DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

Subject: criminal Procedure code

Project Topic: a study of the rights of under-trials in india

within the framework of the criminal procedure code, 1973

Submitted by:

Roma Angelina Das

Roll no. 111

Semester 5

Section B

Contents
Dr. Ram Manohar Lohiya National Law University

1. Introduction

2. Reasons for prolonged incarceration of Under-Trial Prisoners

3. Rights of Accused with respect to Arrest

4. Analysis of Section 309 of the Code of Criminal Procedure

5. Right to speedy trial as part of Article 21 of the Constitution

6. An Analysis of Secs 46 and 49 of the Code of Criminal Procedure and Prevention of

Inhuman Treatment to Under-trial Prisoners

7. Right to Free Legal Aid

8. Recommendations of the Mallimath Committee

9. Recent amendments to the CrPC in the context of accused persons of ‘unsound mind’

10. Conclusion

11. Bibliography
Dr. Ram Manohar Lohiya National Law University

Introduction
The National Human Rights Commission (NHRC) of India estimates that 58.19% of prisoners
are unconvicted and awaiting trial (31 December 2005) 1. The majority of undertrials are from
poor, underprivileged, rural and agricultural backgrounds.

Unable to afford the cost of bail, if granted, they are remanded in judicial custody in
overcrowded jails, often with poor sanitation and without basic facilities. They frequently
become victims of torture and violence at the hands of other detainees and prison staff.

In an attempt to tackle this problem, the State Prison Manuals include provisions for District and
Sessions Judges to function as ex-officio visitors to jails within their jurisdictions to ensure that
detainees are provided the basic minimum standards in health, hygiene and institutional
treatment. However, in reality Judges, with enormous workloads and often backlogs of trials that
run for years, will rarely have the time to carry out these visits in an already busy schedule.

The Mental Health Act, 1987 (which replaced the Lunacy Act, 1912 and the Lunacy Act, 1977)
does not allow mentally ill persons to be sent to prison. But corruption, an inefficient
administration, apathy and discrimination result in mentally disabled undertrials being forgotten
and left in conditions that violate a wide range of basic human rights. .

An effective criminal justice system inevitably needs to ensure that the accused stand trial for the
crimes they are alleged to have committed. It is therefore necessary for the system to hold them
till the trial is over. Depending on the gravity of the offence, the police are empowered to keep a
person in their custody for 24 hours, after which any further detention must be authorised by the
judiciary. The concern for individual freedom made the system, save a few exceptions, to opt for
bail rather than jail.

Chapter 1: Reasons for prolonged incarceration of Under-Trial Prisoners

1. Indiscriminate arrests
The power of the police to arrest people is very wide and they arrest people even when they
cooperate with the investigation and are not likely to evade trial. This results in unnecessary
detentions. This problem has now been addressed in the CrPC (Amendment) Act, 2008 which
amends the existing provisions for arrest i.e. Section 41 (and also inserts Section 4l-A into
CrPC). Section 41 limits the indiscriminate powers of arrest of police officers. A person cannot
be arrested merely because there is a complaint against her/him. It must be a "credible"
complaint/information and the police officer must "have reason to believe" that "such person has
committed the said offence". In cases involving an offence punishable with imprisonment up to a
maximum of seven years, the police officer can arrest a person only under certain specified
1
< http://www.hrsolidarity.net/mainfile.php/2008vol18no04/2661/>, last accessed on 1st November, 2011
Dr. Ram Manohar Lohiya National Law University

condition laid down in the law. The officer must record her/his reasons for arresting in writing.
In cases, where the specified conditions are not met, the police officer may, instead of arresting a
person, issue to her/him a notice of appearance. This requires the accused to appear before the
police officer when required and to cooperate with the police officer in the investigation of the
offence. This provision, if properly implemented, will lead to a vast reduction in the number of
persons-accused for offences punishable up to 7 years-who would have otherwise ended up
being detained in prison during the period of investigation, inquiry or trial of their offence.

