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Published : September 17, 2012 | Author : Ritwik Sneha & Rishab Garg
Category : Criminal law | Total Views : 11175 | Rating :

Ritwik Sneha & Rishab Garg
Rishab Garg & Ritwik Sneha Law Students

Criminal Law of India is a replica of colonial times. It is hostile to the poor and the weaker sections of society. The law still serves and protects the needs of the haves and ignores the have-nots. Such biasness has resulted in rich people escaping law and the jail is more often full of the unprivileged class of society. The hierarchy of courts and with appeals after appeal have led to a situation where the poor cannot reach the temple of justice due to heavy cost of its access. In other words one can state that granting justice at a higher cost indirectly means the denial of justice. Such circumstances lead to a clear violation of the Supreme Court judgement which held, legal aid to a poor is a constitutional mandate not only by virtue of Article 39A but also Articles 14, 19, 21 which cannot be denied by the government.

As understood by a layman an, 'undertria'l is a person who is currently on trial or who is imprisoned on remand whilst awaiting trial. As defined in the Oxford Dictionary, ‘A person who is on a trial in a court of law’. The 78th Report of Law Commission also includes a person who is in judicial custody on remand during investigation in the definition of an 'undertrial'.

Analyzing the criminal jurisprudence adopted by India is a mere reflection of the Victorian legacy left behind by the Britishers. The passage of time has only seen a few amendments once in a while to satisfy pressure groups and vote banks. Probably no thought has been given whether these legislations, which have existed for almost seven decades, have taken into account the plight and the socio-economic conditions of 70% of the population of this country which lives in utter poverty. India being a poverty stricken developing country needed anything but a blind copy of the legislations prevalent in developed
western countries.

According to the 78th report of the Law Commission as on April 1, 1977, of a total prison population of 1,84,169, as many as 1,01,083 (roughly 55%) were under-trials. For specific jails, some other reports show: Secunderabad Central Jail- 80 per cent under-trials; Surat-78 per cent under-trials; Assam, Tripura and Meghalaya-66 per cent under-trials.

The National Crime Records Bureau of the Government of India, in Chapter VI of its report dealing with the number of prisoners undertrials in various prisons across the country, has released some shocking details. It reported that thousands of undertrials had been incarcerated for a period of five years or more, and in fact in states including developed states like Punjab and Delhi, a large number of prisoners were under-trials. In Bihar, 30.4 % of the prisoners incarcerated had not been convicted and yet they languished in jails for years, sometimes for periods longer than the period for which they would have to serve, if convicted.

The figures get even more distressing if one studies the number of prisoners incarcerated for more than one but less than five years in different prisons across India. In Uttar Pradesh and Bihar alone, the number of prisoners detained for a period of between two and five years, without having been convicted of any offence was 7310. The number of such prisoners languishing in other jails in different parts of the country constitutes a figure several times the figure for the two states mentioned above.

Examining the Central Jail (Tihar), some more disquieting figures come to light. In 1993, out of the 7200 prisoners housed in the Central Jail Complex (called the Tihar Jail), only 900 prisoners had actually been convicted of any crime. Seven out of every eight prisoners in Tihar Jail consisted of those who had not been convicted of any offence, which amounts to close to 90% of all inmates. Even more shockingly, out of the 280 women prisoners, only 20 had been convicted. Thus, 260 out of 280 prisoners were languishing in jail when the law presumed them to be innocent. It is difficult to think of a justification for this woeful failing of our criminal justice system, but solutions may be sought, and the first place to which one’s attention is directed is the criminal law in the country, specifically the Criminal Procedure code, which is the backbone of the criminal justice system in the country.

In one of the landmark judgements, the Supreme court with great frankness in Shri Rama Murthy v. State of Karnataka went so far to cite that state had 193,240 people incarcerated of which 137,838 undertrials that justice would be served by simply were releasing the latter. In the 2000’s the Supreme Court had also continued to emphasize on the need to protect the undertrial prisoners.

In 2010 the chief justice of India vigorously made this point, adding that “all trial judges have done an excellent job in maintaining a high disposal of cases.” However a look at the number of undertrial prisoners would show that much is desired to be achieved. The 2010 Indian government data in the regard of undertrial gives a hopeless situation. While, the numbers have drastically increased to 50,000, there are several who languish in the jail even without being produced before the magistrate once.

