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The Indian Penal Code, 1860
The Code Of Criminal Procedure, 1973
Article 21 in The Constitution Of India 1949
Section 41 in The Code Of Criminal Procedure, 1973
Section 46 in The Code Of Criminal Procedure, 1973

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Central India Law Quarterly
Rights Of Accused: Under Trial Prisoners & Cqnvicts
RIGHTS OF ACCUSED: UNDER TRIAL PRISONERS & CQNVICTS ~ j .-" * IMTJAZ HUSAIN " \ ,'_ e Franklin Delano Roosevelt said in a speech in 1~41 that we looked forward to a world founded,-tlPon·four essential fre'edoms-free- d?'n Qf speech, freepomgfy(orship, rreedomjrom want, freedom of tear, The MndtiOtl upon whleWGotl 'h~'given lilYerty to man 'is eternal vigilance. i'! I' . Like bone to the humanbotfy,aFld the axle to the wn@el, and the sonq.to a bird; and air to wing, thus is libertyfhe essence of life: Whatever Is-dane withOut it rs imperfect. rt', . "0 liQertYd 0 liberty, criecJ:M~dameRola~, II II What crimes are cornrnittedlnyour nar,ne."· if" .' - ,~ And wrote Khalil Gibran,''''Often times have I heard you speak of one who commits a wrong as though he werE! not one of you, but a stranger unto you and an intruder upon your world. But I say that even as the holy and the righ'teous cannot rise beyond the highest which isin each one of you, so the wicked and the weak cannot fall lower than the lowest which is in you also. And as a single leafturns not yellow but with the silent knowledge of the whole tree, so the wrongdoer cannot do wrong withoutthe hidden will of you all. r . 2. "... The murdered is not unaccountable for his own murder, and the robbed is not blameless in being robbed. The righteous is not innocent of the deeds of the wicked, and the white-handed is not clean in the doings of the felon. Yea, the guilty is oftentimes the' victim of the injured. And still more often the condemned is the burden bearer forthe guiltiess and unblamed. Advocate. High Court of M.P. Vol XIV 'RIGHTS OF ACC.l1SED,UNOERTRIAC PRiSONERS & CONVIC1 S 470 3 ,>'''Y()U'CaMot serlarate the 'just dOrTlthe urijus't and t~e good trom Ui\ewicke~i; tor lIHw.sta.ntHogether befere.thefacetet the sun even as the black thread and the white: are woven together. And When' the black thread breaks. the weaver shall look into the whole cloth, and h~'Sban'exarnineth"eloorn al'sa,;' .. r .~ 4.. ".. , And let him who would lash the offender look unto the STirftoHhe offendetf'Andifany o,r'yollwotild punigh itl',th~'rlame of righteousness and' lay the 'axe unto theevH tree, let him see to its roots; and verify he will find tne.roots et tne good and the bad, the.' fruitful and-the fruitless, all enwined together in the silent heart of the earttlh. the erect and the fallen: are bot one manstandilig:in'twilight betweenthe ni'ght ot'hts pigh1y-self and the day of hisgqd-self." . .,',. .'- - ~, 5. This is how a philosopher and a thinker expressed himself on the theory of crime and punishment.' . . 6. . Now let us' turn to our subject which is extended to three staqesrthe commission of clrrne, tHe hi!:!!' and the' ~rison, the subject of which is the accused, the undenriat aind iheconviCt. Weare to think and discuss,regardill9 a person's rightv,rho is eitl}er an accused of infringing Qtties'Jegal ;i~hts"andagainst w'pom ~ves~igation is in progress, the one who in the second stage, having been prima facie found guitty by the police o:t a Magisfrateafter going through the process ofChapter Xv .of ~h.e Code of Criminal.Pro(::edure,has been .. put to tdal Or the one who is ulHmately blessed with ajailsentence. LEGAL. RIGHTS OFANACCUSEPO~.rARRESTANO BEFORE HE IS PUT TOTRIAL: . . __. 7.. . Let us first refer to the Universal.Oeclaration of Human Rights, 194a.andit~ relevant Artic::Jes: It contai.nsthirty.Articles, t~enty-one. out.ot Which set forth civil and political rights and six cover economic, soctat and culturat rights. The ones weare concerned with are : . ',' " . '. -' -', '.', • ' • • .. "'~ a. FreedorTlfromarbitrary arrest and torture. b. Criminal procedure rightslike rightot consult with lawyer. right. to be presumed innocent unless proved guilty and right not to be subjected to retrospective legislation, etc.. 471 2001 c. , t rights for- preservinghumandignjty~nd Allother · · ,:. '-. .: . ~ ~~II·pride, :.' ,'.~ i » '- : • _. -,... . - .' . - " ' ..' ;. 8. S9m~ of.the.salient-\;toIations of:human rights -Jis..;~~viS 'arre'$ted persons by thepolice,maybe'sche.' ',' .: _,', _,1----;') t: ~:\:J. ",;': f~. ii. Arbitrary}irid iIlegald~tentjon,iniClJstod~;.[ArtJcJe~2 ft~ .~ _ ( " " _ - - 'f 1: ~_ ' ; ; " '_ -'/' " ' - >,., " . \ - - , " _.. _ "- - . o '., ~ C'~nstitutton anp Se.ction ~e,57~.5~and;:}~oftMC:rpCI" iii. Arbitrary and unlawfUl searches; f! 1J! ,- i v . . DRnxinqthe rightto .be ,~Q,form~,9fth~groW1dsp1sne~s .arr:est . imm~diately after the arrest~'IAr1icle 42(H of the. ConsUtUUpn and Secitons 50, 55 and 76 CrPC] .