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Sebi.S
Govt. Law College
Ernakulam
JUDICIAL SUPERVISION OF
CRIMINAL JUSTICE SYSTEM
CRIMINAL JUSTICE SYSTEM
Criminal Justice reflects the responses of the society to crimes and
criminals.
The criminal justice system consists of three main parts:
 Law enforcement agencies, usually the police.
 Courts and accompanying prosecution and defence
lawyers.
 Agencies for detaining and supervising offenders, such
as prisons and probation agencies.
In the criminal justice system, these distinct agencies operate
together as the principal means of maintaining the rule of
law within society.
The objectives of Criminal Justice System includes:
To prevent the occurrence of crime.
To punish the transgressors and the criminals.
To rehabilitate the transgressors and the criminals.
To compensate the victims as far as possible.
To maintain law and order in the society.
To deter the offenders from committing any criminal act in the
future.
GOALS OF JUDICIAL SUPERVISION
 The main goal of judicial supervision is the protection of the rights and
the legal interests of all the participants in the criminal procedure.
 To hinder the arbitrary implementation of authoritative powers
belonging to the investigator, the body of inquiry and other officials.
 To set the conditions for prosecutor, investigator and the body of
inquiry, in order not to violate the rights and freedoms of the
participants in the criminal procedure during the preliminary
investigation.
The other goals include:
1) to support the effective realization of the preliminary investigation.
2) to create optimal conditions to administer justice. The judicial
supervision is a pre-requisite for administration of justice since
without it, it is impossible to conduct such trial as a result of which a
justified verdict will be delivered.
First of all, one must be sure that the court presents the materials
which have been obtained according to the law without any violation of
the rights and legitimate interests of the persons participating in the
criminal procedure.
This supervisory function encompasses criminal case registration,
investigations, trials, enforcement of criminal penalties, reviews of
death penalty cases, enforcement of coercive measures, and
compensation of victims.
RIGHTS OF ARRESTED UNDERTRIALS AND
PRISONERS.
 RIGHTS OF ARRESTED UNDER TRIALS AND
PRISNOERS GUARANTEED UNDER VARIOUS
INTERNATIONAL INSTRUMENTS.
 RIGHTS OF ARRESTED UNDER TRIALS AND
PRISONERS GUARANTEED UNDER VARIOUS NATIONAL
INSTRUMRNTS INCLUDING THE CONSTITUTION OF
INDIA.
 Arrested, under trials and Prisoners are also entitled to every human
rights to same extent as a normal being when they are arrested and
behind the prison but these rights are subjected to the conditions
prescribed by law. For proper understanding of human rights of
Arrested, under trials and prisoners we may divide it into two
categories :
RIGHTS OF ARRESTED, UNDER TRIALS AND PRISONERS
Arrest involves restriction of liberty of a person arrested and
therefore, infringes the basic human rights of liberty.
Arrest is a form of State constraint applied to a person, during
which the person is placed under detention, is imprisoned and is
deprived of his right to move freely.
Prisoner and under trails are person legally committed to prison as
a punishment for a crime or while awaiting trail .
The word prisoner means any person who is kept under custody in
jail or prison because he has committed an act prohibited by law
of the land .
A prisoner also known as an inmate or anyone who against their will
is deprived of liberty . This liberty can be deprived by forceful
restrain or confinement.
Rights include the right to life and liberty, freedom from slavery
and torture, freedom of opinion and expression, the right to
work and education, and many more. Everyone is entitled to
these rights, without discrimination.
The characteristic of our present society is that even the rights
of the accused are deemed to be sacrosanct, even though he is
charged with an offence.
 International law outlaws
unacknowledged arrests and
detentions.
 States are accountable for all persons
in their custody.
 In particular, the date, time and
location of all arrest and detentions
must be available to families, lawyers
and all competent judicial and other
authorities at all time.
 Involuntary or enforced disappearances
and unacknowledged arrest and
detentions constitute particularly
serious violations of fundamental human
rights, including the rights to liberty
and security of the person.
INTERNATIONAL CONVENTIONS
THE
CONVENTION
AGAINST
TORTURE AND
OTHER CRUEL,
INHUMAN OR
DEGRADING
TREATMENT OR
PUNISHMENT
o The Convention against Torture and
Other Cruel, Inhuman or Degrading
Treatment or Punishment (commonly
known as the United Nations Convention
against Torture (UNCAT)) is
an international human rights treaty
entered into force on 1 March 2002.
o This Convention establishes the European
Committee for the prevention of torture
and inhuman or degrading treatment or
punishment.
o The Committee is permitted to visit all
places of detention defined by the
Convention as “any place within its
jurisdiction where persons are deprived
of their liberty by a public authority”
THE CONVENTION AGAINST TORTURE AND
OTHER CRUEL, INHUMAN OR DEGRADING
TREATMENT OR PUNISHMENT
o It follows the structure of the Universal Declaration of Human
Rights (UDHR), International Covenant on Civil and Political
Rights (ICCPR) and the International Covenant on Economic, Social
and Cultural Rights (ICESCR), with a preamble and 33 Articles.
o Article 10 deals with treatment of any individual subjected to any
form of arrest, detention, or imprisonment, regarding the prohibition
against torture.
o Parties also must keep interrogation rules, instructions, methods, and
practices under systematic review regarding individuals who are
under custody or physical control in any territory under their
jurisdiction, in order to prevent all acts of torture (Article 11).
o Parties are also obliged to prevent all acts of cruel, inhuman, or
degrading treatment or punishment in any territory under their
jurisdiction, and to investigate any allegation of such treatment
(Article 16).
UNIVERSAL
DECLARATION
OF HUMAN
RIGHTS.
o The most important global human rights
instrument is the Universal Declaration
of Human Rights, adopted on Dec 10,
1948 by the General Assembly of the
UN.
o The UDHR consists of a preface and 30
Articles setting forth the human rights
and fundamental freedoms to which all
men and women everywhere in the world
are entitled, without any discrimination
and Freedom from Arbitrary Arrest and
Exile is one among those Articles.
o Article 1 of the instrument states that
all human beings are born free and equal
in dignity and rights .They are endowed
with reason and conscience and should
act towards one another in a spirit of
brotherhood.
o Article 2 provides that everyone is
entitled to all the rights and freedom
set forth in this Declaration without
distinction of any kind such as race,
colour , sex, language , religion , political
or other opinion , national or social origin
, property, birth or other status .
UNIVERSAL DECLARATION OF HUMAN RIGHTS
 It would be clear the terms used in all human beings in Article 1 and
everyone in Article 2 also includes prisoners.
 Article 3 of the UDHR states that everyone has the right to life ,
liberty and security of person . Right to life is one of the basic
Human rights and available to both prisoners or freemen .
 Article 5 of the Declaration states that no one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment.
 Article 8 states that everyone has the right to an effective remedy
by the competent national tribunals for acts violating the
fundamental rights granted to him by the constitution or by law.
 Article 9 states that no one shall be subjected to arbitrary arrest,
detention or exile.
 The Declaration was the first instrument of international law to use
the phrase "rule of law", thereby establishing the principle that all
members of all societies are equally bound by the law regardless of
the jurisdiction or political system.
UNITED
NATIONS
COMMISSION
ON CRIME
PREVENTION
AND
CRIMINAL
JUSTICE
o The commission serves as the primary
organ that guides the activities of the
United Nations in the fields of crime
prevention and criminal justice.
o The United Nations Programme on Crime
Prevention and Criminal Justice,
incorporates concept of arrest and arrest
has been defined as "the act of depriving a
person under governmental authority for
the purpose of taking that person into
detention and charging the person with a
criminal offence".
o The goals of the commission include:
o The promotion of the rule of law at the
national and international levels to ensure
equal access to justice for all.
o A significant reduction of illicit financial
and arms flows, the strengthening of the
recovery and return of stolen assets and
to combat all forms of organized crime
o A substantial reduction in corruption and
bribery in all their forms.
INTERNATIONAL COVENANT ON
CIVIL AND POLITICAL RIGHTS.
 Article 9 of the International Covenant on Civil and Political Rights
reads as follows:
 “Everyone has the right to liberty and security of person. No one
shall be subjected to arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds and in accordance with
such procedure as are established by law.”
 Anyone who is arrested shall be informed, at the time of arrest, of
reasons for his arrest, and shall be promptly informed of any charges
against him. Anyone arrested or detained on a criminal charges shall
be brought promptly before a judge or other officer authorized by
law to exercise judicial power and shall be entitled to trial within a
reasonable time or to release.
INTERNATIONAL COVENANT ON
CIVIL AND POLITICAL RIGHTS.
o It shall not be the general rule that persons awaiting trial shall be
detained in custody, but release may be subject to guarantee to appear
for trial, at any other stage of judicial proceedings, and, should occasion
arise, for execution of the judgement.
o Anyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings before a court in order that such court
may decide with-out delay on the lawfulness of his detention and order
his release if the detention is not lawful.
o Anyone who has been victim of unlawful arrest or detention shall have
an enforceable right to compensation.
o Article 10(1) of the International Covenant on Civil and Political Rights
lay down that “All persons deprived of their liberty shall be treated
with humanity and with respect for the inherent dignity of the human
person”.
THE MUKONG CASE
 In this case, the applicant alleged that he had been arbitrarily
arrested and detained for several months, an allegation rejected by
the State party on the basis that the arrest and detention had been
carried out in accordance with the domestic law of Cameroon.
 It was concluded that article 9(1) had been violated, since the
detention “was neither reasonable nor necessary in the circumstances
of the case”. For instance, the State party had not shown that the
remand in custody was “necessary ... to prevent flight, interference
with evidence or the recurrence of crime” but had “merely contended
that the arrest and detention were clearly justified by reference to”
article 19(3) of the Covenant, which allows for restrictions on the
right to freedom of expression.
 However, it was considered that “national unity under difficult
political circumstances cannot be achieved by attempting to muzzle
advocacy of multi-party democracy, democratic tenets and human
rights”, and that the right to freedom of expression had therefore
been violated.
 Consequently, it was also concluded that the author’s arrest and
detention were contrary to article 9(1) of the Covenant.
AFRICAN CHARTER ON
HUMAN RIGHTS.
o The African Charter on Human and Peoples' Rights (also known as
the Banjul Charter) is an international human rights instrument that
is intended to promote and protect human rights and basic
freedoms in the African continent.
o Article 5 of the Charter deals with freedom from cruel, inhuman or
degrading treatment or punishment.
o Article 6 of the African Charter on Human and Peoples’ Rights
provides that:
o “Every individual shall have the right to liberty and to the security
of his person. No one may be deprived of his freedom except for
reasons and conditions previously laid down by law. In particular, no
one may be arbitrarily arrested or detained.”That is, Article 6
deals with rights to due process concerning arrest and detention.
o Article 7 and Article 25 deals with the right to a fair trial.
AMERICAN CONVENTION
ON HUMAN RIGHTS.
o The American Convention on Human Rights, also known as the Pact of
San José, is an international human rights instrument.
o Article 5 provides the right to humane treatment including arrested
and prisoners.
o Article 7 of the American Convention on Human Rights provides,
inter alia, that:
“ Every person has the right to personal liberty and security.”
o No one shall be deprived of his physical liberty except for the
reasons and under the conditions established beforehand by the
constitution of the State Party concerned or by a law established
pursuant thereto.
o “No one shall be subject to arbitrary arrest or imprisonment.”
EUROPEAN
CONVENTION
ON HUMAN
RIGHTS
o The European Convention on Human Rights is
the only treaty that specifically enumerates
the grounds which can lawfully justify a
deprivation of liberty in the Contracting
States. This list is exhaustive and “must be
interpreted strictly”.
Article 5 reads:
 “Everyone has the right to liberty and
security of person. No one shall be deprived
of his liberty save in the following cases and
in accordance with a procedure prescribed by
law: It includes- The lawful detention of a
person after conviction by a competent court.
 The lawful arrest or detention of a person
for non-compliance with the lawful order of a
court or in order to secure the fulfilment of
any obligation prescribed by law.
 The lawful arrest or detention of a person
effected for the purpose of bringing him
before the competent legal authority on
reasonable suspicion of having committed an
offence or when it is reasonably considered
necessary to prevent his committing an
offence or fleeing after having done so.
EUROPEAN CONVENTION ON HUMAN RIGHTS
o The detention of a minor by lawful order for the purpose of educational
supervision or his lawful detention for the purpose of bringing him before
the competent legal authority.
o The lawful detention of persons for the prevention of the spreading of
infectious diseases, of persons of unsound mind, alcoholics or drug addicts
or vagrants;
o The lawful arrest or detention of a person to prevent his effecting an
unauthorized entry into the country or of a person against whom action is
being taken with a view to deportation or extradition.
o Article 5(5) of the European Convention provides that “everyone who has
been the victim of arrest or detention in contravention of the provisions
of this article shall have an enforceable right to compensation”.
o However, where the applicants have been arrested and detained lawfully
under domestic law but in violation of article 5 of the Convention, there
has been a violation of Article 5(5) if they had no enforceable claim for
compensation before the domestic courts.
UNITED NATIONS STANDARD MINIMUM
RULES FOR TREATMENT OF PRISONERS
 In December 2015, the General Assembly adopted resolution
70/175 entitled "United Nations Standard Minimum Rules for the
Treatment of Prisoners (the Mandela Rules)".
 The Mandela Rules are composed of 122 "rules". Not all are rules,
but some are principles such as institutional equality and the
philosophy of confinement.
 It has been adopted by First UN Congress on the Prevention of
crime and the Treatment of offenders at Geneva in 1955 and
approved by the Economic and Social Council by its Resolution of 13
May 1977.
 General Assembly of the UN later decided to extend the scope of
International Nelson Mandela Day (18 July) to be also utilized in
order to promote humane prison conditions of imprisonment, to raise
awareness about prisoners being a contiguous subset of society, and
to value the work of prison staff as a social service of importance.
UNITED NATIONS STANDARD MINIMUM
RULES FOR TREATMENT OF PRISONERS
 Apart from these rules the UN Standard Minimum Rules for the
Treatment of Prisoners also made rules regarding the treatment
of prisoners under sentence, insane and mentally abnormal
prisoners.
 It contains 2 parts:
 Part I contains Rules of General Application. It contains standards
which set out what is generally accepted as being good practices
in the treatment of prisoners and the management of penal
institutions.
 Part II contains rules applicable to different categories of
prisoners including those under sentence. It also contains rules
for prisoners under arrest or awaiting trial, rules for civil
prisoners, and rules for persons arrested or detained without
charge.
 Despite their legally non-binding nature, the rules have been
important worldwide as a source for relevant national legislation
as well as of practical guidance for prison management.
 The United nations standard minimum rules for treatment of prisoners
contain so many rules regarding the rights and treatment of prisoners .
Some of them are :
 Provision regarding the separation of categories of prisoners [14]
 Provisions relating to the accommodation [15]
 Provisions relating to the clothing and bedding [16]
 Provisions relating to the food [17]
 Provisions relating to the exercise and sport [18]
 Provisions relating to the medical services [19]
 Provisions relating to the protection of prisoners against the double
jeopardy [20]
 Provisions relating to the prohibition of corporeal punishment ,
punishment by placing in dark cell and all cruel , inhuman or degrading
punishment [21]
 Provisions relating to the information to and complaints by prisoners
[22]
 Provisions relating to the rights of prisoners to contact with their
family and reputable friends [23]
UNITED NATIONS HUMAN RIGHTS STANDARDS
AND PRACTICE FOR THE POLICE..
The important provisions include:
• Everyone has the right to liberty and security of the person and to
freedom of movement.
• No one shall be subjected to arbitrary arrest or detention. No one shall
be deprived of his or her liberty except on such grounds and in
accordance with such procedures as are established by law.
• Anyone who is arrested shall be informed, at the time of the arrest, of
the reasons for his or her arrest. Anyone who is arrested shall be
promptly informed of any charges against him or her.
• Anyone who is arrested shall be brought promptly before a judicial
authority.
• Anyone who is arrested has the right to appear before a judicial
authority for the purpose of having the legality of his or her arrest or
detention reviewed without delay, and shall be released if the detention
is found to be unlawful.
• Anyone who is arrested has the right to trial within a reasonable time or
to release. Detention pending trial shall be the exception rather than
the rule.
UNITED NATIONS HUMAN RIGHTS
STANDARDS AND PRACTICE FOR THE
POLICE.
 All arrested or detained persons shall have access to a lawyer or other
legal representative and adequate opportunity to communicate with that
representative .
 A record of every arrest must be made and shall include: the reason for
the arrest; the time of the arrest; the time the arrested person is
transferred to a place of custody; the time of appearance before a
judicial authority.
 Anyone who is arrested has the right to trial within a reasonable time or
to release.
 Detention pending trial shall be the exception rather than the rule.
 All arrested or detained persons shall have access to a lawyer or other
legal representative and adequate opportunity to communicate with that
representative .
OTHER LEGAL INSTRUMENTS
 The Body of Principles for the
Protection of All Persons under any
Form of Detention or Imprisonment,
adopted by the General Assembly in
1988;
 The Declaration on the Protection of All
Persons from Enforced Disappearance,
adopted by the General Assembly in
1992;
 The Principles on the Effective
Prevention and Investigation of Extra-
legal, Arbitrary and Summary
Executions, recommended by Economic
and Social Council resolution 1989/65.
UNIVERSAL LEGAL RESPONSIBILITY:
ALL STATES ARE BOUND BY THE LAW
Article 9(1) of the International Covenant on Civil and
Political Rights, Article 6 of the African Charter of
Human and Peoples’ Rights, Article 7(1) of the
American Convention on Human Rights and Article 5(1)
of the European Convention on Human Rights
guarantee a person’s right to “liberty” and “security”.
ROLE OF INTERNATIONAL COURT OF JUSTICE
The International Court of Justice stated in its dictum
in the Hostages in Tehran case, “wrongfully to deprive
human beings of their freedom and to subject them to
physical constraint in conditions of hardship is in
itself incompatible with the principles of the Charter
of the United Nations, as well as with the fundamental
principles enunciated in the Universal Declaration of
Human Rights”, Article 3 of which guarantees “the
right to life, liberty and security of person”.
ROLE OF INTERNATIONAL
COURT OF JUSTICE
 Not withstanding that a State may
not have ratified or otherwise
adhered to any of the preceding
human rights treaties, it is
nonetheless bound by other legal
sources to ensure a person’s right to
respect for his or her liberty and
security.
 The notion of security also covers
threats to the personal security of
non-detained persons. States cannot
be passive in the face of such
threats, but are under a legal
obligation to take reasonable and
appropriate measures to protect
liberty and security of person.
RIGHTS OF PRISONERS UNDER VARIOUS
NATIONAL INSTRUMENTS
 The Indian state is a signatory to various International
instruments of Human rights like UDHR , ICCPR and these
international instruments guaranteed HRs to everyone
including prisoner. So the state is obliged to uphold and ensure
observances of basic HRs of the prisoners as well as freemen.
