SYNOPSIS

ON

RIGHTS OF ACCUSED, UNDERTRIAL PRISONERS

AND CONVICTS UNDER THE CRIMINAL LAWS OF INDIA.

AN ANALYTICAL AND CRITICAL STUDY WITH REFERENCE

TO THEIR CONSTITUTIONALITY AND HUMAN RIGHTS

PERSPECTIVES.

Synopsis submitted for the registration of

Ph.D.

in the

FACULTY OF LAW,

SANT GADGE BABA AMRAVATI UNIVERSITY,

AMRAVATI.

Submitted byVijesh B. Munot

Under the guidance ofDr. J. L. Aparajit

(Principal, Dr. Babasaheb Ambedkar Law College,Main Branch, Nagpur.)

2006-2007 (July)

RIGHTS OF ACCUSED, UNDERTRIAL PRISONERS ANDCONVICTS UNDER THE CRIMINAL LAWS OF INDIA.

AN ANALYTICAL AND CRITICAL STUDY WITH REFERENCE TOTHEIR CONSTITUTIONALITY AND HUMAN RIGHTS

PERSPECTIVES.

INTRODUCTION

Man is a social animal. He wants to live in society for better living. Man loves

a peaceful & harmonious life. For that he live in an organise society. The organise

Society is not different from the state. Every individual who live in the State, is

governed by the State.

As member of the State the law has attributed some rights & duties to every

man. These right & duties are essential for the man for his proper & fullest

development of personality. The right which are conferred on him are enforceable by

the court of law. Hence wherever there is violation of his right whether civil or

criminal, he wants justice through the court.

In our country the administration of justice is basically divided into two parts.

1) Administration of Civil Justice

2) Administration of Criminal Justice

Whenever a private right of individual is violated by another he suffers an

injury in the form of damage or loss to his property or person. This individual wants

the remedy and for that he goes to court & seek the remedy in the form of

compensation. So under administration of civil justice the ultimate purpose is to

provide compensation to the person, whose right is violated.

Under administration of criminal justice the ultimate purpose is to inflict

punishment on the wrongdoer. The purpose behind it is that the crimes & Criminal

tendencies are to be eradicated from the Society. Under administration of criminal

justice, the justice is dispense by the court to the victim of crime by taking revenge for

him and by punishing the wrongdoer, if he is found guilty.

On this backdrop, it needs to be stated that whenever person is an accused, is

arrested for the crime, is to be dealt with according to law and is not to be treated

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arbitrarily. It is long drawn experience of our society that a poor or indigent person

who is innocent and happens to come in to the clutches of police is being tortured in

trouble without any fault of his. This personal trouble or harassment should not be

caused to an individual. For that purpose law has provided some safeguards, securities

& protection by laying down the legislation. In other words whatever the rights which

are provided to an accuse by law are to be availed by the accused for getting

benefited. Similar is the situation with respect to under trial prisoners & convicts.

Whatever the rights are attributed to them are to be availed by them.

On this backdrop this topic is chosen by the researcher.

Common man in our country has not fully acquainted with his legal &

constitutional rights. This is also true for India. Moreover, Illiteracy in India prevails

over the majority of Population. Among the literate population, on prima facie, it

seems that legal literacy is negligiable & need not to be said about legal literacy of

illiterate population. Thus, legal knowledge about the rights of the persons is at

greater extents, not known the them.

Rights being immunities denote that there is a guarantee that certain things can

not or ought not to be done to a person against his will. According to this concept,

human being, including accused, suspect, under trial prisoners, detenue, convicts and

prisoners, by virtue of their humanity ought to be protected against unjust and

degrading treatment.

These are the people, though guilty or innocent find themselves helpless

before the officers of administration of justice.

"Power tends to corrupts and absolute power corrupts absolutely."

Lord Acton

In India and in most of the countries of the world, police force and jail

authorities remain in powerful position which tends them to abuse the rights of

accused, arrestees, under trial prisoners and convicts, or tends them to take bribe.

