SYNOPSIS

ON

RIGHTS OF ACCUSED, UNDERTRIAL PRISONERS

AND CONVICTS UNDER THE CRIMINAL LAWS OF INDIA.
AN ANALYTICAL AND CRITICAL STUDY WITH REFERENCE
TO THEIR CONSTITUTIONALITY AND HUMAN RIGHTS
PERSPECTIVES.

Synopsis submitted for the registration of

Ph.D.
in the
FACULTY OF LAW,
SANT GADGE BABA AMRAVATI UNIVERSITY,
AMRAVATI.

Submitted by
Vijesh B. Munot

Under the guidance of

Dr. J. L. Aparajit
(Principal, Dr. Babasaheb Ambedkar Law College,
Main Branch, Nagpur.)

2006-2007 (July)
 RIGHTS OF ACCUSED, UNDERTRIAL PRISONERS AND
CONVICTS UNDER THE CRIMINAL LAWS OF INDIA.
AN ANALYTICAL AND CRITICAL STUDY WITH REFERENCE TO
THEIR CONSTITUTIONALITY AND HUMAN RIGHTS
PERSPECTIVES.

INTRODUCTION

Man is a social animal. He wants to live in society for better living. Man loves
a peaceful & harmonious life. For that he live in an organise society. The organise
Society is not different from the state. Every individual who live in the State, is
governed by the State.

As member of the State the law has attributed some rights & duties to every
man. These right & duties are essential for the man for his proper & fullest
development of personality. The right which are conferred on him are enforceable by
the court of law. Hence wherever there is violation of his right whether civil or
criminal, he wants justice through the court.
In our country the administration of justice is basically divided into two parts.
1) Administration of Civil Justice
2) Administration of Criminal Justice

Whenever a private right of individual is violated by another he suffers an

injury in the form of damage or loss to his property or person. This individual wants
the remedy and for that he goes to court & seek the remedy in the form of
compensation. So under administration of civil justice the ultimate purpose is to
provide compensation to the person, whose right is violated.

Under administration of criminal justice the ultimate purpose is to inflict

punishment on the wrongdoer. The purpose behind it is that the crimes & Criminal
tendencies are to be eradicated from the Society. Under administration of criminal
justice, the justice is dispense by the court to the victim of crime by taking revenge for
him and by punishing the wrongdoer, if he is found guilty.

On this backdrop, it needs to be stated that whenever person is an accused, is

arrested for the crime, is to be dealt with according to law and is not to be treated

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arbitrarily. It is long drawn experience of our society that a poor or indigent person
who is innocent and happens to come in to the clutches of police is being tortured in
trouble without any fault of his. This personal trouble or harassment should not be
caused to an individual. For that purpose law has provided some safeguards, securities
& protection by laying down the legislation. In other words whatever the rights which
are provided to an accuse by law are to be availed by the accused for getting
benefited. Similar is the situation with respect to under trial prisoners & convicts.
Whatever the rights are attributed to them are to be availed by them.
On this backdrop this topic is chosen by the researcher.

Common man in our country has not fully acquainted with his legal &
constitutional rights. This is also true for India. Moreover, Illiteracy in India prevails
over the majority of Population. Among the literate population, on prima facie, it
seems that legal literacy is negligiable & need not to be said about legal literacy of
illiterate population. Thus, legal knowledge about the rights of the persons is at
greater extents, not known the them.

Rights being immunities denote that there is a guarantee that certain things can
not or ought not to be done to a person against his will. According to this concept,
human being, including accused, suspect, under trial prisoners, detenue, convicts and
prisoners, by virtue of their humanity ought to be protected against unjust and
degrading treatment.

These are the people, though guilty or innocent find themselves helpless
before the officers of administration of justice.

"Power tends to corrupts and absolute power corrupts absolutely."

