Position of

Assignme
Poor
and
Indigent
nt on
person under
Public
Criminal
Internatio
Justice
System
Submitted By- Mohd Abid
Hussain Ansari

GUIDED BY- PROF.

GHULAM YAZDANI

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Acknowledgement
Writing the Acknowledgement for the project in the subject of Law
and Poverty is a fairly simple undertaking for anyone who has
attended even a single class of Prof. GhulamYazdani. The clarity, the
command and the humour he brings into every class is infectious,
making any student believe that there can be no easier subject that
the Public International Law and that anyone can master it, provided
he gives the subject the respect and recognition that Sir himself gives
the subject.
Furthermore I would like to thank all those people who gave the
subject their time and wrote books which I eventually referred. In this
matter, I would particularly like to thank UpendraBuxi, whose book
was precise and the largest reference in this work.
My father, a professor with large access to books of value has been of
great help to me.
Without the contribution of the above said people I could have never
completed this project.

Mohd.AbidHussain Ansari
B.A.LL.B (Hons) 4th Semester
2nd Year

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Table of Contents
1.
2.
3.
4.
5.
6.
7.
8.
9.

Introduction to Poverty Law...3

Defining Poverty.....4
Introduction.8
Criminal Justice System10
Components...14
Suggestions17
Indigent person..20
Views of High Court.25
Bibliography..28

Introduction to Poverty Law

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Poverty law is the body of law which concerns the rights of low-income individuals and families to
access government benefits.
The term poverty law describes the broad areas of law and legal needs which arise by virtue of an
individual's or a group's poverty. Generally, poverty law deals with issued aimed at eliminating
poverty in the population and addressing the needs of the poor. Issues include housing and
homelessness, access to medical care, and educational opportunities, among others. The U.S.
Census Bureau defines the level of poverty used by the federal government across all states through
the official measure of poverty established by the Office of Management and Budget (OMB).
Due process rights require the poor to have access to the justice system, therefore, public lawyers
are appointed for those who can't afford a lawyer and are possibly faced with incarceration. Many
filing fees required by the justice system may be waived by submitting a poverty affidavit. There are
also numerous state and federal government benefits available to those who have a maximum
income level at or below a defined poverty line.

Defining Poverty A Historic Perspective

Historically, poverty has been related to income, which remains at the core of the concept today.
However, income is itself no less problematic a concept than poverty; it too has to be carefully
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and precisely elaborated. Other resources such as assets, income in kind and subsidies to public
services and employment should be imputed to arrive at a comprehensive but accurate measure of
income.People can be said to be in poverty when they are deprived of income and other resources
needed to obtain the conditions of lifethe diets, material goods, amenities, standards and services
that enable them to play the roles, meet the obligations and participate in the relationships and
customs of their society.
The determination of a poverty line cannot be based on an arbitrary selection of a low level of
income. Only scientific criteria independent of income can justify where the poverty line should be
drawn. The multiplicity and severity of different types of deprivation can constitute those criteria.
The key is therefore to define a threshold of income below which people are found to be thus
deprived.The measure of multiple deprivations must be decided on the basis of evidence about each
and every sphere of the range of social and individual activities people perform in fulfillment of
individual and family needs, and social obligations. The degree of material and social deprivation
relative to income is the basis for ascertaining the threshold amount of income ordinarily required
by households of different compositions to surmount poverty. The application of this methodpermits
analysis of trends in poverty in and across different countries.
The understanding and relief of poverty has been a major human preoccupation for many centuries.
Since the 1880s, three alternative conceptions of poverty have evolved as a basis for international
andcomparative work. They depend principally on the ideas of subsistence, basic needs and relative
deprivation.
The subsistence idea was a result of work prompted by nutritionists in Victorian England. Families
were defined to be in poverty when their incomes were not sufficient to obtain the minimum
necessaries for the maintenance of merely physical efficiency. A family was treated as being in
poverty if its income minus rent fell short of the poverty line. Although allowance was made in
calculating the income level for clothing, fuel and some other items, this allowance was very small,
and food accounted for much the greatest share of subsistence.
These ideas have influenced scientificpractice and international and nationalpolicies for over 100
years. Examples arethe statistical measures adopted todescribe social conditions, at first within
individual countries but later with wide application by international agencies such as the World
Bank. The idea of subsistence was freely exported to member States of the former British Empire,
e.g. for setting the wages of blacks in South Africa and framing development plans in India and
Malaysia. In the United States, subsistence remains the basis of the official measure of poverty.
The use of subsistence to define poverty has been criticized because it implies that human needs
are mainly physical rather than also social needs. People are not simply individual organisms
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requiring replacement of sources of physical energy; they are social beings expected to perform
socially demanding roles as workers, citizens, parents, partners, neighboursand friends. Moreover,
they are not simply consumers of physical goods but producers of those goods and are also expected
to act out different roles in their various social associations. They are dependent on collectively
providedutilities and facilities. These needs apply universally and not merely in the rich industrial
societies. The lack of elaborate social institutions and services in low-income countries and their
scant resources direct our attention to whether or not the most basic material subsistence needs can
be met in those countries. Meeting such needs as the satisfaction of hunger is widely accepted as a
priority. Such needs have been included in the categorization of absolute poverty, which however
would better be labeled extreme or severe.
Physical needs are subject to rapid change because of shifts in social activity and demand patterns.
The need for material goods, their relevance to the society of the day, and even the goods
themselves, are not, after all, fixed or unvarying. And the amount and kind, and thus the cost, of
food depend on work, climate and social customs. So material needs turn out to be socially
determined in different ways.By the 1970s a second formulationthat of basic needsbegan to
exert wide influence, supported strongly by the ILO. Two elements were included. First, minimum
consumption needs of a family: adequate food, shelter and clothing, as well as certain household
furniture and equipment. And second, essential services provided by and for the community at large,
such as safe water, sanitation, public transport and health care, education and cultural facilities. In
rural areas, basic needs also include land, agricultural tools and access to farming.
The basic needs concept is an extension of the subsistence concept. In addition to material needs
for individual physicalsurvival and efficiency, there are the facilities and servicesfor health care,
sanitation and educationrequired by local communities and populations as a whole.
The attractions to some of the subsistence concept included its limited scope and therefore limited
implications for policy and political action. In the past and into the present, it seemed easier to
restrict the meaning of poverty to material and physical needs than also to include the nonfulfillment of social roles, given the overriding emphasis of individualism.
The basic needs concept, on the other hand, aimed at establishing at least some of the
preconditions for community development. It played a prominent part in national development plans
fostered by the international community, especially UN agencies. In the late 20th century, a third
social formulation of the meaning of poverty was developed: relative deprivation. Relativity as
suggested above, applies to both income and other resources and also to material and social
conditions. In the 21st century societies are passing through such rapid change that a poverty
standard devised at some historical date in the past is difficult to justify under new conditions.
People living in the present are not subject to the same laws, obligations and customs that applied to
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a previous era. Globalization is connecting peoples and their standards of living, while inequalities
within and between countries are growing. There are, therefore, major objections to merely updating
any historical benchmark of poverty on the basis of some index of prices. Over many years the
relativity of meanings of poverty has come to be recognized, in part if not comprehensively.
Adam Smith, for example, recognized the ways in which necessities were defined by custom in
the early part of the 19th century, citing the laborers need to wear a shirt as an example. It is not
enough to describe poverty as a condition applying to those whose disposable income is low relative
to that of others. This is to fail to distinguish conceptually between inequality and poverty. Poor
people are not just the victims of a misdistribution of resources but, more exactly, they lack, or are
denied, the resources to fulfill social demands and observe the customs as well as the unfolding
laws, of society. This criterion lends itself to scientific observation, measurement and analysis of
multiple deprivations. However, as with any formulation, there are problems in defining poverty
operationally. Under the relative deprivation approach, a threshold of income is envisaged,
according to size and type of family, below which withdrawal or exclusion from active membership
of society is common.
Establishing that threshold depends onaccumulating the available evidence, andwhether sociological
and economic approaches may be reconciled. Such reconciliation is some distance away. Despite
the influence of AmartyaSenscontributions to development studies for two decades, his ideas on
capabilities have not reached the mainstream of poverty analysis among economists, and have been
said to leave important gaps. There are forms of impoverishment, for example through social
exclusion, when individual capabilities to overcome poverty are not at issue. Those capabilities are
also identified as originating within the individual rather than with groups or nations collectively or
being determined externally by market conglomerates. Again, the capabilities approach does not
seem to address the structural sources of the capabilities of the rich and powerful. Capabilities are
different from perceptions. These sometimes offer a valuable correction to independent analysis of
behaviour and living conditions. In an attempt to define poverty operationally, the World Bank in
1990 adopted a rule-of-thumb measure of US$ 370 per year per person at 1985 prices (the dollar a
day poverty line) for poor countries. This crude indicator may have been a convenient interim
measure for practical purposes, a short-term expedient, but has not turned out to be of continuing
value. Eliminating poverty requires better definition and measurement. We need (i) an international
poverty line that defines a threshold of income (including in kind) required in different countries to
surmount material and social deprivation; (ii) regular reports on the extent of poverty in every
country, based on measures ofboth absolute i.e. extreme and overall poverty, as agreed in
1995 at the World Summit for Social Development. Thus, antipoverty policies must be monitored
and evaluated regularly and on a much larger scale by governments, by the United Nations, by the
international financial institutions and by other relevant international agencies.

