CHAPTER -V

UNDER-TRIAL PRISONERS IN INDIA

 CHAPTER - V

CONTENTS

1 . Rights of the accused persons under the prov sions of

Criminal Procedure Code, 1973

2. Rights of the accused persons under the provisions of

the Indian Evidence Act, 1872

3. Rights of the Juvenile Delinquent

4. Legal Aid

5. Problems of the accused persons in our country

6. Role of the judiciary

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The status of an under trial prisoner is not identical with that of

a convicted person. An under trial prisoner is in a better position

because he is still enjoying the presumption of innocence.

It is true that under trial prisoner is subjected to prison rules

which aim at preventing him escape from prison or wnich are

necessary to ensure discipline within the prison, any treatment which

smacks of a penalty would be invalid because he has not yet been

adjudged guilty. Therefore, an under trial prisoner is in a better

position than that of a convicted person.

In India, under trial prisoners (accused persons) enjoy

Constitutional as well as other statutory rights.

The Constitutional rights of the accused, have already been

discussed in Chapter - IV (Indian Constitution and urder trial

prisoners).

Now, we shall discuss about the statutory right of the accused

persons.

The statutory rights of the under trial prisoners are given below
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Al RIGHTS Of THE ACCUSED PERSONS UNDER THE

PROVISIONS OF THE CRIMINAL PROCEDURE CODE.
*

a] Protection against Arbitrary Arrests -

Sections 41, 42, 43, 50, 55, 56, 57, 58 and 157 of the code of

criminal procedure, 1973 deal with protection against arbitrary

arrests.

The arrest and detention of persons without warrant are not

matters of caprice but are governed by rules and principles laid down

by law. So arrest a person without justification is one of the serious

encroachment upon the iiberty of a subject.

Essential conditions for arrest :

i. Commission of cognizable offence or reasonable

complaint concerning it.

ii. Reasonable suspicion but not bare suspension or

surmise.

iii. Credible information of person’s having been concerned

in any cognizable offence and

iv. Exercise of personal responsibility and personal

judgement in making arrest without reliance on the belief
of any other person.
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An arrested person shall forthwith be informed of full particulars

and other grounds of his arrest and in case of other than non bailable

offence he shall be informed that he is entitled to be released on bail

and he may arrange sureties.

Arrested persons to be taken before Police Station or

Magistrate. And arrestee must not be detained more than 24 hours.

The concept of inforrm-U arrest by police exists in India which is

unknown is Western, countries. Informal arrests means “caking a

person in custody by police without any legal formalities being

formed. By this way, police misuse their authority. Informal arrest is

unjustified in law. Illegal arrest take place mostly in case of poor and

under privileged sections of the society.

Remedies for Illegal arrests :

a] Resistance or obstruction to iiiegai arrest. (Muila Singh -

Vs. State AIR 1968 All 132).

b] Petition for habeas corpus (Cf Bir Bhaddra, AIR 1959 All
384).

c] Suit for damages (R vs. Ram Dayai, AIR 1950 All 134).

3] PROTECTION AGAINST ARBITRARY SEARCHES OF

AN ACCUSED PERSONS PREMISES *
*

Sections 93, 94, 97, 100, 165 and 166 Cr. P.c. deal with

protection against arbitrary searches.

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A search is an invasion of the sanctity and privacy of a citizens

home. The power to issue search warrant should not be used lightly.

Issue to search warrant is a judicial act and it ought to be issued after

judicial enquiry and upon proper materials, searches under the code

are of three kinds (1) under Section 93 or 94 (2) by Magistrate under

Section 103 (3) by a Police Officer under section 166.

Remedies -

a] illegal seizure of goods would amount to infringement of

fundamental rights and the High Court under Article 226
would be entitled to direct return of the goods (C~ ITO Vs.
Seth Bros. AiR 1970, Sc. 292).

b3 A suit for damages would lie against persons who

executed illegal search warrant (Cf Kaverappa - Vs.
Sankannayya, AIR 1965, Mys. 214).

c3 Things seized under an illegal search warrant may

nevertheless be used as evidence.

a RIGHT TO BE PRODUCED BEFORE THE MAGISTRATE

AMD PROTECTION AGAINST ARBITRARY OR
ILLEGAL DETENTION ;

Section 56, 57 and 76 Cr. P.c. deal with said rights.

Persons arrested to be taken before Magistrate or Officer -In­

charge of Police Station without unnecessary delay. Arrested persons

not to be detained more than 24 hours. In absence of a special order

of a Magistrate under section 167, Cr. P.C.