 For the better understanding of HRs of prisoners as
guaranteed by various national instruments, it can be divided
into two parts:
 RIGHTS OF PRISONERS UNDER CONSTITUTION OF
INDIA
 RIGHTS OF PRISONERS UNDER PRISON ACT, 1894
CONSTITUTION OF INDIA
CONSTITUTION
 Indian constitution guarantees six freedoms to citizens of India,
among which certain freedom cannot be enjoyed by the prisoners.
They are freedom of movement, freedom to residence and to
settle and freedom of profession.
 The rights guaranteed in the part III of Indian Constitution are
available to prisoners; because a prisoner is treated as a person in
prison.
 The Constitutional rights offered under the Indian Constitution
are not absolute in nature and some reasonable restrictions have
been imposed.
 When an individual is convicted and put behind bars, he has a
different status from free men.
 A prisoner cannot demand all the fundamental rights, which are
available to free men.
ARTICLE 14
 Article 14 says that :The state shall not deny to any person
equality before the law or the equal protection of the laws within
the territory of India.
 Article 14 contemplates that like should be treated alike and also
provided the concept of reasonable classification.
 This Article is a guide and basis for the prison authorities to
determine various categories of prisoners and their classification
with the object of reformation.
ARTICLE 19
 Article 19 guarantees six freedom to all the citizens of India.
 Among these freedoms certain freedoms cannot be enjoyed by
the prisoners because of the very nature of these freedoms.
 The convicts by mere reasons of their conviction are deprived of
some of their fundamental rights such as right to move freely
through out the territory of India or the right to practice a
profession.
ARTICLE 21
Article 21 says that no person shall be deprived of his life or personal
liberty except according to procedure established by law
 Article stipulates two concepts : right to life and principle of liberty.
 By Article 21 it is clear that it is not only available for free people but
also to those people behind the bar.
 Article 21 cast an obligation upon the state to preserve the life of every
person whether innocent or guilty.
Rights of arrested, under trials and prisoners which are implicitly
provided under Article 21
 Rights of inmates of protective homes.
 Right to free legal aid
 Right to speedy trail
 Rights against cruel and unusual punishments
 Right against custodial violence and death in police lock ups or
encounters.
 Right to live with human dignity.
 Rights to meet friends and consult lawyers.
 Right against solitary confinement, handcuffing & bar fetters and
protection from tortures .
ARTICLE 21
Right to writ of habeas corpus.
Right to reasonable wages in prison.
Rights to compensation for wrongful arrest detention and torture.
Right against delayed execution.
Right of release and rehabilitation of bonded labor.
Rights against public hanging
It is significant to note that an under trial prisoner or convicted prisoner
cannot be subjected to a physical or mental restraint :
•Which is not warranted by punishment awarded by the court or
•Which is in excess of the requirements of prisoners discipline or
•Which constitute human degradation
ARTICLE 22
Article- 22(1) of the Indian Constitution stipulates that no police official
can arrest any individual without informing the accused the reason/
ground of his detainment/ arrest.
•Article- 22(2) of the Indian Constitution stipulates that the police
official making an arrest must produce the arrested person before the
Magistrate within 24 hours of the arrest failing to do so would make him
liable for wrongful detention.
ARTICLE 20
Article 20(1)
Ex post facto law
 No person shall be convicted of any offence except for violation of
the law in force at the time of the commission of the act charged as
an offence, nor be subjected to a penalty greater than that which
might have been inflicted under the law in force at the time of the
commission of the offence.
Article 20(2)
Doctrine against Double Jeopardy
 No person shall be prosecuted or punished for the same offence
more than once. But it is subjected to certain restrictions. And it is
to be noted that Article 20(2) of Constitution of India does not apply
to a continuing offence
Article 20(3)
Right against self-incrimination
 As per Article 20(3) of Constitution of India guarantees every person
has been given a right against self-incrimination, it states that any
person who has been accused of any offence, shall not be compelled
to be a witness against himself.
ARTICLE 32
It is constitutional mandate of judiciary to protect human rights of
the citizens.
Article 32 guarantees right to constitutional remedies, i.e. Right to
move to Supreme Court to enforce fundamental rights.
Supreme Court and High Courts are empowered to take action to
enforce these rights.
 Machinery for redress is provided under Articles 32 and 226 of
the constitution. An aggrieved person can directly approach the
Supreme Court or High Court of the concerned state for the
protection of his fundamental rights, redressal of grievances and
enjoyment of fundamental rights.
 In such cases Court are empowered to issue appropriate order,
directions and writs in the nature of Habeas Corpus, Mandamus,
Prohibition, Quo-Warranto and Certiorari. Article 32 guarantees
right to constitutional remedies, i.e. right to move to Supreme
Court to enforce fundamental rights.
 Judiciary is ultimate guardian of the human rights of the people.
It not only protects the rights enumerated in Constitution but also
has recognized certain un-enumerated rights by interpreting the
fundamental rights and widened their scope. As a result people not
only enjoy enumerated rights but also un-enumerated rights as well.
JUDICIARY AND INTERNATIONAL CONVENTIONS
Nilabati Behera alias Lalit Behera v. State of Orissa 1993 AIR 1960
 In this case, a letter dated 14.9.1988 sent to Supreme Court by Smt.
Nilabati Behera alias Lalita Behera, was treated as a Writ Petition
under Article 32 of the Constitution for determining the claim of
compensation made therein consequent upon, the death of
petitioner's son Suman Behera, aged about 22 years, in police
custody.
 The Supreme Court of India granted compensation for custodial
death and it has justified the decision based on the Article 9(5) of
the International Covenant on Civil and Political Rights (ICCPR).
 Chairman, Railway Board and Others v. Chandrima Das on 28 January,
2000
 The Apex Court while interpreting the scope of Article 21 of the
Constitution of India, referred to the Universal Declaration of
Human Rights to provide protection to foreign rape victim.
 In this case the court has observed that “the application of UDHR,
and principles thereof may have to be read, if need be, into the
domestic jurisprudence.
CONSTITUTIONAL INTERPRETATION
INTERPRETATION OF ARTICLE 21
According to Bhagwati, J., Article 21 “embodies a constitutional value of
supreme importance in a democratic society.” Iyer, J., has characterized
Article 21 as “the procedural magna carta protective of life and liberty.
This right has been held to be the heart of the Constitution, the most
organic and progressive provision in our living constitution, the foundation
of our laws.
The Doctrine of Purposive interpretation and the Doctrine of Constitutional
silence holds a lot of importance in the interpretation of Article 21.
The Doctrine of silence considers the unwritten portion of the constitution
that evokes the power of understanding the statute in a certain specific
way. Alongside, the golden rule of interpretation is also applied.
Maneka Gandhi v. Union of India, AIR 1978 SC 597
In this case, Supreme Court interpreted the right to life and widened its
scope and deduced that right to life includes life to live with human
dignity.
Supreme Court propounded the theory of ―emanation to make the existence
of the fundamental right meaningful and active. Thereafter, in many other
cases such as People's Union for Civil Liberties and another v. State of
Maharashtra and others, 2014(10) SCC 635, Francis Coralie Mullin v. The
Administrator, Union Territory of Delhi (1981) 2 SCR 516 held that right to
life includes right to live with human dignity.
 Judicial system protects the rights of its citizens including
arrested, under trials and prisoners. The Supreme Court by
interpreting Article 21 of the Constitution protected and preserved
the rights of the prisoners.
JUDICIAL INTERVENTION REGARDING HANDCUFFING
 In case Prem Shankar v. Delhi Administration(1980) 3 SCC 538
Supreme Court held that practice of using handcuff and fetters on
prisoners violates the guarantee of human dignity.
 Handcuffing should be resorted to only when there is a "clear and
present danger of escape" breaking out the police control and for this
there must be clear material, not merely an assumption. The Court
further observed that Handcuffing is violative of Article 14, 19 and 21
of the Constitution. The state is responsible to secure the operation of
the legal system and shall provide a basic equal opportunity to all its
citizen to receive equal protection of law.
 V.R. Krishna Iyer observation regarding handcuffing “Handcuffing is
prima facie inhuman and, therefore, unreasonable, is over harsh And at
the first blush, arbitrary.”Justice concluded that “No prisoner shall be
handcuffed or fettered routinely or merely for the convenience of the
custodian or escort.”
Citizens for Democracy v. State of Assam and others,(1995) 3 SCC
743
The Supreme Court held that handcuffing and tying with ropes is
inhuman and in utter violation of human rights guaranteed under
the International laws and the laws of the land.
Court directed that handcuffs or other fetters shall not be
forced on prisoners- convicted or under trial while lodged in jail or
even while transporting, police and jail authorities shall have no
authority to direct handcuffing of any inmate of jail or during
transportation without permission from the magistrate.
The Court observed that “Where the police or the jail authorities
have well-grounded basis for drawing a strong inference that a
particular prisoner is likely to jump jail or break out of the custody
then the said prisoner be produced before the Magistrate
concerned and a prayer for permission to handcuff the prisoner be
made before the said Magistrate. Save in rare cases of concrete
proof regarding proneness of the prisoner to violence, his tendency
to escape, he being so dangerous and desperate and the finding
that no other practical way of forbidding escape is available, the
Magistrate may grant permission to handcuff the prisoner”.
The Court further held that “Any violation of any of the directions
issued by the Court by any rank of police in the country or member of
the jail establishment shall be summarily punishable under
the Contempt of Courts Act apart from other penal consequences
under law.”
JUDICIAL INTERVENTION IN PROVIDING FREE LEGAL
AID
M.H. Hoskot v. State of Maharashtra
 The Supreme court laid down two important guidelines in
right of appeal firstly to send a copy of the judgment in time to
the prisoner to enable him to file an appeal and secondly free
legal service to be secured for the prisoner who is not able to
secure legal services otherwise for himself.
 In the guarantee of life and personal liberty it in an implicit
right of receiving speedy trial, it is said that late justice is no
justice and hence any person who is denied of speedy trial has
the right to approach the court for enforcing such right.
 Krishna Iyer, J. stated : "The inference is inevitable that this
is a State's duty and not Government's charity. Actually
affirmative is the implication that while legal services must be
free to the beneficiary, the lawyer himself has to be reasonably
remunerated for his services. Surely, the profession has a
public commitment to the people, but mere philanthropy of it
members’ yields short mileage in the long run. Their services,
especially when they are on behalf of the State must be paid
for. Naturally, the State concerned must pay a reasonable sum
that the court may fix when assigning counsel to the prisoner".
Khatri v. State of Bihar
 In this case, Supreme Court discussed Justice Blacknum’s opinion
regarding the free legal aid.
 It states that "humane considerations and constitutional requirements
are not in this day to be measured by dollar considerations“.
 The Supreme Court further stated, that it was unfortunate that
though it had declared the right to legal Aid as a fundamental right of an
accused person, by a process of judicial construction of Article 21, most
of the States in the country had not taken note of this decision and
provided free legal service to a person accused of an offence.
 The State was under a constitutional mandate to provide free legal aid,
to an accused person, who was unable to secure legal services on account
of indigency, and whatever was necessary for this purpose, has to be
done by the State.
 The State will have its financial constraints and its priorities in
expenditure, but the law does not permit any Government to deprive its
citizens of constitutional rights on a plea of poverty.
 Article 39-A of the Constitution is an interpretative rule for Article
21. Partial statutory implementation of the mandate is found in Section
304 of the Code of Criminal Procedure and in other situations, Courts
cannot be inert in the face of Articles 21 and 39A.
JUDICIAL INTERVENTION REGARDING SPEEDY TRIAL
Hussainara Khatoon v. Home Secretary, state of Bihar
The Court while dealing with the cases of under-trials who had suffered
long incarceration held that a procedure which keeps such large number
of people behind bars without trial so long cannot possibly be regarded
as reasonable, just or fair so as to be in conformity with the
requirement of Article 21.
The Supreme Court held that speedy trial is a fundamental right and is
constructive under Article 21 of the Constitution and such right is
enforceable in court. Later the Supreme court guidelines for speedy
trial of offences was laid down which included the period of pre
conviction detention should be kept as short as possible and undue delay
will result in the ability of the accused to defend himself.
Justice P.N.Bhagawati observed that:
“The powers of this Court in protection of the Constitutional rights are
of the widest amplitude and we do not see why this Court should not
adopt a similar activist approach and issue to the State directions which
may involve taking of positive action with a view to securing
enforcement of the fundamental right to speedy trial. But in order to
enable the Court to discharge this constitutional obligation, it is
necessary that the Court should have the requisite information bearing
on the problem.”
Anil Rai v. State of Bihar
 The Supreme Court directed the judges of the High Court to provide
quick judgments without unnecessary delay.
 Every person is entitled to free and fair trial under Article 21 of the
Indian Constitution without any kind of discrimination as to caste,
culture, sex or religion.
 Prisoners are also considered as normal human being when it comes to
their rights under Article 21 of the Constitution. A prisoner is entitled
to all his fundamental right unless it has been constitutionally curbed.
State Of Maharashtra v. Prabhakar Pandurang 1966 AIR 424
 Prabbakar Pandurang Sanzgiri, who has been detained by the
Government of Maharashtra under S. 30(1)(b) of the Defence of India
Rules, 1962, in the Bombay District Prison in order to prevent him from
acting in a manner pre- judicial to the defence of India, public safety
and maintenance of public order, has written, with the permission of the
said Government, a book in Marathi under the title "Anucha
Antarangaat" (Inside the Atom).
 The learned Judges of the High Court, who had gone through the table
of contents of the book. expressed their opinion on the book thus :
"............ we are satisfied that the manuscript book deals with the theory
of elementary particles in objective way. The manuscript does not
purport to be a research work but it purports to be a book written with
a view to educate the people and disseminate knowledge regarding
quantum theory."
In the landmark judgment of Prabhankar Pandurang the Supreme Court’s
five judge bench held that the civil rights and his right to liberty is not
curtailed and the book he wanted to publish was no way posing any
threat to the public safety and not letting him do so will be curbing his
right under Article 21.
JUDICIAL INTERVENTION REGARDING SOLITARY
CONFINEMENT.
Sunil Batra v. Delhi administration
 The prisoner was sent to solitary confinement but not because of
prison discipline but because he was set for a capital punishment, it was
held wrong and illegal because according to the rules a prisoner can be
sent for solitary confinement if he breaks prison discipline or is a
threat to other prisoners in the prison and not because of the
punishment that he is awarded for his crime. Also on letter sent by
Sunil Batra to a judge of the Supreme Court which was treated as a
PIL under Article 32 of the Constitution which was on an inhuman
treatment and torture of his jail inmate by a jail warden.
 The Supreme court observed that a prisoner is entitled to safety of
his life even if he is in prison and his right to life cannot be violated
under Article 21 and found this act as illegal and inhuman. Under
Article 21 of the Constitution it has been held multiple times by the
Supreme Court that Capital punishment and death by hanging is not
considered as violation of the Article.
 In cases when the crimes are so heinous in nature and crimes of
one person is taking away the fundamental human right of other
person and becomes a terrible threat to the society, sentence
of death will not be curtailing the rights under Article 21.
 While giving judgement in Sunil Batra v. Delhi Administration,
Justice V.R Krishna Iyer observed that
“Convicts are not by mere reason of the conviction denuded of all the
fundamental rights which they otherwise possess”.
In Charles Shobaraj v. Superintendent, 1978 AIR 1514,
The petitioner in this case contended that in prison barbaric and
inhuman treatment have been hurled at him and that intentional
discrimination has been a lot there.
V R .Krishna Iyer in this case observed that “ Like you and me, prisoners
are also human beings. Hence all such rights except those that are
taken away in the legitimate process of incarceration still remain with
the prisoner. These include rights that are related to the protection
of basic human dignity as well as those for the development of the
prisoner into a better human being”.
“The prisoners are no longer considered as an object or a slave of the
nation, who the law would leave at the prison door and who would be
convicted to ‘civil death’. It is progressively been established that a
person does not disqualify to be a person just because he did an
offence and put behind the bars”.
JUDICIAL INTERVENTION REGARDING DEATH PENALTY
Jagmohan Singh v. State of UP 1973 AIR 947
 It was held by the Supreme court that a sentence of death shall be
reasonable and just and carefully reviewed since it is taking the right
to live of someone.
Bachan Singh v. State of Punjab AIR 1980 SC 898
 The court held that death penalty can be considered as an
alternative punishment to murder under sec 302 of IPC and it
therefore makes it in public interest and is not unreasonable. It
violates neither the letter nor the ethos of Article 19 of the
constitution of India.
 It is constitutionally valid. Exercise of discretion under sec 354(3)
of CRPC, 1973 should be exceptional and grave circumstances and
imposition of death sentence should only be in rarest of rare cases.
It was, in this case, the Hon’ble SC evolved the test of “rarest of
rare cases” which must be satisfied in order to grant a death penalty.
This decision has been a watershed moment for the capital
punishment law in India as it laid down the law and emphasised the
judicial role in relation to the death penalty.
 A landmark judgment in D.K. Basu v. State of West Bengal, (1997)
1 SCC 416 protected the rights of the prisoners and laid down
various guidelines for arrest and detention to prevent the
custodial violence and observed that right to life include right to
live with human dignity.
SUPREME
COURT’S
GUIDELINES
IN D.K. BASU
v. STATE OF
WEST
BENGAL.
In this judgement, the Supreme Court had
issued instructions to be followed by the
arresting authority at the time of
detention of a person.
They are as under:
o The police personnel carrying out the
arrest and handling the interrogation of
the arrestee should bear accurate, visible
and clear identification and name tags with
their designations.
o The particulars of all such police personnel
who handle interrogation of the arrestee
must be recorded in a register.
o The police officer carrying out the arrest
of the arrestee shall prepare a memo of
arrest at the time of arrest.
o The memo shall be attested by at least one
witness who may be either a member of
the family of the arrestee or a
respectable person of the locality from
where the arrest is made.
o It shall also be counter signed by the arrestee and shall contain the
time and date of arrest.
o The time, place of arrest and venue of custody of an arrestee must be
notified by the police where the next friend or relative of the arrestee
lives outside the district or town through the legal Aid Organization in
the District and the police station of the area concerned telegraphically
within a period of 8 to 12 hours after the arrest.
o A person who has been arrested or detained and is being held in
custody in a police station or interrogation centre or other lock-up, shall
be entitled to have one friend or relative or other person known to him
or having interest in his welfare being informed, as soon as practicable,
that he has been arrested and is being detained at the particular place,
unless the attesting witness of the memo of arrest is himself such a
friend or a relative of the arrestee. The person arrested must be made
aware of this right to have someone informed of his arrest or detention
as soon he is put under arrest or is detained.
o An entry must be made in the diary at the place of detention regarding
the arrest of the person which shall also disclose the name of the next
friend of the person who has been informed of the arrest and the
names and particulars of the police officials in whose custody the
arrestee is.
Joginder Kumar v. State Of U.P And Others 1994 SCC 260.