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 A Human condition characterized by sustained or chronic deprivation of the resources,

capabilities, choices, security and power necessary for the enjoyment of an adequate standard of
living and other civil, cultural, economic, political and social rights.
# UNDP - 2001

Introduction
The Indian Penal Code came into force in 1862; as amended, it continued in force in1993. Based on
British criminal law, the code defines basic crimes and punishments, applies to resident foreigners
and citizens alike, and recognizes offenses committed abroad by Indian nationals.The penal
code classifies crimes under various categories: crimes against the state, the armed forces, public
order, the human body, and property; and crimes relating to elections, religion, marriage, and health,
safety, decency, and morals. Crimes are cognizable or non-cognizable, comparable to the distinction
between felonies and misdemeanors in legal use in the United States. Six categories of punishment
includefines, forfeiture of property, simple imprisonment, rigorous imprisonment with hardlabor,
life imprisonment, and death. An individual can be imprisoned for failure to payfines, and up to
three months' solitary confinement can occur during rare rigorousimprisonment sentences.
Commutation is possible for death and life sentences.Executions are by hanging and are rare--there
were only three in 1993 and two in 1994--and are usually reserved for crimes such as political
assassination and multiple murders.Courts of law try cases under procedures that resemble the
Anglo-American pattern. Themachinery for prevention and punishment through the criminal court
system rests on theCode of Criminal Procedure of 1973, which came into force on April 1, 1974,
replacing acode dating from 1898. The code includes provisions to expedite the judicial
process,increase efficiency, prevent abuses, and provide legal relief to the poor. The basicframework
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of the criminal justice system, however, was left unchanged.Constitutional guarantees protect the
accused, as do various provisions embodied in the1973 code. Treatment of those arrested under
special security legislation can depart fromthese norms, however. In addition, for all practical
purposes, the implementation of thesenorms varies widely based on the class and social background
of the accused. In mostcases, police officers have to secure a warrant from a magistrate before
institutingsearches and seizing evidence. Individuals taken into custody have to be advised of
thecharges brought against them, have the right to seek counsel, and have to appear before
amagistrate within twenty-four hours of arrest. The magistrate has the option to release theaccused
on bail. During trial a defendant is protected against self-incrimination, and onlyconfessions given
before a magistrate are legally valid. Criminal cases usually take placein all trail, although in limited
circumstances closed trials occurs. Procedure exists for appeal to higher courts.
India is a Union of States and is governed by a written constitution which came into force on 26
November 1949. India consists of 25 states and 7 Union Territories. Due to its colonial heritage,
India follows the Anglo-Saxon common law justice system. Article 246 of the Constitution provides
for three lists which are enumerated in 7th Schedule of the Constitution. List-1 is the Union List
which enumerates the subjects on which the Parliament of India has exclusive power to make the
laws. List-2 is the State List which enumerates the subjects on which the legislature of a state has
the power to make laws. The third list is the Concurrent List which enumerates subjects on which
both the IndianParliament and the Legislatures of the state can enact laws, but if there is any conflict
or inconsistency between the laws made by the Indian Parliament and the legislature of any state,
the law enacted by the Union Parliament will have overriding effect. Importantly, the Public
Order and the Police are enumerated in Entries 1 and 2 respectively of the State List, meaning
thereby that all matters relating to the organisation, structure and regulation of the police force fall
within the ambit of the states. However, the Criminal Lawsand the Criminal Procedure are
enumerated in List-3, i.e., the Concurrent List. Both the Indian Parliament and state legislatures
have the powers to make substantive and procedural laws incriminal matters. The states can also
enact laws on local and special subjects. Thus, under the constitutional scheme, the basic criminal
laws, i.e., the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act have
been enacted by the Indian Parliament. The Indian Police Act has also been enacted by the
IndianParliament. The states have also enacted laws on several local and special subjects. Some
states in India have also enacted their own Police Acts. The Indian Police Act, 1861, however, is the
basic statutory law governing the constitution and organisationof police forces in the states. Article
14 of the Constitution provides for equality before law. Article 21 guarantees protection of life and
personal liberty. Article 20 provides protection against double jeopardy. No person can be
prosecuted and punished for the same offence more than once. Article 39-A mandates the states to
secure equal justice for all. It also provides for free legal aid in respect of indigent persons. Article