Lord Acton

In India and in most of the countries of the world, police force and jail
authorities remain in powerful position which tends them to abuse the rights of
accused, arrestees, under trial prisoners and convicts, or tends them to take bribe.
India, also for long time was suffered from Police State or Totalitarian State
condition, and position is still somewhat same.
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After the independence we have emerge the concept of welfare state in India, even
though for very extent our Police force and jail authority remains unaffected, with its
traditional attitude.

The rights of accused, arrestees, detinue, under trials, prisoners and convicts
have been secured by various criminal laws of India and also by Constitution of India.
The several Criminal laws of India such as Indian Penal Code 1860, Code of Criminal
Procedure 1973, Juvenile Justice Act 2000, Prisoners Act 1894, India Evidence Act
1872, Probation of Offender Act 1958, COFEPOSA Act 1974, NDPS & Jail Manual
of states, and Police manuals etc. are the protector of the rights of above classes.

Moreover, they have been held to have a number of rights as ingredient of

Right of Life and Personal Liberty, Right to Equality, Right to Freedom under
corresponding Articles 21,14 & 19 of Constitution of India. Besides, under its wide
interpretation of fundamental rights under chapter III of Constitution of India
Supreme Court pronounces certain rights. By a series of judgment regarding rights of
suspects, under trials, convicts & prisoners, the S.C. has fabricated Police & Prison
Jurisprudence. Certain rights have been made as components of Fundamental
Rights. In fact the court, through its judical pronouncement has made out a strong
case for prison reform and in the process it has shaped a code in this regard. But
legislation has passive attitude towards the codification of these rights, so also true for
its implementation.

Awareness about the rights of accused, under trial prisoners & convicts is
necessary to protect innocent citizen from being arrested & harassed by the police
merely on the suspicion complicity in an offence, to avoid executive highhandedness,
to safeguard the dignity & humanity of under trial prisoners & convicts.

In old days all the types of crimes where regarded heinous. There were no
scientific classification of crime and Criminals. There were no scientific methods of
investigation of crimes, procedure to determine guilt and fixed sort of punishment to
be given to the convicts. But the concept of crime is always changing so also the
concept of right changes according to time, situation & circumstances. In India Right
to Life & it's ancillary rights such as Right to Live with Human Dignity etc. are
recognised after the independence. Consequently though, the person is suspected
under trial prisoner or convicts have some inherent rights because of his humanity.
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 AIMS AND OBJECTIVES OF THE PROPOSED WORK

Criminal law and it's process can not be appreciated without some
understanding of the rights & protection given to the accused person not only during
the trial but also before and after trial. These rights and protections aim at providing a
fair trial to an accused persons so as to eliminate any possible abuse of process
resulting in miscarriage of justice. These rights includes right to be produce before the
magistrate (Article 22 of Constitution of India & section 76 of Cr. P.C.), right to bail
(1st schedule of Cr. P.C.), release on bond (section 440 (i) Cr.P.C.), right to counsel
and legal aid (Article 22 (3) and Article 39 - A of Constitution of India , also sections
303 and 304 of Cr.P.C.), The principle of Legality (Article 20), Principle of innocence
section 101 of Indian Evidence Act 1872, Right to speedy investigation and trial etc.

Our criminal justice system, even today, find itself helpless to provide cheap
and speedy justice. Even after six decades of independence no serious efforts have
been made to redraft Penal norms, redicalise punitive processes, humanize prison
houses and make antisocial & antinational criminals such as hoarders, smugglers, tax
evaders, black marketeers, white collar criminals etc. On the other hand whatever
legislation , piecemeal amendments, substitution and deletion that have taken place
during the last five- six decades to ameliorate the conditions of the downtrodden
masses, are all aimed protecting the interests of rich and bourgeoisie class.