- ~, ' . v. Denying the right of the arrestw;tper~()nnoUobes.ubjeoted to unnecessary restraint: [Section 49 CrPC] :~ -"; /. ~ : vi, Denying tl1~ right to cQns~~ a J,awyeJ..of,his .own choie:[Artlcte 21 of the constttutton ~nd ~ectjon,3Q3CrPCJ --' . vii. ; Denying tt'~tighno be produced tJef,Of(fa'MaQistr~t~~\~hiri 24f\ours o'Hhearrest;'{Sections ~1 ,16 and J~7 CrPC] lx. .DeniYingthe right tofa~tandspeedy,investi9ation~and x. Denying the right to refrain poHcefr6mjntrusiorfof -v.: 'r . ' ' ,,' - 6i;;cprjvtBcY7 • " , ' " ," > -' ' ' ' ' -: -- ' . ' . , ' _. '.' '~. ; .", ',,"~ :htlll be~S~~:Jdo~;~+SCiff~s~~ug:~~~·~~~~~X~o:~~:~i~bb~~~~. procedure established by law. ." . ' ...., 10.. .• Article 22 commands th~t ~o per§~'~'Y'lhOisarr~st~dsn~l,pe detain!d in custodywithout b'elnginformed"as soon asmaybe,.of the grounds for such arrest nor shall he be denied the right to.ccnsutt. and to be defended ny, a legal practitioner ofhischoice.Each person arrested and detained in custody, has to be produce before the nearest Magistrate within a period of. twenty-:four. h,ours of such arrest, excluding the time necessary for thejourf1ey from the place of arrest to court ofthe Magistrate,and no suchpersonshalJ ,'be detained in custody beyond the said period without the authority of a Magistrate. ---- ------- - - -- ----------- vol XIV RIGHT S OF ACCUSED: UNDERTR1AlPRisONER~ & CONVICTS 472 '>ARREST: 11, ....: "Ctlflpt~rV ()fttle'~ode·o.tcfrminaIProcedufe, 1973 deals with Arre.stof Persons. Section 41 thereof$pe~fiesinstances when the, police may arrestV\lithoutwarrant.Clause (a) of Sub-section (1) of Secfioh 41 is often mtstlsedtiy the Police; nprovtdes thatany police o«icefmaY~ithout and ,-:-'. , ';' .- '.. ,-" ,', 12,. ..Although, the itlegal arrest ofa person does' not affect .the validity of the trial as ruled by the Apex Court in MUbrak's case report~9!n AIR 1~57 sc 857,it definiteJy lnvolvesvlloatlon of his fundamenUiI ri$:Jht of freeetom., ', "t '0' ~.. • .:. : " • 1.3. Even theL.aw Commission thought that-the Police had :~nre,~tficte,9~~owerto '~Jres~ an~ person u9~er s~piion ,41 any time 'a.M,at anyplace w,thol,lt,an~ Wd~[or, p.~~missioflfrom thAMagistrata o'ia'nyother c6u~:'The\.~wt~-Ofnmi~sl:?~,nits 1~?nid Report op.'Cus:- todial crimesobserved that there is a misconception prevailing that ifthere, is a powet1to arrest-the same-mast be exerCised without fail. The Supreme Court also observed soIn:Jogin'der-SlnghVs. State M Runjab.(1994) JT(3) SCA23. A quesUonnaire :was issued by the Commission in 199Efproposing in'$8rtiono'fney,sub-'sectlons 1A and 473 Cj:N..TRAL INPIA LAW QUARTERLY 2001 1B in section 41. It was replied by the State Bar council of Madnya Pradesh. We welcomed the amendment proposed but it has not yet seen the light of the day. However I may inform you that the following '. insertion was proposed therein: 14. "41 (1A) Apolice,officer arrestinga,personunder clause (a) of sub-section (1) of this section must be reasonably satisfied, and must record such satisfaction, relating to the foHowing matters: (a) the complaint, information or suspIcion referred to in that clause, is not only inrespect ota cognizable offence having been comrrtltted, but also in respect of the complicity' o'f the person to bearrested; in that offence; (b) arrest is necessary in order to bring the movements of the person to be arrested underrestraint, so as to inspire a sense of security in tbe publicor to prevent the person to be arrested frQm evading the ·process of thehlw Or to prevenr him from comitting simifa r offences or from indulging in violent behaviour in-general. 15. . "41(18) The pOliceofricermay,instead ot arrestinp theperson to concerned. issue to him a notice of appearance requiring him appear before the police officer issuing the notice or at such otther place as may be specified in the notice and to co-operate with the police' officer in the investigation of the Qffen(f~ referred ti)· in dause (a) of sub- section (1) of section 41. (2) Where such a notice is issued toany person, it shall be the duty of thatperson to comply with the terlhs of the notice. (3) Where such person complies andconfinues to comply with the notice, he shall not tjl:l arrested in respect of the offence referred to in the notice linl~s's, for reasonsto be recorded, the poticeofflcer is bf the opinion th'at he olig~t to be arrested. j" ., • (4) ,Wlleresuchper~on.atany,time, fails to comply.with the terms Qt· the notice, it shall be lawfu:l tor.the ponceotnoer to arrest him for the offence mentioned in t>he notice, subject to such orders as.may have been-passed in the this behalf QY the competent Court." Vol XIV RIGHTS OF ACCUSED. UNQ.,ERTRIAL PRISONERS & CONVICTS 474 When we proceed further, the provisions O,f Sections46.47, 50 51, 53, 54, 56 and 57 of the, code pf Criminal Procedure also attract our attention to understand the problem. EFFECTiNG ARRE~T OF MALE AND FEMALE,ACe.USED: 16, Section 46 providesthe procedure of arrest. It can be affected by touching'orconfiningthebody of the person to be arrested, unless there besubmlsslon to the custody by word or action. Incase of resistance or evading arrest, other means