person
shall in any event bedetained for more than, the maximum period of punishment provided as to that
offence inlaw during the period of investigation or trial.

(4.3.1) Observations by the Apex Court:98

The Hon'ble Supreme Court Bench of Justice Madan B. Lokur & Justice Deepak Gupta
observed it is only in exceptional circumstances that the accused is required be sent to
prison after considering multiple facts. The Hon'ble Court noted that the principle of "bailis
a rule" is rarely found in the current criminal system and it is experienced that after
dismissing the

97
AIR 1977 SC 1489
99
98
Re-Inhuman Conditions in 1382 Prisons v. State Of Assam [Writ Petition (Civil) No. 406 Of 2013]

100
bail applications, the accused is directed to prison for longer periods of time. The Court also
stated that such trend is neither good for the individual and nor for the society. The
principle of jurisprudence that bail is rule and jail is exception has been misinterpreted by a
judicial channel that is resulting in a "routine denial" of bail in both the Trial Courts and the
High Courts. In fact, this negative approach by the Courts has increased the huge traffic in
Indian prisons. The prisons in India are overcrowded 600 times as outcome. The matter of
bail, as stated by the Apex Court, has to be considered with humanity. Judges are expected
to emphasize their discretion in applying a humane and liberal approach to the case in hand.
Justice Lokur noted that the conditions for granting bail should not be very strict in order to
be incapable of complying with and making the grant of bail illusory. The request for bail
should be decided by judges who have applied their discretion to the facts and
circumstances. Compassion is also animportant factor that is required to be taken into
account. In practice, poverty deteriorates the accused and leaves him with very few means
of redemption. Prison destroys self- esteem of a person and degrades humanity. It is really
hard for an accused to come backto mainstream society, because of being treated like an
alien after being jailed. It is necessary to lay down fair and reasonable conditions for
granting of bail; such reasonableness and fairness may differ from case to case. The
conditions and circumstances of the accused have a vital role in each case.

(4.3.3)Human Rights Denied in Overcrowded Jails

It is not a new phenomenon to illegally imprison people in jail. This unethical and illegal
practice is already going on for some time in India. The Rudul Sah case100 is a prime
example of such condition. The court has granted compensation to person aggrieved of
wrongful detention. Indian jails are overcrowded, producing a host of human rightsabuses.
Conviction in pity cases, arbitrary imprisonment, and vast number of casespending trial are
common grounds for overcrowding in jails in India. However, there maybe other practical
explanations for overcrowding, but unlawful detention is a cause whichis not only a
violation of constitutional and statutory necessities but also a breach of dignity and
fundamental rights. The high numbers of under-trials in Indian prisons are attributable to
101
 the low level of investigation, accumulation of cases, unfair process of bailsystem and
subjective detention of the accused inside the prison by the authorities concerned. This
overcrowding is the main cause of many problems and diseases among prison inmates.

Some important issues that are the product of overcrowding can be seen as:

a) The greater risk of diseases in the prisoners.

b) The level of noise is intolerable.
c) The sanitation problem due to the overcrowding.
d) The congested and dirty space in the barracks of the jail.
e) Fresh air and water are compromised due to overcrowding.
f) The denial of natural facilities in the jail.

100
Rudul Sah v. State of Bihar, 1983 AIR 1086, 1983 SCR (3) 508

102
 g) The difficulties and inconvenience in the surveillance.
h) The level of danger among the staff and inmates.
i) The psychological and mental pressure upon the inmates.
j) The overcrowding is the violation of the basic human dignity.

In order to protect human integrity, personal liberty and the right to life, it is necessary and
appropriate for a state institution that a person may be kept in jail only underextraordinary
circumstances. Bail is a rule and jail is an exception, should not be viewed as legal
requirement to decorate blank pages of books, but must be applied in legalsystem in its
true sense. The government and judiciary should take some serious initiatives to guarantee
the right to bail in ordinary circumstances. Due to unjustified denial of bail, multiple
problems arise, such as overcrowding in jails, increasing custodialviolence, compromising
human dignity, mental harassment of the accused, and many adverse outcomes. Every
person has a right to live with dignity, protected by the fundamental rights laid down in the
Indian Constitution, and therefore the adjudicative authority is expected to use its discretion
reasonably. If a person is sent to jail in ordinary circumstances without proof of
wrongdoing, it will be breach of human rights and of the rule of law.