Of course, judiciary in recent years has taken a lead & has come forward with
a helping hand to give some relief to the victim of criminal judicial system. For
instance, the landmark decision handed over by the Hon'ble Supreme Court in
Haskot1, Motiram 2 , Hussainara 3 Sunil Batra4 , Sheela Barse5 Charles Shobharaj6
, Nilabati Behra7 , D.K. Basu8 , etc. have depicted that despite the Constitutional
mandate and statutory guarantees, the legal rights even today remain not existence for
a large percentage of the illiterate, ignorant & poor population of the country.
_______________________________________
1 M.H.Haskot Vs.State of Maharastra A.I.R.1978 S.C. 1548
2 Motiram Vs. State of U.P. AIR 1978 S.C. 1594
3 Hussainara Khatoon Vs. State of Bihar (1980) S.C.C. 88)
4 Sunil Batra Vs. Delhi Administration AIR 1980 S.c. 1579
5 Sheela Barse Vs. State of Maha A.I.R. 1983 S.C. 378
6 Charles Shobharaj Vs. Supretendent, Central Jail A.I.R. 1978 1514
7 Nilabati Behara Vs. State of Orrisa (1993) 2 S. C.C. 746
8 A.I.R. 1997 S.C. 610

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 The problem of undertrial prisoners has assumed new proportion in recent
year. In India, there are many reasons such as poverty, illiteracy etc., of which under
trial prisoners, become prey easily. They are languishing in various jails in different
States for period much longer than the maximum term for which they could have been
sentenced, if convicted. Many of them are innocent persons who are cought in the
web of the law eagerly waiting for their trial date. It would be unjust and unfair to
deprive a person of his freedom and liberty and kept him in confinement, if his
presence in the court whenever required for trial, is assured. The plight of under trial
prisoners for the first time came to the notice of Supreme Court of India in
Hussainara Khatoon Vs. State of Bihar1.

In 1979 wherein it was disclose that thousands of under trial prisoners were
languishing in various jails in state of Bihar for periods longer than the maximum
terms for which they could have been sentenced , if convicted. While granting a
character of freedom for under trial who had virtually spent their period of sentence,
the court observed that their detention was clearly illegal and a blatant violation of
their fundamental right guaranteed under Article 21 of the Constitution of India. The
court further said that speedy trial is a constitutional mandate and the state connot
avoid its constitutional mandate and its constitutional obligation by pleading financial
or administrative inability. Despite the Supreme Court's landmark decision in
Hussainara Khatoon, the conditions of under trial in prison are no better and more
than a lakh of under trial prisoners are languishing in the prisons of India at present.
The provision of section 167 of the Code of Criminal Procedure, 1973 regarding time
limit for completion of police investigation and that of free legal aid to indigent and
poor under trial or liberalization of jail justice system etc. have not helped in
minimizing the number of under trial prisoners in Indian jails.

It is a well known dictum of traditional Hindu Dharma that "Hate the sin not
the sinner."The convicts, in the entire situation cannot be put at same place as most
of them became prey of their own destiny. Since from the old days prisoners have
some rights but powers to the public officials were very wide and still continuing
wide powers are enjoying by them at many instances. The rights of prisoners and
convicts are abused.
_______________________________
1 1980(1) S.C.C. 8891.
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 A prisoner does not cease to be a person inside a jail and is, as such, entitled to
receive a reasonably decent and civilized treatment in the prison.

There are certain legal and constitutional mandate which protect and safeguard
the rights and interests of the prisoners. The Prisons Act 1894, The prisoners Act
1900, The Transfer of Prisoners Act 1950, The Repatriation of Prisoners Act 2003,
The Repatriation of Prisoners Rule 2004, Jail Manuals of various States, India Penal
Code 1860, Code of Criminal Procedure 1973, Police Act, along with several
landmark verdicts of Hon'ble Supreme Court which gives rights against solitary
confinement, right to meeting with family member and friends, right to expression
and communication, right against inhuman treatment, right against delayed execution,
right against custodial torture in Prison, right against use of fetters.