One of the reasons for this is, as already mentioned above, is the large scale poverty amongst the majority of the population in our country. Fragmentation of land holdings is a common phenomenon in rural India. A family consisting of around 8 - 10 members depend on a small piece of land for their subsistence, which also is a reason for disguised unemployment. When one of the members of such a family gets charged with an offence, the only way they can secure his release and paying the bail is by either selling off the land or giving it on mortgage. This would further push them more into the jaws of poverty. This is the precise reason why most of the undertrials languish in jail instead of being out on bail.

Challenges Faced By Under-Trials
“Justice delayed is Justice denied”
The criminal justice delivery system in India saw more than 0.2 million undertrial prisoners being neglected in jail for many years, in many cases it exceeded the maximum sentence for the crime which they had committed. Lack of coordination between the Centre, Judiciary & State Governments & also because they did not have anyone to stand as guarantors nor assets to furnish as bail bonds, the poor continued to suffer in prisons. There have been cases where the amount of bail is disproportionately high. One such case even went to the Supreme Court.

Abuses faced in jail:

The Constitution of India, the Universal Declaration of Human Rights and the Standard

Minimum Rules for Treatment of Prisoners clearly specify the standards of treatment with

prisoners on trial. But realities in jails transmit an entirely different tune. Given Below are some challenges that every under-trial prisoner goes through in Indian jails.

1) Prison violence –

Prisons are often dangerous places for those they hold. Group violence is also endemic and riots are common. In Sao Paulo, Brazil, on 2nd October 1992, at least 111 people were killed and 35 wounded by military police who were called in the House of Detention after scuffle broke out between two gangs of prisoners allegedly over payment for marijuana. In a three day riot and standoff in the Chappra District prison in Bihar towards the end of March 2002 6 prisoners died in the shootout that occurred when commandos of the Bihar Military Police were called in to quell the riots. Meek and first time offenders are tortured and made to do all the menial tasks. Failure to comply sees them sleeping in front of smelly and overflowing toilets in the night. The worst form of Prison violence was witnessed in Khatri v. State of Bihar where the police had blinded 80 suspected criminals by puncturing their eyes by needles and dousing them by acid. In fact in the case Sunil Batra v. Delhi Administration that the court had already issued a writ directing the authorities that the prisoners shall not be subjected to physical mishandling by jail officials and they should be given adequate medical and health facilities

2) Criminalizing effect of a prison –
With hardened criminals being around and in the absence of scientific classification methods to separate them from others, contamination of first time, circumstantial and young offenders into full-fledged criminals occurs very frequently. It is an often given quote, 'prisons are Universities of crime where people go in as under-graduates and come out with PhDs. in crime.'

3) Health problems –
Most of the prisons face problems of overcrowding and shortage of adequate space to lodge prisoners in safe and healthy conditions. Most of the prisoners found in prisons come from socio-economically disadvantaged sections of the society where disease, malnutrition and absence of medical services are prevalent. When such people are cramped in with each other in unhealthy conditions, infectious and communicable diseases spread easily. A sample study conducted by the National Human Rights Commission of India in early 1998 revealed that 76% of deaths in Indian prisons were due to the scourge of Tuberculosis.

4) Mentally ill prisoners –
Though miniscule, mentally ill prisoners constitute another percentage of population, which is largely ignored and forgotten by both the outside world and those inside. But given the nature of the illness and prevailing social attitudes, they form the most hapless victims of human rights violations. Even for a normal person, prolonged incarceration might lead to a mental breakdown, the atmosphere being such. Many, on the verge of such collapse, do attempt suicide. Sir Alexander Patterson while giving evidence before the Select Committee in 1930 stated – “…I gravely doubt whether an average man can serve more than ten continuous years in prison without deterioration.”

5) Drug abuse –
After Murder, Attempt to murder and other serious anti-personal offences, people booked under anti-drug laws constitute a substantial percentage of the prison population. Being in prison and cut off from the free world, sees and increased desperation to get the banned substances to satisfy their addiction to drugs. This also increases the danger of fresh prisoners being inducted into drug abuse since ‘prison is an environment where there is a captive, bored, largely depressed population eager for some release from the grim everyday reality.’

6) Effect on the families of prisoners –
Those imprisoned are unable to look after their families. In the absence of the main bread winner, the family is many a time forced into destitution with children going astray. This combined with the social stigmatization that they face, leads to circumstances propelling children towards delinquency and exploitation by others. It is an inexorable circle. The problems become acute when they belong to the socio-economically marginalized and exploited sections of the society. The dominant class does not fail and loose time in taking advantage of this situation to exploit the remaining family members to the fullest possible extent. This can take the form of rape or forced prostitution of the prisoner’s wife and or his daughters.