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50 is important as it provides for the separation of the judiciary from the executive in the public
services of states.
DISTRICTTHE BASIC UNIT OF ADMINISTRATION
In each state, there are a number of districts. The District is governed by a triumvirate consisting of
the District Magistrate, the District Superintendent of Police and the District and Sessions Judge.
The District Magistrate is the chief executive officer of the district and he belongs to the
Administrative Service. The police in the district functions under his general direction and control.
The DistrictSuperintendent of Police is the head of the police force in a district. He is responsible
for the prevention and detection of crime and the maintenance of law and order, subject to such
directions as may be issued by the District Magistrate. In practical terms, the District Magistrate has
no role in criminal investigations. The District and Sessions Judge is the head of the judiciary in a
district. He belongs to the higher state judicial service. The entire magistracy in the district functions
under his control and supervision.
CRIMINAL JUSTICE SYSTEM
The criminal justice system has four important components in India, namely, the Investigating
Agency (Police), the Judiciary, the Prosecution Wing and the Prison and Correctional Services. A
brief mention of their structure and their roles is made here below:
Investigating Agency
The police forces are raised by the state under the Indian Police Act, 1861. The basic duty of the
police forces is to register cases, investigate them as per the procedure laid down in the Code of
Criminal Procedure (to be referred to as the Code hereinafter) and to send them up for trial. In
addition to the State Police Forces, the Government of India has constituted a central investigating
agency called the Central Bureau of Investigation (CBI) under the special enactment called the
Delhi Special Police Establishment Act, 1946. It has concurrent jurisdiction in the matters of
investigation in the Union Territories. It can take up the investigation of cases falling within the
jurisdiction of the states only with the prior consent of the state governments concerned. There are
certain other specialised investigating agencies constituted by the central government, in various
departments, namely, the Customs Department, the Income Tax Department, the
EnforcementDirectorate, etc. They investigate cases falling within their jurisdictions and prosecute
them in the courts of law. Thus, India has both the state police investigating agencies and central
investigating agencies as mentioned above. CBI, however, is the primary investigating agency of the
central government.
The Courts
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The cases instituted by the state police and the Central Investigating Agency are adjudicated by the
courts. We have a four tier structure of courts in India. At the bottom level is the Court of Judicial
Magistrates. It is competent to try offences punishable with imprisonment of three years or less.
Above it is the Court of Chief Judicial Magistrates, which tries offences punishable with less than 7
years. At the district level, there is the Court of District and Sessions Judge, which tries offences
punishable with imprisonment of more than 7 years. In fact, the Code specificallyenumerates
offences which are exclusively triable by the Court of Sessions. The highest court in a state is the
High Court. It is an appellate court and hears appeals against the orders of conviction or acquittal
passed by the lower courts, apart from having writ jurisdiction. It is also a court of record. The law
laid down by the High Court is binding on all the courts subordinate to it in a state.
At the apex, there is the Supreme Court of India. It is the highest court in the country. All appeals
against the orders of the High Courts in criminal, civil and other matters come to the Supreme
Court. This Court, however, is selective in its approach in taking up cases. The law laid down by the
Supreme Court is binding on all the courts in the country.
Prosecution Wing
It is the duty of the state to prosecute cases in the courts of law. The state governments have
constituted cadres ofpublic prosecutors to prosecute cases at various levels in the subordinate courts
and the High Court. I will revert to the subject later when I discuss the structure and functioning of
the prosecution wings in the states and the central governments.
Prisons and Correctional Services
This is the fourth important element in the criminal justice system. The prisons in India are under
the control of the state governments and so are the correctional services.
CONSTITUTION AND STRUCTURE OF PROSECUTION WING
As stated above, the police is a state subject in our constitutional scheme. The primary investigative
unit is the police station in India. After due investigation, charge-sheets are filed in the courts
concerned as per the provisions of the Code. The cases are prosecuted by the public prosecutors
appointed by the state governments. Prior to the enactment of the Criminal Procedure Code of 1973,
public prosecutors were attached to the police department and they were responsible to the District
Superintendent of Police. However, after the new Code of Criminal Procedure came into force in
1973, the prosecution wing has been totally detached from the police department. The prosecution
wing in a state is now headed by an officer designate as the Director of Prosecutions. In some of the
states, he is a senior police officer and in others, he is a judicial officer of the rank of District and
Sessions Judge. He is assisted by a number of Additional Directors, Deputy Directors and
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AssistantDirectors, etc.At the district level, there are two levelsof public prosecutors, i.e., the
AssistantPublic Prosecutor, Grade-I and the Assistant Public Prosecutor, Grade-II.
They appear in the Courts of Magistrates. The Director of Prosecutions is responsible for the
prosecution of cases in the Magisterial Courts. In Sessions Courts, the cases are prosecuted by
Public Prosecutors. The District Magistrate prepares a panel of suitable lawyers in consultation with
the Sessions Judge to be appointed as public prosecutors. The state government appoints public
prosecutors out of the panel prepared by the District Magistrate and the Sessions Judge. It is
important to mention that public prosecutors who prosecute cases in the Sessions Courts do not fall
under the jurisdiction and control of the Director of Prosecutions. The state government also
appoints public prosecutors in the High Court. The appointments are made in consultation with the
High Court as per section 24 of the Code. The most senior law officer in a state is the Advocate
General who is a constitutional authority. He is appointed by the governor of a state under Article
165. He has the authority to address any court in the state.
Under section 24 of the Cr.P.C., the central government may also appoint one or more public
prosecutors in the High Court or in the district courts for the purpose of conducting any case or class
of cases in any district or local area. The most senior law officer of the Government of India is the
Attorney General for India, who is a presidential appointee under Article 76. He has the authority to
address any court in the country. The Assistant Public Prosecutors, Grade-I and Grade-II, are
appointed by a state government on the basis of a competitive examination conducted by the State
Public Service Commission. They are law graduates falling within a specified age group. They join
as Assistant Public Prosecutors Grade-II and appear in the Courts of Magistrates. They are
promotedto Assistant Public Prosecutors, Grade-I, and generally appear in the Courts of Chief
Judicial Magistrates. On further promotion, they become Assistant Directors of Prosecution and can
go up to the level of Additional Director of Prosecution. They,however, do not appear in the
Sessions Court. As mentioned above, the District Magistrate in consultation with the Sessions Judge
prepares a panel of lawyers with a minimum of 7 years of experience to be appointed as public
prosecutors. They are so appointed by the state government. They plead the cases on behalf of the
state government in the Sessions Courts. They have tenure appointments and are not permanent
employees of the state government. They are paid an honorarium (not salary) by the state
government. There is now a move to integrate the aforesaid two cadres of public prosecutors with
the object to improving the promotion prospects of law officers who join at the lowest level, i.e.,
Assistant Public Prosecutor, Grade-II. The idea is to promote the Assistant Public Prosecutors,
Grade-I to Additional Public Prosecutor or Public Prosecutor, as the case may be, to plead cases in
the Sessions Court. If it comes about, this will obliterate the need for appointing lawyers from the
open market as public prosecutors to plead cases in the Sessions Courts.