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Unfortunately, 38.18 percent of the accused persons in india

stated that they were detained more than 24 hours.

0] RIGHT TO CONSULT A LAWYER Of HIS OWN

CHOICE ON ARREST AND TO GET FREE LEGAL AMD

Section 303 Cr. P.c. provides any person accused of an offence

before a criminal court, or against whom proceedings are instituted

under this code, may of right be defended by a pleader of his own

choice. If such opportunity to engage a lawyer is not given, the trial is

vitiated Janardhan - Vs. State of Hyderabad, AIR 1951 Sc. 217.

Section 304 of the code of criminal procedure, 1973 provides

for legal aid to accused persons at state expense in certain cases.

The accused person is entitled to free legal services not only at

the stage of triai but aiso when he is first produced before the

Magistrate and also when remanded from time to time and also for

filing and arguing appeals including special leave to appeal.

The Magistrate or the sessions Judge before whom the

accused appears is under an obligation to inform him that if he is

unable to engage a lawyer on account of poverty, he is entitled to

obtain free legal services at the cost of the State.

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(E) RIGHT TO BAIL t

Release on bail by -

a. Police Officer under Section 42(2), 43(3), 169,170, 436,

437 of the code of criminal procedure.

b. Court generally (under Section 71, 81, 88, 187, 330, 340,
390, 395, 436, 437 Cr.P.C.)

c. Sessions Judges (under Sections 389, 439 Cr.P.C.).

d. High Court (under Sections 389, 439 Cr.P.C.).

in arrest for a bailable offence, bail is matter of right and not

discretion. The Court is bound to release the accused or bail or

recognisance. A person accused of an office is to be presumed

innocent till he is proved to be guilty (State of Rajasthan -Vs-

Baichand, A.I.R 1977 SC 2447). Hence, the grant of bail is a matter a

rule and refusal is an exception (Babu -Vs- State of U.P. A.i R. 1978

SC 527).

FJ RIGHT NOT TO 31 prosicutid mors than

ON Cl FOR THE SAMI OFFENCE.
Section 300 is based on the principle that no man’s life and

liberty shall be twice put in jeopardy for the same offence on the

same facts. (Md Safi Vs. State of W.B., A.I.R. 1966, SC 69).
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G] RIGHT TO GIT COPIES OF THE DOCUMENTS AND

STATEMENTS OF WITNESSES ON WHICH THE
PROSECUTION WANTS TO BUILD ITS CASE *

Accused persons have got such right, under sections 173(5) (6)

(7), 207, 238 Cr. P.c.

They are entitled to get copies free of costs. The object of

supplying copies to the accused persons is to put them on notice of

what they have to meet abthe triai.

The Supreme Court has laid down that the whole sale refusal to

grant copies is a serious irregularity vitiating the entire trial

(Purushotham’s Case, AIR 1954 SC 700).

HJ RIGHT TO INSIST THAT EVIDENCE SE RECORDED

IN HIS PRESENCE EXCEPT IN SOM SPECIAL
CASE *
*

Section 273 of Cr. P.c. deals with such right. It is based on the

principle of natural justice.

Witness examined in the absence of the accused invalidates a

triai and the fact that no objection was raised is immaterial.

U RIGHT TO EXAMINE DEFENCE WITNESSES :

Such rights of the accused are enumerated in sections 254,

243, 247 and 233 Cr. P.C.

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J] RIGHT TO HAYS NOTICE Of THE CHARG 4

4

Sections 211,212, 213 Cr. P.c. deal with change.

A charge is a written notice of the precise and specific

accusation against accused persons. Its object is to warn the

accused of the case he is to answer (Srikantiah -Vs- State of Mysore,

AIR, 1958, SC 672).

An accused is entitled to know with the greatest precision and

particularity the acts said to have been committed and the section of

the penal law infringed, otherwise he must be seriously prejudiced in

his defence.

The charge shall also contain such particulars of the manner in

which the alleged offence was committed.

KJ RIGHT TO TEST THE EVIDENCE FOR THE

PROSECUTION BY MEANS OF CROSS
EXAMINATION f

Such rights of the accused have been emboided in Sections

231 (2), 246 (4) (5) & (6) and 254 Cr. P.C.