1. Inability to provide security

Many poor people are detained in prisons for alleged involvement in bailable offences primarily
because they are unable to furnish surety. This is a serious concern because in such cases bail is a
matter of right and people end up spending long periods in jail merely because they are poor.
This situation led to the amendment of Section 436 in 2005. It mandates the police or court to
release an indigent person on personal bond without asking for any surety. The amendment
allows an indigent person to execute a bond that she shall appear before the court and stand trial.
The section states that the court shall consider any person who is unable to furnish bail within 7
days from the date of her/his an-est as indigent. Therefore, now a person accused for a bailable
offence can be detained in prison for a maximum period of 7 days only.

2. Delayed Investigation

Many prisoners are constrained to languish in prisons because the police do not finish
investigation and file the charge-sheet in time. This is a very serious matter because such people
remain in prisons without any inkling of a police case against them. Proper and prompt
enforcement of Section 167 CrPC can however obviate this difficulty. Section 167 CrPC lays
down the maximum period within which the police investigation must be completed and a
charge-sheet filed before the court. This period is 90 days for offences punishable with death, life
imprisonment or imprisonment for a term of not
less than ten years, and 60 days for all other offences. Where the investigation has not been
completed within the stipulated time-frame, it is mandatory upon the Magistrate to release the
accused on bail, provided he is ready to furnish bail. This provision shields the accused from
suffering incarceration on account of the inability of the investigating agency to wind up its
investigation.

3. Delayed Trial

It is also noticed that many prisoners are charged with a non-bailable offence which is not very
serious and is triable by a Magistrate. They remain in prisons for long period because of the
delay in trial. Section 437(6) was enacted to prevent this and makes it mandatory for a person to
be released on bail where the trial has not concluded within 60 days from the first date fixed for
Dr. Ram Manohar Lohiya National Law University

taking evidence. The Magistrate may however refuse such release, but only after recording the
reasons in writing. Many undertrial prisoners are detained in prisons for long periods, which in
some cases extend beyond the maximum period of imprisonment prescribed for the offence with
which they are charged. The system responded to this situation by enacting Section 436-A which
spells out the right of an undertrial prisoner to apply for bail once she/he has served one half of
the maximum term of sentence she/he would have served had she/he been convicted. On a bail
application filed under this section, the court shall hear the public prosecutor and may order the:
1. Release of such person on a personal bond with or without surety; or
2. Release of such person on bail instead of personal bond; or
3. Continued detention of such person.
This section further proscribes the detention of an undertrial prisoner beyond the maximum
period of punishment prescribed for the offence that she/he is alleged to have committed.
Therefore, in effect, this section prescribes the maximum period an undertrial can be detained in
any case.

Chapter 2: Rights of Accused with respect to Arrest

Apart from ss.49, 50 and 57 of the Criminal Procedure Code, 1973, the Hon’ble Supreme Court
in the case titled Joginder Kumar v. State of U.P. and another 2 has held as under:-
“No arrest can be made because it is lawful for the Police Officer to do so. The existence of the
power to arrest is one thing. The justification for the exercise of it is quite another. The Police
Officer must be able to justify the arrest apart from power to do so. Arrest and detention in police
lock up of a person can cause incalculable harm to the reputation and self esteem of a person. No
arrest can be made in a routine manner on a mere allegation of commission of an offence made
against a person. It would be prudent of a police officer in the interest or protection of the
constitutional rights of a citizen and perhaps in his own interest that no arrest would be made
without a reasonable satisfaction, reached after some investigation as to the genuineness and
bonafides of a complaint, and a reasonable belief both as top the person’s complicity and even so
as to the need to effect arrest. Denying a person of his liberty is a serious matter.”