Joginder Kumar, a young lawyer aged 28 was called to the office of the
Senior Superintendent of Police, Ghaziabad in connection with some
inquiries and detained for 5 days without any valid reasons.
o Rejecting the police version that Joginder Kumar was cooperating
with them out of his own free will, the Court said that the law of arrest
is one of balancing individual rights, liberties and privileges on the one
hand and individual duties, obligations and responsibilities on the other;
of weighing and balancing the rights, liberties of the single individual and
those of individuals collectively.
o The arrestee should, where he so requests, be also examined at the time
of his arrest, major and minor injuries, if any present on his/her body,
must be recorded at that time. The “Inspection Memo” must be signed
both by the arrestee and the police officer effecting the arrest and its
copy provided to the arrestee.
o The arrestee should be subjected to medical examination by trained
doctor every 48 hours during his detention in custody by a doctor on the
panel of approved doctors appointed by Director, Health Services of the
concerned State or Union Territory.
o Copies of all the documents including the memo of arrest, referred to
above, should be sent to the Magistrate for his record. The arrestee
may be permitted to meet his lawyer during interrogation, though not
throughout the interrogation.
o
o A police control room should be provided at all district and state
headquarters, where information regarding the arrest and the place of
custody of the arrestee shall be communicated by the officer causing
the arrest, within 12 hours of effecting the arrest and at the police
control room it should be displayed on a conspicuous notice board.
o The Supreme Court pointed out that the Third Report of the National
Police Commission identifies wrongful use of arrest powers as one of
the chief sources of corruption in the police and that nearly 60%
arrests made by police officers are unnecessary and unjustified.
Strongly opposing the practice of carrying out indiscriminate arrests,
the Supreme Court said that an arrest cannot be made simply because
it is lawful for a police officer to do so.
o The existence of the power to arrest is one thing the justification for
the exercise of it is quite another.. ..the police officer must be able to
justify the arrest.
o Arrest and detention in police lock up can cause incalculable harm to
the reputation and self-esteem of a person. Therefore, arrests should
not be made in a routine manner on mere allegation that a person has
committed an offence.
o If police officers do not wish to face legal or disciplinary action,
they should see that arrests are made only after reaching a
reasonable satisfaction about the complaint being true and the case
being bona fide.
o Even then, the Court said that the officer making the arrest must
function under a reasonable belief both as to the person's
complicity in committing the offence and the need to effect an
arrest.
o Arrests are not be made in a routine manner. The officer making
the arrest must be able to justify its necessity on the basis of some
preliminary investigation.
o An arrested person should be allowed to inform a friend or relative
about the arrest and where s/he is being held. The arresting officer
must inform the arrested person when s/he is brought to the police
station of this right and is required to make an entry in the diary as
to who was informed.
o It is the duty of the magistrate before whom the arrested person is
produced to satisfy her/himself that the above requirements have
been complied with.
JUDICIAL SUPERVISION REGARDING FAKE ENCOUNTERS
Through several judicial pronouncements, stringent guidelines have been
laid down for dealing with cases of encounter-killings.
PUCL v. State of Maharashtra and others have viewed encounter
killings as endangering the fundamental right under Article 21 of the
constitution – which is a guarantee against the deprivation of life
without a procedure established by law.
The Supreme Court remarked in PUCL v State of Maharashtra that “the
killings in police encounters affect the credibility of the rule of law
and the administration of the criminal justice system”. Moreover, a
commitment to the rule of law only reinforces the state’s own moral
authority to claim a monopoly over violence.
Guidelines issued by supreme court for investigation of encounter
killings
The Honourable Supreme Court in the same matter of PUCL v State of
Maharashtra, after taking into account the suggestions made by
Bombay High Court, the Counsels, National Human Rights Commission
& other stakeholders issued the following guidelines to be followed in
the investigation of death following police encounters:
 Record tip-off: Any inputs received about criminal movements or
activities related to the commission of grave criminal offence, shall
be recorded in writing or in some electronic form.
 Mandatory registration of FIR in encounter deaths: Pursuant to
receipt of such intelligence, if any encounter takes place in which
firearm is used by the police party and the outcome of which is death
of the offender, then an FIR shall be registered and the same shall
be submitted to the court under Section 157 of the CRPC as per the
procedure established under Section 158 of the code.
 Independent probe by CID/ Special Police Team: The CID or
police team of another police station under the monitoring of a senior
officer (at least a level above the head of the police party engaged in
the encounter) shall administer an impartial investigation into the
encounter, taking into account various factors as stated out in the
order in detail.
 Magisterial inquiry: In all cases of police firing where death occurs,
a magisterial inquiry under Section 176 of the CrPC must be held and
then a report must be sent to the Judicial Magistrate. Conveying
information to the Human Rights Commission: The information of the
incident must be sent to NHRC or the State Human Rights
Commission, and involvement of NHRC is not necessary unless there is
serious doubt about impartiality of the investigation.
 Informing victim’s descendants: In the event of death, the next of
kin of the alleged criminal must be informed at the earliest.
 Medical Aid: If the criminal/victim is injured, medical aid should
reach him at the earliest and a magistrate or medical officer must
record his statement along with the certificate of fitness.
 No Delay: The FIR, panchnamas, sketch, and police diary entries
should be forwarded to the concerned Court without any delay.
 Co-operation by officers involved in an encounter: The police
officer(s) concerned must surrender their weapons for forensic and
ballistic analysis, or any other material as required by the
investigating team, as per rights under Article 20 of the
Constitution.
 Sending report to Court: After full investigation, the report shall
be sent to the competent court under Section 173 of the CRPC,
after which trial must be held.
 Submission of half-yearly report: Six monthly statements of all
cases where deaths have occurred in police firing must be sent to
NHRC by DGPs, which must reach NHRC by 15th day of January and
July of each year.
 No Instant police awards till clean chit: The concerned officers
shall not be instantly promoted or awarded soon after the
occurrence of the encounter. The police department can proceed
ahead with the rewards only, when the gallantry of the concerned
officers is established beyond doubt.
 Disciplinary action: If the evidence on record after the completion of
the investigation depicts that death had occurred by use of a firearm
amounting to offence under the IPC, disciplinary action against such
officer must be initiated forthwith and services of such officer be
terminated for the time being under suspension.
 Legal recourse to victim’s descendants: Should the family of the
victim find any lack of independent investigation or impartiality by any
of the functionaries involved in the investigation process, they may
make a complaint to the Sessions Judge having territorial jurisdiction
over the location of the incident.
Prakash Kadam v Ramprasad Vishwanath Gupta & Anr,(2011) 6SCC 189
In this case the Supreme Court observed that ‘Fake encounters’ are
equivalent to cold blooded’ and ‘brutal murder’ by persons who are
expected to uphold the supremacy of law. Also it has been observed by
the Honourable court that if crimes are committed by common people,
ordinary punishment should be given, but if the offence is committed
by policemen much stricter punishment should be given to them because
they do an act totally opposed to their duties, and where a fake
encounter is established against policemen in a trial, they must be given
death sentence, considering it as the ‘rarest of rare cases’.
 The Court further alerted the police department that they will not
be exonerated for carrying out ‘murder’ in the name of ‘encounter’ on
the rationale that they were obeying to the orders of their superiors
in the department or politicians, howsoever high. If a policemen is
given an unlawful order to do a fake ‘encounter’, law casts a duty upon
him to decline to execute such illegal order, otherwise he will be held
liable for murder, and if found guilty sentenced to death.
 In this case while concluding Markandey Katju. J, placed the
encounter philosophy on par with ‘Criminal philosophy’ and took the
example of Nuremburg Trials stating that “In the Nuremburg trials
the Nazi war criminals took the plea that ‘ orders are orders’,
nevertheless they were hanged and those police personnel, who
perceive they can kill people in the name of encounter and get away
with a free hand, should know that ‘gallows await them’.
 This ultimately impacts the speed at which our courts dispense
justice, and thereby affects public confidence in the institution of
courts. It is this shaken public confidence that then expresses itself
through jubilations when police personnel resort to extra-judicial
killings. Nevertheless, the correct response has to be a structural
strengthening of courts by addressing the issues expressed above,
and not to view instant justice through the hands of trigger-happy
policemen as the substitute for a judicial trial.
Om Prakash v State of Jharkhand, [(2012) 12 SCC 72],
The Honourable Supreme Court, condemned encounter killing as ‘State-
sponsored terrorism’ and stated that it is not the duty of the
policemen to neutralize the accused just because he is a ‘dreaded
criminal’.
The police have to arrest the culprit and put them up for trial. Such
killings must not be cherished. They are not justified by our criminal
justice administration system.
The Court also noted that many policemen, while performing their duty,
get injured and killed but also stated that police have to do their
legal duty of arresting the criminals, and have to guard themselves as
well.
Requirement of sanction to prosecute protects the policemen, who are
sometimes required to take extreme action against criminals to
protect public life and property and to protect themselves against
any aggression. Unless clear evidence is on record to prove that their
action is ‘indefensible with malafide intention and revengeful, they
cannot be prosecuted.
JUDICIAL INTERVENTION REGARDING BAIL
‘Bail is a rule, jail is an exception’ is a legal doctrine that was laid down by
the Supreme Court of India in a landmark judgement of State of
Rajasthan v. Balchand alias Baliya (AIR 1977 2447). The legal doctrine, in
this case, was laid down by Justice V. Krishna Iyer, who based it on
fundamental Rights guaranteed by the constitution of India.
Section 436 of the Code of Criminal Procedure deals with provisions of
bail in bailable offences. Under this section, bail is the right of
person, who has been accused for commission of offence, which is
bailable in nature. This provision casts a mandatory duty on police
official as well as on the Court to release the accused on bail if the
offence alleged against such person is bailable in nature.
Stefan Mueller v. State of Maharashtra in Writ Petition No.2939 of
2009 dated 23/06/2010
The Bombay High Court observed that it is well settled position of law
that if the offence is bailable, the accused is entitled to be released
on bail and even where he does not make an application for bail, it is
the responsibility of the concerned police officer, if he has arrested
or detained the accused for a bailable offence, to inform him about
his right to be released on bail. Similarly, it is also settled position of
law that where a person accused of bailable offence appears or is
produced before a Magistrate, it is responsibility of such Magistrate
to inform him of his right to be released on bail.
The directions of Hon'ble Apex Court in Cri.Writ Petition No.310/2005
(Hon'ble Justice Kurien Joseph and Rohinton Nariman JJ) and as per section
436-A of Cr.P.C. a person who has undergone detention for a period
extending half the maximum detention for a period of imprisonment imposed
for a particular offence shall be released on his/her personal bond with or
without sureties.
At the stage of consideration of bail what the Court is normally
required to consider are;
(1) The nature and seriousness of the accusation.
(2) Severity of the offences.
(3) Nature of the evidence collected and the character and behaviour
of the accused.
(4)Chances of the accused absconding and not being available during
the trial.
(5) Possibility of repetition of such crime.
(6) Chances of the accused of tampering with the evidence and
witnesses, and
(7)Larger interest of the people and the State.
Supreme Court’s observation regarding granting of bail
Maulana Mohmmad Amir Rishadi v. State of U.P. and Another 2012(2)
Mh. L. J. (Cri.) 412 held that, merely on the basis of criminal
antecedents, bail cannot be denied.
In Sumit v. State of U.P., 2010 Cri.L.J. 1435 (SC) it was held that even
if there are other criminal cases pending, accused should be granted
bail.
In Mohan Singh v. Union Territory, 1978 CrLJ 844, it was held by the
Supreme Court that concealment of earlier petition which was
dismissed, was held to be not a ground to reject bail.
Brijesh Singh v. State of Karnataka, 2002 Cri.L.J. 1362.
The Supreme Court in this case held that the Magistrate, who granted
bail has power to cancel it or alter its conditions.
The Hon'ble Supreme Court in the Gurbaksh Singh Sibbia and Others
v. State of Punjab, Reported in (1980) 2 SCC 56, has laid down the
following principles with regard to anticipatory bail :
a) Section 438(1) is to be interpreted in light of Article 21 of the
Constitution of India.
b) Filing of FIR is not a condition precedent to exercise of power under
section 438.
c) Order under section 438 would not affect the right of police to
conduct investigation.
d) Conditions mentioned in section 437 cannot be read into section 438.
JUDICIARY AND VICTIM COMPENSATION
Section 357 A
The compensation part of the rehabilitation of victims of violence including
rape is governed by provision of Section 357A of the Code of Criminal
Procedure which states that every State Government in co-ordination with
the Central Government shall prepare a scheme for providing funds for the
purpose of compensation to the victim of crime.
The Apex Court in the case Rudal Shah v. State of Bihar for the first time laid
down the principle that compensation can be given in the cases where any
fundamental right of an individual has been injured and that the upper
courts have the authority to do so “through the exercise of writ jurisdiction
and evolved the principle of compensatory justice in the annals of human
rights jurisprudence.”
The Court in Nilabati Behera v. State of Orissa observed that every
prisoner and the arrestee has the right to enjoy all the fundamental rights
and the police have to ensure that they don't deprive the right to life of the
prisoner mentioned under Article 21. The petitioner Suman Behera was
arrested by the police and the very next day her body was found on a
railway track with multiple injuries and was awarded a compensation of Rs
1.5 lakh.
The theory of compensation in criminal law is mainly about compensation to the
victim of a crime. A victim to a crime is one who has suffered any loss
because of some act or omission of the accused. The victim not only suffers
physical injuries but also psychological and financial hardships too.
The plight of a victim is only made worse by lengthy hearings and tedious
proceedings of courts and improper conduct of the police. The victim is
literally traumatised again in the process of seeking justice for the first
injury. The legal heirs/guardians of the victim too come in the same
definition.
Hari Kishan & Anr v. Sukhbir Singh & Ors on 25 August, 1988
The Supreme Court observed that payment by way of compensation must,
however, be reasonable What is reasonable, may depend upon the facts and
circumstances of each case. The quantum of compensation may be determined
by taking into account the nature of crime, the justness of claim by the
victim and the ability of accused to pay.
If there are more than one accused they may be asked to pay in equal terms
unless their capacity to pay varies considerably. The payment may also vary
depending upon the acts of each accused. Reasonable period for payment of
compensation, if necessary by instalments, may also be given.
The Court may enforce the order by imposing sentence in default. In this case
the Supreme Court had awarded compensation as punishment, of Rs. 50,000.
Not only this, the lower courts were asked and advised to “exercise the
power of awarding compensation to the victims of offences in such a liberal
way that the victims may not have to rush to the civil courts”.
The victim of rape has to suffer from many hardships like mental shock, lost
income due to pregnancy and costs incurred during childbirth because of the
offence. Also, in the present Indian society, a raped victim is looked down
upon even though she is the victim and not the offender. During a rape trial,
if the accused is just punished or asked to pay fine, the judgment does not
favour the victim as her position is not restored. Hence it becomes extremely
important to compensate such a victim.
JUDICIAL INTERVENTION REGARDING CUSTODIAL VIOLENCE.
 Custodial violence primarily refers to violence in police and judicial custody.
It includes death, rape and torture.
 Custodial violence is a clear violation of Human rights, which include all
types of physical and mental torture inflicted upon the victim. It is widely
accepted as one of the cruellest forms of human rights abuse.
 According to reports by NCRB, around 265 deaths were recorded with zero
conviction by the state between the period of 2016 and 2018. Violence
serves as the easiest and cheap method of investigation and as a tool for
oppression. Police officers are notorious for using third-degree torture
techniques as means of investigation to get a confession or any information.
 Section 167 of the Cr.P.C talks about two types of Custody i.e police
custody and judicial custody. Therefore we can divide Custodial violence
into two types namely:
Violence in police custody
This type of violence occurs when police torture the accused to sustain
interrogation and find the truth. There are hardly any safeguards to ensure
the person in the custody will have timely access to his lawyer or record of
his detention, or a proper medical examination.
Violence in judicial custody
This type of violence can usually be seen in prisons or detention centres
where the violence is acted out by the inmate gangs who have unrestricted
power to commit ill acts. Innocent prisoners get caught in the clutches of
these gangs and beaten up if they don't show allegiance to them. This kind
of violence pushes the victim to commit suicide.
D.K Basu v. State of West Bengal 1997 (1) SCC 416 the apex court recognized
custodial violence and police torture and said 'custodial violence is an attack
on the human dignity’ and put forward many recommendations and policies
regarding same.
Munshi Singh Gautam v State of Madhya Pradesh, Appeal (Crl.) 919 of 1999: -
Summarizes their grief concern about this problem of torture in Indian prisons
by police. The supreme court stated that:
“The dehumanising torture, assault and death in custody which have assumed
alarming proportions raise serious questions about the credibility of the rule
of law and administration of the criminal justice system. Torture in custody
flouts the basic rights of the citizens recognized by the Indian Constitution
and is an affront to human dignity. Police excesses and the mal-
treatment of detainees/under-trial prisoners or suspects tarnishes the
image of any civilised nation and encourages the men in ’Khaki’ to
consider themselves to be above the law and sometimes even to become law
unto themselves. Unless stern measures are taken to check the malady of
the very fence eating the crops, the foundations of the criminal
justice delivery system would be shaken and the civilization itself would
risk the consequence of heading, towards total decay resulting in
anarchy and authoritarianism reminiscent of barbarism.”
Prabhavathiamma v The State of Kerala & Others WP(C). NO. 24258
OF 2007
The two serving police personnel were awarded the death sentence by a
CBI court, after hearing the case for over a decade, in
Thiruvananthapuram, over the death of a scrap metal shop worker,
who the court believes was murdered in custody.
While sentencing the two, Judge J Nazar had said:
“This is a brutal and dastardly murder by accused… The acts of
the accused persons would definitely adversely affect the
very institution of the police department… If the faith of the
people in the institution is lost, that will affect the public
order and law and order, and it is a dangerous situation.”
Inderjeet v. State of Uttar Pradesh,on 9th May 2014
The Apex Court in this case hold the view that prison restrictions
amounting to torture, pressure or infliction and going beyond what
the court authorities, are unconstitutional further it extended that
an under-trial or convicted prisoner cannot be subjected to physical
or mental restraint, which is not warranted by the punishment
awarded by the Court, or which amount to human degradation.
Yashwant And Others v. State of Maharashtra (2018) 4MLJ
(Crl)10(SC): -
In this case the Supreme Court upheld the conviction of nine
Maharashtra cops in connection with a 1993 custodial death case and
extended their jail terms from three to seven years each.
Reportedly, a bench of Justices NV Ramana and MM Shantanagoudar
upheld the order and said that incidents which involve the police
tend to erode people’s confidence in the criminal justice
system. While enhancing the prison term of the cops, the apex
court said, “With great power comes greater responsibility,”.
RIGHTS OF PRISONERS UNDER PRISONS
ACT 1894
 It is the first legislation regarding prison regulation in India .
 It mainly focuses on reformation of prisoners in connection with the
rights of prisoners.
 In the year of 2016 the Parliament has passed the Prisons
Amendment bill 2016 to amend the Prisons Act with a view to provide
protection and welfare of the prisoners in the present context and
in tune with the Constitution of India and to create an atmosphere
to rehabilitate and socialize prisoners to enable them to re-enter
the society.
