Rich for realizing of the justice, the process of

 

Rich get bail, poor continue
in jails…

 

Introduction:

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Undertrial
prisoners are those peoples who are facing trials in the competent courts. They
are precisely under legal protection but for all practical drives are kept in
the same prison particularly in India. In many countries, there are separate
institutions for undertrials. Delay in trial of cases is the main human rights issue
of undertrials. The purpose of keeping undertrials in the custody is to confirm
fair trail so that they cannot be able to impact or encourage the witnesses. In
the Indian Prisons, undertrials establish more than 65 percent of the prison
population. As per information of National Crime Record Bureau, the fraction of
undertrials in the Indian Prisons varies from 65 to 70 percent which is a major
indicator of gross abuse of human rights.

Principally, two
contravening values are come across by many great jurists of the time in the
case of a person who is charged of a crime but is not convicted of the crime.
The first principle is the “belief of innocence” and an individual unless
proved of the crime is to be treated as a not guilty in the eyes of law and the
second issue is – it is mainly the duty of state and courts documented to see
that justice is done to individuals or the victims. So, for realizing of the
justice, the process of investigation and inspection of witnesses and
production of accused in court of justice is to be done without any gaps.

So, when an individual
is arrested with or without a license he can be termed as an under-trial
prisoner, and he has various rights, of course.

Reasons of delay
in trial and undue adjournments

To determine the
real cause of unnecessary adjournments, a whole study has been focused. As well
this, numerous stockholders of illegal justice system were questioned which
include Investigating Officers of Police, Public Prosecutors, Lawyers, and
Judicial Judges. Based on examination of reasons of adjournments on each date
in the respect of all these ten cases and discussion with these investors, the
following details were identified:

 

 

 

1. Lack of
judges

2. Non-service
of order of witnesses and Non-appearance of Witnesses

3.
Non-appearance of Police witnesses on the pretext of VIP duty, transfer to additional
places, etc.

4.
Non-production of accused from the jail because of unattainability of Escort

5. Delay strategies
by advocates and the accused

6. Non-production
of Case property

7. Undue
adjournments

8. Lack of
coordination between various organs of Criminal Justice Administration

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 analyzed 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 outcome,
the poor who cannot have enough money to benefit surety have to hurt in lockup
till the case is finished.

 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.

 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.

 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.

Problems of under trials in India:

Overcrowding: If
prison overcrowding must be brought down, the under-trial population must be
reduced drastically. This, of course, cannot happen without the courts and the
police working in. The answer to this problem would lie in the increase in the quantity
of judges, to reduction the work pressure on the juries, and the main of all
the responses is the ending of “adjournment culture”.

Dishonesty and
extortion in prisons: Extortion by prison staff, and its less violent result,
guard dishonesty, is common in prisons around the world. The custodial protectors
are usually given extremely little pay, so this point would act as an annoying
factor which encourages the prison guards to take dishonesty which leads to the
bias in the situation of the under trials in India and most of the developing countries
across the world.

Custodial strength:
Prisons are often unsafe places to those people who live in. A case can be
taken in the instance when a three-day riot and standoff in the Chappra
District prison in Bihar towards the end of March 2002 6 jailbirds expired in
the shootout that happened when commandos of the Bihar Military Police were named
in to quell the riots. Typically, the weak and new convicts are taken and are exposed
to the numerous problems in the prison, usually they are made to clean the lavatories
and are made to sleep near the impure lavatories without any covers. They are
usually beaten seriously by the co-prisoners if they don’t do the whole thing stated
to them.

Homosexual misuse:
Prisons are the places where same gender people are stuck. Being detached from
their natural buddies, forces the prisoners to look for alternative ways to
satisfy their sexual urge. This often finds vent in homosexual abuses where the
young and feeble are targeted. Resistance from the side of jailbirds leads to serious
strength on them. At times, prisoners are exposed to massive homosexual
gang-rapes.

Wellbeing
problems: Most of the prisons face difficulties of congestion and shortage of
adequate space to lodge prisoners in safe and healthy circumstances. Most of
the prisoners found in prisons come from socio-economically underprivileged
sections of the society where disease, malnutrition and absence of medical
services are predominant.

