ARREST AND PRE-TRIAL DETENTION - ROLE OF JUDGEMAGISTRATE

51

the need for undertaking suitable judicial reforms and the changes in law , in
order to deal with the problem posed thereby.

The 78th report of law commission there can be no doubt that a large
percentage of the inmates of our jails today is constitution by under trial
prisoner.

All the under trial prisoners are accused but all accused are not under
trial prisoners. The rights of the under trial prisoners are also the rights of the
accused.
The followings are the rights of the under trial prisoners.

 Protection against Ex post facto law- Art 20(1) of Indian constitution.

 Protection against double jeopardy - Art 20(2) of Indian constitution.

 Protection against self-incrimination- Art 20(3)of Indian constitution.

 Right against inhuman treatment.

 Right against handcuffing.

 Right to Free legal Aid.

 Right to Bail.

 Right to speedy trial.

1. Protection against Ex post facto law- Art 20(1) of Indian constitution.:-
No person shall be convicted of any offence except for violation of a law

in force at the time of the commission of the act charged as an offence nor be
subjected to a penalty greater than that which might have been inflicted under
the law in force at the time of the commission of the offence.

2. Protection against double jeopardy - Art 20(2) of Indian constitution:-
No person shall be prosecuted and punished for the same offence more

than once.

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For application of this rule:-

4. The person must be accused of an offence.

5. The proceedings or the prosecution must have taken place before
court or judicial tribunal.

6. The person must have been prosecuted and punished in the
previous proceedings.

7. The offence must be the same for which he was prosecuted in the
previous proceeding.

in maqbool Hussain (vs) state of Bombay
AIR 1953 SC 325.

The Hon'ble Supreme court held that proceedings means judicial proceedings.

3. Protection against self-incrimination- Art 20(3)of Indian constitution.:-

No person accused of any offence shall be compelled to a witness against
himself.

Where the accused makes a confession without any inducement, threat,
or promise Article 20(3) of the constitution does not apply.

In Nandini Satpathy case
AIR 1977 SC1025.

4.Right against inhuman treatment.:-

In kishore singh (vs) State of Rajesthan
AIR 1981 SC 625

The Hon'ble Supreme court held that the use of 'third degree'
method by police is violative of Art 21 of the constitution and directed the
Government to take necessary steps to educate the police so s to inculcate a
respect for the human person. Human dignity is a clear value of our
constitution not to be bartered away for mere apprehension entertained by jail
officials declared hon'ble J. krishna Iyer similarly torture and ill-treatement of
women suspects in police lockups has been held to be violative of Art 21 of the
constitution. Female suspect should be kept in separate police lockups and
not in the same in which male accused are detained and should be guarded
constables..

5. Right against handcuffing:-

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In Prem Shanker Shukla (vs) Delhi Administration
AIR 1980 SC 1535
(1980) 3 SCC 526

The Hon'ble Supreme court held that every under trial who was accused
of a non bailable offence punishable with more than three years jail term would
be handcuffed, were violative of Art 14,19,21 of the constitution. Handcuffing
should be resorted to only when there is clear and present danger of escape but
not merely an assumption. Where in extreme cases handcuffing is to be put on
the prisoner the escorting authority must record the reasons for doing so
otherwise under Art 21 of the procedure would be unfair and bad in Law.

Circular memo No. 17967 / Leg-1 / A2/ 2006 Dated:26-6-2006.
The order No.461 of APPM is read as follows:-

The use of handcuffs or leg chains should be avoided and if at all
necessary , it should be resorted to strictly in accordance with the law
mandated in judgment of the Hon'ble Supreme Court of India

In Prem Shanker Shukla (vs) Delhi Administration
AIR 1980 SC 1535

(1980) 3 SCC 526

and Citizen for Democracy (Vs) State of Assam
(1995) 3 SCC 743.

The points to be observed in this regard are as follows:

8. When an accused is in Court during the trial he must be held to be in
the custody of the Court. If an accused is so dangerous that it is
necessary to handcuff him, representation should be made to the Court,
and the Court will issue appropriate instructions in the matter. Accused
persons while in Court during trial should not be handcuffed except with
the permission of the Court.

