CRPC Project
CRPC Project
CRPC Project
CRIMINAL LAW-I
Project on:
Submitted To : Mr.Manoranjan Kumar Submitted By :Richa Raj Roll No. 445 Semester IV, 2nd Year
RESEARCH METHODOLOGY
Method of Research The researcher has adopted a purely doctrinal method of research. The researcher has made extensive use of the library at the Chanakya National Law University and also the internet sources.
Aims and Objectives: The aim of the project is to present a detailed study of the liability for acts done with the consent of the victim.
Scope and Limitations: The project deals with liability of acts done with the consent of the victim in the Indian penal code.
Sources of Data: The following secondary sources of data have been used in the project1. Books 2. Websites
Method of Writing: The method of writing followed in the course of this research paper is primarily analytical.
Mode of Citation:
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Table of Contents
I. Introduction
V. Conclusion
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CHAPTER I : INTRODUCTION
In India there are thousands of defendants who have been languishing in jails,1 awaiting trialmany for longer than a formal sentence would have brought. The term of art used to describe all non-convicted defendants within the Indian criminal justice process is undertrial in that these individuals are deemed to be under the umbrella of delay, in criminal adjudication.2 Undertrial-prisoners are thought to comprise a staggering seventy percent of Indias incarcerated population.3 Moreover, this issue is one that many within the country have recognized as reaching a breaking point; consider that diverse observers such as high-ranking government officials, civil society activists, lawyers, and judges have in unison called for massive reforms in the countrys penal process.4
In India the term jail is used more frequently than, but interchangeably with, the term prison. Parts III and IV of this
article discuss the statistics involving those who are in Indian jails, but one of the alarming facts is how Indian jails often do not segregate their inmates, thus resulting in a situation where people awaiting trial are sharing cells with hardened convicts. See discussion infra Parts III, IV. In contrast, in the United States, there is a distinct difference between jails and prisons, with the former often having less formalized protocol and greater variation in enforcement standards than the latter. The result is that jails can at times place inmates in greater danger than prisons. (This is even given that jails typically hold people for misdemeanors or as they await final outcomes of trials, while prisons generally incarcerate people convicted of felonies.) For a recent series on the American jail and prison system, see Crime and Punishment in America: Rough Justice, ECONOMIST, July 22, 2010, available at http://www.economist.com/node/ 16640389; see also DEPT OF JUSTICE, REPORT ON RAPE IN JAILS IN THE U.S (Dec. 29, 2008), http://www.ojp.usdoj.gov/reviewpanel/pdfs/prea_finalreport_081229.pdf [hereinafter DOJ Dec. 2008 Report]; DEPT OF JUSTICE, REPORT ON RAPE IN STATE AND FEDERAL PRISONS IN THE U.S., (Sept. 24, 2008), http://www.ojp.usdoj.gov/reviewpanel/pdfs/prea_finalreport_080924.pdf [here- inafter DOJ Sept. 2008 Report]. We thank Professor Wayne Logan (Florida State University) for highlighting this important point to us.
2
This term will be used, referenced, and cited extensively in Parts II IV.
. The Indian Minister for Law and Justice, M. Veerappa Moily, himself has noted this statistic. See 92,000 Undertrial
Prisoners Released Across India, IGOVERNMENT, May 27, 2010, http:// igovernment.in/site/92000-undertrial-prisoners-releasedacross-india-37660. We will be discuss- ing the Law Ministers efforts in Parts III and IV. We highlight in detail the work and studies of these various observers in Parts IIIV. But see KIRAN BEDI, ITS ALWAYS POSSIBLE: ONE WOMANS TRANSFORMATION OF TIHAR PRISON (2006) (arguing that the situation in one of Indias most notorious penitentiaries has improved).