necessary to effect arrest could be taken recourse to but the provisions of this section do hot give a right to cause the death of a prerson who is not accusedof an offence punishable withde~thor with Imprisonment for life. 17. The cooeot Criminal Procedure (Amendment) Bill, 1994 which was placed in the Rajya Sabha, butis yet to be cleared; proposes insertion 6f Clause (4) in Seciton 46 regarding arrest of women accused persons. It provides that a woman shall not bearrested, . save in exceptional circumstances, atter sunset and before sunrise andtn exceptional clrcurnstances.ithe police officer has to obtain prior perrnisslonfrorn his 'immediate scperlor before effecting the , arrest. In cases of extetmeurqency, after arrest,a report in writing shall forthwith be given to the immediate superior explaining the urgency. and reasons for not taking prior per~.issjonanq a report shall also b~given to the magistrate.ha,vingjU{jsdiction. If such amendment . is incorporated the violatlon. of the. rights of the women accused persons would be prevented to.a great extent. HANDCUFFJNG : 18. Apart from. this another pfOblem~s regarding "tHlOdouffing", It is learnt off and on that the.p1>licenaveiP-andeuffed Oo~ors, Lawyers and other renowned personsIt any report ot. a. cognizable and ncn-baltable offence Is made...,aQ,liinst t~em, Not.omy this, the police deliberately parades them in puoucto lower ttJ~ir prestlqe in the estimate of others. The police have no such right constitutionally and legally. 19, -R,egulation No. 465 6f the'Mf' Pqlice"Regulations provides "-~ 475 - cENTRAL INDIA I.:AW QUARTERLY 2001 that Handcuffs shalf be used only iftheyare necesary.Jtfurther pro- vides instructions to regulate the use of handcuffs, . . '20, . The Law Commission wanted to insert a provlsonto. Section 46 to theefteet that an 'accused should rlotbehandcufted by the police ordinarily while the accused is in the custod.yof the police, whether for transporting himtothe court or elsewhere,unless ~uch a person hasattempted to or there are reasonable apprehensions to belteve that hewillprevent th El arrest by any means. A police officer , not below the.renk.or DeputySuperintendenfof Police can, only .authorise hardcuffing lnsucb emergent situations. 21. Section 49 of toe Code also providesfhatthe person arrested sMII' not be sUbjectefttomorere~traint than in necessary to prevent his escape. Butthisportipnis not atall beingpajdany heed to by any pqliceQfficer in the, State. The Supreme coul:tjn,ithecase,of Citizensfor Democracythrough its President vs. The Stat~, of Assam: ' 1995(2) LJJ(S\C) 43l,provided ,ceqC)io g~jde'lines tQ, beaetppteq in this regard so as to preventthe viiatieWof .4.rti~le41 of th'e Co'nstitution alsqin r.~.spect of handcu,{fin9 qfp,is,oners. Acc~rdjogly the Law ,Cpmmisslpn proposes to insert ~prpvison.toSecHon 49 in the followingm,annec:. ' 22.' "PrQvided'no acused shaH bet1andcuffedor put on other fetters by the police or prison authority wl'tihHransporting or in transit form 'one jail to another or from jaH10 court and baek, except where an accused in likely to jump bail or'breakout the custody on the basis of well founded ground leading to the said inference in which circumstance suchaocusedshall beproduced beforthe Magistrate anda p,aye(f()rper'mission'tOhan~ff 'Orputfetter upon the accused shat. be made· before the Magistrate: SliCh.Magistrate in ratre cases of con~reteproofregarding proneness oUhe acoosedto viQlence,his 'tendency to escape, he bemg so cfangerousJde'Sperate·and upon the firidingtha1nO otherpracttcal way of forbidding escape is available, the Magistrate may grant permission to handcuff or put fetter upon the accused, Provided furtherthat in cases where theperson arrested py police, if'.:. c.. .'.. . before...the Magistra,te '," remand judicial or ...., " . ' '. ~ produced . '. . :';.',..... , : . :_ .<.: and i ',' '." . non-judicial is given by the Magsitrate the person concerned shall not be handcuffed unless special orders in that repect are obtained Vol XIV RIGHTS OF ACCUSED, UNDERTRIAL PRISONERS & CONVICTS 476 from the Magistrate at the time of grant of the remand. 23. "Provide furhter when the police arrest a person in execution of a warrant of arrest obtained from a Magistrate, the person so arrested shall not be handcuffed unless the police has obtained orders from the Magistrate for the handcuffing of the ~erson to be so arrested.. 24. "Provided further that where a person is arrested by the police without warrant the police officer concerned may, if heis satlstled on the basis of the prinicple set out above, that it is necessary to handcuff such a person he may do so till the time he is taken-to the police station or thereafter his production before he Magistrate; Any further use of letter thereafter can only be under the order of the Magistrate as stated above. INFORMATION REGARDING ARREST AND/O~ DETENTION: 25. Another complaint is that the Police do not give intimation regarding the arrest and the place of detention of the person. The Code of Criminal Procedure (Amendment) Bill, 1994 proposes insertion of a ne~ section 50-A in the following manner: 26. "50-A. Every police officer or other person making any arrest under this COde shall forthwith give the information regarding such arrest and the place where the arrested' person is being held to such person as may be nominated by the arrested person for the purpose of giving such information and shall make a record thereof." 