U RIGHT TO GET AN OPPORTUNITY FOR

EXPLAINING AWAY EVIDENCE IN COURT :

The object of the section 313 Cr. P.c. is to establish a direct

dialogue between the court and the accused, brushing aside all third
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parties, such as counsel, witnesses and the like. Its object is to give
an opportunity to the accused to explain any circumstances
appearing in the evidence against him (Ajmer Singh - Vs. State of
Punjab (1953) S.C. R 418 (427). Refusal by the accused to answer or
silence cannot establish his guilt.

Section 315 of Cr. P.C. empowers the accused to be a

competent witness. It gives the accused the option of exercising
himself as an witness for the defence.

Ml RIGHT TO MOVE AT LEAST ONE HIGHER COURT

IN CASE Of CONVICTION OR REFUSAL OF BAIL s

Such rights have enumerated in section 389 and 439 Cr. P.C.

Ml RIGHT MOT TO BE PRESENTED FOR CERTAIN

OFFENCES t
Section 167 (5) provides “if any case triable by a Magistrate as
a Summons case, the investigation is not concluded within a period of
six months from the date on which the accused was arrested, the
Magistrate shail make an order stopping further investigation into the
offence under the officer making the investigation satisfies the
Magistrate that for special reasons and in the interests of justice the
continuation of the investigation beyond the period of six months is
necessary. However, section 167 (6) is an exception.
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Section 468 provides as to the bar to taking cognisance after

lapse of period of limitation.

O] RIGHT TO BE HEARD ON THE QUESTION OF

SENTENCE BEFORE THE SENTENCE IS PASSED %
*

Section 235 (2) and 248 (2) Cr. P.c. have given such rights to

the accused persons.

The court should collect materials necessary to help award a

just punishment. The social back ground and the personal factors of

the accused are very relevant. The Judges must make a genuine

effort to elicit from the accused all information bearing a sentence.

P3 RIGHT OF THE ARRESTED PERSON MOT TO BE

SUBJECT TO UNNECESSARY RESTRAINT s

Section 49 of Cr. P.C. provides “The person arrested shaii not

be subjected to more restraint than is necessary to prevent his

escape.

Q] RIGHT TO HAVE HIMSELF MEDICALLY EXAMINED

rOli *

For evidence to disprove the commission of offences by him for

establishing commission of offence against his body by any other

person (Section 54 Cr. P.C.)

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R] RIGHT TO BE TRIED BY AM INDEPENDENT AMD

IMPARTIAL JUDGE t

Section 191 is based on the principle that the prosecutor

should not be the Judge. The accused has been given the right to be

tried by a Magistrate other than the one who took cognisance under

section 190(1) (C).

Section 479 prohibits a Judge or Magistrate to try a case which

he is either (1) a party or (ii) personally interested, except with the

permission of the appellate court, it is based on the principle that no

man should be judge in his own cause.

SI RIGHT TO SUBMIT WRITTEN ARGUMENTS AT

CONCLUSION OF THE TRIAL IN ADDITION TO
ORAL SUBMISSION s cssetion 314)

Tl RIGHT TO FAIR AND SPEEDY INVESTIGATION AND

TRIAL (SECTION 309) «

Reasonable expeditious trial is the right of the accused, it is

aiso essential so that where baii is refused the accused have not

remain in Jail ionger than is absolutely essential. The object is to

avoid loss of time and unnecessary harassment to the accused (State

of Maharastra - Vs. Rasiklal (1978) Cr. L.J. 809 (Bom) D.B.

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Ui NO INFLUENCE BY MEANS OF ANY PROMISE OR

THREAT i

Or otherwise, shall be used to an accused person to induce

him to disclose or withhold any matter within his knowledge (Section

316).

Any confession made under such inducement would be

inadmissible (Section 24, 28, 29 of the evidence Act).

V] RIGHT TO APPEAL IN CASE OF CONVICTION s

Sections 374, 379 and 380 Cr. P.c. deal with the rights of the

accused regarding appeal in case of conviction.

WJ RIGHT NOT TO BE IMPRISONED UPON

CONVICTION IN CERTAIN CIRCUMSTANCES s

Section 360 empowers the court to deal with leniently with a

person who has committed an offence for the first time by releasing

him on probation of good conduct instead of giving punishment in

order to give him a chance of reforming himself and to protect him for

being corrupted and turned into a regular criminal by association with

hardened criminal in jail.

This section applies both young and adult offenders.