PROVISIONS IN THE PRISONS ACT 1894 RELATED WITH
REFORMATION OF PRISONERS
 Accommodation and sanitary conditions for prisoners.
 Provisions for shelter and safe custody of the excess number of
prisoners which cannot be safely kept in any prison.
 Provisions relating to examination of prisoners by qualified medical
officer.
 Provisions relating to separation of prisoners containing female and
male prisoners , civil and criminal prisoners , and convicted and under
trial prisoners.
PROVISIONS IN THE PRISONS ACT 1894 RELATED WITH REFORMATION
OF PRISONERS
 Provisions relating to prisoners’ right to health.
 Provisions relating to the maintenance of hygiene or sanitation in jail premises so
the prisoners could maintain their health. In case of pregnant prisoner her diet
and work allocation shall be determined as per medical advice
 A pregnant prisoner shall be entitled to grant of conditional parole for 30 days
from the expected date of delivery or 30 days from the date of delivery if the
delivery takes place while she is in prison
 Provisions relating to establishment of separate prisons to keep habitual and
hardcore offenders separately from the first time offenders and the offenders
convicted for lesser crimes .
Provisions relating to skill training in prisons provided to the prisoners and conduct
workshops and seminars on such subjects as would be helpful for rehabilitation
of and for educating the prisoners.
THE PRISONERS ACT 1900
It is the duty of the government for the removal of any prisoner under any order
or sentence of any court, which is of unsound mind to a lunatic asylum and other
place where he will be given proper treatment.
Any court which is a high court may in case in which it has recommended to
government the granting of a free pardon to any prisoner, permit him to be at
liberty on his own cognizance.
THE TRANSFER OF PRISONERS ACT, 1950 (ACT 29 OF 1950)
Removal of prisoners from one State to another. - (1) where any person is
confined in a prison in a State-
(a) under sentence of death, or
(b) under or in lieu of a sentence of imprisonment or transportation, or
(c) in default of payment of a fine, or
(d) in default of giving security for keeping the peace or for maintaining good
behaviour;
the Government of that State may, with the consent of the Government of any
other State, by order, provide for the removal of the prisoner from that
prison to any prison in the other State.
JUDICIAL SUPERVISION IN PRISON ADMINISTRATION
PAST POLICY OF THE COURTS
The historical role of the prison as a place of punishment, and the admitted
complexities of the penologist's task, have resulted in a deep reluctance on
the part of the courts to review the decisions and actions of prison
administrators. This policy of non-interference with the internal affairs of
penal institutions has been generally referred to as the "hands-off" doctrine.
The majority of courts adhering to this policy of non-interference with internal
prison affairs have adopted the position that the courts are "without power
to supervise prison administration or to interfere with the ordinary prison
rules or regulations." This viewpoint has been justified by reference to the
principle of separation of governmental powers, with the administration of
prisons being thought to fall exclusively within the jurisdiction of the
executive branch.
THE PRESENT TREND OF THE COURT
 Prison is a place where the criminal justice system put its entire
hopes. The correctional mechanism, if fails will make the whole
criminal procedure in vain.
 The doctrine behind punishment for a crime has been changed a lot
by the evolution of new human rights jurisprudence.
 The concept of reformation has become the watchword for prison
administration. Human rights jurisprudence advocates that no crime
should be punished in a cruel, degrading or in an inhuman manner.
 On the contrary, it is held that any punishment that amounts to cruel,
degrading or inhuman should be treated as an offence by itself.
 The transition caused to the criminal justice system and its
correctional mechanism has been adopted worldwide.
 The increasing concern of the courts over the protection of individual
rights, as manifested by the new emphasis on the rights of the
accused, has also been reflected-in a new willingness of the judiciary
to undertake judicial review of the internal operations of prisons and
to define the rights retained by the convicted.
 This trend has been facilitated by a gradual shift of emphasis in penal
philosophy. Now reformation, rather than punishment, was seen as the
ultimate goal of penology.
 The growing recognition of the convict as a human being, capable of being
returned to society as a functioning, productive citizen, has contributed to the
new view of the prisoner as a man whose rights have been temporarily
restricted but by no means abolished.
 The Indian system of prison administration was restructured and modified by
the judiciary. Many of the rights assured to prisoners were incorporated into
Indian legal system by the judiciary.
 Case to case analysis will help us to pin down the judicial initiatives in enhancing
the rights of prisoners.
REFORMATION AS THE OBJECTIVE OF PUNISHMENT:
 The object of Criminal Law is more to reform the offender than to punish him
 Narotam Singh v. State of Punjab the Supreme Court has taken the following
view-
 “Reformative approach to punishment should be the object of criminal law, in
order to promote rehabilitation without offending community conscience and to
secure social justice.”
 Krishna Iyer, J. was the person who advocated strongly for orienting
reformative treatment of prisoners. In all his judgments he tried to
incorporate reformative values into the prison administration.
 The concept of crime was also redefined by the judges of his time. It was
observed that: “Crime is a pathological aberration that the criminal can
ordinarily be redeemed that the state has to rehabilitates rather than avenge.
The sub-culture that leads to anti-social behaviour has to be countered not by
undue cruelty but by re-culturisation. Therefore, the focus of interest in
penology is the individual and the goal is salvaging him for society. The infliction
of harsh and savage punishment is thus a relic of past and regressive times.”
RIGHT TO HAVE HEALTHY ATMOSPHERE IN PRISON:
Ramamurthy v. State of Karnataka, (1997) S.C.C. (Cri) 386.
 The Supreme Court identified nine major problems afflicted upon the prison
system, namely, overcrowding, delay in trial, torture and ill-treatment, neglect
of health and hygiene, insubstantial food and inadequate clothing, prison vices,
deficiency in communication, streamlining of jail visits and management of
open-air prisons. Among this, an unhealthy living premise inside the jail was
identified by the Court as a severe problem.
 The court herein also pointed out the need for providing adequate amenities
by the state for the prisoners in advancement of their living conditions inside
the prison. A decade after this judgment situation remained the same and the
same was revealed before the court by another judgment.
Bharathi v. Union Territory of Pondicherry and Others, 2007 Cri. L. J. 1413
 The bitter experiences of the prisoners were made through a letter by one of
the prisoners P. Bharathi of central Prison, Puducherry to one of the
Honourable Judges of Supreme Court. The letter was ordered to be treated
as a writ petition. It talked about the poor hygienic condition and maintenance
inside the prison and also restrictions on the visit by relatives of the prisoner.
There was no toilet facility inside the cell to use during the night time.
 Two plastic buckets with lid was provided for this purpose during night time
and in the next day morning, the buckets containing excreta are made to be
cleaned by the inmates of the cell on turn basis. This was made as per the
existing prison rules and the authorities accepted that the rules require a
radical change to fall in line with present day requirements. This judgment will
help to realize the disparities in state legislations as well as the need for a
centralized legal framework in regulating the prison affairs.
JUDICIAL SUPERVISION REGARDING PRISON ATROCITIES
Sunil Batra v. Delhi Administration, A.I.R. 1980 S.C.1579
 In this case the Supreme Court made it clear that the prison treatment should
not cause any kind of torturous effect over the inmates. Even the practice of
separate confinement and solitary confinement was deeply discouraged by
courts .
 The court clearly pointed out that the prison authorities cannot make prisoners
to solitary confinement and hard labour. The Supreme Court in this judgment
directed the district magistrates and sessions judges to visit prisons in their
jurisdiction and afford effective opportunities for ventilating legal grievances.
They were to make expeditious enquiries and take suitable remedial action.
 The concept of judicial policing was recognized by the Supreme Court through
this judgment. Discussing on the same premise the court vehemently criticized
the practice of using bar fetters unwarrantedly.
 The court held the treatment of a human being which offends human dignity,
imposes avoidable torture and reduces the man to the level of a beast, would
certainly be arbitrary and questionable under Art. 14. Thus putting bar fetters
for a usually long period, day and night, and that too when the prisoner is
confined in secure cells from where escape is somewhat inconceivable without
any due regard for the safety of the prisoner and the security of the prison is
not justified.
Krishna Iyer, J. at this instance remarked:
 “Society must strongly condemn crime through punishment, but brutal
deterrence is fiendish folly and is a kind of crime by punishment. It
frightens, never refines; it wounds never heals.”
The message of reformation through prison treatment has to be there in
every measures adopted by the authorities. The human right to be safe
in prisons as mandated by the international human rights law is being
incorporated into Indian law by judicial initiatives.
JUDICIAL INTERVENTION REGARDING PRISON LABOUR:
 The judicial intervention on prison labour needs worth mentioning.
Prison labour also involves certain human right issues. The extent of labour
given for a prisoner will vary depending upon the punishment and nature
of imprisonment. Anyhow prison labour must be understood as a tool for
reformation instead of taking it as a form of punishment.
Darambir & Another v. State of Uttar Pradesh, (1979) 3 S.C.C. 645.
 In this case it was observed by the Court that Indian legal system
always measures Prison labour as method to implement rigorous
imprisonment made by the court. The issue in relation to improper
remuneration was raised before Indian judiciary. Accommodating the
prisoners for the most suited job was well identified in the early periods
itself.
 Krishna Iyer, J. in this case law directed the prison authorities to
engage a convict in agriculture as he traditionally belongs to that
sector of the society.
 The Court further concluded the objective of prison labour as: When
prisoners are made to work, a small amount by way of wages could be
and should be paid so that the healing effect on their minds is fully
felt.
 Moreover proper utilization of services of prisoners in some
meaningful employment, whether as cultivators or as craftsman or
even in creative labour will be good from the society’s angle as it
reduces the burden on the public exchequer and the tension within.
The above approach of the court has to be little bit criticized as the
argument supports the use of income of a prisoner against his
expenses inside the prison.
 On the other side the state should not take anything from the
income of a prisoner as it can be used for the well being of his family
or according to his lawful aspirations. The old position was based on
the conviction that the man who broken the law has placed himself in
debt of society for which he have to compensate.
 This will also work in creating earning habits and making a prisoner
self confident. Need for adequate wages by prisoners were again
raised before the Supreme Court and where the court held the
application of Minimum Wages Act, will be of great use.
 In this judgment, the court recommended to the State concerned to
make law for setting apart a portion of wages earned by the
prisoners to be paid as compensation to the deserving victims, of the
offence, the commission of which entailed the sentence of
imprisonment to the prisoner either directly to through a common
fund to be created for this purpose or in any other feasible mode.
Paramanand Katara v. Union of India and another, (1995) 3 S.C.C.248
 The right to dignity and fair treatment under Art. 21 of the
Constitution of India is not only available to a living man but also to
his body after his death.
 The jail authorities in the country shall not keep the body of any
condemned prisoner suspended after the medical officer has
declared the person to be dead.
 The only mandatory part is that the condemned person has to be
declared dead by the medical officer and as soon as it is done the
body has to be released from the rope. The inherent quality of every
human life is there with the prisoners.
EVOLUTION OF PUBLIC INTEREST LITIGATION
In law, standing or locus standi is a condition that a party seeking a
legal remedy must show they have by demonstrating to
the court sufficient connection to and harm from the law or action
challenged to support that party's participation in the case.
The rule of locus standi, i.e. right to move to the court, whereby only
aggrieved person can approach the court for redress of his
grievances has been relaxed by the judiciary.
 Judicial activism through a process known as public interest litigation
(PIL) has emerged as a powerful mechanism of social change in India.
 Public interest litigation is an opportunity to make basic human
rights meaningful to the deprived and vulnerable sections of the
community.
 To assure vulnerable section social, economic and political justice,
any public spirited person through public interest litigation can
approach the court to protect their rights on behalf of aggrieved
persons who cannot approach the court themselves due to their
vulnerable conditions.
Now court through public interest litigation permits public spirited
persons to file a writ petition for the enforcement of rights of any
other person or a class, if they are unable to invoke the jurisdiction
of the Court due to poverty or any social and economic disability.
PUBLIC INTEREST LITIGATION
 The expression `Public Interest Litigation' can be defined as
"any litigation conducted for the benefit of public or for
removal of some public grievance.“
 The first reported case of PIL, in 1979, focused on the inhuman
conditions of prisons and under trial prisoners.
 Hussainara Khatoon v. State of Bihar, the PIL was filed by an
advocate on the basis of the news item published in the Indian
Express, highlighting the plight of thousands of under trial
prisoners languishing in various jails in Bihar.
 It was observed by the Court that” It is the constitutional
obligation of this Court as the guardian of the fundamental
rights of the people, as a sentinel on the qui vive, to enforce
the fundamental right of the accused to speedy trial by issuing
the necessary directions to the State which may include taking
of positive action, such as augmenting and strengthening the
investigative machinery, setting up new courts, building new
court houses, providing more staff and equipment to the courts,
appointment of additional judges and other measures calculated
to ensure speedy trial.”
 These proceeding led to the release of more than 40,000 under
trial prisoners. Right to speedy justice emerged as a basic
fundamental right which had been denied to these prisoners.
Sheela Barse v. State of Maharashtra AIR 1983 SC 378
 This writ petition is based on a letter addressed by Sheela Barse, a journalist,
complaining of custodial violence to women prisoners whilst confined in the
police lock up in the city of Bombay. The petitioner stated in her letter that
she interviewed fifteen women prisoners in the Bombay Central Jail with the
permission of the Inspector General of Prisons between 11 and 17th May, 1982
and five out of them told her that they had been assaulted by the police in the
police lock up. The primary question which is raised in the letter of the
petitioner relates to the safety and security of women prisoners in police lock
up and their protection against torture and ill-treatment.
The guidelines given by the Court includes:
 We would direct that four or five police lock-ups should be selected in
reasonably good localities where only female suspects should be kept and they
should be guarded by female constables.
 Female suspects should not be kept in a police lock-up in which male suspects
are detained.
 The interrogation of females should be carried out only in the presence of
female police officers/constables.
 Whenever a person is arrested by the police without warrant, he must be
immediately informed of the grounds of his arrest and in case of every arrest
it must immediately be made known to the arrested person that he is entitled
to apply for bail.
 The Supreme Court also directed that when a person is arrested and
produced before a Magistrate , the Magistrate shall enquire from the
arrested person whether he has any complaint of torture or maltreatment in
police custody and inform him that he has right under Section 54 of the
Criminal Procedure Code, 1973 to be medically examined.
In Re-Inhuman Conditions in 1382 Prisons 6AIR 2016 SC 993, 2016 (2)
SCALE 185
 The Supreme Court of India recently on March 14, 2016 delivered a
landmark judgement which regard to the legal and constitutional
rights of prisoners in India especially the under trial prisoners. The
Court observed that prisoners are no less human than others and
therefore must be treated with dignity. In view of this, court passed
the following the directions;
 Under Trial Review Committee should ensure effective
implementation of Probation of Offenders Act, 1958 and Code of
Criminal Procedure, 1973
 The Director General of Police/Inspector General of Police in-charge
of Prisons will ensue proper utilization of funds so that conditions of
the prisoners is in commensurate with human dignity which includes
health, hygiene, food, clothing, rehabilitation.
 The MHA will ensure that Management Information System is
implemented in all central, district and women jails for better
management of prison and prisoners. Further the Ministry will also
review the Model Prison Manual 2016 annually so that it does not
become another dead document.
 The under trial committee will look into the issues raised in the
Model Prison Manual and for that purpose will visit jails regularly.
Cr.P.C PROVISIONS
POWER OF JUDICIAL OFFICERS AND
SUPREME COURT’S OBSERVATION
REGARDING THEIR POWERS.
POWER OF MAGISTRATE IN REGISTERING
CRIMINAL CASE AND INVESTIGATION
Section 156 (3). Judicial magistrate’s power to investigate
cognizable case
Section 156(3) entails that any Magistrate empowered under
Section 190 may order an investigation by a police officer
performing his duties under Chapter XII of Cr.P.C.
This sections highlights the chronology or series of remedies
available to a person. Firstly, filing a complaint before the police
official and secondly, in the event of failure of the registration
of the complaint by the official, one shall approach the SSP or
SP for the said purpose. However, if the complaint is not
registered even after that, then the next remedy is to seek help
from the Judicial Magistrate.
If such an application under Section 156 (3) is filed before the
Magistrate, the Magistrate can direct the FIR to be registered
and also can direct a proper investigation to be made, in a case
where, according to the aggrieved person, no proper investigation
was made.
SUPREME COURT’S OBSERVATION
 If any application under Section 156(3) is filed before the
Magistrate, the Magistrate can direct the FIR to be registered and
an appropriate investigation to be taken place, in the event where,
according to the aggrieved person, no proper investigation was done.
Under the same provision, the Magistrate may monitor the
investigation to ensure a proper investigation.
Case Laws
In Mohd. Yousuf v. Afaq Jahan, Honourable Apex Court
observed that a Judicial Magistrate, before taking cognizance of
the offence, may order investigation under Section 156(3) of the
Code. If he does so, he should not consider the complainant’s oath
because he was not taking cognizance of any offence therein.
Dilawar Singh v. State of Delhi
The Honourable Court clarified that even if an FIR has been
registered and the police have made the investigation, or is making
the investigation, which the aggrieved person feels is not
satisfactory, such a person can approach the Magistrate under
Section 156(3) Cr.P.C, and if the Magistrate is satisfied he can
order a proper investigation and may take other appropriate actions.
Thus, in cases where the Magistrate finds that the police has not done
its job or is not satisfied with the investigation of the case, he can
direct the police to supervise the investigation and monitor it.
State of Bihar v. J.A.C. Saldanha (SCC : AIR para 19)
The Hon’ble Court held that a Magistrate can order an investigation to
resume even after the police have submitted the final report.
Thus, Section 156(3) Cr.P.C although briefly worded, is very extensive and
includes all such incidental powers as are necessary to ensure a proper
investigation.
Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage and Others
It was observed that if a person has a grievance that his FIR has not been
registered by the police, proper investigation is not being done, then the
remedy available to the aggrieved person is not to go to the High Court under
Article 226 of the Constitution of India, but to approach the Magistrate
concerned under Section 156(3) Cr.P.C
POWER OF HIGH COURT REGARDING REGISTRATION OF CASES AND
INVESTIGATION
Section 482 Cr.P.C 482.
Saving of inherent powers of High Court.
Nothing in this Code shall be deemed to limit or affect the inherent powers of
the High Court to make such orders as may be necessary to give effect to any
order under this Code, or to prevent abuse of the process of any Court or
otherwise to secure the ends of justice.
It is true that alternative remedies are not the absolute bar to a writ petition,
but it is equally settled that the High Court should not intervene if there is an
alternative remedy.
ROLE OF MAGISTRATE IN INVESTIGATION AND
TRIAL
Magisterial Vigil during Investigation
The role of magistrate in investigation
can be understood in terms of these
five stages:
Stage–I – Soon after the registration of
FIR
Stage–II – In cases where the arrest is
effected by the Investigating officer,
on his production before the court
and while deciding the question of the
validity of arrest and need for
further custody – Judicial or Police.
Stage–III- Magisterial interventions
while deciding misc. applications for
recording of statement(s) u/s 164 of
the Cr.P.C, test identification parades,
etc.