4.4. LANDMARK JUDGMENTS ON JUDICIAL REVIEW AND PROTECTIONOF

CITIZEN’S RIGHTS

L Chandra Kumar v. Union of India (1997)101

The parliament by 42nd amendment 1976 inserted part XIV-A, which ousted the power of
judicial review from Court and conferred the same in administrative tribunals, to exclusion
of High Court’s jurisdiction.

The 7 judges’ bench of Supreme Court held as under:

101
3 SCC 261 : AIR 1997 SC 1125

103
 - Judicial review over legislative actions is a vital and essential feature of the
constitution also part of its basic structure which is vested in High Court and the
Supreme Court under Article 226 and 32 respectively.

- The power given to the High Courts to exercise judicial superintendence over the
judgments of all courts and tribunals within their respective jurisdictions is also part
of the constitution's basic structure.

- Clause 2(d) of Article 323A of the Constitution and Clause 3(d) of Article 323B are
unconstitutional to the extent that they preclude the jurisdiction of High Courtsand
of the Supreme Court under Articles 226/227 and 32 of the Constitution. To the
same extent, the provisions of Section 28 of the Administrative Tribunals Act, 1985,
and the 'exclusion of jurisdiction' clauses in all other laws enacted under the aegis of
Articles 323A and 323B, would be unconstitutional.

Nandini Sundar and Ors v. State of Chattisgarh102

The Court Observed:

- The moral and constitutional duty of the State is necessarily to combat extremism
and provide the people of the country with security. When the judiciary strikes
down state policies designed to combat terrorism and extremism, they do not
interfere with security considerations for which the expertise and responsibility lie
to executive, directed and controlled by the legislature.

- The judiciary intervenes in such matters with a view to safeguarding constitutional

values and objectives, and fundamental rights such as equality and the right to life.
Indeed, such expertise and responsibilities lie with the judiciary.

In the judgment by a constitutional bench, G.V.K Industries v. ITO,103 Court observed:

102
Writ Petition (Civil) No. 250 of 2007

103
(2011) 4 SCC 36

104
 - The power of judicial review is granted but it has to be ensured that such power is
exercised within the limits laid down in the Constitution. Consequently, it is
imperative that powers conferred on the various state bodies are not unnecessarily
controlled by judiciary to result in the inability of the government bodies
todischarge their constitutional responsibilities.

- The powers which are granted, and implied, and which are supported by the text of
the Constitution, shall be recognized by force. However, the very essence of
constitutionalism is that no State body can exercise its powers over and above what
is laid down in the Constitution. Walking on the edge of the razors is responsibility
of the judiciary. Judicial restraint is necessary; but restraint can not imply abdicating
the duty of walking on that edge.

Maneka Gandhi v. Union of India (1978)104

- The expression 'personal liberty' in Article 21 is broadest in scope and covers a

variety of rights which are to constitute personal liberty of man, and some ofwhich
have acquired the standing of distinct fundamental rights and they aregranted
additional protection under Article 19.

- Fundamental Rights represent the fundamental values cherished since the Vedic
times by the people of this country and are essential to protect the individual's
dignity and help in creating circumstances in which every human being can develop
his personality to full extent.

- Fundamental rights create a guarantee pattern for the basic of human rights and
impose a negative obligation on the State not to interfere with individual liberty in
its various dimensions.

- Fundamental rights are considered to be fundamental because they are essential for
the individual to attain his or her full intellectual, moral and spiritual status. These

104
AIR 1978 SC 597

105
 rights help not only to protect but also to prevent gross abuses of human right.

I R Coelho v. State of Tamil Nadu (2007)105

The basic issue before the Court was regarding the effect of kesavananda Casejudgment
on legislations made by parliament. On or after 24 th april 1973, when the basic structure
doctrine was promulgated in Kesavananda Bharati Case, whether the parliament under
article 31B of the constitution allowed to immunize legislation from fundamental rights
and judicial review, by inserting them in the Nineth schedule. The unanimous
judgement delivered by a 9-judge bench led by Chief Justice Sabharwal, also known as
the Ninth Schedule Case, upheld the validity of the Doctrine of Basic Structure
proposed in the case of Kesavananda Bharti. In addition, the Court also upheld the
Judiciary's power to review any such law which, in its view, would in any way destroy
basic structure of the Constitution. This case thus put an end to any controversy that
was left behind about the validity and implementation of the doctrineof the basic
structure.

In its referral, the Constitution Bench noted that, according to the Waman Rao Case, itis
possible to challenge the amendments to the Constitution after the Kesavananda Bharti
case by inserting new laws into the Ninth Schedule on the ground that they breach the
fundamental rights provided for in Articles 14, 19 and 31.