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What is Criminal Justice System?

Criminal justice is the system of practices and institutions of governments directed at upholding
social control, deterring and mitigating crime, or sanctioning those who violate laws withcriminal
penalties and rehabilitation efforts. Those accused of crime have protections againstabuse of
investigatory and prosecution powers.The criminal justice system descends from the British model.
The judiciary and the bar are independent although efforts have been made by some politicians to
undermine the autonomy of the judiciary. From about the time of Indira Gandhi's tenure as prime
minister, the executive has treated judicial authorities in an arbitrary fashion. Judges who handed
down decisions that challenged the regime in office have on occasion been passed over for
promotion, for example. Furthermore, unpopular judges have been given less-than-desirable
assignments. Because the pay and perquisites of the judiciary have not kept up with salaries and
benefits in the private sector, fewer able members of the legal profession have entered the ranks of
the senior judiciary.
Despite the decline in the caliber and probity of the judiciary, established procedures for the
protection of defendants, except in the case of strife-torn areas, are routinely observed. The penal
philosophy embraces the ideals of preventing crime and rehabilitating criminals.Criminal justice is
the system of practices, and organizations, used by national and local governments, directed at
maintaining social control, deter and controlling crime, and sanctioning those who violate laws with
criminal penalties.
The criminal justice system consists of three main parts:
Legislative (create laws)
Adjudication (courts); and
Corrections (jails, prisons, probation and parole).
In the criminal justice system, these distinct agencies operate together both under the rule of lawand
as the principal means of maintaining the rule of law within society.

Criminal Law and Procedure

Under the constitution, criminal jurisdiction belongs concurrently to the centralgovernment and the
states. The prevailing law on crime prevention and punishment is embodied in two principal
statutes: the Indian Penal Code and the Code of CriminalProcedure of 1973. These laws take
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precedence over any state legislation, and the statescannot alter or amend them. Separate legislation
enacted by both the states and the centralgovernment also has established criminal liability for acts
such as smuggling, illegal useof arms and ammunition, and corruption. All legislation, however,
remains subordinate tothe constitution.

Components of criminal justice system:

Law enforcement:

Law enforcement Law enforcement officers are

responsible for such legal duties as: Receiving and documenting reports of
crime within the agency's jurisdiction; investigating the reported crimes;
Gathering and holding evidence of the crime; Arresting the alleged
offender; and Conducting follow-up investigations as needed.

Prosecution:

The role of the Prosecutor begins once the police has conducted the

investigation and filed the charge sheet in the court. He/she has no role to
play in the investigation. The Prosecutor must conduct the prosecution on
behalf of the State. As an officer of the court, it is his/her duty to act
impartially and present the full and material facts, witnesses and evidence
before the court to enable thecourt to decide the case. Prosecution The
offender's rights in the court proceedings include: The right to have legal
representation; the right to a speedy trial; the right to be informed
regarding the proceedings; and the right to be heard.

Judiciary:

Judiciary The judge makes the final decision, or ruling, at each stage. The
judge will: Decide the release status of an offender; decide whether or not
to accept a guilty plea or a negotiated plea by an offender; oversee the trial
where the indicted offender is determined to be guilty or not guilty; and
determine the final sentence of the court for a convicted offender.The
judge is like an umpire in a game and conducts the trial impartially and in
an open court. The judge hears all the witnesses and any other evidence
presented by the prosecution and the defence. The judge decides whether
the accused person is guilty or innocent on the basis of the evidence
presented and in accordance with the law. If the accused is convicted, then

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the judge pronounces the sentence. He may send the person to jail or
impose a fine or both,depending on what the law prescribes.