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INDIAN EVIDENCE ACT, 1872 t

The accused persons have got certain rights under the

provisions of the Indian Evidence Act, 1872. Now we shall discuss

about the said rights. Rights of the accused under the provisions of

the Indian Evidence Act, 1872 are as follows

U RIGHT TO HAVE THE BENEFIT OF THE

PRESUMPTION OF INNOCENCE TILL HIS GUILT IS
PROVED (SECTIONS IOI TO I04) ;

The onus of proof lies upon the prosecution. However, there

are some exceptions. A onus of proof means the duty of establishing

a case.

It is the cardinal principle of iaw that it is for the prosecution

and prosecution alone to prove aii the ingredients of the offence with

which the accused has been charged.

The accused is not bound to open his lips to enter upon his

defence unless and untii the prosecution has discharged the burden

which lies upon it and satisfactorily proved the guilt of the accused

(Behram Klurshid - Vs. State, AIR 1955 SC 123).

One must take greatest possible care before convicting an

accused, who is presumed to be innocent till the contrary is clearly

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established which burden is always, in the accusatory system on the

prosecution (H.P. Administrator - Vs. Om Prakash, AIR 1972, SC 975).

Accused persons conduct of silence cannot be a substitute for

proof of guilt where the prosecution evidence as a whole is unrealistic

and cannot be accepted as correct (Zwinglee Ariel - Vs. State, AIR

1954, SC 15).

RIGHT TO ■XAMI ME Trl PROSECUTIONS *

%

Witness

Under section 138 of the Indian Evidence Act the accused

persons has right to examine the prosecution’s witness. It is called

cross examination, cross examination follows immediately after the

examination in chief, unless the court for some reasons postpones it.

The testimony of a witness is not legal evidence unless it is

subject to cross examination.

The object of cross examination are

i] To destroy or weaken the evidentiary value of the

witness of his adversary.

ii] To elicit facts in favour of the cross examining lawyer’s

client from the mouth of the witness of the adversary
party.
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iii] To show that witness is unworthy of belief by impeaching

the credit of the said witness.

Confession of the accused is inadmissible in evidence in

certain cases

Section 20 of the Evidence Act provides that confession by

accused while in custody of police not to be proved against him

unless it is made in the immediate presence of a Magistrate.

Section 24 of the Evidence Act provides that confession caused

by inducement, threat or promise, irrelevant in criminal proceedings.

Section 25 provides that no confession made to a Police Officer

shall be proved as against a person accused of any offence.

Section 126 (Privilege) the communications between accused

and his lawyer are privileged and confidential.

JUVENILE OFFENDERS

In India, special provisions regarding Juvenile offenders have

been enacted. There was no single country wide legislation on

Juvenile Justice. In order to combat this problem Juvenile Justice

Act, 1986 was passed.

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JUVENILE JUSTICE ACT. 1936

It extends to the whole of India except the State of J & K.

Delinquent Juvenile means a juvenile who has been found to

have committed arpffence [Section 2(e)],

Juvenile means a boy who has not attained the age of sixteen

years or a girl who has not attained the age of eighteen years [Section

2(h)]. Age of the Juvenile accused at the time of commission of

offence is relevant for attracting the provisions of the act anc not the

age at the time of trial (Dilip Saha -Vs- State of W.B. AIR 1978, Cal

539).

CRIMINAL LIABILITY Of JUVSMILS OFfSNDSR s

Section 82 of Indian Penal Code lays down that “nothing is an

offence which is done by a child under 7 years of age”.

Section 83 of Indian Penal Code provides “nothing is an offence

which is done by a chiid above seven years of age and under twelve

who has not attained sufficient maturity of understanding to Judge of

the nature and consequences of his conduct on that occasior.

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JUVENILE COURT t

The State Government has power to constitute Juvenile Courts

for exercising the powers conferred on such courts in relation to

delinquent juveniles under this act (Section 5).

SPECIAL HOMS s

The state government may establish and maintain as many

special homes as may necessary for the reception of delinquent

juvenile under this act.

RIGHTS Of JUVENILE DELINQUENT IN INDIA s

1] When the police takes a juvenile in custody the former must

produce the letter before a Magistrate within 24 hours (time for
Journey excluded) under section 57 of Cr. P.C.

2] Juveniles delinquent are entitled to medical treatment.

3] A juvenile is entitled to be released on. bail with or without

surety. A juvenile cannot be detained in jail or in police station.

He should be sent to an observation Home or a place of safety

for such period during the pendency of the enquiry.