Specific problems faced by under-trial prisoners:
1) The Right to Speedy Trial - as recognised by the Supreme Court in Hussainara Khatoon vs. Home Secretary, Bihar is violated due to protracted delays. This delay is due to all kinds of reasons such as –

a. Systemic delays.
b. Grossly inadequate number of judges and prosecutors.
c. Absence or belated service of summons on witnesses.
d. Presiding judges proceeding on leave.
e. Remands being extended mechanically due to lack of time and patience with the presiding judge.
f. Inadequacy of police personnel and vehicles which prevents the production of all prisoners on their due dates.

g. Many a times, the escorting police personnel merely produces the remand papers in the courts instead of actually producing the prisoner in front of the magistrate. This practice is widely reported, notwithstanding the strict requirement of the law in section 167(2)(b) of the Criminal Procedure Code, 1973 which says that – ‘No Magistrate shall authorize detention in any custody under this section unless the accused is produced before him.’

2) Right to bail is denied even in genuine cases. Even in cases where the prisoner was charged with bailable offence, they are found to rot in prisons due to exorbitantly high bail amount. The spirit of the Supreme Court in Moti Ram & others vs. State of Madhya Pradesh is violated constantly. The Law Commission analysed this in detail in its 78th report on congestion on undertrials.

It is also important to point out that the system of giving bail which is mentioned in sections 436 to 450 in the Code of Criminal Procedure, 1973 is also unjust. This is because according to the provisions of the code a person released on bail is required to execute a personal bond and bond of security for a certain amount of money. As a result the poor who cannot afford to avail surety have to suffer in jail till the case is over.

3) Some of the judges even at the High Court level are not following the guidelines laid down by the Supreme Court on bail and grant of the same is dependent upon the attitude of each judge. Standards cannot become prisoners of the whims and fancies individuals. Authority is to be exercised with responsibility.

4) Large number of persons including women and children are detained under Section 109 of the Criminal Procedure Code provides for failure to furnish requisite security for keeping good behaviour. The police usually pick them up “because the number of cases had to be brought up to the specified figure”. The authorities refuse to release them without bail whereas the standing law on Section 110 says that you cannot ask for bail from such persons, only the history ticket is required.

5) In the absence of a system, that takes a proactive role in providing legal services to prisoners their right to effective Legal Aid is also violated due to politicisation of legal aid schemes as many lawyers are hired on political consideration who get a fix salary without the pressure of disposing off cases at the earliest.

Even today, the order of Dr. A.S. Anand – former Chief Justice of India on holding Special Courts in Jails for prisoners involved in petty offences and willing to confess to their guilt is not being implemented at least in Madhya Pradesh. If implemented by the High Court and followed judiciously, it can bring lot of succour.

Solutions For The Plight Of Under-Trials
We need not look far. All that needs to be done is to compile the recommendations and suggestions given by the various expert groups and institutions and start implementing

them. Following are some of the major recommendations given till date –
1) Undertrial prisoners should be lodged in separate institutions away from convicted prisoners. There should be proper and scientific classification even among undertrial prisoners to ensure that contamination of first time and petty offenders into full fledged and hardcore criminals.

2) Under no circumstance should they be put under the charge of convicted prisoners.

3) Institutions meant for lodging undertrial prisoners should be as close to the courts as possible.

4) Provisions of Section 167 of the CrPC with regard to the time limit for police investigation in case of accused undertrial prisoners, should be strictly followed both the police and courts.

5) Automatic extension of remands has to stop which are also given merely for the sake of the convenience of the authorities. Mere convenience of the authorities cannot supersede the Constitutional guarantees under Article 21.

6) All undertrial prisoners should be effectively produced before the presiding magistrates on the dates of hearing.

7) The possibility of producing prisoners at various stages of investigation and trial, in shifts should be explored.

8) Video conferencing between jails and courts should be encouraged and tried in all states beginning with the big Central jails and then expanding to District and Sub jails.

9) The District Magistrate should constitute a committee consisting of representatives from the local police, judiciary, prosecution, district administration and the prison department at a fairly high level, to visit the Sub jails under their jurisdiction at least once every month and review delay in cases of prisoners if any and adopt suitable measures.

10) Police functions should be separated into investigation and law and order duties and sufficient strength be provided to complete investigations on time and avoid delays.