The Court held:

- The doctrine of the basic structure is the very essence of the Constitution and it is
not possible to allow any acts, rules and regulations that violate its essence to
continue in this brazen way.

- If any of the laws in the Ninth Schedule were not consistent with Part III, the Court
would be liable to strike them down.

- There is no blanket immunity from judicial review, for the laws which are insertedin

105
(2007) 2 SCC1: AIR 2007 SC 861
106
 the Ninth schedule.

- The purpose of Article 31-B is to eliminate difficulties and not to remove Part III or
judicial review in its entirety.

- The Parliament does not have unlimited power to enact any legislation and to
place it in Ninth Schedule and Article 31B, nor can it go beyond the limited
powerof amendment contained in Article 368 of the Constitution.

- The Supreme Court has held that the constitutional validity of the laws of the ninth
schedule could be determined by applying the direct test of impact and effect, i.e.
rights test, which requires that the determinative factor is not the form of a law, but
its effect.

- The first test is to see whether the laws placed in ninth schedule are inconsistent
with part III of the Constitution. Now, if answer comes to yes then the second step
is to see whether the violation found is destroying the basic structure theory
of the constitution. If both the answers are in affirmative, then the law placed in
ninth schedule must be invalidated.

107
 CHAPTER-5 CONCLUSION AND BIBLIOGRAPHY

5.1.Conclusions

Under, Article 21 of the Constitution of India, the right to live with dignity is provided for,
but after 70 years of independence, the accused and under-trials are subjected to inhuman
treatment and struggle to protect their dignity in India. The key function of, the criminal
justice system in every civilized society is, to protect the members of that society. India is a
parliamentary democracy and a welfare state with a governance framework that is quasi-
federal. The democratic system relies on the freedom and protection of citizen’s rights.

In order to find out the problematic and challenges in protection of the human rights of accused
persons in the Indian Criminal Justice System, the following hypothesis has been examined:

1) Human Rights are comprehensive and capable of enhancing the custodial dignity
and rights of the accused.

2) India's responsibilities under international law have inspired it to incorporate

human rights in domestic jurisprudence to secure rights of the accused to live with
dignity.

3) Judicial activism is essential to strengthen rights of the accused in India.

4) Cardinal principle of criminal jurisprudence is that bail is a rule and jail is an

exception, but it is still largely ignored by Courts.

5) Traditional methods of investigation are the root cause of the violation of, rights of
the accused, and the adoption of advanced forensic investigation techniques can
prevent rights of the accused.

6) Powers conferred on various authorities, in particular the police agency, are the
main cause of violation of human rights of the accused, and police reforms can
change the scenario.

7) Lack of awareness of rights causes harassment of the accused.

108
 BIBLIOGRAPHY

BOOKS

1) Dr. Ashutosh, Rights of Accused, 2nd Edn. , Universal Law Publishing Co. Pvt.
Ltd., New Delhi, 2013

2) Dr. Deepa Kharb, Fundamental Rights of Accused Person under

IndianConstitution: Emerging Trends, 1st Edn., VL Media Solutions, New Delhi,
2013

3) Garner, B. A., & Black, H. C., Black's law dictionary, 9th Edn. , St. Paul, MN:
West, 2009

4) Handbook on Practice and Procedure and Office Procedure, Supreme Court

of India, 2017

5) Jaishree Jaiswal, Human Rights of Accused and Juveniles Delinquent/in conflict

with law, Kalpaz Publications, Delhi, 2005

6) Maurice Cranston, What are human rights? , Basic Books, 1963

7) M L Bhargava, Rights of Accused: Protection for Arrested Person - Pre Trial and
Post Trial, 2nd Edn., Kamal Publications, 2018

8) M.S. Pandit, Outlines of Ancient Hindu Jurisprudence, N.M. Tripathi

PrivateLimited, 1989

9) Nitya Ramakrishnan, In Custody: Law, Impunity and Prisoner Abuse in South

Asia, 1st Edn., Sage Publications, 2013

10) P.K. Singh, Human Rights of Accused in the Criminal Justice,

Swastik Publications, Delhi, 2011

11) Rocher L., Gavin Flood (Editor), The Blackwell Companion to

Hinduism, Blackwell Publishing, 2003

109
 12) Steven Rosen, Essential Hinduism, Praeger, 2006

CASES

 Abraham Verghese v. State, AIR 1965 Ker.75; 1965 (2) Cr.LJ.102.