It was further observed therein by the Hon’ble Supreme Court that a person is not liable to arrest
merely on the suspicion of complicity in an offence and that there must be some reasonable
justification in the opinion of the Officer effecting the arrest that such arrest is necessary and
justified. It was added that except in heinous offences, an arrest must be avoided if a police
officer issues notice to the person to attend the Station House and not to leave Station without
permission would do. It was held therein that these rights are inherent in Article 21 and 22(1) of
the Constitution and are required to be recognized and scrupulously protected. In the light of the
3rd report of the National Police Commission as referred to in Joginder Kumar’s case the Hon’ble
Supreme Court has observed the above.

2
1994 (2) CLR 428
Dr. Ram Manohar Lohiya National Law University

Subsequent to the mandate in Joginder Kumar’s case the Hon’ble Supreme Court in the case
titled D.K. Basu v. State of Bengal3 has laid down certain basic requirements to be followed in all
cases of arrest or detention till legal provisions are made in that behalf as a measure to prevent,
custodial violence. The said requirements read as follows:
i. The police personnel carrying out the arrest and handling the interrogation of the
arrestee should bear accurate, visible and clear identification and name tags with their
designations. The particulars of all such police personnel who handle interrogating of
the arrestee must be recorded in a register.
ii. That the police officer carrying out the arrest of the arrestee shall prepare a memo of
arrest at the time of arrest and such memo shall be attested by at least one witness,
who may either be a member of the family of the arrestee or a respective person of
the locality from where the arrest is made. It shall also be countersigned by the
arrestee and shall contain the time and date of arrest.
iii. A person who has been arrested or detained and is being held in custody in a police
station or interrogation center or other lock-up, shall be entitled to have one friend or
relative or other person known to him or having interest in his welfare being informed
as soon as practicable that he has been arrested and is being detained at the particular
place, unless the attesting witness of the memo of arrest is himself such a friend or a
relative of the arrestee.
iv. The time, place of arrest and venue of custody of an arrestee must be notified by the
police where the next friend or relative of the arrestee lives outside the district or
town through the Legal Aid Organisation in the District and the police station of the
area concerned telegraphically within a period of 8-12 hours after the arrest.
v. The person arrested must be made aware of his right to have someone informed of his
arrest or detention as soon as he is put under arrest or is detained.
vi. An entry be made in the diary at the place of detention regarding the arrest of the
person which shall also disclose the name of the next friend of the person who has
been informed of arrest and the names and particulars of the police officials in whose
the custody the arrestee is.
vii. The arrestee should, where he so requests be also examined at the time of his arrest
and major and minor injuries, if any present on his/her body must be recorded at that
time. The inspection Memo must be signed both by the arrestee and the police officer
effecting the arrest, and its copy provided to the arrestee,
viii. The arrestee should be subjected to medical examination by a trained doctor every 48
hours during his detention in custody by a doctor on the panel of approved doctors
appointed by Director, Health Services of the State or Union Territory concerned.
Director, Health Services should prepare such a panel for all tehsils and districts as
well.

3
1997 (1) SCC 416
Dr. Ram Manohar Lohiya National Law University

ix. Copies of all the documents including the memo of arrest, referred to above, should
be sent to the Ilaqa Magistrate for his record.
x. The arrestee may be permitted to meet his lawyers during interrogation, though not
throughout the interrogation.
xi. A police control room should be provided at all district and State headquarters, where
information regarding the arrest and the place of custody of the arrestee shall be
communicated by the office causing the arrest, within 12 hours of effecting the arrest
and at the police control room it should be displayed on a conspicuous notice board.

As to the question handcuffing, in Prabhunarayan v. State of Madhya Pradesh4, it was held that
it is wrong to equate the question of custody or restraint with the handcuffing of the person
concerned. Further, s.49 of the CrPC lays down that the person arrested shall not be subjected to
more restraint than is necessary to prevent his escape. This must be kept in mind and
unnecessary harassment of citizens should be avoided.