India, also for long time was suffered from Police State or Totalitarian State

condition, and position is still somewhat same.

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After the independence we have emerge the concept of welfare state in India, even

though for very extent our Police force and jail authority remains unaffected, with its

traditional attitude.

The rights of accused, arrestees, detinue, under trials, prisoners and convicts

have been secured by various criminal laws of India and also by Constitution of India.

The several Criminal laws of India such as Indian Penal Code 1860, Code of Criminal

Procedure 1973, Juvenile Justice Act 2000, Prisoners Act 1894, India Evidence Act

1872, Probation of Offender Act 1958, COFEPOSA Act 1974, NDPS & Jail Manual

of states, and Police manuals etc. are the protector of the rights of above classes.

Moreover, they have been held to have a number of rights as ingredient of

Right of Life and Personal Liberty, Right to Equality, Right to Freedom under

corresponding Articles 21,14 & 19 of Constitution of India. Besides, under its wide

interpretation of fundamental rights under chapter III of Constitution of India

Supreme Court pronounces certain rights. By a series of judgment regarding rights of

suspects, under trials, convicts & prisoners, the S.C. has fabricated Police & Prison

Jurisprudence. Certain rights have been made as components of Fundamental

Rights. In fact the court, through its judical pronouncement has made out a strong

case for prison reform and in the process it has shaped a code in this regard. But

legislation has passive attitude towards the codification of these rights, so also true for

its implementation.

Awareness about the rights of accused, under trial prisoners & convicts is

necessary to protect innocent citizen from being arrested & harassed by the police

merely on the suspicion complicity in an offence, to avoid executive highhandedness,

to safeguard the dignity & humanity of under trial prisoners & convicts.

In old days all the types of crimes where regarded heinous. There were no

scientific classification of crime and Criminals. There were no scientific methods of

investigation of crimes, procedure to determine guilt and fixed sort of punishment to

be given to the convicts. But the concept of crime is always changing so also the

concept of right changes according to time, situation & circumstances. In India Right

to Life & it's ancillary rights such as Right to Live with Human Dignity etc. are

recognised after the independence. Consequently though, the person is suspected

under trial prisoner or convicts have some inherent rights because of his humanity.

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AIMS AND OBJECTIVES OF THE PROPOSED WORK

Criminal law and it's process can not be appreciated without some

understanding of the rights & protection given to the accused person not only during

the trial but also before and after trial. These rights and protections aim at providing a

fair trial to an accused persons so as to eliminate any possible abuse of process

resulting in miscarriage of justice. These rights includes right to be produce before the

magistrate (Article 22 of Constitution of India & section 76 of Cr. P.C.), right to bail

(1st schedule of Cr. P.C.), release on bond (section 440 (i) Cr.P.C.), right to counsel

and legal aid (Article 22 (3) and Article 39 - A of Constitution of India , also sections

303 and 304 of Cr.P.C.), The principle of Legality (Article 20), Principle of innocence

section 101 of Indian Evidence Act 1872, Right to speedy investigation and trial etc.

Our criminal justice system, even today, find itself helpless to provide cheap

and speedy justice. Even after six decades of independence no serious efforts have

been made to redraft Penal norms, redicalise punitive processes, humanize prison

houses and make antisocial & antinational criminals such as hoarders, smugglers, tax

evaders, black marketeers, white collar criminals etc. On the other hand whatever

legislation , piecemeal amendments, substitution and deletion that have taken place

during the last five- six decades to ameliorate the conditions of the downtrodden

masses, are all aimed protecting the interests of rich and bourgeoisie class.

Of course, judiciary in recent years has taken a lead & has come forward with

a helping hand to give some relief to the victim of criminal judicial system. For

instance, the landmark decision handed over by the Hon'ble Supreme Court in

Haskot1, Motiram 2 , Hussainara 3 Sunil Batra4 , Sheela Barse5 Charles Shobharaj6

, Nilabati Behra7 , D.K. Basu8 , etc. have depicted that despite the Constitutional

mandate and statutory guarantees, the legal rights even today remain not existence for

a large percentage of the illiterate, ignorant & poor population of the country.