9. Under trial prisoners and other accused persons shall not be handcuffed
and chained without specific permission of the Court and only if there is
a reasonable apprehension, either due to heinous nature of the crimes
with which they are charged or behavior that such persons will use
violence or will be made to rescue them. The same principle shall be
applied to convicts proceedings, in public place while in police custody
vindictivity is to be differentiated from necessity.

10. Whenever non-convicted accused persons are handcuffed with
Court's permission, the fact and the reasons for it shall be stated in the
Station House general diary, the sentry relief book, and in the remand

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diary forwarded to the Magistrate.

11. The prisoners either convicted or under trial and confined in a
sub-jail shall not be handcuffed, whenever they are taken out in the
precincts of the sub-jail for food or other necessities, rather the entire
guard including the guard commander shall be present. If there are more
number of prisoners, the guard in-charge should inform the officer in-
charge of the police station to send two or three constables to assist the
sub-jail guard during the period when the prisoner are taken out. The
officer in-charge of police station shall provide extra manpower as
required by the guard in-charge.

12. Whenever it is considered necessary to handcuff certain prisoners
confined in sub-jail, while they are taken out, the written orders of the
Magistrate should be obtained and the permission granted by him
should be maintained in a book to be kept by the guard officer.

13. With regard to a refractory, violent or dangerous prisoner, the
officer in-charge of the sub-jail guard or the senior police officer present
may control him only by utilizing more personnel and by such force as
may be necessary, while rushing a messenger to the concerned Court of
Magistrate for permission to handcuff him.

14. Under-trial-prisoners or accused prisons in Hospital should not be
handcuffed without permission of the Court. In no case should prisoners
or accused persons who are aged and bed ridden in hospital or women
prisoners, juvenile prisoners or civil prisoners be handcuffed or fettered.
If necessary extra guard should be provided.

15. The restriction on use of handcuffs is not be place any embargo on
use of minimum force to control a violent prisoner.

In State of Maharastra (vs) Ravikat .S Patel
(1991) 2 SCJ 54

The Hon'ble Supreme Court of India held that handcuffing of an Under-
trial-prisoner and taking him in a procession through streets of city is against
the principals of humanity and Art 21 of the constitution for such act the
under-trial-prisoner concerned should be compensated.

6. Right to free legal Aid:

One of the most important right of the persons accused of a crime is the
right to have the assistance of counsel in preparing.

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Art 39-A of Indian constitution: Equal justice and free legal Aid to
economically backward classes.

Legal Aid and speedy trial have been held to be fundamental rights under
Art 21 of the Indian Constitution available to all prisoners and enforceable by
Courts. The state is under duty to provide lawyer to a poor person and it must
pay to the lawyer his fee as fixed by the Court.

H. M. Hoskot (vs) State of Maharastra
AIR 1978 SC 1548

Hussainra Khatoon (vs) Home secretary of Bihar.
AIR 1979 SC 1377

State of Maharastra (vs) Manubhai Bagaji Vashi
(1995) 5 SCC 730

Art 22(b) of Indian constitution right to be defended by a lawyer of his own
choice:-

Prior to Maneka Gandhi's decision in India the view of the Court was that
it was not bound to provide the help of a lawyer unless a request was made by
him/Accused.

After Maneka Gandhi's case decision the Courts will be bound to provide
the assistance of a lawyer to a person to a person arrested under an ordinary
law also.

Hussainra Khatoon (vs) Home secretary of Bihar.
AIR 1979 SC 1377

The Hon'ble Supreme Court of India has held that free legal Aid is the
constitutional right of every accused of reasons such as poverty, indigence,
incommunicado situation, to have free legal service provided to him by the
state and the state is under constitutional duty to provide a lawyer to such
person if the needs of justice so require. If free legal services or not provided
the trial itself may be vitiated as contravening Art 21 of the Indian constitution.

The protection of this article is also not available to a person who has
been convicted by a competent Court and detained.

