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UNDER THE CRIMINAL LAWS OF INDIA, (AN ANALYTICAL AND
CRITICAL STUDY WITH REFERENCE TO THE CONSTITUTION AND HUMAN
RIGHTS LAWS)
DOCTOR OF PHILOSOPHY
IN
LAW
By
SYED EJAZ ABBAS
(Registration No. 9105)
DEPA RTMENT OF L A W
SHRI JAGDISH PRASAD JHABARMAL TIBREWALA UNIVERSITY,
VIDYANAGARI, JHUNJHUNU, RAJASTHAN – 333001
Year 2013
RIGHTS OF ACCUSED, UNDERTRIAL PRISONERS
AND CONVICTS UNDER THE CRIMINAL LAWS OF
INDIA. (AN ANALYTICAL AND CRITICAL STUDY WITH
REFERENCE TO THE CONSTITUTION AND HUMAN RIGHTS LAWS)
INTRODUCTION
All Human beings are social animal. Their basic need is to live in
society for their better living. Human loves a peaceful & harmonious
life. For that he live in an organize society. In the organize Society, a
strong and civilized state takes shape. All human being, who live in
the State, being taken care by the authorities of the said state.
Jail System in India originated during the reign Lord Macaulay in
1835. A committee was constituted namely Prison Discipline
Committee. The said committed had submitted its Report in the year
1838. The committee recommended increased rigorousness of
treatment while rejecting all humanitarian needs and reforms for the
prisoners. Following the recommendations of the Macaulay
Committee between 18361838, Central Prisons were constructed
from 1846, which was inhuman era of the modern jail system.
Again in the year 1864, the Second Commission of Inquiry into Jail
Management and Discipline made similar recommendations as the
1836 Committee. In addition, this Commission made some specific
suggestions regarding accommodation for prisoners, improvement in
diet, clothing, bedding and medical care. In 1877, a Conference of
Experts met to inquire into prison administration. The conference
proposed the enactment of a prison law and a draft bill was prepared.
In 1888, the Fourth Jail Commission was appointed. On the basis of
its recommendation, a consolidated prison bill was formulated.
Provisions regarding the jail offences and punishment were specially
examined by a conference of experts on Jail Administration.
In the Prisons Act, 1894, under which the present jail system and
administration operates in India. This Act has hardly undergone any
substantial change. However, the process of review of the prison
problems in India continued even after this. In the report of the
Indian Jail Committee 191920, for the first time in the history of
prisons, 'reformation and rehabilitation' of offenders were identified
as the objectives of the prison administrator. Several committees and
commissions appointed by both central and state governments after
Independence have felt the importance of the humaneness of the
conditions in jail. The need for completely overhauling and
consolidating the laws relating to prison has been constantly
highlighted.
The Government of India Act 1935, resulted in the transfer of the
subject of jails from the center list to the control of provincial
governments and hence further reduced the possibility of uniform
implementation of a prison policy at the national level. State
governments thus have their own rules for the day to day
administration of prisons, upkeep and maintenance of prisoners, and
prescribing procedures.
In 1951, the Government of India invited the United Nations expert
on correctional work, Dr. W.C. Reckless, to undertake a study on
prison administration and to suggest policy reform. His report titled
'Jail Administration in India' made a plea for transforming jails into
reformation centers.
The Report also recommended the revision of outdated jail manuals.
In 1952, the Eighth Conference of the Inspector Generals of Prisons
also supported the recommendations of Dr. Reckless regarding
prison reform. Later on, the Government of India appointed the All
India Jail Manual Committee in 1957 to prepare a model prison
manual. The committee submitted its report in 1960. The report
made forceful pleas for formulating a uniform policy and latest
methods relating to jail administration, probation, aftercare, juvenile
and remand homes, certified and reformatory school, borstals and
protective homes, suppression of immoral traffic etc. The report also
suggested amendments in the Prison Act 1894 to provide a legal
base for correctional work. On the reformatory theory of Mahatama
Gandhi .