_______________________________________1 M.H.Haskot Vs.State of Maharastra A.I.R.1978 S.C. 15482 Motiram Vs. State of U.P. AIR 1978 S.C. 15943 Hussainara Khatoon Vs. State of Bihar (1980) S.C.C. 88)4 Sunil Batra Vs. Delhi Administration AIR 1980 S.c. 15795 Sheela Barse Vs. State of Maha A.I.R. 1983 S.C. 3786 Charles Shobharaj Vs. Supretendent, Central Jail A.I.R. 1978 15147 Nilabati Behara Vs. State of Orrisa (1993) 2 S. C.C. 7468 A.I.R. 1997 S.C. 610

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The problem of undertrial prisoners has assumed new proportion in recent

year. In India, there are many reasons such as poverty, illiteracy etc., of which under

trial prisoners, become prey easily. They are languishing in various jails in different

States for period much longer than the maximum term for which they could have been

sentenced, if convicted. Many of them are innocent persons who are cought in the

web of the law eagerly waiting for their trial date. It would be unjust and unfair to

deprive a person of his freedom and liberty and kept him in confinement, if his

presence in the court whenever required for trial, is assured. The plight of under trial

prisoners for the first time came to the notice of Supreme Court of India in

Hussainara Khatoon Vs. State of Bihar1.

In 1979 wherein it was disclose that thousands of under trial prisoners were

languishing in various jails in state of Bihar for periods longer than the maximum

terms for which they could have been sentenced , if convicted. While granting a

character of freedom for under trial who had virtually spent their period of sentence,

the court observed that their detention was clearly illegal and a blatant violation of

their fundamental right guaranteed under Article 21 of the Constitution of India. The

court further said that speedy trial is a constitutional mandate and the state connot

avoid its constitutional mandate and its constitutional obligation by pleading financial

or administrative inability. Despite the Supreme Court's landmark decision in

Hussainara Khatoon, the conditions of under trial in prison are no better and more

than a lakh of under trial prisoners are languishing in the prisons of India at present.

The provision of section 167 of the Code of Criminal Procedure, 1973 regarding time

limit for completion of police investigation and that of free legal aid to indigent and

poor under trial or liberalization of jail justice system etc. have not helped in

minimizing the number of under trial prisoners in Indian jails.

It is a well known dictum of traditional Hindu Dharma that "Hate the sin not

the sinner."The convicts, in the entire situation cannot be put at same place as most

of them became prey of their own destiny. Since from the old days prisoners have

some rights but powers to the public officials were very wide and still continuing

wide powers are enjoying by them at many instances. The rights of prisoners and

convicts are abused.

_______________________________1 1980(1) S.C.C. 8891.

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A prisoner does not cease to be a person inside a jail and is, as such, entitled to

receive a reasonably decent and civilized treatment in the prison.

There are certain legal and constitutional mandate which protect and safeguard

the rights and interests of the prisoners. The Prisons Act 1894, The prisoners Act

1900, The Transfer of Prisoners Act 1950, The Repatriation of Prisoners Act 2003,

The Repatriation of Prisoners Rule 2004, Jail Manuals of various States, India Penal

Code 1860, Code of Criminal Procedure 1973, Police Act, along with several

landmark verdicts of Hon'ble Supreme Court which gives rights against solitary

confinement, right to meeting with family member and friends, right to expression

and communication, right against inhuman treatment, right against delayed execution,

right against custodial torture in Prison, right against use of fetters.

There is, however, hardly any change in the conditions of the jail and the

attitude of jail administration and in spite of Constitutional mandate for speedy trial,

there are over two lack prisoners, convicts and under trials who are endlessly awaiting

an early hearing of their cases.1

But all of the above provisions failed to bring out any change in the conditions

of the jail and attitude of the jail Administration. More recently the Supreme Court,

in its landmark decision in Ramamurthy Vs State of Karnataka2 has identified nine

major problems which need immediate attention for implementing prison reforms.