Stage–IV – Monitoring of investigation.
Stage–V – Further investigation, post-
filing of police report u/s 173 of the
Cr.P.C
Stage–I – Soon after the Registration of FIR
Criminal justice Administration is set into motion with the receipt of
information with respect to the commission of a cognizable offence
(Section 154 of the Cr.P.C).
Section 157 Cr.P.C mandates the sending of a report to this effect to the
area magistrate forthwith, to bring the matter to his scrutiny.
This is a safeguard meant to prevent police excess, embellishments, false
prosecutions and non-investigation at a crucial stage.
A copy of the FIR is to be brought to the Magistrate empowered to take
cognizance as soon as possible, and any delay can adversely affect the
prosecution case at trial, if not explained adequately.
 In heinous cases, a copy of the FIR along with an endorsement is
dispatched via a special messenger to the area magistrate or duty
magistrate.
 Sec 157 of Cr.P.C casts an obligatory duty on the police to send a copy
of the FIR to the Magistrate and whenever the police fails to
discharge the mandatory duty it is under a legal obligation to furnish
the reasons for not discharging it (Tulsi Ram Bhanudas Kambale v.
State of Maharashra 2000 CRLJ 1566).
 As per Rule 24 of Criminal rules of practice, after receipts of FIR, the
magistrates shall initial each page and put the date stamp and time of
receipt.
 As per sec 155 (2) of Cr.P.C. no police officer shall investigate a non-
cognizable case without the order of a magistrate having power to try
such case or commit the case for trial.
STAGE II – PRODUCTION OF THE ACCUSED BEFORE THE COURT
FOR THE FIRST TIME
Arrest leads to deprivation of liberty and, therefore, has great
ramifications for the person arrested.
Any denial of personal liberty has to be through a due process. A process
that is non-arbitrary, just, fair and reasonable.
No arrest shall be made, merely because it is lawful for the police
officers to do so and each arrest has to be justified on ground of its
imperative need and reasons are to be recorded in writing by the police
officer effecting the arrest.
According to the latest amendments in the Cr.P.C, in cases covered u/s
41(1)(b) of the Cr.P.C, i.e where the case relates to offence punishable
with imprisonment of 7 years or less, arrest can be made by the police
only on satisfaction (recorded in writing) to the effect that, the arrest
is imperative for :
✔ prevention of further offences; proper investigation of the offence;
✔ prevention of tampering or disappearance of evidence;
✔ prevention of any undue influence/threat to the complainant or
witnesses;
✔ ensuring his presence in the court.
✔The requirement of recording of reasons is done to rule out arbitrary
arrests. The Magistrate is one who monitors unnecessary detention
and abuse of power and process. The recording of these reasons,
therefore, is a condition precedent for arrest.
MAGISTERIAL CHECK ON POLICE POWERS OF ARREST
The sufficiency of reasons for arrest recorded by the police officer is
to be examined by magistrates and not to be accepted at the mere
ipse dixit of the police.
After examining the validity of the arrest, the next point of inquiry is:
whether there are grounds to keep the accused in detention or
whether he can be released on bail, or otherwise discharged.
The Supreme Court recently in Arnesh Kumar v. State of Bihar in
Criminal Appeal no. 1277 of 2014 has ruled that decision to detain &
remand is not a mechanical act and a remand order has to be a
reasoned order and should reflect due application of mind.
Mere mechanical reproduction of above elements in remand application is
also to be deprecated. In other words, when an accused is produced
before the Magistrate, the police officer effecting the arrest is
required to furnish to the Magistrate, the facts, reasons and its
conclusions for arrest and the Magistrate in turn is to be satisfied
that condition precedent for arrest under section 41 of Cr.P.C has
been satisfied and it is only thereafter that he will authorize the
detention of an accused.
 The anxiety as to participation in investigation by the accused is
allayed by Section 41A of the Cr.P.C, which provides for service of a
notice on the accused by the Investigating Officer seeking
participation in investigation and the necessary information from him.
If the accused does not comply with the notice, he can be arrested,
after recording the factum of his non cooperation in writing.
SAFEGUARDS RELATING TO ARREST
The magistrate is also under an obligation to peruse the Arrest Memo
or Medical examination report of the accused (to rule out cases of
police torture) as well as the victim (to preserve crucial medical
evidence).
It is also incumbent on the Magistrate to ensure production of the
accused before itself within 24 hours of arrest as per sec 57 of
Cr.P.C and communication of information to relatives or friends about
his arrest as per Sec 50 of Cr.P.C and compliance of the detailed
guidelines laid down by the Supreme Court in the case of D.K.Basu v.
State of W.B reported in 1997(1) SCC 416.
The Magistrate is to also ensure that the copy of the FIR is uploaded
on the Internet, forthwith, except of course, in cases where the
matter is sensitive in nature, or issues of privacy are involved, the
same was held by the Honourable Apex Court in Youth Bar association
of India v. Union of India and others.
Judicial Supervision of Criminal Justice System
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Judicial Supervision of Criminal Justice System
Judicial Supervision of Criminal Justice System
Judicial Supervision of Criminal Justice System
Judicial Supervision of Criminal Justice System
Judicial Supervision of Criminal Justice System
Judicial Supervision of Criminal Justice System
Judicial Supervision of Criminal Justice System
Judicial Supervision of Criminal Justice System
Judicial Supervision of Criminal Justice System
Judicial Supervision of Criminal Justice System
Judicial Supervision of Criminal Justice System
Judicial Supervision of Criminal Justice System

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Judicial Supervision of Criminal Justice System

  • 1. Sebi.S Govt. Law College Ernakulam JUDICIAL SUPERVISION OF CRIMINAL JUSTICE SYSTEM
  • 2. CRIMINAL JUSTICE SYSTEM Criminal Justice reflects the responses of the society to crimes and criminals. The criminal justice system consists of three main parts:  Law enforcement agencies, usually the police.  Courts and accompanying prosecution and defence lawyers.  Agencies for detaining and supervising offenders, such as prisons and probation agencies. In the criminal justice system, these distinct agencies operate together as the principal means of maintaining the rule of law within society. The objectives of Criminal Justice System includes: To prevent the occurrence of crime. To punish the transgressors and the criminals. To rehabilitate the transgressors and the criminals. To compensate the victims as far as possible. To maintain law and order in the society. To deter the offenders from committing any criminal act in the future.
  • 3.
  • 4. GOALS OF JUDICIAL SUPERVISION  The main goal of judicial supervision is the protection of the rights and the legal interests of all the participants in the criminal procedure.  To hinder the arbitrary implementation of authoritative powers belonging to the investigator, the body of inquiry and other officials.  To set the conditions for prosecutor, investigator and the body of inquiry, in order not to violate the rights and freedoms of the participants in the criminal procedure during the preliminary investigation. The other goals include: 1) to support the effective realization of the preliminary investigation. 2) to create optimal conditions to administer justice. The judicial supervision is a pre-requisite for administration of justice since without it, it is impossible to conduct such trial as a result of which a justified verdict will be delivered. First of all, one must be sure that the court presents the materials which have been obtained according to the law without any violation of the rights and legitimate interests of the persons participating in the criminal procedure. This supervisory function encompasses criminal case registration, investigations, trials, enforcement of criminal penalties, reviews of death penalty cases, enforcement of coercive measures, and compensation of victims.
  • 5. RIGHTS OF ARRESTED UNDERTRIALS AND PRISONERS.  RIGHTS OF ARRESTED UNDER TRIALS AND PRISNOERS GUARANTEED UNDER VARIOUS INTERNATIONAL INSTRUMENTS.  RIGHTS OF ARRESTED UNDER TRIALS AND PRISONERS GUARANTEED UNDER VARIOUS NATIONAL INSTRUMRNTS INCLUDING THE CONSTITUTION OF INDIA.  Arrested, under trials and Prisoners are also entitled to every human rights to same extent as a normal being when they are arrested and behind the prison but these rights are subjected to the conditions prescribed by law. For proper understanding of human rights of Arrested, under trials and prisoners we may divide it into two categories :
  • 6. RIGHTS OF ARRESTED, UNDER TRIALS AND PRISONERS Arrest involves restriction of liberty of a person arrested and therefore, infringes the basic human rights of liberty. Arrest is a form of State constraint applied to a person, during which the person is placed under detention, is imprisoned and is deprived of his right to move freely. Prisoner and under trails are person legally committed to prison as a punishment for a crime or while awaiting trail . The word prisoner means any person who is kept under custody in jail or prison because he has committed an act prohibited by law of the land . A prisoner also known as an inmate or anyone who against their will is deprived of liberty . This liberty can be deprived by forceful restrain or confinement. Rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more. Everyone is entitled to these rights, without discrimination. The characteristic of our present society is that even the rights of the accused are deemed to be sacrosanct, even though he is charged with an offence.
  • 7.  International law outlaws unacknowledged arrests and detentions.  States are accountable for all persons in their custody.  In particular, the date, time and location of all arrest and detentions must be available to families, lawyers and all competent judicial and other authorities at all time.  Involuntary or enforced disappearances and unacknowledged arrest and detentions constitute particularly serious violations of fundamental human rights, including the rights to liberty and security of the person.
  • 9. THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT o The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (commonly known as the United Nations Convention against Torture (UNCAT)) is an international human rights treaty entered into force on 1 March 2002. o This Convention establishes the European Committee for the prevention of torture and inhuman or degrading treatment or punishment. o The Committee is permitted to visit all places of detention defined by the Convention as “any place within its jurisdiction where persons are deprived of their liberty by a public authority”
  • 10. THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT o It follows the structure of the Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), with a preamble and 33 Articles. o Article 10 deals with treatment of any individual subjected to any form of arrest, detention, or imprisonment, regarding the prohibition against torture. o Parties also must keep interrogation rules, instructions, methods, and practices under systematic review regarding individuals who are under custody or physical control in any territory under their jurisdiction, in order to prevent all acts of torture (Article 11). o Parties are also obliged to prevent all acts of cruel, inhuman, or degrading treatment or punishment in any territory under their jurisdiction, and to investigate any allegation of such treatment (Article 16).
  • 11. UNIVERSAL DECLARATION OF HUMAN RIGHTS. o The most important global human rights instrument is the Universal Declaration of Human Rights, adopted on Dec 10, 1948 by the General Assembly of the UN. o The UDHR consists of a preface and 30 Articles setting forth the human rights and fundamental freedoms to which all men and women everywhere in the world are entitled, without any discrimination and Freedom from Arbitrary Arrest and Exile is one among those Articles. o Article 1 of the instrument states that all human beings are born free and equal in dignity and rights .They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. o Article 2 provides that everyone is entitled to all the rights and freedom set forth in this Declaration without distinction of any kind such as race, colour , sex, language , religion , political or other opinion , national or social origin , property, birth or other status .
  • 12. UNIVERSAL DECLARATION OF HUMAN RIGHTS  It would be clear the terms used in all human beings in Article 1 and everyone in Article 2 also includes prisoners.  Article 3 of the UDHR states that everyone has the right to life , liberty and security of person . Right to life is one of the basic Human rights and available to both prisoners or freemen .  Article 5 of the Declaration states that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.  Article 8 states that everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted to him by the constitution or by law.  Article 9 states that no one shall be subjected to arbitrary arrest, detention or exile.  The Declaration was the first instrument of international law to use the phrase "rule of law", thereby establishing the principle that all members of all societies are equally bound by the law regardless of the jurisdiction or political system.
  • 13. UNITED NATIONS COMMISSION ON CRIME PREVENTION AND CRIMINAL JUSTICE o The commission serves as the primary organ that guides the activities of the United Nations in the fields of crime prevention and criminal justice. o The United Nations Programme on Crime Prevention and Criminal Justice, incorporates concept of arrest and arrest has been defined as "the act of depriving a person under governmental authority for the purpose of taking that person into detention and charging the person with a criminal offence". o The goals of the commission include: o The promotion of the rule of law at the national and international levels to ensure equal access to justice for all. o A significant reduction of illicit financial and arms flows, the strengthening of the recovery and return of stolen assets and to combat all forms of organized crime o A substantial reduction in corruption and bribery in all their forms.
  • 14. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS.  Article 9 of the International Covenant on Civil and Political Rights reads as follows:  “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”  Anyone who is arrested shall be informed, at the time of arrest, of reasons for his arrest, and shall be promptly informed of any charges against him. Anyone arrested or detained on a criminal charges shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.
  • 15. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS. o It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantee to appear for trial, at any other stage of judicial proceedings, and, should occasion arise, for execution of the judgement. o Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court in order that such court may decide with-out delay on the lawfulness of his detention and order his release if the detention is not lawful. o Anyone who has been victim of unlawful arrest or detention shall have an enforceable right to compensation. o Article 10(1) of the International Covenant on Civil and Political Rights lay down that “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”.
  • 16. THE MUKONG CASE  In this case, the applicant alleged that he had been arbitrarily arrested and detained for several months, an allegation rejected by the State party on the basis that the arrest and detention had been carried out in accordance with the domestic law of Cameroon.  It was concluded that article 9(1) had been violated, since the detention “was neither reasonable nor necessary in the circumstances of the case”. For instance, the State party had not shown that the remand in custody was “necessary ... to prevent flight, interference with evidence or the recurrence of crime” but had “merely contended that the arrest and detention were clearly justified by reference to” article 19(3) of the Covenant, which allows for restrictions on the right to freedom of expression.  However, it was considered that “national unity under difficult political circumstances cannot be achieved by attempting to muzzle advocacy of multi-party democracy, democratic tenets and human rights”, and that the right to freedom of expression had therefore been violated.  Consequently, it was also concluded that the author’s arrest and detention were contrary to article 9(1) of the Covenant.
  • 17. AFRICAN CHARTER ON HUMAN RIGHTS. o The African Charter on Human and Peoples' Rights (also known as the Banjul Charter) is an international human rights instrument that is intended to promote and protect human rights and basic freedoms in the African continent. o Article 5 of the Charter deals with freedom from cruel, inhuman or degrading treatment or punishment. o Article 6 of the African Charter on Human and Peoples’ Rights provides that: o “Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.”That is, Article 6 deals with rights to due process concerning arrest and detention. o Article 7 and Article 25 deals with the right to a fair trial.
  • 18. AMERICAN CONVENTION ON HUMAN RIGHTS. o The American Convention on Human Rights, also known as the Pact of San José, is an international human rights instrument. o Article 5 provides the right to humane treatment including arrested and prisoners. o Article 7 of the American Convention on Human Rights provides, inter alia, that: “ Every person has the right to personal liberty and security.” o No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto. o “No one shall be subject to arbitrary arrest or imprisonment.”
  • 19. EUROPEAN CONVENTION ON HUMAN RIGHTS o The European Convention on Human Rights is the only treaty that specifically enumerates the grounds which can lawfully justify a deprivation of liberty in the Contracting States. This list is exhaustive and “must be interpreted strictly”. Article 5 reads:  “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: It includes- The lawful detention of a person after conviction by a competent court.  The lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law.  The lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.
  • 20. EUROPEAN CONVENTION ON HUMAN RIGHTS o The detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority. o The lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; o The lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition. o Article 5(5) of the European Convention provides that “everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation”. o However, where the applicants have been arrested and detained lawfully under domestic law but in violation of article 5 of the Convention, there has been a violation of Article 5(5) if they had no enforceable claim for compensation before the domestic courts.
  • 21. UNITED NATIONS STANDARD MINIMUM RULES FOR TREATMENT OF PRISONERS  In December 2015, the General Assembly adopted resolution 70/175 entitled "United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules)".  The Mandela Rules are composed of 122 "rules". Not all are rules, but some are principles such as institutional equality and the philosophy of confinement.  It has been adopted by First UN Congress on the Prevention of crime and the Treatment of offenders at Geneva in 1955 and approved by the Economic and Social Council by its Resolution of 13 May 1977.  General Assembly of the UN later decided to extend the scope of International Nelson Mandela Day (18 July) to be also utilized in order to promote humane prison conditions of imprisonment, to raise awareness about prisoners being a contiguous subset of society, and to value the work of prison staff as a social service of importance.
  • 22. UNITED NATIONS STANDARD MINIMUM RULES FOR TREATMENT OF PRISONERS  Apart from these rules the UN Standard Minimum Rules for the Treatment of Prisoners also made rules regarding the treatment of prisoners under sentence, insane and mentally abnormal prisoners.  It contains 2 parts:  Part I contains Rules of General Application. It contains standards which set out what is generally accepted as being good practices in the treatment of prisoners and the management of penal institutions.  Part II contains rules applicable to different categories of prisoners including those under sentence. It also contains rules for prisoners under arrest or awaiting trial, rules for civil prisoners, and rules for persons arrested or detained without charge.  Despite their legally non-binding nature, the rules have been important worldwide as a source for relevant national legislation as well as of practical guidance for prison management.
  • 23.  The United nations standard minimum rules for treatment of prisoners contain so many rules regarding the rights and treatment of prisoners . Some of them are :  Provision regarding the separation of categories of prisoners [14]  Provisions relating to the accommodation [15]  Provisions relating to the clothing and bedding [16]  Provisions relating to the food [17]  Provisions relating to the exercise and sport [18]  Provisions relating to the medical services [19]  Provisions relating to the protection of prisoners against the double jeopardy [20]  Provisions relating to the prohibition of corporeal punishment , punishment by placing in dark cell and all cruel , inhuman or degrading punishment [21]  Provisions relating to the information to and complaints by prisoners [22]  Provisions relating to the rights of prisoners to contact with their family and reputable friends [23]
  • 24. UNITED NATIONS HUMAN RIGHTS STANDARDS AND PRACTICE FOR THE POLICE.. The important provisions include: • Everyone has the right to liberty and security of the person and to freedom of movement. • No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established by law. • Anyone who is arrested shall be informed, at the time of the arrest, of the reasons for his or her arrest. Anyone who is arrested shall be promptly informed of any charges against him or her. • Anyone who is arrested shall be brought promptly before a judicial authority. • Anyone who is arrested has the right to appear before a judicial authority for the purpose of having the legality of his or her arrest or detention reviewed without delay, and shall be released if the detention is found to be unlawful. • Anyone who is arrested has the right to trial within a reasonable time or to release. Detention pending trial shall be the exception rather than the rule.
  • 25. UNITED NATIONS HUMAN RIGHTS STANDARDS AND PRACTICE FOR THE POLICE.  All arrested or detained persons shall have access to a lawyer or other legal representative and adequate opportunity to communicate with that representative .  A record of every arrest must be made and shall include: the reason for the arrest; the time of the arrest; the time the arrested person is transferred to a place of custody; the time of appearance before a judicial authority.  Anyone who is arrested has the right to trial within a reasonable time or to release.  Detention pending trial shall be the exception rather than the rule.  All arrested or detained persons shall have access to a lawyer or other legal representative and adequate opportunity to communicate with that representative .