Emotionally ill
prisoners: Though minute, mentally ill convicts establish another percentage of
population, which is largely ignored and forgotten by both the outside world
and those inside.586 But given the nature of the illness and prevailing social
attitudes, they form the most hapless victims of human rights violations.

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 fully. This can take the form of rape or forced prostitution of
the prisoner’s wife and or his daughters.

Drug misuse –
After Murder, attempt to murder and other serious anti-personal crimes, people
booked under anti-drug rules establish a considerable percentage of the prison
population. Being in prison and cut off from the free world, sees and amplified
desperation to get the banned materials to satisfy their habit to drugs. This
also increases the hazard of fresh prisoners being inducted into drug abuse
since jail is an atmosphere where there is a caged, bored, mostly unhappy people
eager for some release from the unattractive everyday reality.

Imprisonment in
bailable cases owing to poverty

Many poor persons
are detained in prisons for supposed connection in bailable offences mainly
because they are incapable to supply security. This is a thoughtful concern
because in such cases security is a matter of right and people end up spending
long periods in jail just because they are unfortunate.

Solution:
Amended section 436

Section 436
Cr.P.C., which deals with the right to bail in bailable offences was revised in
2005.It orders the laws or court to release a poor person on personal bond without
asking for any surety. The amendment allows a poor individual to execute a bond
that s/he shall seem before the court and stand trial. The section states that
the court shall reflect any individual who is incapable to supply bail within 7
days from the date of her/his arrest as indigent. Therefore, a person accused
for a bailable crime can be detained in prison for a maximum period of 7 days.

 

Problem: Delay
in investigation

Many prisoners suffer
in jails 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 hint of a police case contrary to them.

Solution: Section 167

Section 167
Cr.P.C. 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 timeframe, 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 because
the inability of the investigating agency to wind up its investigation.

Problem: Delay
in trial in certain cases

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.

Solution: Use
section 437(6)

In a case triable
by a Magistrate, section 437(6) 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 taking evidence. The magistrate may refuse such release, but only
after recording the reasons in writing.

Problem: Prolonged detention

Many under-trial
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

Solution: Use section 436 A

Section 436A
Cr.P.C.20 lays down the right of an undertrial to apply for bail once s/he has
served one half of the maximum term of sentence s/he would have served had s/he
been imprisoned. On a bail request 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.21

This section
further proscribes the detention of an undertrial beyond the maximum period of
punishment prescribed for the offence that s/he is alleged to have committed.22
Therefore, in effect, this section prescribes the maximum period an undertrial
can be detained in any case.

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 appropriate and technical classification even among
undertrial prisoners to confirm that adulteration of first time and petty criminals
into full-fledged and hardcore prisoners.

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 about 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 must stop which are also given merely for the sake of the
convenience of the authorities. Simple suitability of the powers that be cannot
succeed the Legal pledges 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 prisons and courts should be encouraged and tried in all situations
beginning with the big Central jails and then increasing to District and Sub
jails.

9) The District Judge
should establish a committee containing of representatives from the local
police, bench, trial, district management and the prison section at a fairly
high level, to visit the Sub jails under their authority at least once every
month and review delay in cases of convicts if any and adopt suitable events.

10) Police purposes
should be divided into study and rule and order responsibilities and enough
strength be provided to comprehensive inquiries on time and avoid interruptions.

11) The illegal
courts should exercise their available powers under Sections 309, 311 and 258
of the CrPC to effectuate the right to quick trial. In suitable 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 looking for appropriate
relief or appropriate instructions to deal with and prevent delay in cases.

12) With undertrial prisoners, adjournments
should not be decided unless essential.

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

14) There would
be a progressive and huge Acceptance of crimes so that many of the injuries,
which are now assumed the status of crimes, are dealt with as compoundable
tortuous crimes remediable with a claim for reward.

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

16) Alternatives
to custody should be tried out and combined in the IPC.