4
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In terms of data on corruption in India, Transparency International (TI) has been at the forefront of tracking and critiquing
this problem. For information from TI-India (TII), see Transparency International India, http://www.transparencyindia.org/ (last visited Mar. 6, 2011); see also Jayanth K. Krishnan, Scholarly Discourse, Public Perceptions, and the Cementing of Norms: The Case of the Indian Supreme Court and a Plea for Research, 29 J. APP. PRAC. & PROCESS 255 (2007) [hereinafter Krishnan, Scholarly Discourse]; C. Raj Kumar, Corruption as a Human Rights: Promoting Transparency in Good Governance and the Fundamental Right to Corruption-Free Services in India, 17 COLUM. J. ASIAN L. 31 (2003). For a sample of other works that have focused on these various subjects, see generally PAUL BRASS, THE POLITICS OF INDIA SINCE INDEPENDENCE (1994); ATUL DOHLI, DEMOCRACY AND DISCONTENT: INDIAS GROWING CRISIS OF GOVERNABILITY (1990); ATUL KOHLI, THE STATE AND POVERTY IN INDIA: THE POLITICS OF REFORM (1987); PRATAP BHANU MEHTA, THE BURDEN OF DEMOCRACY (2003); LLOYD RUDOLPH & SUSANNE RUDOLPH, IN PURSUIT OF LAKSHMI: THE POLITICAL ECONOMY OF THE INDIAN STATE (1987); Pratap Bhanu Mehta, A Decade of Hope, OUTLOOK INDIA, Jan. 11, 2010, http://www.outlookindia.com/article.aspx?263732.
9
See e.g., Marc Galanter & Jayanth K. Krishnan, Debased Informalism: Lok Adalats and Legal Rights in India, in BEYOND COMMON KNOWLEDGE: EMPIRICAL APPROACHES TO THE RULE OF LAW 96 (2003) [hereinafter Galanter & Krishnan, Debased Informalism]; ROBERT MOOG, WHOSE INTERESTS ARE SUPREME? THE ORGANIZATIONAL POLITICS OF THE CIVIL COURTS IN TWO DISTRICTS OF UTTAR PRADESH (1997); Jayanth K. Krishnan, Social Policy Advocacy and the Role of the Courts in India, 21 AM. ASIAN REV. 91 (2003).
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retained in custody as undertrial-prisoners,12 while the state prepared its new case. Indeed, in the first two decades after independence, concern for the length of time undertrial-detainees spent in prison did not seem to be a focus for the Court. On repeated occasions, the Court maintained a low threshold that the prosecution had to meet in order to justify the continued detention of undertrial-prisoners.13 Moreover, between 1975 and 1977, when then Prime Minister Indira Gandhi suspended the Constitution and imposed Emergency Rule, the Court further buckled, caving to the governments demand specifically not to provide jailed political opponents and others
10 11 12 13
See :Transcript of Constituent Assembly See Lachmandas Kewalram Ahuja v. Bombay, (1952) S.C.R. 710. Id.
See e.g., Madhu Limaye v. Magistrate, (1971) 2 S.C.R. 711 (holding that undertrials may be detained in order to ensure that they appear in court for their eventual trial and where there may be a threat to community peace if they are released); Ranbir, Singh Sehgal v. Punjab, (1962) S.C.R. Supl. (1) 295 (noting that an undertrial prisoner is not necessarily exempt from being placed in solitary confinement, although the reasons for being held in solitary must not be arbitrary and must have a basis in law); Leo Roy Frey v. Superintendent, (1958) S.C.R. 822 (holding that a valid rebuttal to a defendants claim of habeus corpus is for the prosecution simply to provide a production of the order or warrant for the apprehension and detention of an undertrial); Kanta Prashad v. Delhi Admin., (1958) S.C.R. 1218.