There is, however, hardly any change in the conditions of the jail and the
attitude of jail administration and in spite of Constitutional mandate for speedy trial,
there are over two lack prisoners, convicts and under trials who are endlessly awaiting
an early hearing of their cases.1

But all of the above provisions failed to bring out any change in the conditions
of the jail and attitude of the jail Administration. More recently the Supreme Court,
in its landmark decision in Ramamurthy Vs State of Karnataka2 has identified nine
major problems which need immediate attention for implementing prison reforms.
The court observed that the present prison system is affected with the major problems
of -

(1) overcrowding (2) delay in trial (3) Torture and ill treatment (4) neglect
of health and hygiene (5) insubstantial food and inadequate clothing (6) Prison
vices (7) deficiency in communication (8) streaming of jail visits and
(9)management of open air prisons.

______________________________
1 "Humanising the prisons system" The times of India, 15 Jan 1997 p.11)
2 (1997) 2SCC642)

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 It also suggested replacing the archaic Prison Act 1894 with a new enlightened
statute, so that major problems are reduced in jail to the minimum possible extent and
cordial and friendly relationship is established between prisoners and jail staff. As
Kuldeep Singh and Hansaria JJ. said :

"Unless there is introspection on the part of all concerned with the

criminal justice system, issues relating to jail reform, improvement in the
prisoners condition, and better administration of justice will continue to remain
on paper. It is possible to reduce the backlog of criminal cases if the judiciary
and lawyers together resolve to refrain from unnecessary and repeated
adjournments."

Hence, at last, it can be concluded that there is need to improve the techniques
of handling the accused person, treating under trial prisoners and radically changing
the worse conditions of convicts by appraising the old one and comparing with
reformative works in other Countries and reconciling with human rights perspectives
and international covenants.

The aims and objectives of the proposed research is enumerated as follows -

1. The researcher ardent to point out all the rights which are available to accused,
under trial prisoners and convicts under the criminal laws of India, Constitution of
India Human Rights Jurisprudence and under the International obligation in the
Form of International Covenants.

2. The proposed research work aimed at finding the conditions of under trial
prisoners after the verdict in Hussainnara Khatoon.

3. The oppression and abuse of the powers by officers of administration of Justice

are done easily and frequently. The proposed work is aimed at finding the main
reasons behind it.

4. The thorough study of the criminal law of India, Constitution, Judicial

Pronouncement, Human Rights Jurisprudence and International Covenant
regarding the rights of accused, under trial prisoners and convicts would help at
knowing the practicalness of the problem, & bringing out the positive solutions.

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5. In this study we have to find out the awareness about these rights among the
accused, under trial prisoners and convicts and also in other members of the
society.

6. This research work includes visit jails, police stations and court of law, for the
appraisal of the present conditions about these rights prevailing therein.

7. The proposed research is to be done for bringing awakening in the awareness

about the rights of accused, under trial prisoners and convicts in them, social
organizations, and other members of the society.

8. There is need to improve the techniques of handling the accused persons,

treating under trial prisoners and radically changing the worst conditions of
convicts and prisoners at both administrative and legislative level.

9. Human Rights perspectives and International Obligations regarding these

rights with their effective implementation systems are very important to
protect and safeguard the rights and interest of the accused, under trial
prisoners and convicts.

10. Every effort should have to be made to avoid delay in investigation & trial
which is harmful not only to accused, under trial prisoners, but also to the
society.

11. The subject in the proposed work has gain the global phenomenon. Only
challenge posed to the society for the genuine implementation of these rights
without any discrimination. It is ardent desire of researcher that human
dignity which can clutch at the whim of administration should be protected &
safeguarded.
 ---9---

SCOPE & LIMITATIONS OF THE WORK

The rights of accused, under trial prisoners and convicts have global and
multidimensional aspect relating with human dignity. These rights should be
protected for securing and maintaining the human dignity and also protecting the
innocent persons. These rights should not be abused at the cost of administrative and
executive and whenever required needs and shall receive legislative and judicial
attention. The proposed research crystallize various aspects of rights of accused,
under trial prisoners and convicts which are necessary for the protection of basic
values cherished by the people of this country (India) since the Vedic times and they
are calculated to protect the dignity and create conditions in which all these people
can develop their personality to the fullest extent.