17) Custody instructions
should be self-limiting and specify the date on which the undertrial prisoners
would be routinely permitted to put on for bail.

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

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

20) In case of ruin
of any important right of the convict then the state should give satisfactory recompense
to the victim.

 

Prisoner’s Rights under the Prisons Act, 1894

Prisons Act, of
1894 is the first regulation concerning prison rule in India. This Act mostly
focus on renovation of prisoners about the rights of prisoners. Subsequent
Sections of the Prisons Act, 1894 are associated with the improvement of jailbirds:

Housing and hygienic conditions for prisoners,
Provision for the shelter and safe custody of the
excess number of prisoners who cannot be safely kept in any prison
Requirements relating to the inspection of jailbirds
by trained Medical Officer
Requirements relating to separation of prisoners,
containing female and male prisoners, civil and criminal prisoners and convicted
and undertrial prisoners
Requirements relating to treatment of undertrials,
civil prisoners, parole and temporary release of jailbirds.

In the year of
2016, the Parliament has been passed the Prisons (Amendment) Bill, 2016 to
amend the Prisons Act, 1894 with a view to provide protection and welfare of
the prisoners.

Rights:

It is recognized
that belief for a crime does not reduce the individual into a non-person.

Right to
Fundamental Rights: Supreme Court held that custody does not spell farewell to
fundamental rights although by a truthful re-appraisal, courts will waste to
recognize the full panoply of Part-HI enjoyed by the free citizens. Article 21
read with Article 19 (1) (d) and (5), is capable of wider application than the
imperial mischief which gave it birth and must draw its meaning from the
evolving standards of decency and dignity that mark the development of the
matured society.

Right to life
and personal liberty: Supreme Court has accepted annotation of Article 21 and
expanded connotation of “life” given by Field J. that “life means more than
mere animal existence.

Right to live
with human dignity: In new dimension of Article 21, the Hon’ble Supreme Court
held that

“right to live”
does not mean mere confinement to physical existence but it includes within its
ambit the right to live with human dignity.

Right to health
and medical treatment: Supreme Court in series of cases held “right to health
care” as a vital ingredient under Article 21 of the Constitution. Article 21
casts an obligation on the State to preserve life.

Right to speedy
trial: Supreme Court held that right to speedy trial is a part of the important
right envisaged under Article 21 of the Constitution. Delay in disposal of
cases is denial of justice, so the court is expected to adopt necessary steps
for quick experimental and quick disposal of cases.

The Way Forward
It is supposed that from the numerous 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 meeting
the bail quantity for undertrials belonging to the panchayat / block. The
utilization of this fund would be in the hands of the chosen leaders of the culture
with the representative of region 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 culture thereby playing an
important role and forming part of the national normal. Such a situation will
have the effect of reducing the load of over-crowding in jail.
The setting up of separate jails, or at any rate separating undertrials from
convicts, would prevent hardened criminals from exercise their harmful effect
over undertrials. Such separation would also change the attitude of jail
authorities and society at large towards under trials.
The under trials who have been emotional 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 services must be settled to
those under trials who are uninformed and illiterate.

 

 

 

 

 

 

References:

https://lexisnexisindia.wordpress.com/2017/08/22/undertrial-prisoners-in-india/https://www.youthkiawaaz.com/2017/06/under-trials-cases-in-india/http://shodhganga.inflibnet.ac.in/bitstream/10603/20871/11/11_chapter-06-human-rights-undertrials.pdfhttps://www.worldwidejournals.com/…pdf/…/May_2016_1492763816__110.pdfhttps://barandbench.com/wp-content/uploads/2017/…/Undertrials-Amnesty-India.pdfhttps://www.legaldesire.com/rights-prisoners-indian-law/https://barandbench.com/wp-content/uploads/2017/…/Undertrials-Amnesty-India.pdfhttp://www.thehindu.com/news/national/law-commission-makes-a-case-for-bail-for-undertrial-prisoners/article18572238.ecehttps://vakilsearch.wordpress.com/2011/01/15/under-trials-in-india-their-rights-and-their-plight/