Chapter 3: Right to Speedy Trial as part of Article 21 of the Constitution

Rights of the under-trials gained importance during the Emergency declared by Indira Gandhi in
the 1970s. At that time, the judicial system buckled and was unable to provide speedy trials or
basic rights to the under-trial prisoners who were forced into jails. It was in these times does
Hussainara Khatoon v. Home Ministry5, judgment given by Justice P.N Bhagwati established for
the first time that a defendant had a fundamental right to a speedy trial under Article 21 of the
Indian Constitution. Fuelled by media accounts of the delays and horrendous conditions of
various prisons, Justice Bhagwati’s ruling ordered a massive revamping in how the prisoners
were to be treated by the state; this included greater access to bail, more humane living
standards, and a significant reduction in time from arrest to trial were all mandates issued by the
Court.

Following this case, there are several cases which upheld the principles of Hussainara Khatoon,
for instance the subsequent cases held that hand cuffing a prisoner was unnecessary unless there
is eminent danger of escape. The last two decades have seen a plethora of cases which uphold
the rights of the undertrial prisoners. A landmark decision in this time period has been Supreme
Court Legal Aid Committee v. Union of India6 the Court ruled that for those undertrial-
defendants accused of narcotics violations who had spent “half [the time] of the maximum
punishment provided for the offence,” “any further deprivation of personal liberty would be
violative of the fundamental right visualized by Article 21.” Two years later, in two different
cases, the Court reiterated time-limits for which undertrial-prisoners could be incarcerated. And

4
1987 CrLJ 339
5
AIR 1979 SC 1819
6
1994 SCC (6) 731
Dr. Ram Manohar Lohiya National Law University

with great frankness, the Court in Shri Rama Murthy v. State of Karnataka7 went even so far to
cite how given that that state had 193,240 people incarcerated, of which 137,838 were
undertrials, that justice would best be served by simply releasing the latter[4] In the 2000s, the
jurisprudence of the Indian Supreme Court has continued to emphasize the need to protect
undertrial-prisoners’ rights.8

Thereafter the Parliament, in recent years enacted Section 436-A of the Code of Criminal
Procedure, to put make some headway regarding the problem of under trials. This section
prescribes the upper limit to the time an under trial can be held in prison as half of the maximum
punishment prescribed for the offence the accused has been charged under, then the accused
shall be released on his personal bond without any sureties. The Public Prosecutor can, for good
reasons shown can ask the court to continue such detention, awaiting trial.

This section was enacted in the year 2005, and progress, albeit small has definitely been made in
the last half a decade in this area. However, as the next part of this paper will show, the real
cause of trouble has been the tardy implementation of this provision, due to lack of proper legal
aid facility and apathy of the Police and jail authorities.

More than sixty five per cent of the prison inmates in India are awaiting trial. Policy makers in
India have recognized the magnitude of the problem, but the lack of implementation of the
existing provisions and the proposed ones is the primary reason afflicting the prisons in India.
Therefore, ensuring the implementation of Section 436/436A of the Code of Criminal Procedure,
1973 should be the primary aim.9

Chapter 4: Analysis of Section 309 of the Code of Criminal Procedure

Sec 309 of the CrPC clearly states that proceedings in a trial had to be completed as
expeditiously as possible. Clause 1 states that in every inquiry or trial, the proceedings shall be
held as expeditiously as possible, and in particular, when the examination of witnesses has
begun, states that the same must continue from day to day until all the witnesses have been
examined, unless the Court finds the adjournment of the same beyond the following day
necessary. Interestingly, it also requires the Magistrate to record reasons as to why an inquiry or
trial is being adjourned or postponed, if he finds it both necessary and advisable to do so. Finally,
in no event is a Magistrate allowed to remand an accused person to custody under this section for
a term exceeding fifteen days at a time. Thus, though the CrPC does not contain express
provision enabling a Court to quash a trial, it states unambiguously that proceedings had to be
completed without delay.