Under this work the following aspects shall be considered in depth, i.e.
Rights of accused, under trial prisoners & convict under criminal laws of India,
Constitution, International covenants, rights derived from judicial pronouncement and
its Human Rights Perspectives.

Findings and conclusions from empirical study & model forms of

questionnaires and its interpretation is the part of the propose work. This deals with
non-doctrinal aspect of proposed work. It includes practical visits to Jail, Police
Station, to find out practicalness of the problem and appraisal of present conditions in
jail and police station.

The most of the research work shall be based on the law pertaining to India
and wherever it is necessary to take into consideration the International Covenants,
shall be considered.
At last the proposed work concluded with conclusion & recommendations.
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METHODOLOGY

In order to handle this proposed work in an appropriate manner and giving

useful output from the work, both the doctrinal (i.e. analytical) as well as empirical
method would be most suitable and perfect. Hence, in the proposed work, both these
method have been and will be utilized very well. Doctrinal method involved
arranging, ordering and systematizing legal propositions, analysis of case laws and
study of legal institutions through legal reasoning. The data or information will be
collected from legislative texts, foreign laws, international conventions and judicial
decisions.

The empirical reasearch is carried on by collecting and gathering data or

information by first hand study into the universe. This proposed work will includes
the preparation of questionnaires, practical jail visit, visit to police stations, office of
executive magistrates and Courts. The questionnaires are to be prepared to find out
about the awareness of the rights of accused, under trial prisoners and convicts in
themselves, in executives and public officials, in family members, friends and social
organizations.

Yet another object of preparing the questionnaires is to know about the

reformative steps that have been taken at the Government level about the conditions
of accused, under trial prisoners, prisoners and convicts. Visit to police stations and
jails are to be done to know about the conditions of accused , arrested persons,
suspects, under trial prisoners and convicts, the manner of classification of offenders
according to sex, age, and gravity of offence, scientific individualization of offenders,
treatment with under trial prisoners etc.

It is thus, a fact research. It will seek to identify and appraise the degree of
variable which influence the outcome and legal decision making.

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 HYPOTHESIS

The abuse and oppression of the rights of accused, arrestees, suspects, under
trial prisoners and convicts were not new in ancient India. But in the modern era of
welfare State the concept of totalitarian State is foreign one when there is strong
recognition of Human Rights at global level. The accused, under trial prisoners and
convicts still themselves have not aware about their Rights, also true about general
public. In the proposed work the following Hypothesis has been formulated.

1) The accused, under trial prisoners and convicts have certain rights more or less
contains in the Criminal laws of India, Constitution, Jail manuals, International
Covenants and Judicial Pronouncement. But the real challenge is regarding their
implementation.

2) Large of the Indian population is illiterate and also the rate of legal literacy and
awareness is negligible. Ignorance of the general public regarding their rights
prevails over their awareness.

3) One of the basic cause of such an unfortunate situation is that the powers which
are given to the police, prison authorities to fulfill their legitimate and essential
functions are capable of being abused and misuse by them to torture man kind, to
destroy lives and properties, to oppress and intimidate the weak and to trample the
constitutional rights of the community as well

4) The judiciary has played an important role in the articulation and protection of the
rights of accused, under trial prisoners and convicts. The police jurisprudence and
prison jurisprudence developed by the judiciary are of worth value in
safeguarding the existing rights and evolving new rights.

5) Abuse and oppression of the rights of the accused, under trial prisoners and
convicts are the crime against Human dignity. But the present criminal laws and
legal works in this regard are inadequate and insufficient.

6) The necessity is to change the traditional attitude of the public officials regarding
the rights of accused, under trial prisoners and convicts. The reformative
techniques
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 and constitutional mandate should not remain only on paper but be practically
applied and work out.

7) Human Rights perspectives and international obligation in the form of

International covenants regarding these rights are important and great weapons
for protecting and safeguarding the rights and interests of the accused, under trial
prisoners, and convicts.