27. But I feel that this provision is miserly drafted and will not serve the purpose. In fact there must be something more therein to ensure the remedy to the wrong.·1 propose the provision to be [ike this: 28. . "50-A, -Every police officer or other person making any arrest or detention under this Code shall forthwith give in wri~ing the information regarding such arrest or detention and the place where the arrested person is being'hela'together with the particulars of the offence for which the arrestor detention is made to such person andl or and Advocate as may be nominated by the arrested person forthe purpose of givil)g such information, shall obtain an acknowledgement and shall make a record thereof, A copy ofsuch intimation shall also ,477 CENTRAL/NOlA LAW QUARTERLY 2001 be sent to the Magistrate havinq[urisdlctlon forthwith or latest along with the,first remand appiication." SEARCH OF ARRESTED PERSON : . 29. Section 51 provides that when a person is arrested fora . non-bailabltooffence orwhen he is arrested for 'bailable offence but is not Jn a position to furnish bail, the police officer arresting him, may search such person and place 'in safe custody all articles other than necessary weariogapparels found upon him. He shall also give a receipt to the arrested person of the articles so Seized. If a woman hasto be searched, the search should be made by atemal» .,.,,,i ng regard to decency. ' ' 30. There are complaints that the police plants objectionable articles in the pockets of the-arrested person while making asearch at the lime of arrest: Such articles sometimes are knives, pistols, revolvers or narcotic substances too which may lead to a false and frivolous prosecution of the arrested person because of no fault of his. 31. The Apex Court in the case of state.ot Bihar Vs. Kapil Singh: . AIR 1956 SC53 has specified certain formalities to be observed before' such search is made by the officer arresting a person. The searchlnq officer as weU as the officer assisting him should give their personal search to the accused before searching the person of the accused. He shouid also observe the formalities contained in Section 100 of the Code, wnlch include calling of two Independent witnesses from the locality to observe the search proceedings. Se,ction 51 required such an amendment to be made. EXAMINATION OF ACCUSED PERSON BY MEDICALPRACTI- TIONER: . 32. Section 53 of the Code provides examination -of accused person by a medical practitioner at the requestof the arrested person himself. The Code of Criminal Procedure (Amendment) Bill,1994 proposes a common explantation to b~ added to either of these sections in the following manner: Vol XIV, RIGHTS OF ACCUSED, UNDERTRIAl PRISONERS & CONVI\.T~~ 478 (a) "examination" shall include the examination of bJood,swabs in case of sexual assault, sputum and sweat, hair samples .and finger nail clippings and such other tests which the registered medical practitioner thinks necessary in a particular case, (b)"'registered medical practitioner" means a medical practitioner who possesses any medical qualification as defined .incluase (h) ofSection 2 of the Indian Medical Countcil Act, 1956 and whose name has been entered in a State Medical Register-It In section 54 a sub-section in the following terms is also proposed to be inserted by the amendment bill (supra): 33. "Where an examination is made under sub-sectionrt) a copy of the report of such examination is made under sub-section. (1) a copy of the report of such examination shall on a request being made by the arrested person or by any person nominated by him in this behalf, be furnished by the registered medical practitioner to the arrested person or the person so nominated. It 34. In my opinion the accused must be given a right to obtain a copy of his medical report, whether he makes a request for the same or not or whether he is examined on the request of the police or himself. It will no only avoid manipulations but shall also give'a right to the accused to complain ifhe isnot satisfied with the report because sometimes the polie manipulates to obtain a negative report or a report of its own choice to the detriment of th interests of the acused. 35. The person of a female accused should in all cases be examined by a lady medical practitoner alone. ATROCITIES ON WOMEN BY POLICE AND NEED OF SPECIAL PROVISIONS AS TO ARREST, INTERROGATION AND CUSTODY OF WOMEN AND CHILDREN. 