All the State the law have attributed some rights & some duties to
every human being living within it. Such human being living
permanently in the said state can be called as citizen of the said state.
The right, responsibilities and duties are essential for all the citizen
of the society for proper & fullest development of personality.
Mostly the right which are conferred on every citizen (also non
citizen) are enforceable by the court of law. Therefore, if
circumstances arises and citizen or non citizen violates any law or
rule, the state (or the victim) wants justice through the process of the
court.
In India, the administration of justice is basically divided into two
parts.
a) Civil Justice Administration (i.e. individual claims)
b) Criminal Administration Justice.
On the other hand in the administration of criminal justice the final
purpose is to inflict punishment on the wrongdoer. The purpose
behind it is that the Crimes as well as the Criminal habits are to be
stopped, deterrence must be visible, and crimes be eradicated from
the Society. As per the 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.
As per law, ii is be stated that whenever an individual is claimed to
be as accused, the said individual is termed as accused and he has
been apprehended, detained and interrogated and after checking
prima facie indications, he finally arrested for the alleged offence, is
to be dealt with according to legal process established by the law and
he is not to be treated arbitrariness of the investigators. It is long
drawn experience of our society that an individual from weaker
section or form indigenous class of people, who are innocent and
happens to come in to the clutches of investigators are being
interrogated against the laid down spirit of law, the are being
subjected to third degree treatment, the being mentally and
physically tortured to confess the crime, which unknown might have
committed. Such physical and mental trouble or harassment should
not be caused to alleged accused. 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 accused by law are to be availed to the suspect accused for fair
and free justice. In Similar circumstances, the situation with respect
to under trial suspect prisoners, alleged accused and convicts.
Whatever the rights are attributed to them are to be availed by such
category of the Prisoners.
For redressing the legal rights available to individuals, who are in
awkward circumstances, whom are kept in police custody and in jail
as alleged suspect and as convict. On such backdrop of individual
awkward circumstances, this topic is chosen by the researcher.
Most of the citizen in our country are semi literate and hence they
have not fully acquainted with their civil rights, thei legal, their
constitutional rights and criminal judicial system. The actual
situation in india is quit worse in our country. Moreover, Illiteracy in
our country prevails over the majority of our citizens. Among the
literate population, on prima facie, it seems that legal literacy is
negligible & 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 to people at large.
All the Human being have guaranteed with civilized treatment in all
the adverse circumstances. Such Fundamental Rights and legal rights
being immunities denote that there is a guarantee that certain acts
cannot or ought not to be done to a person against his will by the
authorities. According to this concept, human being, including
accused, being suspect, under trial prisoners, or prisoner of war, or
detenue, convicts and prisoners, by virtue of their humanity ought to
be protected against unjust and degrading treatment.
Such individual being arrested due to adverse circumstances, though
such individual found guilty or innocent find themselves, but they
seems helpless before the authorities of inviestigation and also such
individual when made as accused are helpless before officers of
administration of justice in absence of the rightful legal provisions.
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.
In the popular culture too the proverb of “Angrezo ke zamane ka
jailer” is practiced in situation, which signifies the dictatorism in
prisons. After the independence, our country 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
and century old attitude.
To improve prison conditions does not mean that prison life should
be made soft, it says that lives in custody should be made socialize,
humane and sensible.
There were religious do and don’ts. The communities had set certain
norms as set principle of laws. 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 recognized after the independence.
Consequently though, the person is suspected under trial prisoner or
convicts have some inherit rights because in the end he is a human
being.
The accused rights includes right to be produce before the magistrate
within 24 hours of the arrest (Article 22 of Constitution of India &
section 76 of Cr. P.C.), right to bail to the accused (1st schedule of
Cr. P.C.), reasonable right to be release on bond (section 440 (i)
Cr.P.C.), Right to have 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
presumption innocence section 101 of Indian Evidence Act 1872,
Right to speedy investigation and trial etc.