Corrections:

Corrections For the duration of the sentence, the corrections staff

provides such legal duties as: Maintains the security of the facility;
Provides internal supervision of inmates, which may include counseling or
educational programs; Provides medical care for inmates; and Processes
inmates for release from the institution, either on parole (conditional
release) or when the inmate has served the maximum time he/she must
serve before release (unconditional release).

Criminal justice process:

Inquisitorial process and Adversary process. The investigative stage runs by the police the
adjudicatory stage run by the judges and lawyers. Article 22 of the Constitution and criminal law
guarantee to every arrested person the following Fundamental Rights: The Right to be informed at
the time of arrest of the offence for which the person is being arrested The Right to be presented
before a magistrate within 24 hours of arrest. The Right not to be ill-treated or tortured during arrest
or in custody. Confessions made in police custody cannot be used as evidence against the accused. A
boy under 15 years of age and women cannot be called to the police station only for questioning.
ARTICLE 22 OF THE CONSTITUTION.
The Supreme Court of India has laid down specific requirements and procedures that the police and
other agencies have to follow for the arrest, detention and interrogation of any person. These
areknown as the D.K. Basu Guidelines and some of these include: The police officials who carry out
the arrest or interrogation should wear clear, accurate and visible identification and name tags with
their designations; A memo of arrest should be prepared at the time of arrest and should include the
time and date of arrest. It should also be attested by at least one witness who could include a family
member of the person arrested. The arrest memo should be counter-signed by the person arrested.
The person arrested, detained or being interrogated has a right to inform a relative, friend or wellwisher. When a friend or relative lives outside the district, the time, place of arrest and venue of
custody must be notified by police within 8 to 12 hours after arrest. GUIDELINES BY D.K. BASU

Objectives of criminal justice system:

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The main objectives of the criminal justice system can be categorized as follows:

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.
Rights of victims:
The U.N declaration recognized four major components of the rights of victims: - Access to justice
and fair treatment Restitution Compensation assistance.

Steps to Provide Assistance to Crime

Victims in India:
The natural sequence of rendering meaningful justice, social and legal should proceed as follows:
Fair, considerate and sympathetic treatment by the police, hospitals, welfare organizations,
prosecution and courts; Prompt restitution/compensation to the victim for the injury or loss suffered
by using the existing provisions; and Security to victims and potential victims against victimization
in future.

Suggestions:
Suggestions to fill the loopholes and improve criminal justice administration system in India:Simplification of Rules and Procedures Repealing of Outdated Laws Criminal Law Amendment
Police as Investigative Agency Judicial Accountability Appointment, Promotion and Transfer of
Judges Average Judge-Population Ratio. Simplification of Rules and Procedures Repealing of
Outdated Laws Criminal Law Amendment Police as Investigative Agency Judicial Accountability
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Appointment, Promotion and Transfer of Judges Average Judge-Population Ratio Perjury and
Contempt Of Court Efficient Public Prosecutor Transparency of Court Proceedings Time Bound
Filling of Vacant Post in the Judiciary.

THE DUTIES AND FUNCTIONS OF A PUBLIC PROSECUTOR

Public prosecution is an important component of the public justice system. Prosecution of an
offender is the duty of the executive which is carried out through the institution of the Public
Prosecutor. The public prosecutor is appointed by the State, and he conducts prosecution on behalf
of the State. While it is the responsibility of the public prosecutor to see that the trial results in
conviction, he need not be overwhelmingly concerned with the outcome of the trial. He is an officer
of the court and is required to present a truthful picture before the court. Even though he appears on
behalf of the State, it is equally his duty to see that the accused does not suffer in an unfair and
unethical manner. The public prosecutor,though an executive officer, is an officer of the court and is
duty bound to render assistance to the court. The public prosecutor represents the State and the State
is committed to the administration of justice as against advancing the interest of one party at the cost
of the other. He has to be truthful and impartial so that even the accused persons receive justice. The
public prosecutor plays a dominant role in the withdrawal of a case from prosecution. He should
withdraw from prosecution in rare cases lest the confidence of public in the efficacy of the
administration of justice be shaken. The Supreme Court of India has defined the role and functions
of a public prosecutor in Shiv NandanPaswan vs. State of Bihar& Others (AIR 1983 SC 1994) as
under:
a) The Prosecution of an offender is the duty of the executive which is carried out through the
institution of the Public Prosecutor.
b) Withdrawal from prosecution is an executive function of the Public Prosecutor.
c) Discretion to withdraw fromprosecution is that of the PublicProsecutor and that of none else
andhe cannot surrender this discretionto anyone.
d) The Government may suggest to the Public Prosecutor to withdraw a case, but it cannot compel
him and ultimately the discretion and judgment of the Public Prosecutor would prevail.
e) The Public Prosecutor may withdraw from prosecution not only on the ground of paucity of
evidence but also on other relevant grounds in order to further the broad ends of public justice,
public order and peace.

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f) The Public Prosecutor is an officer of the Court and is responsible to it.

ROLE OF A PUBLIC PROSECUTOR IN INVESTIGATIONS
Investigations in India are conducted as per provisions of Chapter XII of the Code. Cases are
registered under section 154 of the Code. A police officer is competent to investigate only
cognizable offences. Non-cognizable offences cannot be investigated by the police without
obtaining prior orders from the courts. A police officer can examine witnesses under section 161.
However, the statements are not to be signed by the witnesses. Confessions of accused persons and
statements of witnesses are recorded under section 164 of the Code. A police officer has the power
to conduct searches in emergent situations without a warrant from the court under section 165. A
police officer is competent to arrest an accused suspected to be involved in a cognizable offence
without an order from the court in circumstances specified in section 41 of the Code. He is required
to maintain a day to day account of the investigation conducted by him under section 172. After
completion of investigation, a police officer is required to submit a final report to the court under
section 173. If a prima facie case is made out, this final report is filed in the shape of a charge-sheet.
The accused has, thereafter, to face trial. If no cogent evidence comes on record, a closure report is
filed in the Court. The public prosecutor plays the following role at the investigation stage:
(1) He appears in the court and obtains arrest warrant against the accused;
(2) He obtains search warrants from the court for searching specific premises for collecting
evidence;
(3) He obtains police custody remand for custodial interrogation of the accused (section 167);
(4) If an accused is not traceable, he initiates proceedings in the court for getting him declared a
proclaimedoffender (section 82) and, thereafter,for the confiscation of his movableand immovable
assets (section 83);and
(5) He records his advice in the police file regarding the viability/advisability of prosecution.
After the completion of investigation, if the investigating agency comes to the conclusion that there
is a prima facie case against the accused, the charge-sheet is filed in the court through the public
prosecutor. It is to be noted that the opinion of the public prosecutor is taken by the police before
deciding whether a prima facie case is made out or not. The suggestions of the public prosecutor are
also solicited to improve the quality of investigation and his suggestions are generally acted upon.
However, the ultimate decision of whether to send up a case for trial or not lies with the police
authorities. In case there is a difference of opinion between the investigating officer and the public

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prosecutor as to the viability of the prosecution, the decision of the District Superintendent of Police
is final.