43 Where a juvenile is arrested, the Officer-ln-charge of the Police

Station to which the juvenile is brought shall, as soon as may
be after the arrest inform the parent or guardian of the juvenile
(Section - 19).
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5] No delinquent juvenile shall be sentenced to death or

imprisonment or committed to prison in default of payment of
fine or in default of furnishing security. But juvenile court may
send the delinquent juvenile to a safe custody (Section - 22).

6] No juvenile shall be charged with or tried for, any offence

together with a person who is not a juvenile (Section - 24).

The main draw back of the Act is that it curtails the right of

representation through a lawyer in the case of juvenile offenders. It

violates in provision of Article 22(1) of the Constitution. Furthermore,

the Magistrates of the Juvenile Courts do not possess sufficient

knowledge about child psychology, child care etc. Number of

qualified probation officers are inadequate in India.

LEGAL AID *

The legal services authorities Act, 1987 (as amended by the

legai services authorities (Amendment) Act 1994) has been enacted in

order to provide free and competent legal services to the weaker

sections of the society to ensure that opportunities for securing justice

are not denied to any citizen by reason of economic or other

disabilities.

This act extends to the whole of India except the State of

Jammu and Kashmir. Under section 12 of the said Act, the following

persons are entitled to legal services

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a] A member of a scheduled caste or scheduled tribe.

b] A victim of trafficking in human beings or beggar as
referred to in article 23 of the Constitution.
c] A woman or a child,
d] A mentally ill or otherwise disabled person.
e] A person under circumstances of under served want
such as being a victim of a mass disaster, ethnic
violence, caste atrocity, flood, drought, earth-quake or
industrial disaster, or
f] An industrial work men, or
g] In custody, including custody in a protective home within
the meaning of clause (g) of section 2 of the immoral
traffic (prevention) Act, 1956, or in a juvenile home within
the meaning of clause (j) of section 2 of the Juvenile
justice Act, 1987 or in a psychiatric hospital or
psychiatric Nursing Home within the meaning of clause
(g) of section 2 of the Mental Health Act, 1987 or
h] In receipt of annual income less than rupees nine
thousand or such other higher amount as may be
prescribed by the State Government, if the case is
before a court other than the Supreme Court, and less
than rupees twelve thousand or such other higher
amount as may be prescribed by the central
Government, if the case is before the Supreme Court.

In West Bengal “Any citizen of India where annual income from

ail sources does not exceed Rs. 15,000/= such higher amount as may
be notified by the State Government from time to time shall be
entitled to legal services under clause (h) of Section 12 of the Act.
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SECTION - 13 t
Section 13(1) provides that persons who satisfy all or any of the
criteria specified in section 12 shall be entitled to receive legal
services provided that the concerned authority is satisfied that such
person has a prima facie case to prosecution or defend.

An affidavit made by a person as to his income may be

regarded as sufficient for making him eiigibie to the entitlement of
legal services under this act unless the concerned authority has
reason to disbelieve such affidavit.

PROBLEMS OF THE ACCUSED PERSONS IN OUR

COUNTRY i
Grievances of the accused persons against the police
authorities :

Most of the Human Rights violations take place due to the

police atrocities. Amnesty international report (1992) shows that
number of death in police custody in India during year 1985 to 1991
was 415.

The majority of police officers in our country obstruct the

accused persons from establishing contact with their relatives, friends
after arrest. Therefore, accused persons have to spend a day or so in
the police lock up even for the simple reason.
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After arrest, suspects are not properly informed about their

rights.

Apparently, Police authorities in our country are interested in a

higher rate of convictions for statistical purposes and not in the

conviction of the real offenders.

In order to achieve the goal, they use third degree method to

exact confessions. Though it is considered that third degree method

is opposed to human rights. And it is punishable under section,

section 330 I.P.C. As a matter of fact police officers do not know the

science of interrogation. So, they want to exact confession his using

third degree method.

in order to exact confessions, the police use physical harm to

the accused persons. As a result several accused persons became

its victims.

The alleged methods of third degree includes hanging people

upside down, severe beating, burning and applying heavy rollers to

the victims legs, electric shocks, spraying of chilli powder in eyes and

secret parts of the accused persons, beating of feet by a stick, puiiing

of nails, deprivation of food and water.

interrogation at a stretch without food and sleep amount to

third degree.
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There are also instances of custodial death and rape. There is

no lady police in many police stations. Woman are beaten, kicked
and molested by male police.

Police lock ups are like pigeon hole without proper light, air and
sanitation. There is no medical facility as well. No interrogation room
in police station. There is no sitting arrangements. Accused persons
are not provided with mattresses in lock up. in a small lock up
several accused persons are kept.