The court observed that the present prison system is affected with the major problems

of -

(1) overcrowding (2) delay in trial (3) Torture and ill treatment (4) neglect

of health and hygiene (5) insubstantial food and inadequate clothing (6) Prison

vices (7) deficiency in communication (8) streaming of jail visits and

(9)management of open air prisons.

______________________________1 "Humanising the prisons system" The times of India, 15 Jan 1997 p.11)2 (1997) 2SCC642)

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It also suggested replacing the archaic Prison Act 1894 with a new enlightened

statute, so that major problems are reduced in jail to the minimum possible extent and

cordial and friendly relationship is established between prisoners and jail staff. As

Kuldeep Singh and Hansaria JJ. said :

"Unless there is introspection on the part of all concerned with the

criminal justice system, issues relating to jail reform, improvement in the

prisoners condition, and better administration of justice will continue to remain

on paper. It is possible to reduce the backlog of criminal cases if the judiciary

and lawyers together resolve to refrain from unnecessary and repeated

adjournments."

Hence, at last, it can be concluded that there is need to improve the techniques

of handling the accused person, treating under trial prisoners and radically changing

the worse conditions of convicts by appraising the old one and comparing with

reformative works in other Countries and reconciling with human rights perspectives

and international covenants.

The aims and objectives of the proposed research is enumerated as follows -

1. The researcher ardent to point out all the rights which are available to accused,

under trial prisoners and convicts under the criminal laws of India, Constitution of

India Human Rights Jurisprudence and under the International obligation in the

Form of International Covenants.

2. The proposed research work aimed at finding the conditions of under trial

prisoners after the verdict in Hussainnara Khatoon.

3. The oppression and abuse of the powers by officers of administration of Justice

are done easily and frequently. The proposed work is aimed at finding the main

reasons behind it.

4. The thorough study of the criminal law of India, Constitution, Judicial

Pronouncement, Human Rights Jurisprudence and International Covenant

regarding the rights of accused, under trial prisoners and convicts would help at

knowing the practicalness of the problem, & bringing out the positive solutions.

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5. In this study we have to find out the awareness about these rights among the

accused, under trial prisoners and convicts and also in other members of the

society.

6. This research work includes visit jails, police stations and court of law, for the

appraisal of the present conditions about these rights prevailing therein.

7. The proposed research is to be done for bringing awakening in the awareness

about the rights of accused, under trial prisoners and convicts in them, social

organizations, and other members of the society.

8. There is need to improve the techniques of handling the accused persons,

treating under trial prisoners and radically changing the worst conditions of

convicts and prisoners at both administrative and legislative level.

9. Human Rights perspectives and International Obligations regarding these

rights with their effective implementation systems are very important to

protect and safeguard the rights and interest of the accused, under trial

prisoners and convicts.

10. Every effort should have to be made to avoid delay in investigation & trial

which is harmful not only to accused, under trial prisoners, but also to the

society.

11. The subject in the proposed work has gain the global phenomenon. Only

challenge posed to the society for the genuine implementation of these rights

without any discrimination. It is ardent desire of researcher that human

dignity which can clutch at the whim of administration should be protected &

safeguarded.

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SCOPE & LIMITATIONS OF THE WORK

The rights of accused, under trial prisoners and convicts have global and

multidimensional aspect relating with human dignity. These rights should be

protected for securing and maintaining the human dignity and also protecting the

innocent persons. These rights should not be abused at the cost of administrative and

executive and whenever required needs and shall receive legislative and judicial

attention. The proposed research crystallize various aspects of rights of accused,

under trial prisoners and convicts which are necessary for the protection of basic

values cherished by the people of this country (India) since the Vedic times and they

are calculated to protect the dignity and create conditions in which all these people

can develop their personality to the fullest extent.

Under this work the following aspects shall be considered in depth, i.e.