7
Decided on 23rd December, 1996
8
J.Krishnan et al, “Delay in Process, Denial of Justice: The Jurisprudence and Empirics of Speedy Trials in
Comparative Perspective,” Georgetown Journal of International Law, 42, (2011) at 9
9
www.humanrightsinitiative.org/index.php?option=com_content&view=article&id=105&Itemid=118 last visited
on 1st November 2011
Dr. Ram Manohar Lohiya National Law University

In S. Gain and Ors. v. Grindlays Bank Ltd10, the apex court has held that a period of seven years
was bound to result in harassment and abuse of the judicial process. In Machander v. State of
Hyderabad11 a period of even five years was held to be unjustifiable, in the facts and
circumstances of that case. However, in AR Antulay12, the Court did not lay down any specific
time period beyond which the court would have the power to quash the criminal proceedings
against a person. They thus did not accept the argument that the period provided for under Sec
468 should be used to determine the maximum time period in respect of major offences.

First, as the Court rightly pointed out, there might be several instances where the delay might be
caused by the conduct of the accused himself, with or without mala fide intention. Indeed in the
facts in Antulay, the delay had been caused, (the Court held though that there had been no mala
fides) by the conduct of the appellant himself. Second, the Court discussed in detail American
decisions, particularly decisions of the United States Supreme Court which has laid down in that
a speedy trial was a constitutional mandate. However, it is interesting to note that in America, the
Sixth Amendment to the United States Constitution expressly guarantees the right to a speedy
trial, while in India, the same right has been read by a process of creative interpretation into the
constitution. Yet in America, inspite of it being specifically mentioned in their constitution, no
fixed outer period or time limit has been set beyond which a trial will be quashed on account of
delay. The judges of the Supreme Court were right when they decided not to put in place any
outer time period which would lead to the quashing of criminal charges. Instead, they suggested
a case by case examination guided by certain guiding factors, such the length of the delay, the
reason for the delay and the prejudice caused during the delay. For example, a person
incarcerated for a period of seven years would in almost all cases be given back his liberty and
the trial which had been commenced against him will almost always be terminated. It is
submitted that this test will thus buttress the protection available to convicts already under Sec
468 of the CrPC.

We have thus seen that a creative interpretation of the Constitution has been used to expand the
ambit of the right available under the Code of Criminal Procedure to under-trials. In Sheela
Barse (II) v. Union of India13 , the issue which arose before the Supreme Court was more specific
and involved the detention for long periods under trial prisoners who were children below the
age of 16. The Court came down very strongly upon this practice, which prevailed in a few states
and passed directions to States to discontinue this practice.

Interestingly, they did apply a time limit beyond which the detention of children under-trial
would be unjustified, a short period of three months from the date of filing of the complaint or
lodging of the First Information Report as the maximum time permissible for investigation and a

10
AIR 1986 SC 289
11
AIR 1955 SC 792
12
AIR 1988 SC 1531
13
AIR 1986 SC 1773
Dr. Ram Manohar Lohiya National Law University

period of 6 months from the filing of the charge sheet as a reasonable period within which the
trial of the child must be completed. (This period was not made applicable to children who had
been accused of crimes which called for a punishment of more than seven years). However, they
distinguished the previous decisions, specifically Antulay on the ground that those decisions
dealt with a different class of people, specifically those who were above the age of 16. It is
submitted that although the Supreme Court did overstep its primary function, which is the
interpretation of the Constitution by issuing directions to the executive, in this case, their action
is justifiable, regard being had to the importance of immediate action on as pressing issue as this.

Chapter 5: An Analysis of Secs 46 and 49 of the Code of Criminal

Procedure and Prevention of Inhuman Treatment to Under-trial
Prisoners

Sec 46 and Sec 49, it must be remembered, extend general protection to all prisoners and applies
to all cases of arrest. However,in this project, special emphasis has been placed on the problem
with using unnecessary force while dealing with under-trial prisoners, particularly with the use of
handcuffs. The reason behind this, the incarceration of an individual is psychologically
deleterious. This is exacerbated by the use of instruments like handcuffs, and this can be
especially damaging to an individual who has not been convicted and may not be guilty of any
offence.