Sec 304 of Cr. P.C: Legal Aid to accused at state expense in certain cases:

9. Where in a trial before the Court of sessions the accused is not
represented by a pleader and where it appears to the Court that the
accused has not sufficient means to engage a pleader, the Court shall

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assign a pleader for his defense at the expense of the state.

10. The High Court may with the previous approval of the state
Government, make rules providing for:

a. The mode of selective pleaders for defense under subsection (1)

b. The facilities to be allowed to such pleaders by the Courts.

c. The free payable to such pleaders by the Government and generally,
for carrying out the purposes of sub-section(1).

14. The state government may by notification direct that as from such
date as may be specified in the notification the provisions of sub-
sections (1) and (2) shall apply in relation to trial before Courts of

session.

Where accused is not represented by counsel, court to appoint an
amicus-curiae. Held in Dilawas Singh (vs) State of Delhi:

AIR 2007 SC 3234

Fair trial and assistance of counsel to accused – explained in Mohd.
Hussain alias Julfikar (vs) State (Govt. of NCT) Delhi.

AIR 2012 SC 750.

Rule 36 of Criminal rules of practice deals defense at state expense:

Session Judge or Magistrate shall inform every accused person who
appears before them who is not represented by an advocate on account of his
poverty, and indigence that he is entitled to free legal service at the cost of the

state unless he is not willing to take advantage of it. It is not necessary that
accused should apply for legal Aid. If the Court is satisfied that the accused
has no sufficient means to engage an advocate. It shall assign an advocate for

his defense at the expense of state.

7. Right to Bail:

Majority of under-trial-prisoners who languish in jails constitute

such prisoners who owing to their poverty can not furnish bail even in respect
of whom the Courts have passed orders for bail.

The law commission of India in 78th report (1979) has explicitly
dealt with this points and has aptly stated in its report. There are no doubt

that a large percentage of the inmates of our jails today is constituted by
under-trial-prisoners who are the three types.

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a. Persons being tried for non-bailable offenses in respect of
whom the Courts have declined to pass an order for their

release on bail.

b. Persons being tried for non-bailable offenses in respect of whom
the Courts have passed orders for bail, but who because of their inability of
finding appropriate sureties or because of some other reasons are unable to
furnish the bail bonds.

c. Persons who are being tried for bailable offenses but who
because of their in ability to find appropriate sureties or because of some
other reasons are unable to furnish the bail bonds.

The Provisions under Cr. P.C. Deals with bail to accused.

Sec 167(2) Proviso of Cr.P.C:-

If investigation is not completed with in 60 days or 90 days as case may
be (60 days if investigate not completed offense punishable with imprisonment
up to 10 years. 90 days if investigation not completed offense punishable with
imprisonment 10 years or more ,death or imprisonment for life). The accused is
entitled to be released on bail and the Magistrate shall grant him bail.

Rule 28 of criminal rules of practice :-

Computing period of remand u/sec 162(2) both the on which the
remand order was made and day on which accused is ordered to be produced
before the Court shall be excluded. (G O M S NO 127 law LA & J Home Courts-
B, Dt: 18-08-2008).

Bhagalpur blinded prisoner's case is one brutal and barbarous example
of the prison and Magistrate conspiracy against the enforcement of human
rights of accused Some of the blinded prisoners were never produced before the
magistrate after first appearance and remanded in jail even without mechanical
approval of their custody by the Magistrate and others were detained in
pursuance of automatic approval of their detention without their production
before the magistrate as required under proviso (b) of section 167 of Cr. P.C.
The Court directed the Magistrate in the country to enforce this vigil provision
vigorously but not viciously I.e for the purpose of protecting the accused
against unreasonable free trial detention held in Khatri (vs) State of Bihar AIR
1981 SC 928.

Entitlement of statutory bail explained held in Vipul Shital Prsad Agarwal (vs)
State of Gujarat AIR 2013 SC 73.

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The act of directing remand of an accused is fundamentally a judicial function
held in Manubhai Ratilal Patel Tr. Ushaben (Vs) State of Gujarat & others. AIR
2013 SC 313.