Rights of accused, under trial prisoners & convict under criminal laws of India,

Constitution, International covenants, rights derived from judicial pronouncement and

its Human Rights Perspectives.

Findings and conclusions from empirical study & model forms of

questionnaires and its interpretation is the part of the propose work. This deals with

non-doctrinal aspect of proposed work. It includes practical visits to Jail, Police

Station, to find out practicalness of the problem and appraisal of present conditions in

jail and police station.

The most of the research work shall be based on the law pertaining to India

and wherever it is necessary to take into consideration the International Covenants,

shall be considered.

At last the proposed work concluded with conclusion & recommendations.

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METHODOLOGY

In order to handle this proposed work in an appropriate manner and giving

useful output from the work, both the doctrinal (i.e. analytical) as well as empirical

method would be most suitable and perfect. Hence, in the proposed work, both these

method have been and will be utilized very well. Doctrinal method involved

arranging, ordering and systematizing legal propositions, analysis of case laws and

study of legal institutions through legal reasoning. The data or information will be

collected from legislative texts, foreign laws, international conventions and judicial

decisions.

The empirical reasearch is carried on by collecting and gathering data or

information by first hand study into the universe. This proposed work will includes

the preparation of questionnaires, practical jail visit, visit to police stations, office of

executive magistrates and Courts. The questionnaires are to be prepared to find out

about the awareness of the rights of accused, under trial prisoners and convicts in

themselves, in executives and public officials, in family members, friends and social

organizations.

Yet another object of preparing the questionnaires is to know about the

reformative steps that have been taken at the Government level about the conditions

of accused, under trial prisoners, prisoners and convicts. Visit to police stations and

jails are to be done to know about the conditions of accused , arrested persons,

suspects, under trial prisoners and convicts, the manner of classification of offenders

according to sex, age, and gravity of offence, scientific individualization of offenders,

treatment with under trial prisoners etc.

It is thus, a fact research. It will seek to identify and appraise the degree of

variable which influence the outcome and legal decision making.

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HYPOTHESIS

The abuse and oppression of the rights of accused, arrestees, suspects, under

trial prisoners and convicts were not new in ancient India. But in the modern era of

welfare State the concept of totalitarian State is foreign one when there is strong

recognition of Human Rights at global level. The accused, under trial prisoners and

convicts still themselves have not aware about their Rights, also true about general

public. In the proposed work the following Hypothesis has been formulated.

1) The accused, under trial prisoners and convicts have certain rights more or less

contains in the Criminal laws of India, Constitution, Jail manuals, International

Covenants and Judicial Pronouncement. But the real challenge is regarding their

implementation.

2) Large of the Indian population is illiterate and also the rate of legal literacy and

awareness is negligible. Ignorance of the general public regarding their rights

prevails over their awareness.

3) One of the basic cause of such an unfortunate situation is that the powers which

are given to the police, prison authorities to fulfill their legitimate and essential

functions are capable of being abused and misuse by them to torture man kind, to

destroy lives and properties, to oppress and intimidate the weak and to trample the

constitutional rights of the community as well

4) The judiciary has played an important role in the articulation and protection of the

rights of accused, under trial prisoners and convicts. The police jurisprudence and

prison jurisprudence developed by the judiciary are of worth value in

safeguarding the existing rights and evolving new rights.

5) Abuse and oppression of the rights of the accused, under trial prisoners and

convicts are the crime against Human dignity. But the present criminal laws and

legal works in this regard are inadequate and insufficient.

6) The necessity is to change the traditional attitude of the public officials regarding

the rights of accused, under trial prisoners and convicts. The reformative

techniques

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and constitutional mandate should not remain only on paper but be practically

applied and work out.

7) Human Rights perspectives and international obligation in the form of

International covenants regarding these rights are important and great weapons

for protecting and safeguarding the rights and interests of the accused, under trial

prisoners, and convicts.