GRIEVANCES AGAINST EXECUTIVE i

Legal aid remains on paper. More money spent on
committees, reports and seminars than on iegai aid itself, legal aid is
not available when a person is accused of economic offence or
offences relating to prostitution or child abuse.

One form of terrorism perpetrated by the State against

offenders is to detain them indefinitely in custody as under trials. The
majority of the under trials are charged with petty offences like theft of
a bicycle, watch etc.

There are cases in which the accused persons may be

acquitted by courts, yet there may be departmental action against
such people.
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GRIEVANCES AGAINST LOWER JUDICIARY t

High baii amounts are imposed upon the indigent accused

persons. There is tendency to refuse baii petition. Poverty-stricken

judgement debtors are jailed. Sometimes bail is granted with

condition that accused persons shall not leave the country. It causes

harm for getting an employment abroad.

The provisions in respect of more human sentences contained

in section 235 (2) and section 248 (2) of Cr. P.C. are over looked.

Remand is done as a matter of routine work compensation is

rarely awarded. No interpreter in the court to assist the accused

persons.

No sufficient sitting arrangement in the court room. As a result

accused persons have to stand on the dock for a long time. There is

scarcity of drinking water, urinals etc. in the court compound.

publicity *

Publicity is likely to cause prejudice to the interests of the

accused persons. Such as his reputation, privacy etc. It also causes

adverse presumption against the accused persons. On the other

hand when an accused persons is acquitted, no paper publish that

news for* it is not economically important for them.

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DELAY AND PRE-TRIAL DETENTION t

Thousands of criminal cases remain pending for years for the

following reasons

a] Insufficient criminal courts. There is only one judge for

80,000 people in India.

b] Failure of the investigating officers to present themselves

for their examination in court. The strength of
experienced investigating officer is inadequate.

c] Non service of summons and warrant of arrest by the

concerned police stations.

d] Non supply of relevant papers and other requirement in

the courts,

e] Government doctors and other experts do not turn up to

the court to tender evidence.

f] Witnesses are reluctant to depose for various reasons.

g] Lack of transport facilities and modern equipments.

Pre-trial detention is not desirable. Nevertheless, majority of

the accused persons are detained in custody in our country.

According to the third report of the National Police Commission

(1980) that 60% of the arrests by the police are either unnecessary or

unjustified.

In india, half of its population is living behind the poverty line

and over 95% of the person wrongfully confined belong to this

category.
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The grave consequences of pre-trial detention are follows

a3 Accused persons are preventing from the preparation of

their defence.

b) Accused persons loose their jobs. And in some cases

they are suspended.

c3 Arrest and detention destroys privacy, it curtails freedom

of movement, requires separation from family. It causes
impediment to enjoy political and economic rights.

d] Accused persons loose their reputation, status and

prestige.

UNEQUAL SATTLE t

The prosecution (state) has available force of trained

investigators and can utilise state supported expert, witness, and

laboratories facilities. It has legal powers to obtain information before

trial. Only prosecution has the power to investigate. The prosecution

may spend money from the state exchequer to defeat the accused

persons.

On the other hand the defence frequently consists of

inexperienced counsel in criminal law. Poor can not afford much to

appoint eminent criminal lawyers for defence.

So, in any criminal trial between the Government and a citizen

is obviously unequal. This fight between two an equal powers is what

is called injustice administration of law.

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ROLi Of THE JUDICIARY t

Any person may by a fake of fate, become an accused

persons. They are considered as innocent. The Supreme Court of

India has given some historic judgements in order to widen the rights

of the accused persons. These are as follows

INFORMATION !

In Sheela Barse - Vs. State of Maharashtra (AIR 1983, SC 378)

it was held that as soon as a person is arrested the police must

inform his relative or friend whom he would like to be informed about

his arrest and the police should get in touch with such relative or

friend.

In Joginder Kumar - Vs. - State of U.P. (1994) 4 SCO 260, it was

heid that arrestee has right to have his friend, relative or some other

known person informed about his arrest. The police officer must

make an entry in his diary about the person who was so informed.

And the Magistrate must be satisfied about compliance with these

requirements in ali cases of arrest.

In D.K. Basu - Vs. State of West Bengal, 1966 (1) Crimes (S.C.)

at page 2497, the Apex court has given the following directions which

are to be followed by police for preserving and protecting Human

Rights of the arrestee.