Object of proviso to section 167(2) of Cr.P.C. explained in Uday Mohanlal
Achrya (Vs) State of Maharashtra AIR 2001 SC 1910.

section 436 proviso of Cr.P.C:-

such officer and court if he or it thinks fit ,may,and shall, if such
accused person is indigent and is unable to furnish surety , instead of taking
bail from such person, discharge him on his executing a bond without sureties
for his appearance as here in after provided.

Where a person is unable to give bail within a week of the date of
his arrest, it shall be a sufficient ground for the officer or the court to presume
that he is an indigent for the purpose of this proviso of section 436 of Cr.P.C.

Section 436-A of Cr.P.C:-- Maximum period for which an under-trial prisoner
can be detained:

1. where a person has during the period of investigation, Inquiry or
trial under this code of an offence under any law not being an
offence for which the punishment of death has been specified as
one of the punishments under that law.

2. Undergone detention for a period extending upto one-half of the
maximum period of imprisonment specified for that offence under
that law , he shall be released by the court on his personal bond
with or without sureties.

3. Court may after hearing the public prosecutor .

4. And for reasons to be recorded by it in writing order

a) The continued detention of such person for a
period longer than one-half of the said period.
Or

b) Release him on bail instead of the personal bond
with or without sureties.

provided further that No such person shall in any case be detained
during the period of investigation, Inquiry or trial for more than the maximum
period of imprisonment provided for the said offence under that law.

In computing the period of detention under this section for
granting bail the period of detention passed due to delay in proceeding caused

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by the accused be excluded.

In Bhim singh (vs) union of India
Laws(sc)-2014-9-143
RCR(cri)2014-4-234

The Hon'ble Supreme court of India directed that jurisdictional
magistrate or chief judicial magistrate or session judge shall hold one sitting in
a week in each jail or prison for two months commencing from 1st october,
2014 for the purposes of effective implementation of section 436-A of Cr.P.C. In
its sitting in jail the above judicial officers shall identify the under-trial
prisoners who have completed half period of the maximum period or maximum
period of imprisonment provided for the said offence under the law and after
complying with the procedure prescribed u/sec 436-A of Cr.P.C. Pass an
appropriate order in jail for release of such under-trial prisoners who fulfill the
requirement of section 436-A for their release immediately.

Such jurisdictional magistrate or chief judicial magistrate or
sessions judge shall submit the report of each of such sitting to the registrar
general of High court and at the end of two months ,the registrar general of
each High court shall submit the report to the secretary general of this court
without any delay.

In ROC No.2332/OP.cell -E/2007 dt:7-12-2007.

Sub-:- Directions of the Han'ble supreme court of India – mentally ill
under-trial prisoners languishing in various psychiatric hospital or Nursing
homes general directions to avoid such mentally ill persons languishing in
psychiatric hospitals for long period.

Hon'ble Supreme court of India in its orders Dt:3-11-2001-7 in W.P
(crl)No.296/2005 with W.P(crl) No. 18/2006 with crl.m.p No.2594/2006 has
been pleased to note that in a series of cases the under-trial prisoners who are
mentally challenged , have been lodged in various asylums and in many cases
they ara neither produced before the court nor their cases being called out
periodically in the court for the purpose of ascertaining whether they are in a
position to face trial or defend their cases.

1. wherever any under-trial prisoner is in jail for more than the

maximum period of imprisonment prescribed for the offence for which
he is charged other than the charged for offences for which life
imprisonment or death is the punishment the court or magistrate
shall treat the case as closed and report the matter to the medical
officer of the psychiatric hospital, so that the medical officer in charge

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of the hospital can consider his discharge as per section 40 of the
mental health Act.

2. In cases , where the under-trial prisoners ( who are not being charged

with offence for which the punishment is imprisonment for life or
death penalty) their may be considered for release in accordance with
sub-section (1) of section 330 of Cr.P.C. If they have completed five or
more years as impatient .

3. As regards the under-trial prisoners who have been charged with

grave offences for which life imprisonment or death penalty is the
punishment such persons shall be subjected to examination
periodically as provided in sub-sections (1),(3)&(4) of section 39 of the
Act and the officers named therein (visitors, medical officer in charge
of the hospital and the examining medical officer respectively) should
send the reports to the court as to whether the under-trial prisoner is
fit enough to face the trial to defend the charge.

