An Undertrial &

The Criminal Justice System

Undertrial & the Criminal Justice System

Lawyer
Right to Legal Representation
 Right to Legal Representation
in Indian Law
Article 22(1), Constitution of India

Right to consult, and to be defended by, a legal practitioner of his choice

Article 39(A), Constitution of India

The State to provide free legal aid to ensure that opportunities for
securing justice are not denied to any citizen by reason of economic or
other disabilities.

Section 304, Code of Criminal Procedure

In a trial before the Court of Session if the accused is not represented by
a pleader, and the accused has not sufficient means to engage a pleader,
Court shall assign a pleader for his defense at the expense of the State
 Legal Backdrop

Ranchod Mathur Wasawa v. State of Gujarat (1974) 3 SCC 581

Duty of a Judge is to inform an indigent regarding his right to

counsel.
Competent advocates to be appointed, able to handle complex
cases, not patronizing gestures to raw entrants at the Bar.

Khatri v. State of Bihar AIR 1981 SC 928

State is constitutionally bound to provide free legal aid to an

accused who is unable to secure legal services on account of his
poverty.
 Legal Backdrop

Hussainara Khatoon (II) v. State of Bihar AIR 1979 SC 1369

If free legal aid is not provided to accused who require it, then the
trial will run the risk of being vitiated as it will be in contravention
to Article 21.

Ranjan Dwivedi v. Union of India (1983) 3 SCC 307

Government should implement legislation that has appropriate

schemes for free legal aid.
 Legal Services Authorities
Established by the Legal Services Authorities Act, 1987

National Legal Service Authority

Chief Justice of India
NALSA

State Legal Service Authority

SLSA Chief Justice of the High Court

District Legal Service Authority

DLSA District Judge
 Mandate of LSAs

To provide free and competent legal services to eligible persons

To hold Lok Adalats
To conduct legal awareness programmes

Persons Eligible for Legal Aid (Section 12)

Human
Member of
Woman / Child Trafficking / Disabled Person
SC/ST
Begar

Mass Disaster Industrial Person in Economic

Victim Workman Custody Means Test
 Process to acquire Legal Aid
Eligibility Provide State
Criterion Counsel

Existence of Pay Court fee

Prima Facie and other
case in favour expenses

Under Section 2(1)(c) Legal Service' includes

Rendering of any service in the conduct of any case, and
Giving of advice on any legal matter.
 The Way Forward
Pitfalls Possibilities
Application to LSA
Inform Prison Staff
No Lawyer
Inform Magistrate
Legal Aid Clinic in Prison
Inform LSA
Lawyer not Efficient
Inform Magistrate
Involve Prison Staff
Unable to meet Lawyer Specify Separate Place
Liberalize Rules
 The Way Forward

Educating Inmates and their families about legal

processes?

Get involved in Counselling and Conciliation Centres at

Districts?

Get involved in community participation in prisons?

Possibility of publicizing case studies?

BailNot Jail!
 Does one have a right to Bail?

Whether one has a right to bail

depends upon the kind of offence
that the person is accused of having
committed.
 What are Bailable Offences?

1 Minor Offences: Simple Hurt, Criminal Intimidation, etc.

2 Bail is a Matter of Right

3 Police is Duty bound to Inform right to Bail

[Section 50(2), Cr.P.C.]