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1 ] Identification Madge -

a] The police men while arresting the suspect or while

conducting interrogation thereafter must have a
visible badge.

b] The badge must clearly show the correct and

accurate name and designation of such police men.

2] Arrest Memo and attesting witnesses -

a] The particulars of all such police men who handed

interrogation of the arrestee must be recorded in a
register.
b] The police shall prepare a memo of arrest at the
time of arrest.
c] The arrest memo shall be attested by at least one
witness.
d3 The attesting witness may be either a member of
the family of the arrestee.
e] in the alternative, the attesting witness may be a
respectable person of the locality from where the
arrest is made.
f] The arrest memo shall contain the day, date, time
and place of arrest.
g] It shall be counter signed by the arrestee.

3] lnfoi'mation to friend -

It the arrest memo attesting witnesses is not the relative or

friend of the arrestee then the person so arrested or detained in a

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police station or interrogation centre or other lock up shall be entitled

to pass on information of his arrest or detention by the police to his
one friend or relative or any other person known to him or having
interest in his welfare. The police has to pass on this information as
soon as practicable. The information must include place of arrest or
detention.

4] Telegraphic massage -

If the friend or the relative of the arrestee lives out side the
district or town then the arresting police man should telegraphically
inform the concerned police station through the legal aid organisation
of that district the day, date, time and place of arrest and custody or
detention within 8 to 12 hours after his arrest.

SJ Right of the Arrestee -

As soon as any person is arrested or detained by the police, it

is the duty of the police to tell the arrested person that he has right to
pass on information of his arrest or detention to his friend or relative.

6/ IHary Entry -

At the place of detention an entry must be made in the diary

stating following particulars -

a] The fact of arrest.

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b] Name of his friend or relative who has been

informed about the arrest.

c) Names and particulars of the police men having

custody of the arrestee.

7] Physical Examination -

It the arrestee at the time of his arrest request to have his

physical examination, then he must be examined by the arresting

police men and a “inspection Memo” be prepared and minor/major

injuries, if any, on his body be recorded at the time of his arrest. The

memo must be signed by the police men causing arrest. This copy of

the memo must be given free and forth with by the police to the

arrestee.

8] Panel of Doctors -

The director, health Services of every state and Union

Territories must prepare a panei of approved and trained doctors for

every District and all Tehsiis of such districts.

The police men should get the arrestee medically examined

from the panei doctors every 48 hours during detention in custody.

9/ Information to Magistrate, copies of ail documents

including memo of arrest must be sent to the nearest concerned

Magistrate.
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10] Meeting with lawyer -

The arrestee must be permitted to meet his lawyer during the

interrogation though not through out interrogation.

11] Police Control rooms -

The Government should provide police control room at all the

district places and state Head Quarters.

12] Notice Board -

a] The police men causing arrest must inform a I police

control rooms within 12 hours after arrest, the fact of
arrest and the place of custody of the arrestee.

b] All police control rooms, after receiving such

information must display it on a conspicuous notice
board of the control room.

PRESUMPTION Of INNOCENCE s

It has been held that under-trial persons is entitiec to be

presumption of innocence (Gurbaksh - Vs. State of Punjab, AiR 1980,

SC 1632).

HAND CUffINO t

Hand cuffing is an act against all norms of decency and may

be used only as a matter of last resort for ensuring security Prem -

Vs. Delhi Administration (1980)3, SC 526.)

 153

In State of Maharashtra - Vs. Ravikant (1991),2 SC. 373) -

under-trial prisoner was handcuffed taken through the streets in a

procession by police during interrogation. The court held that article

21 of the Constitution was violated. The court directed the state to

pay compensation of Rs.10,000/- to the accused persons.

The summit court directed the Union of Indian to frame rules or

guide lines within three months detailing the circumstances in which

hand cuffing of an accused can be restored to.

Aeltamesh Rani - Vs. Union of India, W.P. (Cri) No. 163 of 1988.

SAIL t

The refusal to grant bail without reasonable ground amounts to

deprivation of personal liberty. Sunil Gupta - Vs. State of U.P. (1990),

2 SCC. 119.

The court held that right to bail as a part of “personal liberty”

under Article 21 of the Constitution. (Bahu Singh - Vs. State of U.P.

AIR, 1985 SC (527).

In Hitendra Vishnu Thakur - Vs. State of Maharashtra (1994) 4,

SCC 602, the S.C. held that interrogation must be completed within

the specified period under law and where the same is not completed

within the specified period the accused person would acquire a right

to seek to be released on bail. That the court further held that

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application for bail is to be decided on its own merit and not by the

gravity of the case.