  • 26. OTHER LEGAL INSTRUMENTS  The Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment, adopted by the General Assembly in 1988;  The Declaration on the Protection of All Persons from Enforced Disappearance, adopted by the General Assembly in 1992;  The Principles on the Effective Prevention and Investigation of Extra- legal, Arbitrary and Summary Executions, recommended by Economic and Social Council resolution 1989/65.
  • 27. UNIVERSAL LEGAL RESPONSIBILITY: ALL STATES ARE BOUND BY THE LAW Article 9(1) of the International Covenant on Civil and Political Rights, Article 6 of the African Charter of Human and Peoples’ Rights, Article 7(1) of the American Convention on Human Rights and Article 5(1) of the European Convention on Human Rights guarantee a person’s right to “liberty” and “security”. ROLE OF INTERNATIONAL COURT OF JUSTICE The International Court of Justice stated in its dictum in the Hostages in Tehran case, “wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights”, Article 3 of which guarantees “the right to life, liberty and security of person”.
  • 28. ROLE OF INTERNATIONAL COURT OF JUSTICE  Not withstanding that a State may not have ratified or otherwise adhered to any of the preceding human rights treaties, it is nonetheless bound by other legal sources to ensure a person’s right to respect for his or her liberty and security.  The notion of security also covers threats to the personal security of non-detained persons. States cannot be passive in the face of such threats, but are under a legal obligation to take reasonable and appropriate measures to protect liberty and security of person.
  • 29. RIGHTS OF PRISONERS UNDER VARIOUS NATIONAL INSTRUMENTS  The Indian state is a signatory to various International instruments of Human rights like UDHR , ICCPR and these international instruments guaranteed HRs to everyone including prisoner. So the state is obliged to uphold and ensure observances of basic HRs of the prisoners as well as freemen.  For the better understanding of HRs of prisoners as guaranteed by various national instruments, it can be divided into two parts:  RIGHTS OF PRISONERS UNDER CONSTITUTION OF INDIA  RIGHTS OF PRISONERS UNDER PRISON ACT, 1894
  • 31. CONSTITUTION  Indian constitution guarantees six freedoms to citizens of India, among which certain freedom cannot be enjoyed by the prisoners. They are freedom of movement, freedom to residence and to settle and freedom of profession.  The rights guaranteed in the part III of Indian Constitution are available to prisoners; because a prisoner is treated as a person in prison.  The Constitutional rights offered under the Indian Constitution are not absolute in nature and some reasonable restrictions have been imposed.  When an individual is convicted and put behind bars, he has a different status from free men.  A prisoner cannot demand all the fundamental rights, which are available to free men.
  • 32. ARTICLE 14  Article 14 says that :The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.  Article 14 contemplates that like should be treated alike and also provided the concept of reasonable classification.  This Article is a guide and basis for the prison authorities to determine various categories of prisoners and their classification with the object of reformation. ARTICLE 19  Article 19 guarantees six freedom to all the citizens of India.  Among these freedoms certain freedoms cannot be enjoyed by the prisoners because of the very nature of these freedoms.  The convicts by mere reasons of their conviction are deprived of some of their fundamental rights such as right to move freely through out the territory of India or the right to practice a profession.
  • 33. ARTICLE 21 Article 21 says that no person shall be deprived of his life or personal liberty except according to procedure established by law  Article stipulates two concepts : right to life and principle of liberty.  By Article 21 it is clear that it is not only available for free people but also to those people behind the bar.  Article 21 cast an obligation upon the state to preserve the life of every person whether innocent or guilty. Rights of arrested, under trials and prisoners which are implicitly provided under Article 21  Rights of inmates of protective homes.  Right to free legal aid  Right to speedy trail  Rights against cruel and unusual punishments  Right against custodial violence and death in police lock ups or encounters.  Right to live with human dignity.  Rights to meet friends and consult lawyers.  Right against solitary confinement, handcuffing & bar fetters and protection from tortures .
  • 34. ARTICLE 21 Right to writ of habeas corpus. Right to reasonable wages in prison. Rights to compensation for wrongful arrest detention and torture. Right against delayed execution. Right of release and rehabilitation of bonded labor. Rights against public hanging It is significant to note that an under trial prisoner or convicted prisoner cannot be subjected to a physical or mental restraint : •Which is not warranted by punishment awarded by the court or •Which is in excess of the requirements of prisoners discipline or •Which constitute human degradation ARTICLE 22 Article- 22(1) of the Indian Constitution stipulates that no police official can arrest any individual without informing the accused the reason/ ground of his detainment/ arrest. •Article- 22(2) of the Indian Constitution stipulates that the police official making an arrest must produce the arrested person before the Magistrate within 24 hours of the arrest failing to do so would make him liable for wrongful detention.
  • 35. ARTICLE 20 Article 20(1) Ex post facto law  No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. Article 20(2) Doctrine against Double Jeopardy  No person shall be prosecuted or punished for the same offence more than once. But it is subjected to certain restrictions. And it is to be noted that Article 20(2) of Constitution of India does not apply to a continuing offence Article 20(3) Right against self-incrimination  As per Article 20(3) of Constitution of India guarantees every person has been given a right against self-incrimination, it states that any person who has been accused of any offence, shall not be compelled to be a witness against himself.
  • 36. ARTICLE 32 It is constitutional mandate of judiciary to protect human rights of the citizens. Article 32 guarantees right to constitutional remedies, i.e. Right to move to Supreme Court to enforce fundamental rights. Supreme Court and High Courts are empowered to take action to enforce these rights.  Machinery for redress is provided under Articles 32 and 226 of the constitution. An aggrieved person can directly approach the Supreme Court or High Court of the concerned state for the protection of his fundamental rights, redressal of grievances and enjoyment of fundamental rights.  In such cases Court are empowered to issue appropriate order, directions and writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-Warranto and Certiorari. Article 32 guarantees right to constitutional remedies, i.e. right to move to Supreme Court to enforce fundamental rights.  Judiciary is ultimate guardian of the human rights of the people. It not only protects the rights enumerated in Constitution but also has recognized certain un-enumerated rights by interpreting the fundamental rights and widened their scope. As a result people not only enjoy enumerated rights but also un-enumerated rights as well.
  • 37. JUDICIARY AND INTERNATIONAL CONVENTIONS Nilabati Behera alias Lalit Behera v. State of Orissa 1993 AIR 1960  In this case, a letter dated 14.9.1988 sent to Supreme Court by Smt. Nilabati Behera alias Lalita Behera, was treated as a Writ Petition under Article 32 of the Constitution for determining the claim of compensation made therein consequent upon, the death of petitioner's son Suman Behera, aged about 22 years, in police custody.  The Supreme Court of India granted compensation for custodial death and it has justified the decision based on the Article 9(5) of the International Covenant on Civil and Political Rights (ICCPR).  Chairman, Railway Board and Others v. Chandrima Das on 28 January, 2000  The Apex Court while interpreting the scope of Article 21 of the Constitution of India, referred to the Universal Declaration of Human Rights to provide protection to foreign rape victim.  In this case the court has observed that “the application of UDHR, and principles thereof may have to be read, if need be, into the domestic jurisprudence.
  • 38. CONSTITUTIONAL INTERPRETATION INTERPRETATION OF ARTICLE 21 According to Bhagwati, J., Article 21 “embodies a constitutional value of supreme importance in a democratic society.” Iyer, J., has characterized Article 21 as “the procedural magna carta protective of life and liberty. This right has been held to be the heart of the Constitution, the most organic and progressive provision in our living constitution, the foundation of our laws. The Doctrine of Purposive interpretation and the Doctrine of Constitutional silence holds a lot of importance in the interpretation of Article 21. The Doctrine of silence considers the unwritten portion of the constitution that evokes the power of understanding the statute in a certain specific way. Alongside, the golden rule of interpretation is also applied. Maneka Gandhi v. Union of India, AIR 1978 SC 597 In this case, Supreme Court interpreted the right to life and widened its scope and deduced that right to life includes life to live with human dignity. Supreme Court propounded the theory of ―emanation to make the existence of the fundamental right meaningful and active. Thereafter, in many other cases such as People's Union for Civil Liberties and another v. State of Maharashtra and others, 2014(10) SCC 635, Francis Coralie Mullin v. The Administrator, Union Territory of Delhi (1981) 2 SCR 516 held that right to life includes right to live with human dignity.
  • 39.  Judicial system protects the rights of its citizens including arrested, under trials and prisoners. The Supreme Court by interpreting Article 21 of the Constitution protected and preserved the rights of the prisoners. JUDICIAL INTERVENTION REGARDING HANDCUFFING  In case Prem Shankar v. Delhi Administration(1980) 3 SCC 538 Supreme Court held that practice of using handcuff and fetters on prisoners violates the guarantee of human dignity.  Handcuffing should be resorted to only when there is a "clear and present danger of escape" breaking out the police control and for this there must be clear material, not merely an assumption. The Court further observed that Handcuffing is violative of Article 14, 19 and 21 of the Constitution. The state is responsible to secure the operation of the legal system and shall provide a basic equal opportunity to all its citizen to receive equal protection of law.  V.R. Krishna Iyer observation regarding handcuffing “Handcuffing is prima facie inhuman and, therefore, unreasonable, is over harsh And at the first blush, arbitrary.”Justice concluded that “No prisoner shall be handcuffed or fettered routinely or merely for the convenience of the custodian or escort.”
  • 40. Citizens for Democracy v. State of Assam and others,(1995) 3 SCC 743 The Supreme Court held that handcuffing and tying with ropes is inhuman and in utter violation of human rights guaranteed under the International laws and the laws of the land. Court directed that handcuffs or other fetters shall not be forced on prisoners- convicted or under trial while lodged in jail or even while transporting, police and jail authorities shall have no authority to direct handcuffing of any inmate of jail or during transportation without permission from the magistrate. The Court observed that “Where the police or the jail authorities have well-grounded basis for drawing a strong inference that a particular prisoner is likely to jump jail or break out of the custody then the said prisoner be produced before the Magistrate concerned and a prayer for permission to handcuff the prisoner be made before the said Magistrate. Save in rare cases of concrete proof regarding proneness of the prisoner to violence, his tendency to escape, he being so dangerous and desperate and the finding that no other practical way of forbidding escape is available, the Magistrate may grant permission to handcuff the prisoner”. The Court further held that “Any violation of any of the directions issued by the Court by any rank of police in the country or member of the jail establishment shall be summarily punishable under the Contempt of Courts Act apart from other penal consequences under law.”
  • 41. JUDICIAL INTERVENTION IN PROVIDING FREE LEGAL AID M.H. Hoskot v. State of Maharashtra  The Supreme court laid down two important guidelines in right of appeal firstly to send a copy of the judgment in time to the prisoner to enable him to file an appeal and secondly free legal service to be secured for the prisoner who is not able to secure legal services otherwise for himself.  In the guarantee of life and personal liberty it in an implicit right of receiving speedy trial, it is said that late justice is no justice and hence any person who is denied of speedy trial has the right to approach the court for enforcing such right.  Krishna Iyer, J. stated : "The inference is inevitable that this is a State's duty and not Government's charity. Actually affirmative is the implication that while legal services must be free to the beneficiary, the lawyer himself has to be reasonably remunerated for his services. Surely, the profession has a public commitment to the people, but mere philanthropy of it members’ yields short mileage in the long run. Their services, especially when they are on behalf of the State must be paid for. Naturally, the State concerned must pay a reasonable sum that the court may fix when assigning counsel to the prisoner".
  • 42. Khatri v. State of Bihar  In this case, Supreme Court discussed Justice Blacknum’s opinion regarding the free legal aid.  It states that "humane considerations and constitutional requirements are not in this day to be measured by dollar considerations“.  The Supreme Court further stated, that it was unfortunate that though it had declared the right to legal Aid as a fundamental right of an accused person, by a process of judicial construction of Article 21, most of the States in the country had not taken note of this decision and provided free legal service to a person accused of an offence.  The State was under a constitutional mandate to provide free legal aid, to an accused person, who was unable to secure legal services on account of indigency, and whatever was necessary for this purpose, has to be done by the State.  The State will have its financial constraints and its priorities in expenditure, but the law does not permit any Government to deprive its citizens of constitutional rights on a plea of poverty.  Article 39-A of the Constitution is an interpretative rule for Article 21. Partial statutory implementation of the mandate is found in Section 304 of the Code of Criminal Procedure and in other situations, Courts cannot be inert in the face of Articles 21 and 39A.
  • 43. JUDICIAL INTERVENTION REGARDING SPEEDY TRIAL Hussainara Khatoon v. Home Secretary, state of Bihar The Court while dealing with the cases of under-trials who had suffered long incarceration held that a procedure which keeps such large number of people behind bars without trial so long cannot possibly be regarded as reasonable, just or fair so as to be in conformity with the requirement of Article 21. The Supreme Court held that speedy trial is a fundamental right and is constructive under Article 21 of the Constitution and such right is enforceable in court. Later the Supreme court guidelines for speedy trial of offences was laid down which included the period of pre conviction detention should be kept as short as possible and undue delay will result in the ability of the accused to defend himself. Justice P.N.Bhagawati observed that: “The powers of this Court in protection of the Constitutional rights are of the widest amplitude and we do not see why this Court should not adopt a similar activist approach and issue to the State directions which may involve taking of positive action with a view to securing enforcement of the fundamental right to speedy trial. But in order to enable the Court to discharge this constitutional obligation, it is necessary that the Court should have the requisite information bearing on the problem.”
  • 44. Anil Rai v. State of Bihar  The Supreme Court directed the judges of the High Court to provide quick judgments without unnecessary delay.  Every person is entitled to free and fair trial under Article 21 of the Indian Constitution without any kind of discrimination as to caste, culture, sex or religion.  Prisoners are also considered as normal human being when it comes to their rights under Article 21 of the Constitution. A prisoner is entitled to all his fundamental right unless it has been constitutionally curbed. State Of Maharashtra v. Prabhakar Pandurang 1966 AIR 424  Prabbakar Pandurang Sanzgiri, who has been detained by the Government of Maharashtra under S. 30(1)(b) of the Defence of India Rules, 1962, in the Bombay District Prison in order to prevent him from acting in a manner pre- judicial to the defence of India, public safety and maintenance of public order, has written, with the permission of the said Government, a book in Marathi under the title "Anucha Antarangaat" (Inside the Atom).  The learned Judges of the High Court, who had gone through the table of contents of the book. expressed their opinion on the book thus : "............ we are satisfied that the manuscript book deals with the theory of elementary particles in objective way. The manuscript does not purport to be a research work but it purports to be a book written with a view to educate the people and disseminate knowledge regarding quantum theory."
  • 45. In the landmark judgment of Prabhankar Pandurang the Supreme Court’s five judge bench held that the civil rights and his right to liberty is not curtailed and the book he wanted to publish was no way posing any threat to the public safety and not letting him do so will be curbing his right under Article 21. JUDICIAL INTERVENTION REGARDING SOLITARY CONFINEMENT. Sunil Batra v. Delhi administration  The prisoner was sent to solitary confinement but not because of prison discipline but because he was set for a capital punishment, it was held wrong and illegal because according to the rules a prisoner can be sent for solitary confinement if he breaks prison discipline or is a threat to other prisoners in the prison and not because of the punishment that he is awarded for his crime. Also on letter sent by Sunil Batra to a judge of the Supreme Court which was treated as a PIL under Article 32 of the Constitution which was on an inhuman treatment and torture of his jail inmate by a jail warden.  The Supreme court observed that a prisoner is entitled to safety of his life even if he is in prison and his right to life cannot be violated under Article 21 and found this act as illegal and inhuman. Under Article 21 of the Constitution it has been held multiple times by the Supreme Court that Capital punishment and death by hanging is not considered as violation of the Article.
  • 46.  In cases when the crimes are so heinous in nature and crimes of one person is taking away the fundamental human right of other person and becomes a terrible threat to the society, sentence of death will not be curtailing the rights under Article 21.  While giving judgement in Sunil Batra v. Delhi Administration, Justice V.R Krishna Iyer observed that “Convicts are not by mere reason of the conviction denuded of all the fundamental rights which they otherwise possess”. In Charles Shobaraj v. Superintendent, 1978 AIR 1514, The petitioner in this case contended that in prison barbaric and inhuman treatment have been hurled at him and that intentional discrimination has been a lot there. V R .Krishna Iyer in this case observed that “ Like you and me, prisoners are also human beings. Hence all such rights except those that are taken away in the legitimate process of incarceration still remain with the prisoner. These include rights that are related to the protection of basic human dignity as well as those for the development of the prisoner into a better human being”. “The prisoners are no longer considered as an object or a slave of the nation, who the law would leave at the prison door and who would be convicted to ‘civil death’. It is progressively been established that a person does not disqualify to be a person just because he did an offence and put behind the bars”.
  • 47. JUDICIAL INTERVENTION REGARDING DEATH PENALTY Jagmohan Singh v. State of UP 1973 AIR 947  It was held by the Supreme court that a sentence of death shall be reasonable and just and carefully reviewed since it is taking the right to live of someone. Bachan Singh v. State of Punjab AIR 1980 SC 898  The court held that death penalty can be considered as an alternative punishment to murder under sec 302 of IPC and it therefore makes it in public interest and is not unreasonable. It violates neither the letter nor the ethos of Article 19 of the constitution of India.  It is constitutionally valid. Exercise of discretion under sec 354(3) of CRPC, 1973 should be exceptional and grave circumstances and imposition of death sentence should only be in rarest of rare cases. It was, in this case, the Hon’ble SC evolved the test of “rarest of rare cases” which must be satisfied in order to grant a death penalty. This decision has been a watershed moment for the capital punishment law in India as it laid down the law and emphasised the judicial role in relation to the death penalty.  A landmark judgment in D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 protected the rights of the prisoners and laid down various guidelines for arrest and detention to prevent the custodial violence and observed that right to life include right to live with human dignity.
  • 48. SUPREME COURT’S GUIDELINES IN D.K. BASU v. STATE OF WEST BENGAL. In this judgement, the Supreme Court had issued instructions to be followed by the arresting authority at the time of detention of a person. They are as under: o The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. o The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. o The police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest. o The memo shall be attested by at least one witness who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made.
  • 49. o It shall also be counter signed by the arrestee and shall contain the time and date of arrest. o The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. o A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained. o An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
  • 50. Joginder Kumar v. State Of U.P And Others 1994 SCC 260. Joginder Kumar, a young lawyer aged 28 was called to the office of the Senior Superintendent of Police, Ghaziabad in connection with some inquiries and detained for 5 days without any valid reasons. o Rejecting the police version that Joginder Kumar was cooperating with them out of his own free will, the Court said that the law of arrest is one of balancing individual rights, liberties and privileges on the one hand and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties of the single individual and those of individuals collectively. o The arrestee should, where he so requests, be also examined at the time of his arrest, major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. o The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. o Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. o
  • 51. o A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. o The Supreme Court pointed out that the Third Report of the National Police Commission identifies wrongful use of arrest powers as one of the chief sources of corruption in the police and that nearly 60% arrests made by police officers are unnecessary and unjustified. Strongly opposing the practice of carrying out indiscriminate arrests, the Supreme Court said that an arrest cannot be made simply because it is lawful for a police officer to do so. o The existence of the power to arrest is one thing the justification for the exercise of it is quite another.. ..the police officer must be able to justify the arrest. o Arrest and detention in police lock up can cause incalculable harm to the reputation and self-esteem of a person. Therefore, arrests should not be made in a routine manner on mere allegation that a person has committed an offence.