11) The criminal courts should exercise their available powers under Sections 309, 311 and 258 of the CrPC to effectuate the right to speedy trial. In appropriate cases jurisdiction of the High Court under Section 482 of the CrPC and Articles 226 and 227 of the Constitution of India can be invoked seeking appropriate relief or suitable directions to deal with and prevent delay in cases.

12) With undertrial prisoners, adjournments should not be granted unless absolutely necessary.

13) Order of Dr. A.S. Anand – former Chief Justice of India on holding Special Courts Jails for prisoners involved in petty offences and willing to confess, should be actively taken up by the High Courts and implemented in all districts.

14) There should be a progressive and massive Decriminalization of offences so that many of the wrongs, which are now given the status of crimes, are dealt with as compoundable tortuous wrongs remediable with a claim for compensation.

15) The class of Compoundable offences under the IPC and other laws should be widened.

16) Alternatives to imprisonment should be tried out and incorporated in the IPC.

17) Remand orders should be self-limiting and indicate the date on which the undertrial prisoners would be automatically entitled to apply for bail.

18) Computerise the handling of criminal cases and with the help of the National Informatics Centre, develop programmes that would help in managing pendency and delay of different types of cases. The High Courts should take an active interest in helping subordinate courts to speed up cases.

19) There should be an immediate increase in the number of judges and magistrates in some reasonable proportion to the general population. It should be at least 107 judges per million of the Indian population.

20) In case of violation of any fundamental right of the prisoner then the state should give adequate compensation to the victim.

The Way Forward
It is thought that from the various schemes the government operates for rural employment, loans to farmers etc, a portion of the funds which it transfers to the panchayat for developmental work of the same should be set aside and kept to meet the bail amount for undertrials belonging to the particular panchayat / block. The utilization of this fund would be in the hands of the elected leaders of the society with the representative of district collector district magistrate being a part of the system. This would, go a long way in securing freedom for scores of undertrials who would then be able to contribute to society thereby playing an important role and forming part of the national mainstream. Such a scenario will have the effect of reducing the burden of over-crowding in jail.

The setting up of separate jails, or at any rate isolating undertrials from convicts, would prevent hardened criminals from exercising their deleterious influence over undertrials. Such segregation would also change the attitude of jail authorities and society at large towards under trials.

The under trials who have been charged with petty crimes can further be put in reformative homes instead and asked to do community service till the time they are released on bail. Elementary education facilities must be granted to those under trials who are uneducated and illiterate. Thus, I feel that the benefit of bail should not only be in the hands of a few, but, should be available to the masses including those who do not have the financial capacity to afford it.

# Oxford Dictionary, India, available at: http://oxforddictionaries.com/definition/undertrial
# (Visited on August,2011)
# Law Commission of India, 78th Report on Congestion of Under-Trial Prisoners In Jails (February,1979)
# Law Commission of India, 78th Report on Congestion of Under-Trial Prisoners In Jails (February,1979)
# National Crime Records Bureau, Report: Period of Detention of Undertrial Prisoners (Ministry of Home Affairs,2009)
# (1997) 2 SCC 642
# Maj.Gen.Nilendra Kumar, Law, Poverty & Development (1st edn., 2011)
# Mati Ram v. State of M.P, AIR 1978 SC 1594
# (1981) 1 SCC 635
# (1978) 4 SCC 409
# All India Committee, Report on Jail Reforms (Ministry of Home Affairs,1980-83)
# The Royal Commission on Capital Punishment [1949 – 53], pg 229.
# AIR 1979 SC 1819
# Supreme Court Legal Aid Committee v. Union of India (1994) 6 SCC 731
# The Judge to Population ratio in India is one of the lowest in the world.
# AIR 1978 SC 1594
# Law Commission of India, 78th Report on Congestion of Under-Trial Prisoners In Jails (February,1979)
# All India Committee, Report on Jail Reforms (Ministry of Home Affairs,1980-83),
# Law Commission of India, 78th Report on Congestion of Under-Trial Prisoners In Jails (February,1979)
# Dr.J.N.Pandey, Constitutional Law of India (Central Law Agency, Allahabad, 47th edn., 2010).
# K.I.Vibhute, Criminal Law(LexisNexis, Nagpur, 10th edn.,2008)
# Rudul Shah v. State of Bihar AIR 1983 SC 1086

Authors contact info - articles The  author can be reached at: ritwiksneha@legalserviceindia.com

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