 Abraham Bali v. Emperor, AIR 1925 Oudh, 489: 26 Cr.LJ. 1286.
 A K Gopaian v. State of Madras, AIR 1950 SC 300.
 B. S. K. Sangh (RIy.) v. Unionof India, AIR 1981 SC 296.

 K. Gopaian v. State of Madras, (1950) SCR 88 at 117: AIR 1950 SC 27.

 K. Mumiu V Prasanjit Chowdhary, 1999 CrU 3460.

 K. Roy V. Union of India, AIR 1982 SC 710.

 A.O. Dalai v. State of Bombay, AIR 1952 SC 14.
 A.RAntulay & other v. R S Nayak & Others; 1992 (1) SCC 225.

 A.V. Venkateswaram v. RS Wadhwani, AIR 1961 SC 1506.

 Abdullah Haji V. Food Inspector, Tellicheny Municipality, 1986, Cr, LJ. 1193 (Kerala).

 Abdus Sukkurv. State of West Bengal, AIR 1972 SC 1915.

 ADM Jabalpurv. S.Shukla,AIR 1976 SC 1254.

 Adamji Umar Dalai v. State of Bombay, AIR 1952 SC 14.

 Ajai Dixit v. State of Uttar Pradesh, AIR 1985 SC 18.

 Ajay Hasia v. Khalid Mujib, (1981) 2 SCR 79 : AIR 1981, SC 492.

 AJmer Singh v. State of Punjab (1953), SCR 418.

 AK Murmu v. Prasanjit Chowdhary, 1999 CrLJ, 3460.

 Ambaji (1928) 30 Bom. LR 380: 52 Bom. 257.

 Ameeroonissa v. Mehboob,(^953) SCR 401, 414.

 Amin v. State, AIR 1958 All 293.

 Assistant Collector, Central Excise v. J H Industries, AIR 1979 SC 1889.

 Asst, Collector of Customs v. Madan Ayabo Attenda, 1992, Cr, LJ. 2349.
110
 Asst. Collector of Customs, Bombay v. Madan Ayabo Attenda, 1952, Cr.LJ. 2349. Asst.
Collector V. Malwani, AIR 1970 SC 962.

 B D Narsihma Setty v. Dy. CTO, AIR 1963 Mad. 166.

 Narayanappa v. State of Kamataka, 1982 Cr.L.J. 1334.

 B.S.Rao Badami v.State of Mysore, AIR 1969 SC 45.

Babu Singh v. State of Punjab 1964, (1) Cr L J 566.

 Babu Singti v. State of UP, 1978 Cr.LJ. 651 : AIR 1978 SC 527

 Gurbaksh Singh Sibia v,. State of Punjab, AIR 1978, P&H 1.

 Gurbaksh Singh v. State ofPb. AIR 1980 SC 1632.

 Gumcharan Singh v. Delhi Admn; AIR 1978 SC 179 : 1978 Cr.LJ. 129.
Guruswamy v. State of Tamil Nadu, AIR 1979 SC 1177. H.C. Gaurv. Rakesh
V//1990, Cr U, 1586 (Del.).
 Haji Mohamed Wasim v. State of UP. 1982 Cr.LJ. 1299.

 Hajialisherv. State ofRajasthan 1976 Cr. LJ. 1658 (Raj).

 Hamdard Dawakhana v. Union of India, (1960) 2 SCR 671. Hanifabai{^9^0)

32 Bom, L.R. 1499.
 IHaniraj Chulani v. Bar Council ofMaharastra and Goa, AIR 1996 SC 1708.

 Hansmukh v. State of Gujarat, AIR 1981 SC 28.

 Harshankar v. Dy. Excise and Taxation Commr, AIR 1975 SC 1121

 Josepli V. Narayana, AIR 1964 SC 1552.

 Eve Fall's case (1974) 417: US 817 4IL Ed. 2D 495.

 K Kochunni v. Madras, AIR 1959 SC 725.
 K. M. AbduHa Kunhi v. Union of India, AIR 1991 SC 574.

 K. N. Nanavati v. State of Maharashtra, AIR 1962 SC 605.

 K. Raja Sekhara Reddy v. State ofAP, 1999 CrU. 1933. KM

Abdulla Kunhi v. Union of India, AIR 1991 SC 574.

 KM. Salim v. Kerala, 1986, Cr.U. 1197 (Ker).

111
 Kadra Pahadiya v. State of Bihar. (1981) Cr. LJ. 481 (SC).

 Kailash Nath v. Emperor, AIR 1947 All. 436.

 Kailash v. Laxminarayan, (1966) AIR, Raj 263.