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.
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 Bihar I.
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
_______________________________________
1 M.H.Haskot Vs.State of Maharastra A.I.R.1978 S.C. 1548 2 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 1514 7 Nilabati Behara Vs. State of Orrisa (1993) 2 S. C.C. 7468 A.I.R. 1997
S.C. 610
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.
Suspects and 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.
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. Supreme Court which
_______________________________
1 1980(1) S.C.C. 8891.
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
cases1.
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 Karnataka 2 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 Jail (2) Lengthy trial and delay in Appeal (3) 3 rd
Degree Torture and ill treatment (4) neglecting the health issues and
hygiene (5) insubstantial food and inadequate clothing (6) Prison
vices (7) communication blockage (8) streaming of jail visits and (9)
Administration of open air prisons (10) not allowing sex.
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
______________________________
1 "Humanizing the prisons system" The times of India, 15 Jan 1997
p.11), 2 (1997) 2SCC642)
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
2. Present proposed research work aimed at finding the conditions
of under trial prisoners after the verdict in DK Basu case.
3. The torture, 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 administration of India,
Constitution, Judicial Pronouncement, Human Rights Jurisprudence
and International Covenant regarding the rights of alleged accused,
suspect under trial prisoners and convicts would help at knowing the
depth and genuineness of the jail menace, & bringing out the
positive suggestions.
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.
11. The present subject in the proposed work has gain the national
importance in the global awareness. 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 comes in clutch at the whim of administration, should be
protected & safeguarded.
________
SCOPE & LIMITATIONS OF THE WORK
Rights of alleged accused, suspect, 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 nondoctrinal aspect of proposed work. It includes
practical visits to court, 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.
METHODOLOGY
For handling this present proposed research 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 research 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.
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.
i) The alleged accused, suspect, 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.
iii) 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.
v) 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.
vi) The necessity is to change the traditional attitude of the
public officials regarding the rights of accused, under trial
prisoners and constitutional mandate should not remain
only on paper but be practically applied and work out.
vii) 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.
viii) 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 Victim ology, and in free legal aid
and legal services so as to ensure fair deal to the poorer and
helpless section of the community.
ix) 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.
x) That there is need of reestablishing the scientific method
of individualization of convicts.
xi) 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.
xiii) 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.
xiv) 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.
----
Chapter 4 - Rights of alleged Prisoner of war and under trial Prisoners of war and
criminal law of India.
Chapter 7 - 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 8 - Rights of accused, under trial prisoners and convicts and Human
Rights Perspectives with reference to International covenants.
Chapter 11 - Conclusion
Chapter 12 - Recommendations
APPENDICES
i) Bibliography
BIBLIOGRAPHY
1) Administrative Law of India by M.P. Jain & S.N. Jain. 2) Kelkar on
Criminal Procedure by R.V.Kelkar, 4th Edn.
3) Constitutional Law of India by, M.P. Jain, 4th Edn.
4) Indian Penal Code By Ratanlal Dhirajlal, latest,
5) Human Rights by Dr. H.O. Agrawal, 3rd Edn.
6) Principles of the Law of Evidence by Dr. Avtar Singh, 15th Edn.
7) Criminal Law (cases & material) by K.D. Gaur, 1999
8) The Under trial and the Supreme Court by Upendra Bakshi.
9) CriminologyProblems and perspectives by Ahmed Siddique, 1997
10) Criminology and Penology by N.V. Paranjape, 2001.
11) Rights of arrested persons, Investigation and bail by Asim Pandya,
2006.
12) Supreme Court on Criminal Justice by R.K.Bag, 2 nd Edn.
13) Constitutional Law of India by Dr. J.N. Pande, 2005.
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, 200405.
17) The Probation of Offender Act, 1958 by Justice P.S. Narayanaya,
2004.
18) The Police Act .
19) Model Jail Manual and Jail Manuals.
20) All Police Manuals.