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See e.g., GRANVILLE AUSTIN, WORKING A DEMOCRATIC CONSTITUTION: THE INDIAN EXPERIENCE (1999); UPENDRA BAXI, THE INDIAN SUPREME COURT AND POLITICS (Eastern Book Co.) (1980); RAJEEV DHAVAN, THE SUPREME COURT OF INDIA: A SOCIO-LEGAL CRITIQUE OF ITS JURISTIC TECHNIQUES (1977); S.P. SATHE, JUDICIAL ACTIVISM IN INDIA: TRANSGRESSING BORDERS AND ENFORCING LIMITS (New Delhi: Oxford University Press) (2002); Krishnan, Scholarly Discourse, supra note 18. 15 See SATHE, supra note 56, at 106; Krishnan, Scholarly Discourse, supra note 18; see also Carl Baar, Social Action Litigation in India: The Operations and Limitations on the Worlds Most Active Judiciary, 19 POLY STUD. J. 140 50 (1990); Marc Galanter & Jayanth K. Krishnan, Bread for the Poor: Access to Justice and Rights of the Needy in India, 55 HASTINGS L.J. 789, 795 (2005) [hereinafter Galanter & Krishnan, Bread for the Poor]; Jayanth K. Krishnan, Lawyering for a Cause and Experiences from Abroad, 94 CAL. L. REV. 575 (2006) [hereinafter Krishnan, Lawyering for a Cause]. 16 (1979) 3 S.C.R. 169.
17
Id. Professor Upendra Baxi has written one of the most detailed and analytical account of this case. As Baxi notes, in reality
there were several iterations of the decision, involving six different interim orders. (At the time of his writing, the final orders in the writ petition . . . [were] yet to emerge). For a comprehensive review of these various interim rulings, see Upendra Baxi, The Supreme Court Under Trial: Undertrials and the Supreme Court, 1 S.C.C. (JOUR.) 35, 3551 (1980). It is important to note that while Justice Bhagwati was a crusader for the undertrials in the Post-Emergency Era, he also was part of the majority in the infamous case (during the Emergency Rule) that allowed the government to wield unfettered powers, including the power to abrogate the constitutions right to life and habeas corpus provisions. See A.D.M. Jabalpur v. Shukla, A.I.R. 1976 S.C. 1207. We are grateful to Mr. Viplav Sharma for his insights on this important case.
18 19
See Khatoon v. Home Ministry, (1979) 3 S.C.R. 169 (referencing the Sixth Amendment of the United States Constitution and the United States Bail Reform Act of 1966 as well as [t]he experience of enlightened Bail Projects in the United States such as Manhattan Bail Project and D. C. Bail Project shows that even without monetary bail it has been possible to secure the presence of the accused at the trial in quite a large number of cases). 20 See Maneka Gandhi v. India, (1978) 2 S.C.R. 621.
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In the years that followed, subsequent judgments reiterated the position set forth in Hussainara Khatoon. In 1980, for example, the Court prohibited the continued handcuffing of incarcerated under- trials unless there was a clear and present danger of escape.22 That same year, Justice Bhagwati decried the delay and treatment of four young boysall under the age of twelve when arrestedwho had been jailed awaiting trial for over eight years.23 Bhagwati ordered an im- mediate hearing. By 1981, the boys were finally acquitted of all charges with the assistance of a committed grassroots activist, Vasudha Dhagam- war.24 There were other emotionally wrenching cases involving the abuse of juvenile undertrials that Indian jail,26 the Court sought to remedy during the 1980s.25 During this
period, the Court dealt with the ghastly blinding of undertrial-prisoners in a northern as well as whether undertrials could have the time already spent waiting in prison count towards a sentence once rendered.27 With respect to the latter, in
1985 the Court answered affirmatively, holding that even defendants sen- tenced to life
21 22
Id. Again, for a complete treatment of this crucial ruling, see SATHE, supra note 17. Shukla v. Delhi Admin., (1980) 3 S.C.R. 855. Pehadiya v. Bihar, A.I.R. 1981 S.C. 939 (noting that the undertrial problem was a crying shame upon our adjudicatory system . .