The session courts where the cases are pending should also seek
periodic report from such hospital and every such case shall be given a hearing
at least once in three months . The session judge shall commence the trial of
such cases as soon as it is found that such mentally ill person has been found
fit to face trial.

Section 437(6) of Cr.P.C:-

If in any case triable by a magistrate the trial of a person accused of any
non-bailable offence is not concluded within a period of 60 days from the first
date fixed for taking evidence in the case such person shall if he is in custody
during the whole of the said period be released on bail to the satisfaction of the
magistrate unless for reasons to be recorded in writing the magistrate
otherwise directs.

Section 437(7) of Cr.P.C:-

If in any time after the conclusion of the trial of a person accused
of a non-bailable offence & before judgment is delivered the court is of opinion
that there are reasonable grounds for believing that the accused is not guilty of
any such offence, it shall release the accused, if he is in custody, on the
execution by him of a bond without sureties for his appearance to hear
judgment delivered.

In Y.S Jagan Mohan Reddy (Vs) Central Bureau of Investigation
AIR 2013 SC 1933.

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Held, while granting bail, court has to keep in mind the nature of
acquisition , the nature of evidence thereof , the security of the accused
circumstances which are peculiar to the accused , reasonable possibility to
secure the persons of the accused at the trial reasonable appearance to the
witnesses being tampered with the large interest of the public, state and other
similar consideration.

In Hari Nair (Vs) C.B.I
with

Surendra Pipara (vs) C.B.I
with

Sanjay Chandra (Vs) C.B.I
with

Vinod Goenka (vs) C.B.I
with

Goutam Doshi (vs) C.B.I
AIR 2012 SC 830.

Held, at the stage of granting bail , detailed examination & elaborate
documentation of merits of the case need not be undertaken.

In Han'ble High Court circular No.2/2008
In ROC No.110/So-I/2008 dated 15-02-2008.

sub-:- Grant of bail to under-trial prisoners . Issuance of certain
directions by the Hon'ble High court in taken up W.P No.

11375/2006.

2. while granting bail ,the learned magistrate or the learned session judge
as the case may be has to necessarily exercise the discretion judiciously.
Such discretion has to be exercised in a fair & objective manner keeping
in view the mandate of section 440 of Cr.P.C.

3. The attitude of granting bail with one hand the denying the same with
the other by fixing higher number of sureties and excessive amount of
bond beyond the reach and capacity of the prisoners are poor, needs to
be deprecated .

4. No hard & fast guidelines can be prescribed which can be general
application and the case of every individual prisoners has to be dealt
with on its own merits.

5. The Hon'ble High court further directed that whenever an accused has
been granted bail and is not able to produce surety before the court his
case should be taken up by the magistrate or session judge concerned
immediately for trial and the trial should be continued on a day basis. If

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for any reason the trial is not taken up on day to day basis, the judge
concerned shall record the reasons in the docket proceedings, for not
doing so.

8. Right to speedy trial.:-

In Hussainra Khatoon (vs) Home secretary of Bihar.
AIR 1979 SC 1360

A petition for a writ of habeas corpus was filed by number of under-trial
prisoners who were in jails in the State of Bihar for years awaiting their trial.

The Hon'ble Supreme court of India held that “ Right to speedy trial is a
fundamental right is implicit in the guarantee of life or personal liberty
enshrined in the Art 21 of Indian constitution. Speedy trial is the essence of
criminal justice.

In Abdul Rehman Antuley (Vs) R.S. Nayak
AIR 1992 SC 1630

Hon'ble Supreme court of India has laid down detailed guidelines for
speedy trial of an accused in a criminal case but it declined to fix any time limit
for trial of offences . The burden lies on the prosecution to justify & explain the
delay . The court held that the right to speedy trial flowing from Art 21 of
Indian constitution is available to accused at all stages namely the stages of
investigation, Inquiry, trial, appeal, revision and retrial.

The concerns underlying the right to speedy trial from the point of view of
the accused are.

1. The period of remand & per-conviction detention should be as
short as possible. In other words the accused shall not be
subjected to unnecessary or unduly long detention points of
his conviction .