8) There is eminent necessity of reformation in the important areas of criminal

Judicial system in regards of Public Interest Litigation, Police Jurisprudence, Bail
Justice Jurisprudence, Prison Justice, Compensation to Victims of crime as a new
wing of Victimology, and in free legal aid and legal services so as to ensure fair
deal to the poorer and helpless section of the community.

9) It is strongly believed that there is eminent necessity to take a new approach to

criminological and penological problem of crime and criminals in the Indian
set tings, to draft reformative penal, police and prison jurisprudence.

10) That there is need of re-establishing the scientific method of individualization of

convicts.

11) The liberal remission and grant of frequent paroles to the prisoners to spend time
with their families would help to inculcate self confidence in prisoners and reduce
the intensity of some of the prison vices from the both sides i.e. from prisoners
and prison authorities.

12) An ideal prison condition must provide for adequate work, vocational training,
basic education, medical and recreation facilities for convicts.

13) The need of spiritual training and that of practice of Yoga & and meditation will
enable the prisoners to control the evils of kama, krodha, mada, Lobha which
dwell in human body and help in gaining control over these evil forces so as to
turn them good men and good citizens.

14) Last but not least, at the same time the institutions of criminal justice should be
moral Hospitals or places of value education, but they should not be so
comfortable as to be attracted.

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 CHAPTERISATION OF THE PROPOSED WORK

The following is a tentative break-up of a proposed work.

Chapter 1 - Introduction
Chapter 2 - Rights of accused and Criminal
law of India.
Chapter 3 - Rights of under trial Prisoners and criminal law of
India.
Chapter 4 - Rights of convicts and criminal law of India.

Chapter 5 - Rights of accused, under trial prisoners, convicts and

their constitutionality.
Chapter 6 - Rights of accused, under trial prisoners and convicts
of special classes (such as women, juveniles,
lunatics, judicial officers, Persons having
contaminated diseases, husband & wife prisoners)
Chapter 7 - Rights of accused, under trial prisoners and convicts
and Human Rights Perspectives with reference to
International covenants.
Chapter 8 - Judicial Pronouncement with respect to rights of
accused, under trial prisoners and convicts.
Chapter 9 - Model forms of questionnaires- findings and
Conclusions.
Chapter 10 - Conclusion
Chapter 11 - Recommendations

APPENDICES

A) Bibliography

B) Important Statutory Provisions

C) Table of cases.

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 BIBLIOGRAPHY

1) Criminal Law (cases & material) by K.D.Gaur, 1999

2) Kelkar on Criminal Procedure by R.V.Kelkar, 4 th Edn.

3) Principles of the Law of Evidence by Dr.Avtar Singh, 15 th Edn

4) Indian Penal Code By Ratanlal Dhirajlal.

5) Constitutional Law of India by Dr. J.N.Pande, 2005.

6) Constitutional Law of India by, M.P.Jain, 4 th Edn.

7) Administrative Law of India by M.P.Jain & S.N.Jain.

8) Rights of arrested persons, Investigation and bail by Asim Pandya, 2006

9) Criminology-problems and perspectives by Ahmed Siddque, 1997

10) Criminology and Penology by N.V.Paranjape, 2001.

11) The Under trial and the Supreme Court by Upendra Bakshi.

12) Supreme Court on Criminal Justice by R.K.Bag, 2 nd Edn.

13) Human Rights by Dr H.O.Agrawal, 3rd Edn.

14) Jurisprudence (Legal theory) by Dr.B.N.Mani Tripathi, 2003

15) Law relating to Juvenile Justice in India by R.N. Choudhari, 2005

16) Protection of Human Rights in India by V.K. Sirkar, 2004-05

17) The Probation of Offender Act, 1958 by Justice P.S. Narayanaya, 2004

18) The Police Act

19) Jail Manuals

20) Police Manuals

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 JOURNALS AND REPORTERS

1) All India Reporter

2) Criminal law Journal

3) Maharashtra law Journal

4) Maharashtra Criminal law Journal

5) Times of India (Newspaper)

6) India Bar Review

7) Current Indian Statute

Signature of the Student Signature of Guide