23
. . Also note that the decision was made in December of 1980 but reported in many casebooks in 1981thus the Supreme Court Reports citation.). For a moving, detailed account of a leading advocate who worked on behalf of the boys in this case, see VASUDHA DHAGAMWAR, ROLE AND IMAGE OF LAW IN INDIA: THE TRIBAL EXPERIENCE 241258 (2006). Also see, Bir v. Bihar, A.I.R. 1982 S.C. 1470 (where the Court (with Justice Bhagwati again part of the panel) explicitly ruled that state high courts (in this case Bihars) should ensure that there are no undertrial prisoners who are detained in jail for more than 18 months without their trial having been commenced, either before the magistrate or the court of sessions, and if there are such undertrial prisoners, the High Court will take steps for the purpose of expediting the trial of such undertrial prisoners).
24
See DHAGAMWAR, supra note 65, at 248. Interestingly, Dhagamawar notes in this chapter of her book that she was inspired to champion the boys case after seeing the tremendous efforts taken by Justice Bhagwati in Hussainara Khatoon, as well as in another case, Batra v. Delhi Administration, (1979) 1 S.C.R. 392 (1978), where the Court there held that a prisoner who had been savagely beaten required humane treatment and immediate due process in the criminal justice system.
25
See, e.g., Munna v. Upper Pradesh, (1982) 3 S.C.R. 47 (accepting a writ petition and ordering further investigation of the extensive allegations of sexual abuse of juvenile undertrials); see also Supreme Court Legal Aid Comm. v. India, (1989) 2 S.C.R. 60 (ordering various states to collect data on the numbers of undertrial children in prison); Suri v. Delhi Admin., (1988) 2 S.C.R. 234 (dealing with the inhumane conditions to which juveniles in Delhis Tihar Jail were exposed). 26 See Yadav v. Bihar, (1982) 3 S.C.R. 533.
27
The Court, for instance, initially said no. See Kartar Singh v. Haryana, (1983) 1 S.C.R. 445, where the Court argued that because the defendants sentence was for life, counting the undertrial waiting period towards such a sentence would make no sense. But see Sethi v. Bihar,
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enhancing the rights of the undertrials. In a landmark 1994 case, 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,29 any further deprivation of personal liberty would be violative of the fundamental right visualized by Article 21.30 Two years later, in two cases, the Court reiterated time limits for incarceration of undertrials.31 The Court, in Shri Rama Murthy v. State of Karnataka, noted that given that the state had 193,240 people incarcer- ated of which 137,838 were undertrials justice would best be served by simply releasing the undertrials.32 In the 2000s, the jurisprudence of the Indian Supreme Court has continued to emphasize the need to protect undertrial-prisoners rights.33 While there has been the occasional case where the Court has opposed an undertrial-prisoners petition,34 these instances favorable trans- lated chapter. have been few in the post-Emergency era. Yet, with all of these
judicial pronouncements, the question then becomes: have these rulings into tangible results? I have examined this question in the next
28
Bhagirath v. Delhi Admin., (1985) 3 S.C.R. 743. Practically, this issue would arise in those situations where a defendant was sentenced to life but had a possibility of parole. 29 Supreme Court Legal Aid Comm. v. India, (1994) Supp. 4 S.C.R. 386.
30
Id. For two even more current cases re-stating this principle, see Maharashtra v. Ali, (2001) 3 S.C.R. 600; Saxena v. India, (2008) 63 A.C.C. 115. 31 See Upadhyay v. Andhra Pradesh, (1996) 3 S.C.C. 422; Common Cause v. India, (1996) Supp. 2 S.C.R. 196. But c.f. Rao v. Karnataka, (2002) 3 S.C.R. 68 (overruling the Common Cause decision, noting that judges have to determine what a speedy trial is in terms of the facts and circumstances of the case before them). 32 Shri Rama Murthy v. Karnataka, A.I.R. 1997 S.C. 1739. Note, while this decision was handed down in 1997, the data that the Court was working off of was from statistics taken in 1993.