36. The. Law Comr;nission in its 135t h Report on Women in Custody made a recommendation that a new Chapter V-A should be "inserted int the Code of Criminal Procedure specifying provisions as to arrest, interrogation and custody of women and children to foreclose harassment of women in custody and to protect such women to the extent possible. The proposed amendment runs into 14 sections. 479 CENTRAL INDIA LAW QUARTERLY , The provisions pertain to arrest and medical examination of women, requirement of women and children below 15 years of age to attend investigations, admonition and probation, period of detention of women sentenced to impris_onment for life, suspension of imprisonment of pregnant women, femal prisoners and their medical examination, transit, place of detention, inspection of jails, appointment of jail visitors and definition of 'female prisoner' and 'jail' for the purpose of the new Chapter V-A PERMISSIBLE PERIOD OF DETENTION AFTER ARREST. 37. Section 57 of the Code provides that no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a mag.istrate under Section 167, exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the magistrate's court. 38. The police takes it to be its privilege to detain a person for a complete period of 24 hours after recording his arrest. A person is detained for more than-24 hours in practically all cases. As applied to criminal proceedings, the word 'arrest' signifies the apprehension or detention of the person or stopping, seizing or apprehending him and restraining his liberty in order ro bring him to answer for an alleged or suspected crime, ore to prevenUhe commission of offence. Arrest denotes a restraint of aman's person, 'obliging him to be obedient to the law; and it is defined to be the execution of the command of some court Of. record or officer of justice. An arrest is the beginning of imprisonment, where a man is first taken and restrained of his liberty by power or colour of lawful warrant. 'Detention' means keeping back. This may take place by physical force or threat. It also means the action of detaining or the keeping in confinement. Thus, the police cannot be allowed to say that the accused was 'detained' and not 'arrested'. The law should be very clear on this point and the police should not be permitted to interpret it to its own benefit orto undo the wrong committed by it. It goes without saying that the accused should not be detained for more than a munute he is requird to be in police custody and he should immediately be transmitted to the nearest magistrate. Vol XIV RIGHTS OF ACCUSED, UNDERTRIAL 'pRISONERS & CONVICTS 480 POWER OF POLICE TO ARRESTA PERSON UNDER SECTION 151:, 39. Section 151 of the Code provides thata polie officer knowing of a design to commit any cognizable offence may arrest, without orders from the a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission ofthe offence cannot be otherwise prevented. The powers under this section are misused by the polcie in a majority of cases. Any peson loitering on the street at any time may be caught hold of, detained and arrested by the police and they often send him for a preventive order under Section 1Of or 109 of the Code. Innocent persons are always made a prey to this provision. The powers of the police under this provision deserve to be curtailed immediately. PRISON.ERS : 40. Prisoners are of two kinds, under trials and convicts. Section 167 of the Code provides that it a person is arrested and the investigation is not likely to be completed within a period of twenty four hours fixed by sectton 57, and there are grounds for believing that the accusation or information is wen founded, the offlcer-in-charqe of the police station or the investigation officer shall, forthwith transmit to the nearest judicial magistrate a copy of the entries in the diary and the accused to such magistrate. The accused may either be remanded to judicial custody or to police custody by the magistrate, as he deems fit. Such remand shall not exceed a period of fifteen days in one time. 41. Once an accused is denied bail and is committed to judicial custody, he is called an under-trail prisoner. Besides them there are those detained under preventive detention laws, and those undergoing detention for default of payment of fine. Those in the first category, ie, undertrials cannot be required to do any labour while they remain in Jail; but they far out number all the remaining categories put together: Statistics show that in most of the states the undertrial prisoners have overwhelming majority when compared with the number of convicted prisoners. The undertrial prisoners in Bihar Jails are 84.04%, in Uttar Pradesh they are 85.17%, in Madhya Pradesh they t ....-. 481 CENTFoML INDIA LAW QUARTERLY 2001 are 64.22% and in most other stats theyare above 50% than the other total inmates of the jails. An average of undertrial prisoners in Indian Jails comes to about 7 3 % . ' . 