Indigent Person- Meaning

Indigent persons are those people that do not have financial means and are below a certain income
threshold (as defined by federal, state and local governments). Indigent persons are often thought of
as poor and living in poverty. Many public services are offered to the indigent population to ensure
that they receive basic services that are needed. Needy or impoverished. A defendant who can
demonstrate his or her indigence to the court may be assigned a court-appointed
attorney at public expense.
The concept is well explained by the Orissa high court in the case of MangluChattar v.
MaheshwarBhoi as follows, the tools of artisans are exempted from the attachment. In the instant
case according to the findings of the trial court, the appellant possessed of tools and weaving
materials and they get daily wages. Both these items are covered under the Section 60(1) of CODE
OF CIVIL PROCEDURE, 1908. There is no other evidence adduced from the side of the defendant
to show that the petitioners are possessed of any other property. Therefore there is no dispute about
the fact that the appellants are all weavers and their weaving materials consist of tools of artisans.
These properties are not to be taken into consideration to find out whether they will be able to pay
the court fee. So also the daily wages they get cannot be taken into consideration for the aforesaid
purpose. On the aforesaid analysis, it should be held that the appellants are indigent persons and,
therefore,
they
should
be
allowed
to
sue
as
indigent
person.

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The Supreme Court of India has settled the issue that, whether a public company can file a suit as an
indigent person while holding the judgement of UOI v. Khader International Construction, held that,
the word person has to be given its meaning in the context in which it is used. It refers to a person
who is capable of filling a suit and this being a benevolent provision; it is to be given an extended
meaning. Therefore, a public limited company, which is otherwise entitled to maintain suit as a legal
person, can every well maintain application under Order XXXIII, Rule 1, CODE OF CIVIL
PROCEDURE, 1908.
The word person mentioned in Order XXXIII includes not only a natural person but other judicial
person also.

Court Costs and Fees

In federal and state judicial systems nationwide, indigent persons are often entitled to a waiver of
court fees and costs if they petition the court and qualify for such a waiver. Each judicial system has
its own rules for applying for a waiver of fees and costs as well as its own threshold for what
constitutes being indigent. If you need a waiver of court filing fees and costs, contact the court
clerk's office and ask where you can locate information on how to apply for a waiver.
Cost Where Indigent Person Succeeds
Where the plaintiff succeeds in the suit, the court shall calculate the amount of court fees which
would have been paid by the plaintiff if he had not been permitted to sue as an indigent person; such
amount shall be recoverable by the state government from any party Ordered by the decree to pay
the same and shall be a first charge on the subject matter of the suit.Such a decree is executed by the
collector to institute new proceedings to pursue for the recovery of the amount of court fee from the
person or property liable to pay the court fee, that too as arrears of land revenue hence, separate
recovery proceedings cannot be pursued in execution proceedings.But the situation is different when
we talk of Indigent person, in a situation where a suit is filled by the indigent person for realization
of full contractual amount from government. Decree was passed in favour of plaintiff. Direction was
issued to defendant State Government to pay cost of plaintiff as liability was imposed on defendant
to pay court fee payable to Government, hence, proceedings initiated against plaintiff for recovery
of court fee was not maintainable.

Legal Representation
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Indigent persons should not feel as though they have no options for securing legal representation.
Indigent persons may not be able to afford pricey attorneys, but that does not mean that legal
services are unavailable to this segment of the population. Not only do many attorneys provide pro
bono services for cases they feel obliged for moral reasons without regard for payment of services,
but many organizations exist whose purpose is to foster legal services for indigent persons. Finally,
each state has an office devoted to ensuring that indigent people have access to legal representation;
this office is informally known in many jurisdictions as the public defender's office.
The Supreme Court in Mathai M. PaikedayVs. C.K. Antony has discussed the concept of 'indigent
person' as defined under Order 33 of the Code of Civil Procedure, 1908. While discussing the
relevant judgments on the subject, the court held as under;9. Order 33 of the Code of Civil
Procedure deals with suits by indigent persons whereas Order 44 thereof deals with appeals by
indigent persons.
Order 33 Rule 1 of the Code of Civil Procedure provides for instituting of suits by indigent person,
stating: "1. Suits may be instituted by indigent person-- Subject to the following provisions, any suit
may be instituted by an indigent person.
Explanation I.--A person is an indigent person1. If he is not possessed of sufficient means (other than property exempt from attachment in
execution of a decree and the subject-matter of the suit) to enable him to pay the fee
prescribed by law for the plaint in such suit, or
2. Where no such fee is prescribed, if he is not entitled to property worth one thousand rupees
other than the property exempt from attachment in execution of a decree, and the subjectmatter of the suit.
Explanation II.--Any property which is acquired by a person after the presentation of his application
for permission to sue as an indigent person, and before the decision of the application, shall be taken
into account in considering the question whether or not the applicant is an indigent person.
Explanation III.--Where the plaintiff sues in a representative capacity, the question whether he is an
indigent person shall be determined with reference to the means possessed by him in such
capacity."
11. Order 44 of Code of Civil Procedure provides for instituting an appeal as an indigent person.
The provision reads:-

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1. Who may appeal as an indigent person - Any person entitled to prefer an appeal, who is
unable to pay the fee required for the memorandum of appeal, may present an application
accompanied by a memorandum of appeal, and may be allowed to appeal as an indigent
person, subject, in all matters, including the presentation of such application, to the provisions
relating to suits by indigent person, in so far as those provisions are applicable."
2. The object and purpose of Order 33 and Order 44 of the Code of Civil Procedure are to
enable a person, who is ridden by poverty, or not possessed of sufficient means to pay court
fee, to seek justice. Order 33 and Order 44 of the Code of Civil Procedure exempts such
indigent person from paying requisite court fee at the first instance and allows him to institute
suit or prosecute appeal in forma pauperis.