33
See, e.g., Parekh v. Cent. Bureau of Investigations, (2009) 15 S.C.R. 1105 (reiterating the principle that time served as an
undertrial should count towards any formal sentence received); Upadhyay v. Andhra Pradesh, A.I.R. 2006 S.C. 1946 (decrying the horrid situation of children who are dependent on their motherswho are undertrial-prisoners having to stay in prison with their parent simply as a means of surviving); Sanjay Alias Bablu Alias Keja v. Gujarat, (2002)10 S.C.C. 403 (granting of release, on bail, to undertrial prisoner who had been languishing since1998 awaiting trial); Maharashtra v. Mubarak Ali, (2001) 3 S.C.R. 600 (holding that the undertrial prisoner, under section 428, can have his time served counted towards two separate criminal sentences imposed upon him). For further cases during the 2000s that deal with the Courts jurisprudence on the undertrials
34
See, e.g., Sarkar v. Ranjan, A.I.R. 2005 S.C. 972. Here the Court had shown hostility towards an undertrial prisoner who has disobeyed internal prison rules, noting that [t]he fundamental right of an undertrial prisoner under Article 21 of the Constitution is not absolute.Id. at 21
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The Empirics
According to the latest data from the Indian government, there are roughly 430,000 people incarcerated in the country, with a startling 70% (300,000) who are undertrialprisoners.35 These figures are in theaggregate, so in order to contextualize this information consider the most recent disaggregated data (from the Ministry of Home Affairs) from the end of 2007. This information reveals that the total number of undertrial-prisoners in the twenty-eight states and seven union territo- ries (UTs) then was 250,727.36 Given the governments most recent 2010 data, that number has grown by nearly an astonishing 50,000 people in just over two years. This fact alone intimates that the Supreme Courts various judgments have simply not been executed. Further, over one-third of the 2007 undertrial-population (88,312) was illiterate. And when combined with those with less than a tenth grade education, that percentage skyrocketed to approximately 80% (196,954) of the entire 2007 undertrial-population.37 Next, consider additional data from the end of 2007. What this information displays is that a disproportionate percentage of scheduled castes, scheduled tribes, and
other backward classes (OBCs) made-up the undertrial-population, with nearly two-thirds of the total number of undertrials coming from one of these three communities.38 These three groups, whose classifications are officially denoted and recognized in India,
35 36
The data come from the Indian governments Ministry of Home Affairs and are compiled by IndiaStat.com, a sophisticated web service. State-wise Demographic Particulars of Untertrial Prisoners in Jails in India, INDIASTAT.COM, http://www.indiastat.com/crimeandlaw/6/whatsnew.aspx [here- inafter State-wise Demographic Particulars]. Unfortunately, the Ministrys most recent disaggregated on-line data is from the end of 2007. The Indian government also has a body known as the National Crime Records Bureau. However, the most recent on-line disaggregated data available there is from 2006; thus we rely on the former source here for this study. 37 State-wise Demographic Particulars, supra note 39.
38
In particular, the data show that 63% of the total number of prisoners is from Scheduled Castes, Scheduled Tribes, and OBCs. The breakdown in number is: for Scheduled Castes, 54,324/241,413; Scheduled Tribes, 29,941/241,413; OBCs: 68,115/241,413. (Note also that the total number of undertrials, 241,413, is lower than the total number of undertrials from footnote 39, which was 250,727. Presumably this difference is because there are unreported statistics in the former (namely from Delhi, where the difference between 250,727 and 241,413 is 9,314, which is the exact number of undertrials listed for Delhi.) For information on the data, see text accompanying supra note 78. See also State-wise Demographic Particulars of Undertrial Prisoners in Jails of India(Caste Data) (2007), INDIASTAT.COM, (On file with author.)