Sec 46 of the CrPC limits the circumstances in which, and the extent to which force may be used
by a police officer while incarcerating an individual. It states not only that force may not be used
while dealing with an accused individual who has, by word or action consented to the arrest, it
also states that a police officer can in no event cause the death of an accused not accused of a
crime punishable with death or life imprisonment. Sec 49, which is more important for our
purposes, gives specific protection to a person in police custody, including prisoners under-trial.
It states that “the person arrested shall not be subjected to more restraint than is necessary to
prevent his escape”.

In Prem Shankar v. Delhi Administration14, Krishna Iyer J., in his inimitable style, examined a
plea that inspite of the decision in Sunil Batra v. Delhi Administration15 undertrials were being
subjected to the “mortifying and dehumanizing treatment” of being handcuffed. The plea was
sent by means of a telegram to the Supreme Court and exercising its “epistolary jurisdiction”, the
Supreme Court took cognizance of the fact that undertrials in Tihar Jail were being compelled to
wear handcuffs while being transported to and from the Delhi Courts.

14
(1980) 3 SCR 855
15
(1978) 4 SCC 409
Dr. Ram Manohar Lohiya National Law University

The Supreme Court first made reference to Article 10 of the International Covenant on Civil and
Political Rights, which states that “all persons deprived of their personal liberty shall be treated
with humanity and with respect for the inherent dignity of the human person.” Additionally, the
Court relied on Sunil Batra which had held that the fact that a person had been incarcerated did
not mean that he had waived his fundamental rights. Further, the Supreme Court was influenced
by (though this does not directly concern us), the fact that Rule 26.22(2) in Chapter 26 of Punjab
Police Manual read as follows-

“(2) Better class under-trial prisoners must only be handcuffed when this is regarded as
necessary for safe custody. When a better class prisoner is handcuffed for reasons other than
those contained in (a), (b) and (c) of Sub-rule (1) the officer responsible shall enter in the Station
Diary or other appropriate record his reasons for considering the use of hand-cuffs necessary.”
This was held by the Supreme Court to be unconstitutional and violative of the fundamental right
to equality guaranteed by the Indian Constitution.”

Thus, the same concern with equality which played an important role in the decision in
Hussainara Khatoon’s case shaped the decision in this case as well. The Supreme Court
ultimately, following the broad interpretation of Art 21, a legacy left to use by the decision in
Maneka Gandhi v. Union of India as well as Sec 49 of the Code of Criminal Procedure, held that
the only circumstance which validated the “incapacitation by irons” was when there was no other
means of preventing the escape of a person, in the circumstances. Although the intention of the
Supreme Court in this case was undoubtedly good, it remains flawed in logic. It is absurd to
expect the police to read the mind of the prisoner and know for sure that he is likely to escape at
that point of time. The test suggested by the Supreme Court fails at the outset as it places an
unrealistic and practically unviable burden on the shoulders of the police. Thus, although the
Supreme Court’s intention was undeniably good, namely to prevent unreasonable loss of liberty,
they wrongly tackled the problem by doing away with an important police safeguard. What the
Supreme Court could have done, since its “mandatory direction” in this case is never going to be
implemented in practice, was to issue a “recommendatory direction”, which the States would
have been under a good faith obligation to follow.

If we must have a mandatory direction to the officials of the State, then the decision in Sunil
Batra is more practically viable. In Sunil Batra, it was held that handcuffs could be used when
“an under-trial has a credible tendency for violence and escape a humanely graduated degree of
“iron” restraint is permissible if — other disciplinary alternatives are unworkable.”