In A.A. HajaMuniuddin v. Indian Railways, (1992) 4 SCC 736, this Court has observed: 5 Access
to justice cannot be denied to an individual merely because he does not have the means to pay the
prescribed fee."
In Union Bank of India v. Khader International Construction, (2001) 5 SCC 22, this Court has
held:
"20. Order 33 CPC is an enabling provision which allows filing of a suit by an indigent person
without paying the court fee at the initial stage. If the plaintiff ultimately succeeds in the suit, the
court would calculate the amount of court fee which would have been paid by the plaintiff if he had
not been permitted to sue as an indigent person and that amount would be recoverable by the State
from any party ordered by the decree to pay the same. It is further provided that when the suit is
dismissed, then also the State would take steps to recover the court fee payable by the plaintiff and
this court fee shall be a first charge on the subject- matter of the suit. So there is only a provision for
the deferred payment of the court fees and this benevolent provision is intended to help the poor
litigants who are unable to pay the requisite court fee to file a suit because of their poverty.
Explanation I to Rule 1 Order 33 states that an indigent person is one who is not possessed of
sufficient amount (other than property exempt from attachment in execution of a decree and the
subject-matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit.
It is further provided that where no such fee is prescribed, if such person is not entitled to property
worth one thousand rupees other than the property exempt from attachment in execution of a decree
and the subject-matter of the suit he would be an indigent person."
In R.V. Dev v. Chief Secretary, Govt. of Kerala, (2007) 5 SCC 698, this Court has held:

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"8. Order 33 of the Code of Civil Procedure deals with suits by indigent persons whereas Order 44
thereof deals with appeals by indigent persons. When an application is filed by a person said to be
indigent, certain factors for considering as to whether he is so within the meaning of the said
provision are required to be taken into consideration therefor. A person who is permitted to sue as an
indigent person is liable to pay the court fee which would have been paid by him if he was not
permitted to sue in that capacity, if he fails in the suit at the trial or even without trial. Payment of
court fee as the scheme suggests is merely deferred. It is not altogether wiped off."
The concept of indigent person has been discussed in Corpus JurisSecundum (20 C.J.S. Costs ' 93)
as following:
What constitutes indigency: The right to sue in forma pauperis is restricted to indigent persons. A
person may proceed as poor person only after a court is satisfied that he or she is unable to
prosecute the suit and pay the costs and expenses. A person is indigent if the payment of fees would
deprive one of basic living expenses, or if the person is in a state of impoverishment that
substantially and effectively impairs or prevents the pursuit of a court remedy. However, a person
need not be destitute. Factors considered when determining if a litigant is indigent are similar to
those considered in criminal cases, and include the party's employment status and income, including
income from government sources such as Social Security and unemployment benefits, the
ownership of unencumbered assets, including real or personal property and money on deposit, the
party's total indebtedness, and any financial assistance received from family or close friends. Not
only personal liquid assets, but also alternative sources of money should be considered."
The eligibility of person to sue in forma pauperis has been considered in American Jurisprudence
(20 Am. Jur. 2d Costs ' 100) as thus:
"100. Eligibility to sue in forma pauperis; generally: The burden of establishing indigency is on the
defendant claiming indigent status, who must demonstrate not that he or she is entirely destitute and
without funds, but that payments for counsel would place an undue hardship on his or her ability to
provide the basic necessities of life for himself or herself and his or her family. Factors particularly
relevant to the determination of whether a party to a civil proceeding is indigent are:
1. the party's employment status and income, including income from government sources such
as social security and unemployment benefits;
2. the ownership of any unencumbered assets, including real or personal property and monies on
deposit; and finally
3. the party's total indebtedness and any financial assistance received from family or close
friends. Where two people are living together and functioning as a single economic unit,
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whether married, related, or otherwise, consideration of their combined financial assets may
be warranted for the purposes of determining a party's indigency status in a civil proceeding."