Release on Personal Bond, if bail not furnished within 7

4
Days [Section 436(1), Cr.P.C.]
 What are Non-Bailable Offences?

1 Serious Offences: Murder, Rape, Dacoity, etc.

2 Bail is NOT a Matter of Right

3 It is the discretion of the court whether to grant or not

 Considerations for Grant of Bail

1 Nature / Enormity of Charge

2 Nature of Evidence Against Accused
3 Likelihood of Person Absconding / Commit Crime
4 Likelihood of Tampering Evidence
5 Likelihood of Influencing / Threatening Witnesses
6 Criminal Record / Previous Convictions
7 Larger Interest of Public / State
 Special Considerations for Bail

Under Section 437 (1), Criminal Procedure Code

Limitations may be overlooked if the accused is:

1 Under the Age of 16

2 Accused is a Female

3 Accused is Sick / Infirm

4 Court finds it just and proper for any reason

 Right to Bail
Section 167, Criminal Procedure Code
Where the police fails to complete investigation within

90
DAYS
In respect of offences punishable with death, life
imprisonment or more than 10 years

60
DAYS
For other offences, i.e., equal to or less than 10 years

On the expiry of 90 or 60 days, as the case may be, the accused shall
be released on bail
 Right to Bail
Section 436A, Criminal Procedure Code
No person to be detained for more than the maximum prescribed imprisonment

Offences punishable by sentences other than death

penalty

Detained for Half of the Maximum prescribed

imprisonment as an Undertrial

shall be released by the Court on his personal bond with or without

sureties
 Right to Bail
Section 437(6), Criminal Procedure Code
Charge of a Non-Bailable offence triable by a Magistrate

Trial cannot be
completed within 60
DAYS
after the first date fixed
for taking evidence

accused has been in custody

during the whole period

shall be released on Bail

 Right to Bail
Section 437(7), Criminal Procedure Code
Person accused of Non-Bailable Offence under Custody

Conclusion of trial but judgement is yet to be delivered

&
Reasonable grounds to believe that the person is not guilty

Person should be released on Bond without sureties for his

appearance to hear judgement
 PROBLEM 1

Does the surety/accused have

to deposit the money pledged
in his/her bond at the time of
release on bail?
 SOLUTION 1

NO!
The money is to be given only
if s/he defaults in appearing
before the court.
 PROBLEM 2

Can a surety be rejected on

the ground that the person is
from a different district or
state?
 SOLUTION 2

NO!
A surety cannot be rejected on
the ground that the person is
from a different district or state.
(Moti Ram v/s State of M.P.
AIR 1978 SC 1594)
 PROBLEM 3

What if the person applying

for bail cannot furnish the bail
amount or is unable to find a
surety?
 SOLUTION 3

Regard to the circumstances of the case

and bail amount should not be excessive.
[S.440, Cr. P.C.]
Convincing the court to release her/him
on personal bond
[Hussainara Khatoon v/s Home Secretary, State of
Bihar, AIR 1979 SC 1360]
 PROBLEM 4

Can the court impose any

condition while granting bail in
cases of non-bailable
offences?
 SOLUTION 4

NO!
Conditions imposed on person
should not be unreasonable or
too harsh or amount to virtual
denial of bail.
Prison Visiting System
Main Agencies that make PVS work

Board of
Visitors

Prison Staff

Government
 Why do we need PVS?

Closed nature of the Prison System: no public participation,

no scrutiny

Atmosphere of secrecy: public information on prisons is

scanty

Complete control & supervision of the prison staff: potential

for corruption and human rights violations

States supervision: a mere formality

 Steps to a Prison Visit

Make
Initial talk with Interview Talk to Concluding talk
Visit the Consult notes in
the the other with the
prison the the
Superintendent prisoners prison Superintendent/
premises registers Visitors
/ Jailor in private staff Jailor
Book
Checklist for Prison Visitor
Material Conditions

(i) Capacity and occupancy of the establishment (at the time of the visit)

(ii) Cells

(iii) Food

(iv) Personal hygiene

Regime and Activities

(i) Administration of time

(ii) Activities offered

(iii) Contacts with the outside world

Checklist for Prison Visitor
Medical Services

(i) Access to medical care

(ii) Medical staff

Prison Staff

Treatment

Protection Measures

(i) Informing detainees

(ii) Disciplinary procedure and sanctions

(iii) Complaint and inspection procedures

(iv) Separation of categories of detainees

(v) Registers
Thank You!