42. The annual report of Human Rights Commission submitted in the year 1994-95 in this regard is as follows: 43. "The situation in the prisons visited was varied and complex. many, such as Tihar Jail in Delhi Were over-crowded; yet others, like the open jail in Hyderabad were under-utilised. Often within a single State, conditions varied from one jail to another. in this respect,' pointing to t the need for a more rationalState wide use of facilities. The commission saw a few jails which were notably cleanand where diet was reasonable such was the Central Jail in Vellore. Unfortunately, it saw many others which are squalid, such as the newly constructed Central Jail in Patna.ln yet others, the diet was inferior, and the management Was denounced by the inmates as brutal and corrupt. In some, care was being taken to sepatrate juveniles form others, petty offenders from hardened criminals. In others, no such carewas being taken and the atmosphere appeared to nurture violence and criminality. In a few, major efforts were being made to reform conditions, to generate employment in a worthwhile and remunerative way, to encourage education and restore dignity. In others, callousnes prevailed, prisoners were seen in shackles, mentally disturbed' inmates-regardless of whether they wrecriminalorotherwise, were incarcerated with. others, with no real effort being made to rise aboe the very minimum required for themeanest survival. Where prisoners worked, their remuneration was often a, pittance, offering scant hope of savings being generated for future rehabilitation in society, By and' .Iarge, the positive experiencs were the exceptions rather than the rules, dependent more upon the energy and commitment of individual official. rather than upon the capacity of the system to function approprlatedty on its own." . 44. 'The Supreme Court, holding that Section 30 o·f the Prisons Act, 1894 is not viloative of Article 21 of the Constitution observed in . I the case of Sunil Batra reported in AIR 1978S~ 1675," ltis no more open to debate that convicts are not wholly denuded of their fundamental rights. However, a prisoner's liberty is in the very nature Vol. XIV RIGHTS OF ACCUSED! UNDERTRIAL PRISONE8S & CONVICTS 482 of things circumscribed by the very fact of his confinement. His interest in the limited liberty left ot him is then all tl1e more substantial. Conviction for a crime does not reduce the person into a non-person . whose rights are subject to the whim of the prison adminstration and, therefore, the imposition of any major punishment within the prison system is conditional upon the observance of procedural safeguards. n . 45. In Rama Mufti's case reported in (1997) 2 sec 642, the Apex Court making obsevations on Prison reforms concluded that the prison system was afflicted by nine major problems, i.e., overcrowding, delay in trail, torture and ill-treatment, neglect of helth and hygiene, insubstantial food and inadequate clothing, prison vices, deficency in cornmunicatlon, 'streamlining of jail visits and management of open-air prisons; Though overcrowding in jial is not constitutionally impermissible, but the same affects l1ealth and hygiene and therefore, must be taken care of. Release on bail, parole, remission,recourse in alternatives to incarcertaion such as fine, Civil commitment and probation should be considered. The following directions w.ere given: (a) the authorltes should take appropriate decision on the 78th . Report of Law Commssion of In~ia and Report of All India Committee on Jail Reformsheaded by Justice AN Mulls within six months; (b) as regards delay in trial, Supreme Court's directios in earlier caesmust be fully implemented and suggestions of entrusting duty of producing undertrial prisones on remand dates to the prison staff instead of to the police should be considered; (c) Recommendations of Mulla Committee made in Chapter 29 , on the subject of giving proper medical facilites and maintaining appropriate hygienic condltions should be . considered and needed steps should be taken; (d) Persons authorised should inspect the standard of.food and clothing and need of complaint box in all jails should b.e considred; . 483 CENTRAL INDIA LAW QUARTERLY 2001 (e) For taking care of the prison, something shuld be done to keep the threat of conjugal life unbroken; (f) Introduction of liberalised communucation facilities is also 'required; (g) . Needfulsteps should be taken for streamlining Jail visits; (h) Question of introduction of open-air prisons at least in Distct rict Headquarters of the country should be considered. There have been some earlier decisions of the Supreme Court dealing with Prison Justice. A brief resume is as follows: i. In State of Maharashtra Vs. Prabnakar Pandurang Sanzgiri (AIR 1966 SC 424) aid' of Article 21 of the Constitution of India was made available perthaps for the first time to a prisoner while dealing with the question of his right of reading and writing books while in jail. ii. In the case of surese Chandra Vs. State of GUjrat (1976) 1 SCC 654 and Krishan Lal Vs. State of Delhi (1976) 1 SCC 655, the Supreme Court stated about penological innovation in the shape of parole to check recidivism because of which liberal use' of the same was recommended. iii. In the case of D. Bhuvan Mohan Patnaik Vs. State of AP (1975) 