THIRD DEGREE s

A right of an accused person not to be subjected to third '

degree or uncivilised methods to extort confession (Sunil Batra - Vs.

Delhi Administration (ii) AIR, 1980 SC 1579).

The court condemned ail forms of tortures upon an accused

person while in police custody (Khalri -Vs- State of Bihar, AiR 1981,

SC 608).

LEGAL AID i

In M.H. Hoskot - State of Maharashtra, AIR 1978 SCI5%$ the

apex court neld that the right to legal aid is one of the ingredients of

fair procedure.

in Khetri -Vs- State of Bihar, AIR 1981 SC 928, the Supreme

Court held that the right to free legal services was clearly an essential

ingredient cf reasonable fair and just procedure for a person accused

persons of an offence and it was implicit in Article 21 of the

Constitution. And such right comes as soon as the accused persons

are arrested and produced before the Magistrate.

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In Sheela Barse -Vs- State of Maharashtra, AIR 1983 SC 378,

the Supreme Court held that legal assistance to poor or indigent

accused person is a Constitutional imperative mandate not oniy by

Article 39 - A but also articles 14 and 21 of the Constitution.

In Ranjan Dwivedi - Vs - Union of India AIR, 1983, SC 624, the

court made it incumbent upon the state to provide the accused

persons with a counsel of equal standing as a matter of procedural

fair play.

In Suk Das -Vs-- Arunachal Pradesh, AIR 1986 SC 991 where it

was observed that the poor persons have right to get legal aid even if

it is not demand by him. Failure to provide free legal aid to an

accused person vitiates the trial even where legal aid was not

demand by the accused persons.

SPEEDY TRIAL :
An accused person has right to a speedy trial (Kadre -Vs-State

of Bihar, AIR 1981, SC 939). The right to speedy trial was brought

under focus in the public interest litigation by common cause.

In common cause -Vs- Union of india (1996) 4, SCC 33) the

Supreme Court directed to release of under trials languishing in Jails

for long period and iaid down guidelines for the benefit of under trials.
 156

These directions were further clarified in another order reported in

1996 (B) SC RLE 557.

In Hussainera Khatoon -Vs - State of Bihar, AIR 1979 SC 1360,

the Supreme Court held that a speedy trial is the essence of criminal

justice, delay in a trial constitutes a denial of justice. The right to a

speedy trial was held to be implicit in Article 21 of the Constitution.

The bail system was also described as oppressive and

discriminatory against the poor. Therefore, accused persons should

not necessarily insist for bail with sureties. It was also held that the

State is obliged to provide speedy trial under section 309 of Cr. P.C.

1973.

The court further held that continued detention of under-trial

prisoners could not be justified as they had already in jail for a period

longer than what they would have been sentenced to suffer, if

convicted.

Large number of people were detained in jails for petty

offences, some times for seven years of more without trial. Referring

to section 169 of Cr. P.C. 1973 the court directed the release on

personal bond of those who were in prison for seven years or more.

(Mathew Areeparmtii, and others -Vs-State of Bihar and others, M.P.

(Cri) Nos. 371 - 375 of 1983).

 157

In Santosh De -Vs- Archane Guha (AIR 1954 SC 1229);

prosecution was pending for 14 years and not a single witness had

been examined. The prosecution failed to explain the delay. The

court held the right of the accused person to speedy trial has been

infringed and the proceedings were quashed on that ground.

UNSOUND PERSON t

In Veena Sethi -Vs- State of Bihar (W.P.(Cri) No.73 of 1982) the

court directed that those are unsound mind were to be put in special

institutes.

COMPENSATION- i

Rudal Sah -Vs- State of Bihar, AIR 1983 SC 1086. Where a

person who had been illegally detained in prison for 14 years after his

acquittal by the competent court. The court directed for

compensation.

Saheli -Vs- Commissioner of Police, AIR 1990 SC 513.

In this case a 9 years old child died due to assault and beating

by Police Officer. The Supreme Court held that the State is liable to

pay compensation in case of police atrocities and accordingly it

directed to State Government to pay a sum of Rs.75,000/- as

compensation.
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Nilabati Behara -Vs- State of Orissa, AIR 1993 SC 1960.

Where the deceased was taken to police custody and next day

his body was found with injuries.

The State Government was directed to pay Rs.1,50,000/- as

compensation to the deceased’s mother.

The principle of Sovereign immunity inapplicable in this case.