To sum up, the indigent person, in terms of explanation I to Rule 1 of Order 33 of the Code of Civil
Procedure, is one who is either not possessed of sufficient means to pay court fee when such fee is
prescribed by law, or is not entitled to property worth one thousand rupees when such court fee is
not prescribed. In both the cases, the property exempted from the attachment in execution of a
decree and the subject-matter of the suit shall not be taken into account to calculate financial worth
or ability of such indigent person. Moreover, the factors such as person's employment status and
total income including retirement benefits in the form of pension, ownership of realizable
unencumbered assets, and person's total indebtness and financial assistance received from the family
member or close friends can be taken into account in order to determine whether a person is
possessed of sufficient means or indigent to pay requisite court fee. Therefore, the expression
"sufficient means" in Order 33 Rule 1 of the Code of Civil Procedure contemplates the ability or
capacity of a person in the ordinary course to raise money by available lawful means to pay court
fee.
View of High Courts
This issue was also there for consideration before the Madras High court in Chandrareka v.
Secretary of State of India, a division bench held that the plaintiff in that particular suit who
obtained a decree for Rs. 100 being a moiety of the property claimed is liable to pay court fee with
regard to the sum of Rs. 100 and the first defendant who contested the suit is liable to pay court fee
for the balance amount under section 411 of CODE OF CIVIL PROCEDURE, 1908 of 1881.
This question also came before the Allahabad High Court in the case of Ganga Dahal v. M.T.
Gaura, a division bench of the Allahabad High court has held that under Rule 10 of Order 33 of the
CODE OF CIVIL PROCEDURE, 1908, the legislature deals with the case of a pauper plaintiff who
succeeds in the suit and under Rule 11 with the case of a pauper plaintiff who fails in the suit. There
is no separate provision for a case like the present, in which a pauper plaintiff has partly succeed and
partly failed. Presumably the court is intended to deal with such a case by combining the provision
of the two Rules. It is clear that, if plaintiff who is permitted to institute the suit as an indigent
person succeeded in the part in a suit, the court fee payable by him for the suit, the court fee payable
by him on the plaint or memorandum of appeal has to be apportioned between the plaintiff and the
defendant in the proportion to the success of the each party. Therefore the liability of the plaintiff
who sued as indigent person or in the forma pauperis to pay the court fee if he succeeds entirely in
the suit and to pay the court fee in proportion to the success if he succeeds partly in the suit under
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the provision of Rule 10 and to pay the entire court fee if he fails in the suit under Rule 11 of the
Order 33 of the present code and under the analogous provisions for the previous code is well
established.
Victims the poor relation
At various points the criminal justice system articulates its fairness to offenders. A reasonable
amount of money is put into the processing, the management, the rehabilitation and the punishment
of offenders. There is an aspiration that offenders should have an end-to-end service, a paid and
professionalized workforce, and a legal system and legal aid budget that provides legal
representation and rightly attempts to prevent innocent people being wrongly found guilty or
unjustly punished. It is, of course, not a perfect system, but its aspirations are right and correctly
founded upon the principles of justice. Without seeking to undermine these fundamental principles,
there are, in contrast, inequities in the way the criminal justice system treats victims.
After a trial
Being a victim in an unbalanced system does not end on conviction or after an acquittal; the wheels
of justice continue to turn and again victims are often an afterthought. There are around 2,000
appeals per year against sentence, of which 75% are successful and around 500 appeals against
conviction, of which 43% are successfuly. Yet there is no requirement for even the prosecution, let
alone victims or their families, to be informed about an application for leave to appeal. I have met
victims families who read about an offenders appeal in a newspaper.
Where a defendant is acquitted following a trial, there remains a victim or a bereaved family who
should be able, at the very least, to discuss with the CPS lawyers and the police why, in their view,
the acquittal may have occurred and what if any legal or investigative avenues remain available. I
met one bereaved mother who was refused a meeting with the CPS prosecutor after the defendant in
her daughters murder trial was acquitted. The Criminal Cases Review Commission rightly exists to
ensure that we mitigate against miscarriages of justice for defendants. It is worth noting that if
hundreds of cases are found to have got it wrong first time in theprosecutions favour then there are
likely to be at least similar numbers where it was adjudged wrongly in favour of the defence. It is
arguable that the Criminal Cases Review Commission could consider whether it has a role in
possible miscarriage of justice cases on behalf of victims or their families. And once a defendant is
convicted, it appears that despite the fact victims and their families are in some cases left carrying
an unimaginable burden for the rest of their lives, the support to them, which has been patchy to this
point,then drops off almost completely. Parole hearings consider whether or not to release offenders
back into the community. They do this based on assessments of a prisoners level of risk a
decision reached through an inquisitorial process weighing up the pros and cons. For victims, the
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early release of the person convicted of serious harm against them, and the conditions that might be
imposed upon his/her liberty, can be issues of great concern. And yet the system does not make it
easy for them or their families to have their voice heard in the weighing of the evidence. The parole
hearing will be held in a prison, often miles away from the victims home, yet they are not
guaranteed any practical help to get there, or emotional support to deal with such an intimidating or
frightening experience. Indeed they are not even necessarily allowed to take who they want into the
hearing (one woman whose daughter was murdered and whose body was never recovered was
initially not allowed to have her husband with her) or to have their statement read out unchallenged.

ROLE OF PUBLICPROSECUTORS IN NATIONALCRIMINAL JUSTICE POLICY

The laws are enacted by the legislature,enforced by the police, and interpreted bythe courts. Neither
the police nor theprosecution agency has any say in theformulation of laws. The number ofcriminal
laws is increasing by the day, butthe quality of drafting shows definitedeterioration and bristles with
avoidablevagueness in construction. It is felt that arepresentative each of the policedepartment and
the prosecution agencyshould be associated with the formulation/drafting of laws. Their field
experiencewould go a long way in improving thequality of laws enacted. Further, unlikethe police,
the prosecution agency does nothave a national level body to watch itsprofessional and service
interests. This isdue to the fact that prosecution agenciesare organized at the state level and not atthe
national level. Such an apex should beconstituted by the government.

SPEEDY TRIAL
The concept of speedy trial is enshrinedin Article 21 of the Constitution of India.
Article 21 reads as under:
No person shall be deprived of his lifeor personal liberty except according toprocedure established
by law.The Supreme Court in 1997 CrLJ, page195 has interpreted this Article to meanthat right of
speedy trial is also afundamental right. Undeniably, the trialsin India drag on for years together.
Thereare several agencies responsible for delays,namely, the police, the lawyers, the accusedand the
courts. All of them play acontributory role in the delays. While thepolice agency may be responsible
for 25 percent of delays, non-police agencies areresponsible for the rest of it. The publicprosecutor,
being an officer of the court, canplay an important role in ensuring speedytrial. It is his duty to see
that the adequatenumbers of witnesses are called at eachhearing and none of them goes
backunexamined. Similarly, he is to ensure thatthe documents are put up to the court intime. He has
also to ensure that policeofficers, who generally prevaricate inappearing in the courts, do appear as
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perthe schedule fixed by the court. A goodworking relationship with the court mayhelp in achieving
this end. Not muchcooperation can be expected from thedefence counsel as experience shows thathe
is more interested in the delays than inspeedy trial because delay means morehearings which, in
turn, means more feesfor him. This behaviour may be unethicalon his part, but this is the ground
reality.In this scenario, the role of publicprosecutor assumes special significance.
Justice begotten at a cost is justice lost. Justice is a natural right. It is the sine quanon and the raison
d\u2019etre of the social grouping. Justice in a social environment has to beas natural as sleep or
oxygen to a living being. Free and fair

Bibliography

Upendrabuxi- law and poverty

Development in India- Raja. Chelliah.
J.S. Gandhi- Law and Social Change
V.k.Gupta- prospective of human rights.

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