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Bengal) at least 50% of the 2007 undertrial totals, respectively, are from scheduled castes, scheduled tribes, or OBCs. Of course, that there may be variation among and within these groups, politically and socio-economically, in their respec- tive states is obvious. But, according to a highly respected observer who closely tracks this data and is intimately familiar with the undertrial problem in India, there is a palpable sense among lawyers, rights activists, and government officials that lower castes are unfairly tar- geted by the criminal justice system.40 There are other Home Ministry data (again from end-2007) worth discussing, as well. For example, the criminal justice system is in large part guided by what is known as the Indian Penal Code (IPC), which defines misdemeanors and felonies and prescribes their respective penalties. This body of laws had a long history, 41 but interestingly for our purposes, by more than a two-to-one margin, there are more undertrial-prisoners facing murder charges (54,245 defendants) than any other crime. (The next highest number is over 24,623, and they are those facing theft charges).42 Supplementing the IPC are various local and state criminal laws, as well as special laws that have been passed by the central government. Here, the largest number of end2007 undertrial-prisoners held under these statues is those who face drug charges under the Narcotic Drugs and Psychotropic Substances (NDPS) Act (11,108).43 Next, there are nearly 10,000 individuals accused of violating the countrys Arms Act, followed by
39
For a classic treatment on the issue of law and caste in India, see MARC GALANTER, COMPETING EQUALITIES: LAW AND BACKWARD CLASSES IN INDIA (1984). Of course, this subject has been discussed extensively in the literature. For a recent, up-to-date bibliography on the subject of caste, see TIMOTHY LUBIN, DONALD R. DAVIS & JAYANTH K. KRISHNAN, HINDUISM AND LAW (2010). 40 Interview with Civil Society Official (anonymity requested) (May 17, 2010) (on file with author).
41
For a discussion of this issue, see generally HARI OM MARATHA, LAW OF SPEEDY TRIAL: JUSTICE DELAYED IS JUSTICE DENIED (2008) 42 See State-wise Number of Undertrial Prisoners by Type of IPC Offences in India, Part I, II, and III (2007), INDIASTAT.COM (on file with author).
43
See State-wise Number of Undertrial Prisoners by Type of Offences under Special and Local Laws (SLL) in India, Part I, Part II, Part III (2007), INDIASTAT.COM (on file with author).
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103,624 had been waiting for a trial for three months or fewer, and another 52,476 had been waiting up to six months. At the other end of the spectrum, there were 1,891 inmates who had spent more than five years in detention, which is .008% of the total undertrial- population.45 At first glance, these figures might be ones that defenders would use to rebut the frequent criticisms made of Indias criminal justice system. The argument might be that although it is never good to have people spending even one day more in prison than necessary, that 62% of the undertrial-population is doing so for no more than six months defies the stereotype that the Indian penal process is a proverbial black hole. Moreover, that only a miniscule percentage is detained for more than five years while, again, troublingis not nearly as high a number as what is often portrayed. In August 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.46 In fact, these data deserve greater scrutiny. For one thing, there is no information on what types of charges the 62%, detained-for-under-six- month group, are facing.
Otherwise put, this time frame matters little to the person who is being held for a crime that carries a maximum sentence of thirty days but remains incarcerated for five months. Similarly, for the 1,891 prisoners awaiting trial for more than five years, the question must be asked: who are these people? As stated above, there are over 52,000 people currently facing murder charges. Might all 1,891 of these people be murderdefendants? (Perhapsand if they are indeed guilty that may serve as some odd form
44
Id. For an insightful, although critical review of an essay on this subject, where the reviewer highlights how statistics
on undertrials must include special laws, which we do, see Bikram Jeet Batra, A Weak Look at Judicial Reforms, INDIA TOGETHER (2007), http://www.indiatogether.org/ 2007/may/rvw-judreform.htm (last visited Mar. 28, 2011) (critiquing Debashis Chakraborty, Arnab Kumar Hazra, & Pavel Chakraborty, Crime Deterrence and the Need for Reforms: An Analysis of Indian States, in JUDICIAL REFORMS IN INDIA: ISSUES AND ASPECTS (Arnab Kumar Hazra & Bibek Debroy eds., 2007). 45 See State-wise Number of Undertrial Prisoners by Period of Detention in India, Part I and Part II (2007), INDIASTAT.COM (on file with author).