3 SCC 185, a challenge was made to the segregation of prisones and a three-Judge Bench of the supreme Court stated that resort to oppressive measures to curb political beliefs , could not be permitted, In this case the prisonerwas a Naxalite because of which he was put in a "quarantine and subjected to inhuman treatment. The court opined that a prisoner could not complain of installation of high-volt live wire mechanism on the jail walls to prevent escape from prisons, as no prisoner has a fundamental right to excape from lawful custody. iv. In the case of Charles Sobraj (AIR 1978 SC 1514) it was held that the Court would intervene even in prison administration when constitutional rights or statutory prescriptions are transgressed to the injury of a prisoner. In this case the Vol XIV RIGHTS OF ACCUSED, UNDERTRIAl PRISONERS & CONVICTS 484 . complaint was against incarceratory torture, v, In Sunil Batra(l) (AIR 1978 SC 1675) the Supreme Court dealt· with the question whether the prisoners are entitled to all constitutional rights, apart from fundamental TigRts, .In that case the Court was called upon to decide as to when solitary confinement could be imposed on a prisoner. The parameters of solitary confinement were also considerd in the case of Kishore Singh Ravinder Dev v». State of Rajasthan (AIR 19?1 SC 625).· vic Prem Shankar Shukla Vs. D~lhi Administration (AIR 1980 SC 1535) and Kadra Pehadiya Vs. State of bihar (AIR 1981 SC 939) prohibited putting of undertrial prisoners in legirons. vii. In Sunil Batra (II) reported in AIR 1980 SC 1579)the Supreme Court was called upon to deal with prison vices and the judgment protected the prisoners form these vices with the shield of Article 21,. Krishna Iyer, J observed that "prisons are built with the stones of law", viii. In Francis Coralie Mullin Vs. Administrator, Union Territory of Delhi (AIR 1981 SC 746) a challenge was made to a prison rule which permitted only one interview in a month with the members of the family or legal advisor and the rule was held violative of Article 21. ix. The Supreme Court considered the question as to when an insane person can be detained in prison in a series of cases. Reference may be made to Veena Sethi Vs. State of Bihar (AIR 1983 SC 339), Sant Bir Vs. sate of Bihar (AIR 1982 SC 1470) and Sheela Barse Vs, Union of India (1993(4) SCC 204). In Sheela Barse, it was held that jailing 'of non-criminal mentally in persons is unconstitutional and directions were given to stop confinement of such persons. It was directed by the Supreme Court that Chief Secretaries of every State should be made acquainted with the decision and directions of the Court in Sheela Barse's case and they were commanded to furnish some information tq the Standing 485 CENTRAL INDIA LAW QUARTERLY 2001 counsel of his State. The State of Assam was not found to have complied with the order. The Supreme' Court appointed Senior Advocate Shri Gopal Subramanium as its commissioner to have discussion with the Chief Secretary of Assam and to ensure immediate obedience of the orders passed in that case. Shri Subramanium submitted a volumious report running into 532 pages which, according to the Supreme Court, tolda story too wet for tears'. All concernedwre found ignorant of the decision in Sheela Barse's case. The Court observed that I a disturbing nexus between the judiciary, the police and the administration came to light. This was said to have led to almost shocking state of affairs negating the very basis of the existence of human life'. x. In the case of Mohd.Gayasudcting vs: State of AP (AIR 1977 SC 1926), reformative aspect was emphasised by stating that the State has to rehabilitate rather than avenge. Krishna Iyer, J speaking for two-Judge Bench, pointed out that the "sub-culture that leads to anlt-soclat behaviour has to be counterd not by undue cruelty but by re-culturalisation". xi. On the point of right of an undertrial prisoner to speedy trial, there are catena of cases of the Supreme Court. The first decision in this regard was in Supreme Court Legal Aid Committee representing Undertrial Prisoners Vs. Union of India (1994(6)SCC 731). The case related to detention of a large number of person in jail in connection wit~ various ofrfences under Narcotic Drugs and Physchotropic Substances Act, 1985. Noting the strinqent provisions relating to bail in that Act, it was directed that the undertrial prisoners who were "languishing in jail for a period exceeding half of the punishment provided in the Act should be released. This decision was followed in the case of Shaheen Welfare Association Vs.Unlon of India (1996(2) SCC616) which was a case relating to TADA prisoners. A more comprehensive view was adopted by the Supreme Court in the case of RD Upadhyay Vs. State of AP (1996(3) SCC 422·andCommon Cause Vs. Union of India (1996) 4 Vol XIV RIGHTS OF ACCUSED, UNDERTRIALPRISONERS & CONVICTSA86 sec 33. Guidelines were issued not only to release the undetrlals on bail but also to stop further proceedings in certain cases if they were