  • 52. o If police officers do not wish to face legal or disciplinary action, they should see that arrests are made only after reaching a reasonable satisfaction about the complaint being true and the case being bona fide. o Even then, the Court said that the officer making the arrest must function under a reasonable belief both as to the person's complicity in committing the offence and the need to effect an arrest. o Arrests are not be made in a routine manner. The officer making the arrest must be able to justify its necessity on the basis of some preliminary investigation. o An arrested person should be allowed to inform a friend or relative about the arrest and where s/he is being held. The arresting officer must inform the arrested person when s/he is brought to the police station of this right and is required to make an entry in the diary as to who was informed. o It is the duty of the magistrate before whom the arrested person is produced to satisfy her/himself that the above requirements have been complied with.
  • 53. JUDICIAL SUPERVISION REGARDING FAKE ENCOUNTERS Through several judicial pronouncements, stringent guidelines have been laid down for dealing with cases of encounter-killings. PUCL v. State of Maharashtra and others have viewed encounter killings as endangering the fundamental right under Article 21 of the constitution – which is a guarantee against the deprivation of life without a procedure established by law. The Supreme Court remarked in PUCL v State of Maharashtra that “the killings in police encounters affect the credibility of the rule of law and the administration of the criminal justice system”. Moreover, a commitment to the rule of law only reinforces the state’s own moral authority to claim a monopoly over violence. Guidelines issued by supreme court for investigation of encounter killings The Honourable Supreme Court in the same matter of PUCL v State of Maharashtra, after taking into account the suggestions made by Bombay High Court, the Counsels, National Human Rights Commission & other stakeholders issued the following guidelines to be followed in the investigation of death following police encounters:
  • 54.  Record tip-off: Any inputs received about criminal movements or activities related to the commission of grave criminal offence, shall be recorded in writing or in some electronic form.  Mandatory registration of FIR in encounter deaths: Pursuant to receipt of such intelligence, if any encounter takes place in which firearm is used by the police party and the outcome of which is death of the offender, then an FIR shall be registered and the same shall be submitted to the court under Section 157 of the CRPC as per the procedure established under Section 158 of the code.  Independent probe by CID/ Special Police Team: The CID or police team of another police station under the monitoring of a senior officer (at least a level above the head of the police party engaged in the encounter) shall administer an impartial investigation into the encounter, taking into account various factors as stated out in the order in detail.  Magisterial inquiry: In all cases of police firing where death occurs, a magisterial inquiry under Section 176 of the CrPC must be held and then a report must be sent to the Judicial Magistrate. Conveying information to the Human Rights Commission: The information of the incident must be sent to NHRC or the State Human Rights Commission, and involvement of NHRC is not necessary unless there is serious doubt about impartiality of the investigation.  Informing victim’s descendants: In the event of death, the next of kin of the alleged criminal must be informed at the earliest.
  • 55.  Medical Aid: If the criminal/victim is injured, medical aid should reach him at the earliest and a magistrate or medical officer must record his statement along with the certificate of fitness.  No Delay: The FIR, panchnamas, sketch, and police diary entries should be forwarded to the concerned Court without any delay.  Co-operation by officers involved in an encounter: The police officer(s) concerned must surrender their weapons for forensic and ballistic analysis, or any other material as required by the investigating team, as per rights under Article 20 of the Constitution.  Sending report to Court: After full investigation, the report shall be sent to the competent court under Section 173 of the CRPC, after which trial must be held.  Submission of half-yearly report: Six monthly statements of all cases where deaths have occurred in police firing must be sent to NHRC by DGPs, which must reach NHRC by 15th day of January and July of each year.  No Instant police awards till clean chit: The concerned officers shall not be instantly promoted or awarded soon after the occurrence of the encounter. The police department can proceed ahead with the rewards only, when the gallantry of the concerned officers is established beyond doubt.
  • 56.  Disciplinary action: If the evidence on record after the completion of the investigation depicts that death had occurred by use of a firearm amounting to offence under the IPC, disciplinary action against such officer must be initiated forthwith and services of such officer be terminated for the time being under suspension.  Legal recourse to victim’s descendants: Should the family of the victim find any lack of independent investigation or impartiality by any of the functionaries involved in the investigation process, they may make a complaint to the Sessions Judge having territorial jurisdiction over the location of the incident. Prakash Kadam v Ramprasad Vishwanath Gupta & Anr,(2011) 6SCC 189 In this case the Supreme Court observed that ‘Fake encounters’ are equivalent to cold blooded’ and ‘brutal murder’ by persons who are expected to uphold the supremacy of law. Also it has been observed by the Honourable court that if crimes are committed by common people, ordinary punishment should be given, but if the offence is committed by policemen much stricter punishment should be given to them because they do an act totally opposed to their duties, and where a fake encounter is established against policemen in a trial, they must be given death sentence, considering it as the ‘rarest of rare cases’.
  • 57.  The Court further alerted the police department that they will not be exonerated for carrying out ‘murder’ in the name of ‘encounter’ on the rationale that they were obeying to the orders of their superiors in the department or politicians, howsoever high. If a policemen is given an unlawful order to do a fake ‘encounter’, law casts a duty upon him to decline to execute such illegal order, otherwise he will be held liable for murder, and if found guilty sentenced to death.  In this case while concluding Markandey Katju. J, placed the encounter philosophy on par with ‘Criminal philosophy’ and took the example of Nuremburg Trials stating that “In the Nuremburg trials the Nazi war criminals took the plea that ‘ orders are orders’, nevertheless they were hanged and those police personnel, who perceive they can kill people in the name of encounter and get away with a free hand, should know that ‘gallows await them’.  This ultimately impacts the speed at which our courts dispense justice, and thereby affects public confidence in the institution of courts. It is this shaken public confidence that then expresses itself through jubilations when police personnel resort to extra-judicial killings. Nevertheless, the correct response has to be a structural strengthening of courts by addressing the issues expressed above, and not to view instant justice through the hands of trigger-happy policemen as the substitute for a judicial trial.
  • 58. Om Prakash v State of Jharkhand, [(2012) 12 SCC 72], The Honourable Supreme Court, condemned encounter killing as ‘State- sponsored terrorism’ and stated that it is not the duty of the policemen to neutralize the accused just because he is a ‘dreaded criminal’. The police have to arrest the culprit and put them up for trial. Such killings must not be cherished. They are not justified by our criminal justice administration system. The Court also noted that many policemen, while performing their duty, get injured and killed but also stated that police have to do their legal duty of arresting the criminals, and have to guard themselves as well. Requirement of sanction to prosecute protects the policemen, who are sometimes required to take extreme action against criminals to protect public life and property and to protect themselves against any aggression. Unless clear evidence is on record to prove that their action is ‘indefensible with malafide intention and revengeful, they cannot be prosecuted.
  • 59. JUDICIAL INTERVENTION REGARDING BAIL ‘Bail is a rule, jail is an exception’ is a legal doctrine that was laid down by the Supreme Court of India in a landmark judgement of State of Rajasthan v. Balchand alias Baliya (AIR 1977 2447). The legal doctrine, in this case, was laid down by Justice V. Krishna Iyer, who based it on fundamental Rights guaranteed by the constitution of India. Section 436 of the Code of Criminal Procedure deals with provisions of bail in bailable offences. Under this section, bail is the right of person, who has been accused for commission of offence, which is bailable in nature. This provision casts a mandatory duty on police official as well as on the Court to release the accused on bail if the offence alleged against such person is bailable in nature. Stefan Mueller v. State of Maharashtra in Writ Petition No.2939 of 2009 dated 23/06/2010 The Bombay High Court observed that it is well settled position of law that if the offence is bailable, the accused is entitled to be released on bail and even where he does not make an application for bail, it is the responsibility of the concerned police officer, if he has arrested or detained the accused for a bailable offence, to inform him about his right to be released on bail. Similarly, it is also settled position of law that where a person accused of bailable offence appears or is produced before a Magistrate, it is responsibility of such Magistrate to inform him of his right to be released on bail.
  • 60. The directions of Hon'ble Apex Court in Cri.Writ Petition No.310/2005 (Hon'ble Justice Kurien Joseph and Rohinton Nariman JJ) and as per section 436-A of Cr.P.C. a person who has undergone detention for a period extending half the maximum detention for a period of imprisonment imposed for a particular offence shall be released on his/her personal bond with or without sureties. At the stage of consideration of bail what the Court is normally required to consider are; (1) The nature and seriousness of the accusation. (2) Severity of the offences. (3) Nature of the evidence collected and the character and behaviour of the accused. (4)Chances of the accused absconding and not being available during the trial. (5) Possibility of repetition of such crime. (6) Chances of the accused of tampering with the evidence and witnesses, and (7)Larger interest of the people and the State.
  • 61. Supreme Court’s observation regarding granting of bail Maulana Mohmmad Amir Rishadi v. State of U.P. and Another 2012(2) Mh. L. J. (Cri.) 412 held that, merely on the basis of criminal antecedents, bail cannot be denied. In Sumit v. State of U.P., 2010 Cri.L.J. 1435 (SC) it was held that even if there are other criminal cases pending, accused should be granted bail. In Mohan Singh v. Union Territory, 1978 CrLJ 844, it was held by the Supreme Court that concealment of earlier petition which was dismissed, was held to be not a ground to reject bail. Brijesh Singh v. State of Karnataka, 2002 Cri.L.J. 1362. The Supreme Court in this case held that the Magistrate, who granted bail has power to cancel it or alter its conditions. The Hon'ble Supreme Court in the Gurbaksh Singh Sibbia and Others v. State of Punjab, Reported in (1980) 2 SCC 56, has laid down the following principles with regard to anticipatory bail : a) Section 438(1) is to be interpreted in light of Article 21 of the Constitution of India. b) Filing of FIR is not a condition precedent to exercise of power under section 438. c) Order under section 438 would not affect the right of police to conduct investigation. d) Conditions mentioned in section 437 cannot be read into section 438.
  • 62. JUDICIARY AND VICTIM COMPENSATION Section 357 A The compensation part of the rehabilitation of victims of violence including rape is governed by provision of Section 357A of the Code of Criminal Procedure which states that every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim of crime. The Apex Court in the case Rudal Shah v. State of Bihar for the first time laid down the principle that compensation can be given in the cases where any fundamental right of an individual has been injured and that the upper courts have the authority to do so “through the exercise of writ jurisdiction and evolved the principle of compensatory justice in the annals of human rights jurisprudence.” The Court in Nilabati Behera v. State of Orissa observed that every prisoner and the arrestee has the right to enjoy all the fundamental rights and the police have to ensure that they don't deprive the right to life of the prisoner mentioned under Article 21. The petitioner Suman Behera was arrested by the police and the very next day her body was found on a railway track with multiple injuries and was awarded a compensation of Rs 1.5 lakh. The theory of compensation in criminal law is mainly about compensation to the victim of a crime. A victim to a crime is one who has suffered any loss because of some act or omission of the accused. The victim not only suffers physical injuries but also psychological and financial hardships too.
  • 63. The plight of a victim is only made worse by lengthy hearings and tedious proceedings of courts and improper conduct of the police. The victim is literally traumatised again in the process of seeking justice for the first injury. The legal heirs/guardians of the victim too come in the same definition. Hari Kishan & Anr v. Sukhbir Singh & Ors on 25 August, 1988 The Supreme Court observed that payment by way of compensation must, however, be reasonable What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by instalments, may also be given. The Court may enforce the order by imposing sentence in default. In this case the Supreme Court had awarded compensation as punishment, of Rs. 50,000. Not only this, the lower courts were asked and advised to “exercise the power of awarding compensation to the victims of offences in such a liberal way that the victims may not have to rush to the civil courts”. The victim of rape has to suffer from many hardships like mental shock, lost income due to pregnancy and costs incurred during childbirth because of the offence. Also, in the present Indian society, a raped victim is looked down upon even though she is the victim and not the offender. During a rape trial, if the accused is just punished or asked to pay fine, the judgment does not favour the victim as her position is not restored. Hence it becomes extremely important to compensate such a victim.
  • 64. JUDICIAL INTERVENTION REGARDING CUSTODIAL VIOLENCE.  Custodial violence primarily refers to violence in police and judicial custody. It includes death, rape and torture.  Custodial violence is a clear violation of Human rights, which include all types of physical and mental torture inflicted upon the victim. It is widely accepted as one of the cruellest forms of human rights abuse.  According to reports by NCRB, around 265 deaths were recorded with zero conviction by the state between the period of 2016 and 2018. Violence serves as the easiest and cheap method of investigation and as a tool for oppression. Police officers are notorious for using third-degree torture techniques as means of investigation to get a confession or any information.  Section 167 of the Cr.P.C talks about two types of Custody i.e police custody and judicial custody. Therefore we can divide Custodial violence into two types namely: Violence in police custody This type of violence occurs when police torture the accused to sustain interrogation and find the truth. There are hardly any safeguards to ensure the person in the custody will have timely access to his lawyer or record of his detention, or a proper medical examination. Violence in judicial custody This type of violence can usually be seen in prisons or detention centres where the violence is acted out by the inmate gangs who have unrestricted power to commit ill acts. Innocent prisoners get caught in the clutches of these gangs and beaten up if they don't show allegiance to them. This kind of violence pushes the victim to commit suicide.
  • 65. D.K Basu v. State of West Bengal 1997 (1) SCC 416 the apex court recognized custodial violence and police torture and said 'custodial violence is an attack on the human dignity’ and put forward many recommendations and policies regarding same. Munshi Singh Gautam v State of Madhya Pradesh, Appeal (Crl.) 919 of 1999: - Summarizes their grief concern about this problem of torture in Indian prisons by police. The supreme court stated that: “The dehumanising torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of the rule of law and administration of the criminal justice system. Torture in custody flouts the basic rights of the citizens recognized by the Indian Constitution and is an affront to human dignity. Police excesses and the mal- treatment of detainees/under-trial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in ’Khaki’ to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady of the very fence eating the crops, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading, towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism.” Prabhavathiamma v The State of Kerala & Others WP(C). NO. 24258 OF 2007 The two serving police personnel were awarded the death sentence by a CBI court, after hearing the case for over a decade, in Thiruvananthapuram, over the death of a scrap metal shop worker, who the court believes was murdered in custody.
  • 66. While sentencing the two, Judge J Nazar had said: “This is a brutal and dastardly murder by accused… The acts of the accused persons would definitely adversely affect the very institution of the police department… If the faith of the people in the institution is lost, that will affect the public order and law and order, and it is a dangerous situation.” Inderjeet v. State of Uttar Pradesh,on 9th May 2014 The Apex Court in this case hold the view that prison restrictions amounting to torture, pressure or infliction and going beyond what the court authorities, are unconstitutional further it extended that an under-trial or convicted prisoner cannot be subjected to physical or mental restraint, which is not warranted by the punishment awarded by the Court, or which amount to human degradation. Yashwant And Others v. State of Maharashtra (2018) 4MLJ (Crl)10(SC): - In this case the Supreme Court upheld the conviction of nine Maharashtra cops in connection with a 1993 custodial death case and extended their jail terms from three to seven years each. Reportedly, a bench of Justices NV Ramana and MM Shantanagoudar upheld the order and said that incidents which involve the police tend to erode people’s confidence in the criminal justice system. While enhancing the prison term of the cops, the apex court said, “With great power comes greater responsibility,”.
  • 67. RIGHTS OF PRISONERS UNDER PRISONS ACT 1894  It is the first legislation regarding prison regulation in India .  It mainly focuses on reformation of prisoners in connection with the rights of prisoners.  In the year of 2016 the Parliament has passed the Prisons Amendment bill 2016 to amend the Prisons Act with a view to provide protection and welfare of the prisoners in the present context and in tune with the Constitution of India and to create an atmosphere to rehabilitate and socialize prisoners to enable them to re-enter the society. PROVISIONS IN THE PRISONS ACT 1894 RELATED WITH REFORMATION OF PRISONERS  Accommodation and sanitary conditions for prisoners.  Provisions for shelter and safe custody of the excess number of prisoners which cannot be safely kept in any prison.  Provisions relating to examination of prisoners by qualified medical officer.  Provisions relating to separation of prisoners containing female and male prisoners , civil and criminal prisoners , and convicted and under trial prisoners.
  • 68. PROVISIONS IN THE PRISONS ACT 1894 RELATED WITH REFORMATION OF PRISONERS  Provisions relating to prisoners’ right to health.  Provisions relating to the maintenance of hygiene or sanitation in jail premises so the prisoners could maintain their health. In case of pregnant prisoner her diet and work allocation shall be determined as per medical advice  A pregnant prisoner shall be entitled to grant of conditional parole for 30 days from the expected date of delivery or 30 days from the date of delivery if the delivery takes place while she is in prison  Provisions relating to establishment of separate prisons to keep habitual and hardcore offenders separately from the first time offenders and the offenders convicted for lesser crimes . Provisions relating to skill training in prisons provided to the prisoners and conduct workshops and seminars on such subjects as would be helpful for rehabilitation of and for educating the prisoners. THE PRISONERS ACT 1900 It is the duty of the government for the removal of any prisoner under any order or sentence of any court, which is of unsound mind to a lunatic asylum and other place where he will be given proper treatment. Any court which is a high court may in case in which it has recommended to government the granting of a free pardon to any prisoner, permit him to be at liberty on his own cognizance.
  • 69. THE TRANSFER OF PRISONERS ACT, 1950 (ACT 29 OF 1950) Removal of prisoners from one State to another. - (1) where any person is confined in a prison in a State- (a) under sentence of death, or (b) under or in lieu of a sentence of imprisonment or transportation, or (c) in default of payment of a fine, or (d) in default of giving security for keeping the peace or for maintaining good behaviour; the Government of that State may, with the consent of the Government of any other State, by order, provide for the removal of the prisoner from that prison to any prison in the other State. JUDICIAL SUPERVISION IN PRISON ADMINISTRATION PAST POLICY OF THE COURTS The historical role of the prison as a place of punishment, and the admitted complexities of the penologist's task, have resulted in a deep reluctance on the part of the courts to review the decisions and actions of prison administrators. This policy of non-interference with the internal affairs of penal institutions has been generally referred to as the "hands-off" doctrine. The majority of courts adhering to this policy of non-interference with internal prison affairs have adopted the position that the courts are "without power to supervise prison administration or to interfere with the ordinary prison rules or regulations." This viewpoint has been justified by reference to the principle of separation of governmental powers, with the administration of prisons being thought to fall exclusively within the jurisdiction of the executive branch.