A similar fact situation, based on Sec 49 of the Code of Criminal Procedure, arose in the decision
in Citizens for Democracy through its President v. State of Assam and others16. There, the now
famous Kuldip Nayar had observed that in Assam, several suspected terrorists had been detained
using ropes while they were in a hospital undergoing medical treatment. The State, in its defense,
16
1995 ACC 543 SC
Dr. Ram Manohar Lohiya National Law University

argued that during the three years from 1991-94 there had been as many as fifty one cases of
escape of terrorists from Police and Judicial custody including thirteen terrorists who escaped
from different hospitals in the State. The Supreme Court however held that the law as laid down
in the decisions in Sunil Batra and Prem Shankar Shukla were binding on it under Art 141 of the
Constitution and the interpretation placed in both those decisions on Art 21 and Sec 49 thus had
to be applied in the case before it as well. However, it is submitted that in this case, since the
State of Assam had shown the Court a reasonable basis for applying extraordinary measures to
suspected terrorists, credence should have been lent to the fears of the State.

Chapter 6: Right to Free Legal Aid

The Hon’ble Supreme Court, had as far back as in the year 1979 in the case titled Hussainara
Khatoon and others v. State of Bihar17, and in yet another Judicial Magistrates/Sessions Judges
in the entire country to inform every accused who indigence or incommunicado situation that he
is entitled to free legal service at the cost of the State. It was further mentioned in the above
quoted authorities that the aforesaid constitutional obligation to provide free legal service to an
indigent accused does not arise only when the trial commences but also attaches when the
accused, is for the first time, produced before the Magistrate and that it is at this stage that the
accused-persons need sound legal advise and representation.

It was further laid down by the Hon’ble Supreme Court in the case titled Sukh Dass v. Union
Territory of Arunachal Pradesh18 that the entitlement to free legal aid is not dependent on the
accused making an application before the Magistrate/Judge who instead is obliged to inform the
accused of his right to obtain free legal aid.

Despite the above-referred pronouncement of the Apex court, accused sometimes ago
unrepresented at the initial stages not only in cases tribal by the Sessions Court to which the
provisions of Section 304 Cr. P.C. regarding legal aid to accused are applicable from the very
beginning but also to magisterial trials whereto also the provisions of section 304 Cr.P.C. have
been made applicable vide Haryana Government notification No. 20/5/78-JJ(4) dated 1-6- 83.
The Judicial Magistrate must thus comply with the above-referred mandate of the Apex court
regarding the provisions of legal aid to the accused from the inception of his production before
the Magistrate.

Chapter 7: Recommendations of the Mallimath Committee

The Mallimath Committee Report on Reforms in the Criminal Justice System has stated that the
accused has the right to know the rights given to him under law and how to enforce such rights. 19
There have also been criticisms that the police fail to inform the persons arrested of the charges

17
AIR 1979 SC 1396
18
AIR 1986 SC 991
19
<mha.nic.in/pdfs/criminal_justice_system.pdf> last accessed on 2nd November, 2011
Dr. Ram Manohar Lohiya National Law University

against them, and hence let the arrested persons flounder in custody, in complete ignorance of
their alleged crimes. This has been attributed to the Colonial nature of our criminal justice
system where the duty of arrest was thrust upon the Indian officers while the British drew up the
charge against the accused. Thus, it is entirely possible that the English origins of the Criminal
Justice system may have resulted in the rights of the under-trials falling through the cracks.

Chapter 8: Recent amendments to the CrPC in the context of accused

persons of ‘unsound mind’
Recent amendments to the Code of Criminal Procedure, 1973 (“CrPC”) by the Amending Acts
of 2008 and 2010, have instituted substantial changes to important provisions concerning inter
alia trials of rape victims, victim compensation, and courts’ powers to adjourn proceedings. The
new provisions aimed at curbing police powers of arrest in particular, generated enough
controversy for Parliament to delay their notification under the previous 2008 Amendment Act
only to subsequently enact them into law in 2010. With these structural changes in place, the
premises of debate and analysis are quickly narrowing to focus on the nuts-and-bolts issues of
non-enforcement and administrative/executive failings.

As far as the amendments to criminal procedure in respect of persons of ‘unsound mind’ are
concerned, it remains crucial to prioritise legislative changes, call out deficiencies in the larger
legal framework, and advocate the creation of better statutory standards that ultimately achieve
an integrated system of rights and protections for mentally ill persons in general.