 Kalawati v. State of HP (1953) SCR 546.

 Kaliram v. State of HP, AIR 1973 SC 277.

 Kalu s/o Sampat v. State ofRajasthan, 1984 (1) Crimes 129 (Raj).

 Kanu Sehgal v, District Magistrate, Darjeeling, AIR 1973 SC 2684.

 Kashmira Singh v. State of Punjab ,(1977) Cr.U. 1746 (SC): AIR 1977 SC 2147.

 Kashmiri Devi V. Delhi Administration, 1988 Cr.U. 649 (Del).

 KasturiLal v State of UP MR 1965 SC 1039.

 Life Insurance Corporation of India v. Prof ManubhaiD. Shah, AIR 1993 SC 171.

 Liversidge v. Anderson (1942) AC 206.

 Llewelyn Evans, (1926) 28 Bom. LR 1043, 50 Bom, 741.

 MBNizami v. Dy Custodian of Evacuee Property, AIR 1951 Mad 930.

 M C Mehta v. Union of India, AIR 1987 SC 1086.

 M H Hoskot V State of Maharastra, AIR 1978 SC. 1548.

 M P Sharma v. Satish Chandra, AIR 1954 SC 300.

M. Gopalakrishna Naldu, (1952) Nag 52.
 M. Patel v. State of Maharastra, AIR 1981 SC 510.
 M.N.S., Nair v P VBalakhshnan, AIR 1972 SC 496.

 M.R Parasharv Farooq Abdullah, AIR 1984 SC 615.

 M.S.M Shamna v. Sri Krishna Sinha and others, AIR 1950 SC 395. M/s
W.R.E.D Co., Ltd., v. State of Madras, AIR 1962 SC 1753.

 Madan Gopalv Union of India, 1993(1) All India Cr..LR533(Delhi).

 Madan Mohan Sahoo v State ofOrissa, (1995) 9. QCR 553.

 Madhab Chandra Jena vState ofOnssa, 1988 Cr.LJ. 608 (Ori.).

112
 am ManoharLohia v. State of Bihar, AIR 1966 SC 740.

 Ram Nandan v. State, AIR 1959 All 101.

 Ram Sagar v. Chandrika, (1961) AIR Pat 364.

 Sanvan Singh v. Punjab, AIR 1978 SC 1525.

 Sashi Kumar v. Manipur Administration, 1963, Cr.LJ. 562.

 State of Gujarat v. ShantiLal, AIR 1969 SC 634-44.

 Satwant Singh v. Asstt. Passport Officer, New Delhi, AIR 1967 SC 1836.

 Satwarao Nagorao Hatkar v.Kanbarao Bhago Rao Hatkar, (1939) Nag. 393.

 Satyawati v. Union of India, AIR 1967 Del 98.

 Satybrata v. State of West Bengal, AIR 1973 SC 756.

 Secretary, Ministry of l&B v. Cricket Association. Bengal, AIR 1995 SC 1236

 State of Punjab v. Bhajan Singh, 1975 Cr.L.J. 282.

 State of Punjab v. Sukhpal Singh,A\R 199. SC 231. EastCr.C.193.

 State OfRajasthan v Vidhyawati, AIR 1962 SC 933.

 State ofUPv Kartar Singh, AIR 1964 SC 1135.

 State of UP V. Mohd. Nooh, AIR 1958 SC 86.

 State of UP V. Raj Narain, AIR 1975, SC 865.

STATUTES

1) Bombay Act II of 1874, Civil Jails Act 1874

2) Indian Evidence Act, 1872
3) Indian Penal Code, 1860
4) The Code of Civil Procedure, 1908

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 5) The Code of Criminal Procedure, 1973 (Act 2 of 1974)
6) The Constitution of India
7) The Contempt of Courts Act, 1971
8) The Police Act, 1861
9) The Prevention of Torture Bill, 2017 (Bill No. 29 of 2017)

10) The Prisons Act, 1894 (ACT No.9 of 1894)

11)The Prisoners (Attendance in Courts)
Act,1955 12)The Protection of Human Rights
Act, 1993

13) The Repatriation of Prisoners Act, 2003 (Act No. 49 of 2003)

14) The Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975
15)The Supreme Court Rules, 2013

16)The Transfer of Prisoner Act, 1950 (Act No.29 of 1950)

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HNLU student bar Journal, July 20, 2020

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publishedon 07 December 2019.

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17) Pushkraj Deshpande, “Overview of Section 482 CrPC vis- a- vis the landmark
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