46
See Litigation Statistics Debate Continue: All India Seminar on Judicial Reforms Looks at Real Statistics and Real Numbers, BAR & BENCH, Aug. 2, 2010, http://barandbench.com/brief/2/882/ litigation-statistics-debate-continue-all-india-seminar-on-judicial-reformslooks-at-real-statistics- and-real-numbers654425 (with the Chief Justice further noting: For years I have been listening to speaker after speaker . . . slamming the judiciary for mounting arrears. They must know [in India, for statistics purposes] filing of a case today becomes a pending case tomorrow. But, is that an arrear? Statistics reveal that 60% of the cases pending in trial courts were less than one year old. So, if we take a realistic look at the arrears and exclude those pending for just one year, then the arrears are only one crore [i.e. 10,000,000] cases, rather than the 30,000,000 that is frequently cited).
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Typically, when an arrest of an individual is made, that person must be produced in front of a magistrate within twenty-four hours.48 At that time a determination will be made on bail. Regardless of the bail decision, the police are supposed to continue to investigate further in order to determine whether a formal charge-sheet49 should be filed with prosecutors, who then will assess whether to proceed to trial. What the data do not tell us is if the statistics include or exclude those who have been denied bail but who have yet to be charge-sheeted. In other words, if the figures from the government only represent defendants who have formally received word from prosecutors that they (the defendants) will be triedand there are indeed non-charge-sheeted individuals languish- ing behind barsthen there is a serious undercounting of the inmate population.50 Ultimately, these empirics starkly illustrate the undertrial situation in India, with the preceding questions highlighting how the scenario may be even worse than the data suggest. Obviously we are not alone in recognizing this dilemma. In the next section we review and evaluate the various initiatives that have been made over the years to address Indias inmate debate. predicament, and thereafter we add our own set of proposals to the
47
Given the number of such cases the Supreme Court alone has heard in the past, the answer seems to be, disturbingly, yes. For a review of these cases, see supra Part II.A. 48 See FAQs About Arrest/Bail, MAHARASHTRA STATE POLICE, http://mahapolice.gov.in/ mahapolice/jsp/temp/arrestfaq.jsp (last visited Mar. 13, 2011) (detailing procedures in Maharash- tra under countrys criminal procedure code). 49 See id.
50
See LAW COMMISSION OF INDIA, SEVENTY-EIGHTH REPORT: CONGESTION OF UNDER-TRIAL PRISONERS IN JAILS 5 (1979), http://lawcommissionofindia.nic.in/51-100/Report78.pdf (defining undertrial prisoners in a wide sense even to include persons who are in judicial custody on remand during investigation) [hereinafter LAW COMMISSION OF INDIA].
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51
http://www.article2.org/mainfile.php/0702/313/
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The common features of the trials in all three of the aforementioned procedures may be roughly broken into the following distinct stages: 1. Framing of charge or giving of notice This is the beginning of a trial. At this stage, the judge is required to sift and weigh the evidence for the purpose of finding out whether or not a prima facie case against the accused has been made out. In case the material placed before the court discloses grave suspicion against the accused that has not been properly explained, the court frames the charge and proceeds with the trial. If, on the contrary, upon consideration of the record of the case and documents submitted, and after hearing the accused person and the prosecution in this behalf, the judge considers that there is not sufficient ground for proceeding, the judge discharges the accused and records reasons for doing so. The words not sufficient ground for proceeding against the accused mean that the judge is required to apply a judicial mind in order to determine whether a case for trial has been made out by the prosecution. It may be better understood by the proposition that whereas a strong suspicion may not take the place of proof at the trial stage, yet it may be sufficient for the satisfaction of the court in order to frame a charge against the accused person. The charge is read over and explained to the accused. If pleading guilty, the judge shall record the plea and may, with discretion, convict him. If the accused pleads not guilty and claims trial, then trial begins. Trial starts after the charge has been framed and the stage preceding it is called inquiry. After the inquiry, the charge is prepared and after the formulation of the charge, trial of the accused starts. A charge is nothing but formulation of the accusation made against a person who is to face trial for a specified offence. It sets out the offence that was allegedly committed. 2. Recording of prosecution evidence