Conclusion

The issue of under trials is one of grave importance in the present Indian polity and is in fact one
of the biggest threats to our criminal justice system as a huge number of prisoners currently in
jail are under trials. The Government has been making statements about releasing a lakh under
trials in the last few years, however, this nothing in comparison to the vast majority of people
who are still languishing in our jails.

The current legislative framework is still light years far from the ideal position, wherein speedy
trial and effective justice is ensured and accused do not lose the best part of their lives waiting
for justice system to deliver its verdict. Therefore, serious efforts must be made to reduce the
arrears of the justice system. Also, it should be ensured that ‘legal of the poor’ does not continue
to be ‘poor legal aid’. It is said that a nation’s progress can be gauged from the fact of how it
treats its most down trodden, the way under trials are completely disempowered in India is a true
reflection of its state of development, which GDP growth and rising number of billionaires
cannot hide.
Dr. Ram Manohar Lohiya National Law University

The Law Minister has lauded the ‘silent revolution’ by congratulating the judiciary and executive
for coordinating and handling this problem however much remains to be desired. 20 This problem
must not just be looked at from a law and order perspective, as clearly, keeping hardened
criminals and under trial prisoners together is bound to have a very negative effect on the under
trials, and the socio-legal dimensions of the same must be evaluated. The negative effect that
wrong or unduly long imprisonment of earning members of a family on the physical, social and
financial well being of the families is immense. The Indian state must not treat prisoners as
disposable commodities and must remember that they remain citizens notwithstanding their
status as prison. Positive steps in this direction has come in the form of the Election Commission
seeking to redress the legal anomaly under which undertrial prisoners can contest but cannot
vote, although the Supreme Court had on more than one occasion validated the existing
restriction, Section 62(5) of the Representation of Peoples Act.21

Bibliography (Tentative)

Books:

 Ratanlal & Dhirajlal, The Code of Criminal Procedure, Wadhwa & Co., New Delhi, 1998
20
www.legalindia.in/under-trial-prisoners%E2%80%99-justice-scheme-a-silent-revolution-in-judiciary-law-minister
last visited on 1st November 2011
21
http://articles.timesofindia.indiatimes.com/2009-11-23/india/28073649_1_undertrial-navin-chawla-contest, last
visited on 1st November, 2011
Dr. Ram Manohar Lohiya National Law University

 Batuk Lal, The Code of Criminal Procedure, Orient Publishing Co., New Delhi, 1999

Websites:

 http://www.criticaltwenties.in/lawthejudiciary/sheathing-a-double-edged-sword-recent-
amendments-to-the-crpc-in-the-context-of-accused-persons-of-%E2%80%98unsound-
mind%E2%80%99
 http://legalsutra.org/1047/the-rights-of-the-accused-a-study-on-the-rights-of-the-arrested-
person/
 http://www.humanrightsinitiative.org/new/2010/
undertrial_prisoners_&_criminal_justice_system.pdf
 http://vakilsearch.wordpress.com/2011/01/15/under-trials-in-india-their-rights-and-their-
plight/
 http://articles.timesofindia.indiatimes.com/2009-11-23/india/28073649_1_undertrial-
navin-chawla-contest
 http://hslsa.nic.in/HANDBOOK/15.%20IMPORTANT%20JUDGEMENTS
%20HAVING%20BEARING.pdf
 http://login.westlawindia.com/maf/wlin/app/document?
&src=rl&srguid=ia744cc6400000133694135545ffef2b6&docguid=I72EE7C70FBFB11E
09330DD85F6C80268&hitguid=I72EE7C70FBFB11E09330DD85F6C80268&spos=2&
epos=2&td=1421&crumb-action=append&context=2&resolvein=true
 http://www.hrsolidarity.net/mainfile.php/2008vol18no04/2661/
 http://legalsutra.org/1658/under-trial-prisoners-and-access-to-justice/