  • 70. THE PRESENT TREND OF THE COURT  Prison is a place where the criminal justice system put its entire hopes. The correctional mechanism, if fails will make the whole criminal procedure in vain.  The doctrine behind punishment for a crime has been changed a lot by the evolution of new human rights jurisprudence.  The concept of reformation has become the watchword for prison administration. Human rights jurisprudence advocates that no crime should be punished in a cruel, degrading or in an inhuman manner.  On the contrary, it is held that any punishment that amounts to cruel, degrading or inhuman should be treated as an offence by itself.  The transition caused to the criminal justice system and its correctional mechanism has been adopted worldwide.  The increasing concern of the courts over the protection of individual rights, as manifested by the new emphasis on the rights of the accused, has also been reflected-in a new willingness of the judiciary to undertake judicial review of the internal operations of prisons and to define the rights retained by the convicted.  This trend has been facilitated by a gradual shift of emphasis in penal philosophy. Now reformation, rather than punishment, was seen as the ultimate goal of penology.
  • 71.  The growing recognition of the convict as a human being, capable of being returned to society as a functioning, productive citizen, has contributed to the new view of the prisoner as a man whose rights have been temporarily restricted but by no means abolished.  The Indian system of prison administration was restructured and modified by the judiciary. Many of the rights assured to prisoners were incorporated into Indian legal system by the judiciary.  Case to case analysis will help us to pin down the judicial initiatives in enhancing the rights of prisoners. REFORMATION AS THE OBJECTIVE OF PUNISHMENT:  The object of Criminal Law is more to reform the offender than to punish him  Narotam Singh v. State of Punjab the Supreme Court has taken the following view-  “Reformative approach to punishment should be the object of criminal law, in order to promote rehabilitation without offending community conscience and to secure social justice.”  Krishna Iyer, J. was the person who advocated strongly for orienting reformative treatment of prisoners. In all his judgments he tried to incorporate reformative values into the prison administration.  The concept of crime was also redefined by the judges of his time. It was observed that: “Crime is a pathological aberration that the criminal can ordinarily be redeemed that the state has to rehabilitates rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by re-culturisation. Therefore, the focus of interest in penology is the individual and the goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times.”
  • 72. RIGHT TO HAVE HEALTHY ATMOSPHERE IN PRISON: Ramamurthy v. State of Karnataka, (1997) S.C.C. (Cri) 386.  The Supreme Court identified nine major problems afflicted upon the prison system, namely, overcrowding, delay in trial, torture and ill-treatment, neglect of health and hygiene, insubstantial food and inadequate clothing, prison vices, deficiency in communication, streamlining of jail visits and management of open-air prisons. Among this, an unhealthy living premise inside the jail was identified by the Court as a severe problem.  The court herein also pointed out the need for providing adequate amenities by the state for the prisoners in advancement of their living conditions inside the prison. A decade after this judgment situation remained the same and the same was revealed before the court by another judgment. Bharathi v. Union Territory of Pondicherry and Others, 2007 Cri. L. J. 1413  The bitter experiences of the prisoners were made through a letter by one of the prisoners P. Bharathi of central Prison, Puducherry to one of the Honourable Judges of Supreme Court. The letter was ordered to be treated as a writ petition. It talked about the poor hygienic condition and maintenance inside the prison and also restrictions on the visit by relatives of the prisoner. There was no toilet facility inside the cell to use during the night time.  Two plastic buckets with lid was provided for this purpose during night time and in the next day morning, the buckets containing excreta are made to be cleaned by the inmates of the cell on turn basis. This was made as per the existing prison rules and the authorities accepted that the rules require a radical change to fall in line with present day requirements. This judgment will help to realize the disparities in state legislations as well as the need for a centralized legal framework in regulating the prison affairs.
  • 73. JUDICIAL SUPERVISION REGARDING PRISON ATROCITIES Sunil Batra v. Delhi Administration, A.I.R. 1980 S.C.1579  In this case the Supreme Court made it clear that the prison treatment should not cause any kind of torturous effect over the inmates. Even the practice of separate confinement and solitary confinement was deeply discouraged by courts .  The court clearly pointed out that the prison authorities cannot make prisoners to solitary confinement and hard labour. The Supreme Court in this judgment directed the district magistrates and sessions judges to visit prisons in their jurisdiction and afford effective opportunities for ventilating legal grievances. They were to make expeditious enquiries and take suitable remedial action.  The concept of judicial policing was recognized by the Supreme Court through this judgment. Discussing on the same premise the court vehemently criticized the practice of using bar fetters unwarrantedly.  The court held the treatment of a human being which offends human dignity, imposes avoidable torture and reduces the man to the level of a beast, would certainly be arbitrary and questionable under Art. 14. Thus putting bar fetters for a usually long period, day and night, and that too when the prisoner is confined in secure cells from where escape is somewhat inconceivable without any due regard for the safety of the prisoner and the security of the prison is not justified.
  • 74. Krishna Iyer, J. at this instance remarked:  “Society must strongly condemn crime through punishment, but brutal deterrence is fiendish folly and is a kind of crime by punishment. It frightens, never refines; it wounds never heals.” The message of reformation through prison treatment has to be there in every measures adopted by the authorities. The human right to be safe in prisons as mandated by the international human rights law is being incorporated into Indian law by judicial initiatives. JUDICIAL INTERVENTION REGARDING PRISON LABOUR:  The judicial intervention on prison labour needs worth mentioning. Prison labour also involves certain human right issues. The extent of labour given for a prisoner will vary depending upon the punishment and nature of imprisonment. Anyhow prison labour must be understood as a tool for reformation instead of taking it as a form of punishment. Darambir & Another v. State of Uttar Pradesh, (1979) 3 S.C.C. 645.  In this case it was observed by the Court that Indian legal system always measures Prison labour as method to implement rigorous imprisonment made by the court. The issue in relation to improper remuneration was raised before Indian judiciary. Accommodating the prisoners for the most suited job was well identified in the early periods itself.
  • 75.  Krishna Iyer, J. in this case law directed the prison authorities to engage a convict in agriculture as he traditionally belongs to that sector of the society.  The Court further concluded the objective of prison labour as: When prisoners are made to work, a small amount by way of wages could be and should be paid so that the healing effect on their minds is fully felt.  Moreover proper utilization of services of prisoners in some meaningful employment, whether as cultivators or as craftsman or even in creative labour will be good from the society’s angle as it reduces the burden on the public exchequer and the tension within. The above approach of the court has to be little bit criticized as the argument supports the use of income of a prisoner against his expenses inside the prison.  On the other side the state should not take anything from the income of a prisoner as it can be used for the well being of his family or according to his lawful aspirations. The old position was based on the conviction that the man who broken the law has placed himself in debt of society for which he have to compensate.  This will also work in creating earning habits and making a prisoner self confident. Need for adequate wages by prisoners were again raised before the Supreme Court and where the court held the application of Minimum Wages Act, will be of great use.
  • 76.  In this judgment, the court recommended to the State concerned to make law for setting apart a portion of wages earned by the prisoners to be paid as compensation to the deserving victims, of the offence, the commission of which entailed the sentence of imprisonment to the prisoner either directly to through a common fund to be created for this purpose or in any other feasible mode. Paramanand Katara v. Union of India and another, (1995) 3 S.C.C.248  The right to dignity and fair treatment under Art. 21 of the Constitution of India is not only available to a living man but also to his body after his death.  The jail authorities in the country shall not keep the body of any condemned prisoner suspended after the medical officer has declared the person to be dead.  The only mandatory part is that the condemned person has to be declared dead by the medical officer and as soon as it is done the body has to be released from the rope. The inherent quality of every human life is there with the prisoners.
  • 77. EVOLUTION OF PUBLIC INTEREST LITIGATION In law, standing or locus standi is a condition that a party seeking a legal remedy must show they have by demonstrating to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case. The rule of locus standi, i.e. right to move to the court, whereby only aggrieved person can approach the court for redress of his grievances has been relaxed by the judiciary.  Judicial activism through a process known as public interest litigation (PIL) has emerged as a powerful mechanism of social change in India.  Public interest litigation is an opportunity to make basic human rights meaningful to the deprived and vulnerable sections of the community.  To assure vulnerable section social, economic and political justice, any public spirited person through public interest litigation can approach the court to protect their rights on behalf of aggrieved persons who cannot approach the court themselves due to their vulnerable conditions. Now court through public interest litigation permits public spirited persons to file a writ petition for the enforcement of rights of any other person or a class, if they are unable to invoke the jurisdiction of the Court due to poverty or any social and economic disability.
  • 78. PUBLIC INTEREST LITIGATION  The expression `Public Interest Litigation' can be defined as "any litigation conducted for the benefit of public or for removal of some public grievance.“  The first reported case of PIL, in 1979, focused on the inhuman conditions of prisons and under trial prisoners.  Hussainara Khatoon v. State of Bihar, the PIL was filed by an advocate on the basis of the news item published in the Indian Express, highlighting the plight of thousands of under trial prisoners languishing in various jails in Bihar.  It was observed by the Court that” It is the constitutional obligation of this Court as the guardian of the fundamental rights of the people, as a sentinel on the qui vive, to enforce the fundamental right of the accused to speedy trial by issuing the necessary directions to the State which may include taking of positive action, such as augmenting and strengthening the investigative machinery, setting up new courts, building new court houses, providing more staff and equipment to the courts, appointment of additional judges and other measures calculated to ensure speedy trial.”  These proceeding led to the release of more than 40,000 under trial prisoners. Right to speedy justice emerged as a basic fundamental right which had been denied to these prisoners.
  • 79. Sheela Barse v. State of Maharashtra AIR 1983 SC 378  This writ petition is based on a letter addressed by Sheela Barse, a journalist, complaining of custodial violence to women prisoners whilst confined in the police lock up in the city of Bombay. The petitioner stated in her letter that she interviewed fifteen women prisoners in the Bombay Central Jail with the permission of the Inspector General of Prisons between 11 and 17th May, 1982 and five out of them told her that they had been assaulted by the police in the police lock up. The primary question which is raised in the letter of the petitioner relates to the safety and security of women prisoners in police lock up and their protection against torture and ill-treatment. The guidelines given by the Court includes:  We would direct that four or five police lock-ups should be selected in reasonably good localities where only female suspects should be kept and they should be guarded by female constables.  Female suspects should not be kept in a police lock-up in which male suspects are detained.  The interrogation of females should be carried out only in the presence of female police officers/constables.  Whenever a person is arrested by the police without warrant, he must be immediately informed of the grounds of his arrest and in case of every arrest it must immediately be made known to the arrested person that he is entitled to apply for bail.  The Supreme Court also directed that when a person is arrested and produced before a Magistrate , the Magistrate shall enquire from the arrested person whether he has any complaint of torture or maltreatment in police custody and inform him that he has right under Section 54 of the Criminal Procedure Code, 1973 to be medically examined.
  • 80. In Re-Inhuman Conditions in 1382 Prisons 6AIR 2016 SC 993, 2016 (2) SCALE 185  The Supreme Court of India recently on March 14, 2016 delivered a landmark judgement which regard to the legal and constitutional rights of prisoners in India especially the under trial prisoners. The Court observed that prisoners are no less human than others and therefore must be treated with dignity. In view of this, court passed the following the directions;  Under Trial Review Committee should ensure effective implementation of Probation of Offenders Act, 1958 and Code of Criminal Procedure, 1973  The Director General of Police/Inspector General of Police in-charge of Prisons will ensue proper utilization of funds so that conditions of the prisoners is in commensurate with human dignity which includes health, hygiene, food, clothing, rehabilitation.  The MHA will ensure that Management Information System is implemented in all central, district and women jails for better management of prison and prisoners. Further the Ministry will also review the Model Prison Manual 2016 annually so that it does not become another dead document.  The under trial committee will look into the issues raised in the Model Prison Manual and for that purpose will visit jails regularly.
  • 81. Cr.P.C PROVISIONS POWER OF JUDICIAL OFFICERS AND SUPREME COURT’S OBSERVATION REGARDING THEIR POWERS.
  • 82. POWER OF MAGISTRATE IN REGISTERING CRIMINAL CASE AND INVESTIGATION Section 156 (3). Judicial magistrate’s power to investigate cognizable case Section 156(3) entails that any Magistrate empowered under Section 190 may order an investigation by a police officer performing his duties under Chapter XII of Cr.P.C. This sections highlights the chronology or series of remedies available to a person. Firstly, filing a complaint before the police official and secondly, in the event of failure of the registration of the complaint by the official, one shall approach the SSP or SP for the said purpose. However, if the complaint is not registered even after that, then the next remedy is to seek help from the Judicial Magistrate. If such an application under Section 156 (3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made.
  • 83. SUPREME COURT’S OBSERVATION  If any application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and an appropriate investigation to be taken place, in the event where, according to the aggrieved person, no proper investigation was done. Under the same provision, the Magistrate may monitor the investigation to ensure a proper investigation. Case Laws In Mohd. Yousuf v. Afaq Jahan, Honourable Apex Court observed that a Judicial Magistrate, before taking cognizance of the offence, may order investigation under Section 156(3) of the Code. If he does so, he should not consider the complainant’s oath because he was not taking cognizance of any offence therein. Dilawar Singh v. State of Delhi The Honourable Court clarified that even if an FIR has been registered and the police have made the investigation, or is making the investigation, which the aggrieved person feels is not satisfactory, such a person can approach the Magistrate under Section 156(3) Cr.P.C, and if the Magistrate is satisfied he can order a proper investigation and may take other appropriate actions. Thus, in cases where the Magistrate finds that the police has not done its job or is not satisfied with the investigation of the case, he can direct the police to supervise the investigation and monitor it.
  • 84. State of Bihar v. J.A.C. Saldanha (SCC : AIR para 19) The Hon’ble Court held that a Magistrate can order an investigation to resume even after the police have submitted the final report. Thus, Section 156(3) Cr.P.C although briefly worded, is very extensive and includes all such incidental powers as are necessary to ensure a proper investigation. Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage and Others It was observed that if a person has a grievance that his FIR has not been registered by the police, proper investigation is not being done, then the remedy available to the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) Cr.P.C POWER OF HIGH COURT REGARDING REGISTRATION OF CASES AND INVESTIGATION Section 482 Cr.P.C 482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is true that alternative remedies are not the absolute bar to a writ petition, but it is equally settled that the High Court should not intervene if there is an alternative remedy.
  • 85. ROLE OF MAGISTRATE IN INVESTIGATION AND TRIAL Magisterial Vigil during Investigation The role of magistrate in investigation can be understood in terms of these five stages: Stage–I – Soon after the registration of FIR Stage–II – In cases where the arrest is effected by the Investigating officer, on his production before the court and while deciding the question of the validity of arrest and need for further custody – Judicial or Police. Stage–III- Magisterial interventions while deciding misc. applications for recording of statement(s) u/s 164 of the Cr.P.C, test identification parades, etc. Stage–IV – Monitoring of investigation. Stage–V – Further investigation, post- filing of police report u/s 173 of the Cr.P.C
  • 86. Stage–I – Soon after the Registration of FIR Criminal justice Administration is set into motion with the receipt of information with respect to the commission of a cognizable offence (Section 154 of the Cr.P.C). Section 157 Cr.P.C mandates the sending of a report to this effect to the area magistrate forthwith, to bring the matter to his scrutiny. This is a safeguard meant to prevent police excess, embellishments, false prosecutions and non-investigation at a crucial stage. A copy of the FIR is to be brought to the Magistrate empowered to take cognizance as soon as possible, and any delay can adversely affect the prosecution case at trial, if not explained adequately.  In heinous cases, a copy of the FIR along with an endorsement is dispatched via a special messenger to the area magistrate or duty magistrate.  Sec 157 of Cr.P.C casts an obligatory duty on the police to send a copy of the FIR to the Magistrate and whenever the police fails to discharge the mandatory duty it is under a legal obligation to furnish the reasons for not discharging it (Tulsi Ram Bhanudas Kambale v. State of Maharashra 2000 CRLJ 1566).  As per Rule 24 of Criminal rules of practice, after receipts of FIR, the magistrates shall initial each page and put the date stamp and time of receipt.  As per sec 155 (2) of Cr.P.C. no police officer shall investigate a non- cognizable case without the order of a magistrate having power to try such case or commit the case for trial.
  • 87. STAGE II – PRODUCTION OF THE ACCUSED BEFORE THE COURT FOR THE FIRST TIME Arrest leads to deprivation of liberty and, therefore, has great ramifications for the person arrested. Any denial of personal liberty has to be through a due process. A process that is non-arbitrary, just, fair and reasonable. No arrest shall be made, merely because it is lawful for the police officers to do so and each arrest has to be justified on ground of its imperative need and reasons are to be recorded in writing by the police officer effecting the arrest. According to the latest amendments in the Cr.P.C, in cases covered u/s 41(1)(b) of the Cr.P.C, i.e where the case relates to offence punishable with imprisonment of 7 years or less, arrest can be made by the police only on satisfaction (recorded in writing) to the effect that, the arrest is imperative for : ✔ prevention of further offences; proper investigation of the offence; ✔ prevention of tampering or disappearance of evidence; ✔ prevention of any undue influence/threat to the complainant or witnesses; ✔ ensuring his presence in the court.
  • 88. ✔The requirement of recording of reasons is done to rule out arbitrary arrests. The Magistrate is one who monitors unnecessary detention and abuse of power and process. The recording of these reasons, therefore, is a condition precedent for arrest. MAGISTERIAL CHECK ON POLICE POWERS OF ARREST The sufficiency of reasons for arrest recorded by the police officer is to be examined by magistrates and not to be accepted at the mere ipse dixit of the police. After examining the validity of the arrest, the next point of inquiry is: whether there are grounds to keep the accused in detention or whether he can be released on bail, or otherwise discharged. The Supreme Court recently in Arnesh Kumar v. State of Bihar in Criminal Appeal no. 1277 of 2014 has ruled that decision to detain & remand is not a mechanical act and a remand order has to be a reasoned order and should reflect due application of mind. Mere mechanical reproduction of above elements in remand application is also to be deprecated. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that condition precedent for arrest under section 41 of Cr.P.C has been satisfied and it is only thereafter that he will authorize the detention of an accused.
  • 89.  The anxiety as to participation in investigation by the accused is allayed by Section 41A of the Cr.P.C, which provides for service of a notice on the accused by the Investigating Officer seeking participation in investigation and the necessary information from him. If the accused does not comply with the notice, he can be arrested, after recording the factum of his non cooperation in writing. SAFEGUARDS RELATING TO ARREST The magistrate is also under an obligation to peruse the Arrest Memo or Medical examination report of the accused (to rule out cases of police torture) as well as the victim (to preserve crucial medical evidence). It is also incumbent on the Magistrate to ensure production of the accused before itself within 24 hours of arrest as per sec 57 of Cr.P.C and communication of information to relatives or friends about his arrest as per Sec 50 of Cr.P.C and compliance of the detailed guidelines laid down by the Supreme Court in the case of D.K.Basu v. State of W.B reported in 1997(1) SCC 416. The Magistrate is to also ensure that the copy of the FIR is uploaded on the Internet, forthwith, except of course, in cases where the matter is sensitive in nature, or issues of privacy are involved, the same was held by the Honourable Apex Court in Youth Bar association of India v. Union of India and others.