8) There is eminent necessity of reformation in the important areas of criminal

Judicial system in regards of Public Interest Litigation, Police Jurisprudence, Bail

Justice Jurisprudence, Prison Justice, Compensation to Victims of crime as a new

wing of Victimology, and in free legal aid and legal services so as to ensure fair

deal to the poorer and helpless section of the community.

9) It is strongly believed that there is eminent necessity to take a new approach to

criminological and penological problem of crime and criminals in the Indian

set tings, to draft reformative penal, police and prison jurisprudence.

10) That there is need of re-establishing the scientific method of individualization of

convicts.

11) The liberal remission and grant of frequent paroles to the prisoners to spend time

with their families would help to inculcate self confidence in prisoners and reduce

the intensity of some of the prison vices from the both sides i.e. from prisoners

and prison authorities.

12) An ideal prison condition must provide for adequate work, vocational training,

basic education, medical and recreation facilities for convicts.

13) The need of spiritual training and that of practice of Yoga & and meditation will

enable the prisoners to control the evils of kama, krodha, mada, Lobha which

dwell in human body and help in gaining control over these evil forces so as to

turn them good men and good citizens.

14) Last but not least, at the same time the institutions of criminal justice should be

moral Hospitals or places of value education, but they should not be so

comfortable as to be attracted.

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CHAPTERISATION OF THE PROPOSED WORK

The following is a tentative break-up of a proposed work.

Chapter 1 - Introduction

Chapter 2 - Rights of accused and Criminal

law of India.

Chapter 3 - Rights of under trial Prisoners and criminal law of

India.

Chapter 4 - Rights of convicts and criminal law of India.

Chapter 5 - Rights of accused, under trial prisoners, convicts and

their constitutionality.

Chapter 6 - Rights of accused, under trial prisoners and convicts

of special classes (such as women, juveniles,

lunatics, judicial officers, Persons having

contaminated diseases, husband & wife prisoners)

Chapter 7 - Rights of accused, under trial prisoners and convicts

and Human Rights Perspectives with reference to

International covenants.

Chapter 8 - Judicial Pronouncement with respect to rights of

accused, under trial prisoners and convicts.

Chapter 9 - Model forms of questionnaires- findings and

Conclusions.

Chapter 10 - Conclusion

Chapter 11 - Recommendations

APPENDICES

A) Bibliography

B) Important Statutory Provisions

C) Table of cases.

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BIBLIOGRAPHY

1) Criminal Law (cases & material) by K.D.Gaur, 1999

2) Kelkar on Criminal Procedure by R.V.Kelkar, 4 th Edn.

3) Principles of the Law of Evidence by Dr.Avtar Singh, 15 th Edn

4) Indian Penal Code By Ratanlal Dhirajlal.

5) Constitutional Law of India by Dr. J.N.Pande, 2005.

6) Constitutional Law of India by, M.P.Jain, 4 th Edn.

7) Administrative Law of India by M.P.Jain & S.N.Jain.

8) Rights of arrested persons, Investigation and bail by Asim Pandya, 2006

9) Criminology-problems and perspectives by Ahmed Siddque, 1997

10) Criminology and Penology by N.V.Paranjape, 2001.

11) The Under trial and the Supreme Court by Upendra Bakshi.

12) Supreme Court on Criminal Justice by R.K.Bag, 2 nd Edn.

13) Human Rights by Dr H.O.Agrawal, 3rd Edn.

14) Jurisprudence (Legal theory) by Dr.B.N.Mani Tripathi, 2003

15) Law relating to Juvenile Justice in India by R.N. Choudhari, 2005

16) Protection of Human Rights in India by V.K. Sirkar, 2004-05

17) The Probation of Offender Act, 1958 by Justice P.S. Narayanaya, 2004

18) The Police Act

19) Jail Manuals

20) Police Manuals

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JOURNALS AND REPORTERS

1) All India Reporter

2) Criminal law Journal

3) Maharashtra law Journal

4) Maharashtra Criminal law Journal

5) Times of India (Newspaper)

6) India Bar Review

7) Current Indian Statute

Signature of the Student Signature of Guide