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5. Final arguments This is the final stage of the trial. The provisions of the CrPC provide that when examination of the witnesses for the defence, if any, is complete, the prosecutor shall sum up the prosecution case and the accused is entitled to reply. 6. Judgment After conclusion of arguments by the prosecutor and defence, the judge pronounces his judgment in the trial. Here it is relevant to mention that the CrPC also contains detailed provisions for compounding of offences. It lists various compoundable offences under the Indian Penal Code, of which 21 may be compounded by the specified aggrieved party without the permission of the court and 36 that can be compounded only after securing the permission of the court. Compounding of offences brings a trial to an end. Under the CrPC an accused can also be withdrawn from prosecution at any stage of trial with the permission of the court. If the accused is allowed to be withdrawn from prosecution prior to framing of charge, this is a discharge, while in cases where such withdrawal is allowed after framing of charge, it is acquittal
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CHAPTER V : CONCLUSION
of the
challenges facing the Indian criminal justice system, and thus sustained, long-term change is unlikely in the near future. Con- sider, for example, the governments recently passed set of amend- ments to the Code of Criminal Procedure. Among the new provisions in the law include tightening the circumstances under which the police can make arrests, increasing the number of bailable and compound- able offenses, and using video technology during the detention processall proposals we
presented above. The reaction, however, from defenders of the status quo has been swift. Some have said that the police now will be hamstrung in their investigative powers. Others have noted that the amendments dilute the deterrence effect on potential criminals. Some lawyers and public officials have even gone on strike to express their dismay in the changes. Criminal law scholar, Tarunabh Khaitan, has provided an insightful analysis of these amendments and the responses. As he notes, the motives, particularly by the
opposing lawyers, have been questionable from the start. As already mentioned, many Indian litigators are paid per court appearance. With the possible reduction in the number of arrests as a result of the amendments, there is an unstated assumption among these lawyers that their fees will correspondingly decline. However, as Under the
Khaitan explains, there will still be work for these lawyers in court.
proposed changes it will be on behalf of those sitting in jails who, under the new amendments, should not be. Regardless, Khaitan, like us, is less-than-sanguine about the impact the amendments will have on the penal process, observing that they likely appear set to join the ranks of:
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government . . . . Rather sad for undertrial prisoners, who would have been the main beneficiaries of these amend- ments.
Thus, this is the situation in which undertrial-prisoners find them- selves. Indeed, in this article, we have supported various past proposals and made recommendations of our own. These include, for example, greater use of technology to expedite the the establishment of independent
committees to moni- tor how quickly undertrial cases are adjudicated. In addition, we sup- port courtroom mobility, whereby judges would travel to the jails currently holding undertrial detainees in order to accelerate the pre-trial systemically, eradicate the recognizing, confronting, and finding many process. More to
thoughtful measures
system is of critical
importance if real changes are to be seen. And then there is the responsibility of the legal pro- fession itself to play a more substantive role in ensuring that self-serving delays are eliminated and that a greater culture of pro bono legal services gains wider acceptance within the bar. The stark reality is that in addition to top-down legislation that attempts to
mandate reforms, there must be a major cultural and attitudinal transformation of views in Indian society towards these incarcerated individuals. Further, there needs to be systematic consid- eration of the tremendous costs imposed on society by process. Finally, as scholars and
policy-makers continue to research ways to improve the undertrial dilemma, there must be greater scrutiny of the personnel working within the criminal justice system. Who are these prosecutors? Who are the defense lawyers? How adequate are the legal services they are providing? And, what type of training and professionalism do these legal actors receive? As a final note on the state of Indian legal community, there is a real sense among attuned observers that a large percentage of the countrys 900-plus law schools has failed to produce adequate lawyers. If this is the case, and lower level criminal courts are being staffed with under- qualified people, then attacking the undertrial problem may
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BIBLIOGRAPHY
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