pending for more than three years with04t any substantial progress being made. The latest addition in this series of cases is the case of Rajdeo Sharma Vs. State of Bihar: (1998) 7 SCC 507 in which further guidelines wer provided in cases of undertrtals. .xii. So far the convict prisoners are concerned, the Supreme COourt has in a-latest decision in the case of Smt. AkhtariBi Vs. State of MP (2001 (4)SRJ 397) ruled.thattohavespeedy justice is a fundamental right which flows f~omArticle 21.of the Constitution. Prolonged delay in disposalOfthetrials and . thereafter appeals in Criminal cases, for no fault of the accused, confers a tight upon him to applyfqr bail. The Apex Court called for a report from the Registrar General of the High Court of Madhya Pradesh regarding the position of; crirnlnal appeals pending before the division Beflch." The Registrar intimated," I am to inform you that as per the practice prevalent in the High Court of Madhya Pradesh Cases are listed for final hearing seniority-wise. Accordingly, at present at the Main Seat at Jabalpur, Criminal Appeals instituted in theyeartsas and 1990 are being listed before the Division Bench (Criminal) sitting regularly. However, some times court allows applications for early hearing, In that case even Criminal Appeals instituted in the later years are heard. AS such Criminal Appeal No. 708/1997 is unlikely to be heard in near . future in the 'normal course', unless an application for early .hearing is moved by a party and allowed by the Couri.·· 46. It was further observed by the Supreme Court in this case that it had time and again, reminded the executive of their obligation to appoint requisite number of Judges to cope with the ever-increas- ing pressure on the existing judicail apparatus. Appeal being a " statutory right the trial courts' verdict does not attain finalily during pendency oftheappealand for that prupose his trial is deemed to be cortinuing despite conviction. It is unfortuante that even from the existing strength of the High Court huge vacancies are not being filled 487 CENTRAL INDIA LAW QUARTERLY 2001 up with the result that the accused in criminal cases are languishing in the jails for no fault of theirs. In the absencecf prompt action under the constitution to fill up the vacancies, it is incumbent upon th~'High courts to find.ways land means by taking steps to ensure the disposal of criminal appeals, particularly such appeals where the acciJsedare in jails, that the matters are disposed of within the specified period not exceed,ing five years any case. It was further . directed thatin case appeals c()uldnot be concluded Within five yeas, the convicts should be released en bail. 47. AIL being said and done, the future does not seem to be bright and hopeful so far as the undertrials and convicts are concerned. I remember Justice CK Prasad speaking at the time of his farewell ovation justa few days back that there is a very large pendency of cases and if we continue to dispose of cases with the speed we are maintaining these days, the pending cases may take 324 years to be disposed off finally. 48. We may not torqet that there are frequent complaints regarding inhuman treatment given to the prisoners in jail, they are deprived of the best medical facilites and treatment, a iarge number of prisoners are found suffering from diseases like tuberculosis, there is dispute with regard to fair, adequate and equitable wages to the prisoners, the undertrail prisoners are not produced on the dates of hearingl remand before the court on the ground that adequate force is not available with the jail authorities, most of the time on the ground of VIP and WIPduties on the visits of national leaders and politicians and the like. It is a very vast subjecl and each and every point deserves to be discussed at length. We are already legging far behind th~ western world. We have to speed up our efforts to ensure that the human rights are not violated, as the persons who .are behind the bars are also subjects of this nation and the curtailment of their general liberty does not mearUhat they could be deprived of their constitutional right to lead thei~-'ife in incarceration with dignity: 59. There, are constitutional and statutory mandates already on a the book. As I have mentioned above, number of amendments.are under consideration since long. Teh speed, if we couldatall call it "speed", with which we are working to sort out our problems is not Vol XIV RIGHTS OFACCUSED. UNDERTRtAL PRISONERS &CONVICTS 488 going to do any good to humanity. There should be a joint effort of the Advocates, litigants, Courts; Executive and the police to see that speedy justice is imparted to the people. The State has taken • upon itself the responsibility to impart justice to its subjects and if it fails to share the burden efficiently and vigilantly, a stae of chaos will be created, the justice delivery systemwill go inottheunjusthands of the Dons and, I should confess as a hard reality, that it has started slipping into their pickets. *****