2. The worry, anxiety ,expense and disturbance to his vocation &
peace resulting from an unduly prolonged investigation,
Inquiry or trial shall be minimal.

3. Undue delay may result impairment of the ability of the accused
to defend himself whether an account of death disappearance or
non-availability of witnesses or otherwise.

The court said that the accused can not be denied the right of speedy
trial merely on the ground that he had failed to demand a speedy trial.

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Hon'ble High court Circular No.-8/So/2006.
ROC No 602/So/2006 dated 19-6-2006.

Circular No.-8/So/2006.

The Hon'ble Supreme court of India in R.D.Upadhyay (vs) State of A.P &
others (writ petition (c) No. 559 of 94 reported in 2006(3) Supreme Today
at page No.546 ) while dealing with cases of women under-trial prisoners,
ordered as follows

“ The courts dealing with cases of women prisoners whose children are
in prison with their mothers are directed to give priority to such cases and
decide their cases expeditiously”.

In Sunil Batra (No-2) (Vs) Delhi Administration
AIR 1980 SC 1579.

It was held that the practice of keeping under-trial with convicts in jails
offended the test of reasonableness in Art 19 of the Indian constitution and
fairness in Art 21 of the Indian constitution. If under-trials are kept with
criminals in jails it violates the test of fairness of Art 21 of the Indian
constitution. Justice krishna Iyer held that integrity of physical person and his
mental personality is an important right of a prisoners and must be protected
from all from all kinds of atrocities.

Chapter VI , section 31-33 of the prisoners Act 1894 deals with food, clothing &
bedding of civil & unconvicted criminal prisoners

section 31 of Act :- Maintenance certain prisoners from private sources:-

A civil prisoners or an unconvicted criminal prisoners shall be permitted
to maintained himself, and to purchase or receive from private sources or other
necessaries, but subject to examination and to such rules as may be approved
by the inspector General.

Section 32 of Act:- restriction on transfer of food & clothing between certain
prisoners :-

No part of any food, clothing, bedding or other necessaries belonging to
any civil or un convicted criminal prisoners shall be given hired, or sold to any
prisoner, transgressing the privilege of purchasing food or receiving it from
private source for such time as the superintendent thinks proper.

Section 33 of Act:- Supply of clothing & bedding to civil & un convicted

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criminal prisoners:-

1. Every civil prisoners & un convicted criminal prisoner unable to provide
himself with sufficient clothing & bedding shall be supplied by the
superintendent with such clothing or beddings the case may be necessary.

Section 40:- Visits to civil and un convicted criminal prisoners:-

Due provision shall be made for the admission , at proper times under
proper restrictions, into every prison of persons with whom civil or un
convicted criminal prisoners may desires to communicate, care being taken
that so far as may be consistent with the interest of justice, prisoners under-
trial may see their duly qualified legal advisers without the presence of any
other person.

Outline of the Rights of arrest of a person

Rights of arrested person : Constitution provided certain fundamental rights for
the arrested persons:-
* Right to know the grounds of his arrest.
* Right to consult the lawyer of his choice,.
* Right to be defended through a counsel
* Right to be produced before the magistrate within 24 hours of arrest.
* Right not to be detained beyond 24 hours.
* Right to a corresponding duty of the police officer to procure a direction

from the Magistrate if the detention is needed beyond 24 hours.
* Right to communicate the information of arrest to a friend, relative or

well wisher.
* Right to be informed about his right to seek information to relative

friend, well wisher through the police.
* Right to a corresponding duty that a police officer has to record the

details of the person to whom the information about the arrest is given,
in a diary. Besides , the arrested person must be produced before a
registered medical officer for treatment and check-up immediately after
arrest.

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Conclusion:-

Jails should primarily be meant for lodging convicts & not for housing persons
under-trial. The under-trials are presumably innocent until convicted. Treat
the under-trial prisoners at most respect because life or personal liberty is
being curtailed by mere suspicion. Do speedy justice to under-trial prisoners
and judge/ Magistrate under duty to safeguard the rights of Pre - trial
deteneue.