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Problems of Under-Trails In India

The issues of under -trials go unnoticed .The main intention of this article is to bring into light the problems and issues faced by under-trials in prison . ARTICLE 21 of constitution of India guarantees right to life and personal liberty which cannot be deprived except according to procedure established by law ,which is a fundamental right of all persons yet under-trials are deprived personal liberty without any proper procedure of law .The article lays emphasis on REASONS for the long term pre- trial detention . Presumption of innocence always exists in law until the person proved guilty .The under trial stays in prison not because he is guilty ,not because any sentence has been passed on him but because of reasons which cannot be justified by law which calls itself just and fair .This article lays emphasis on those REASONS for such illegal long term pre-trial detention.

Introduction
One of the most neglected aspects of criminal justice system is the delay caused in the disposal of cases and detention of the accused pending trial. Under -trial prisoners are those persons who are facing trials in the competent courts These under-trial prisoners are detenus put in prison mainly under non-bailable offences and persons who are unable to produce sufficient sureties in cases of bailable offences . Any person has freedom of life and personal liberty and this freedom cannot be restricted unless and until specified by law . Right to life and personal liberty guaranteed under article 21 states “no person can be deprived of life or personal liberty except according to procedure established by law “ , so if a person is deprived of his personal liberty without authority of law he can access the court for securing his fundamental right enforced .This article deals with various reasons for such long under-trial detention.

Two contravening principles are encountered 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 and foremost principle is the “presumption of innocence” and a person unless proved of the offence is to be treated as an innocent in the eyes of law and the second issue is – it is primilarly the duty of state and courts established to see that justice is done to people or the victims. So, for achieving of the justice, the process of investigation and examination of witnesses and production of accused in court of justice is to be done without any lapse.

Various Reasons For Long Term Detention of Under Trial Prisoners:
One of the primary reason for long pre- trial detention is intricacies in Bail system. Though the term “Bail “ has not been defined in Cr.p.c it has classified offences as bailable and non- bailable offence. Though availing of bail is a matter of right in case of Bailable offence ,most people are unable to avail it due to the onerous financial conditions ,poverty appears to be the main reason for incarceration .A majority of under -trials [70.6] are illiterate or semi –literate . In the absence of data regarding economic status of prisoners ‘literacy ‘ serves as a usual proxy to appreciate that majority of under -trial belongs to socio – economically marginal groups .It is said that Decisions about custody or release should not be influenced to the detriment of person accused of an offence by factors such as gender ,race , ethnicity , financial conditions or social status.

The guideline that bail is a general rule and jail an exception ,is the logical and consistent adaptation of the presumption of innocence of pre- trial stage . It is also found in State of Rajasthan v Balchand where is it was held that ‘basic rule may perhaps be put as bail not jail except where there are circumstances suggestive of fleeing from justice or thwarting the cause of justice or creating other troubles in shape of repeating offence or intimidating witness and like by petitioner. The Supreme Court of India in the case of Gudikanti Narasimhulu v. Public Prosecutor, observed that: ‘Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Art. 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorize impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of 'procedure established by law'. The last four words of Art. 21 are the life of that human right. The doctrine of Police Power, constitutionally validates punitive processes for the maintenance of public order, security of the State, national integrity and the interest of the public generally. Even so, having regard to the solemn issue involved, deprivation of personal freedom, ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objectives of society, specified in the Constitution.

In Rasiklal v Kishore s/o khanchsand wadhwani the SC held right to bail for bailable offences is an absolute and indefeasible right and no discretion can be exercised as the words of sec 436 cr .p.c is are imperative and the person accused of an offence is bound to be released as soon as bail is furnished .It is further observed that there is no need for the complainant or public prosecutor to be heard in case where a person is charged with a bailable offence . Section 436 of Cr.PC is mandatory in nature and the court or the police has no discretion in the matter. Any accused person arrested for a bailable offence willing to provide bail must be released. The only discretion available with the police is to release the accused either on a personal bond or with sureties. In cases where the accused is unable to provide bail, the police officer must produce the accused person before the Magistrate within 24 hours of arrest as specified under s. 57 of Cr.P.C. Subsequently, when the person accused of an offense is produced before a Magistrate and is willing to furnish bail, then the Magistrate must release the accused person and the only discretion available is to release either on personal bond or a bond with sureties. The Magistrate cannot authorize detention of a person who is willing to furnish bail with or without sureties even for the purposes of aiding the investigation.

Law commission of India in its 268 report made recommendation to make available bail easier . Parliament of India has taken the issue of under -trial and amended sec 436 of cr.P.C

Section 436 A- Maximum period for which an under-trial can be detained Where a person has, during the period of investigation, inquiry or trial under this code of 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) undergone detention for up to a period of one-half of the maximum sentence of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties:
Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period of 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 the law.
Explanation – In computing the period of detention under this section for granting bail the period of detention passed due to delay in proceeding caused by the accused shall be excluded.

SC in Bhim singh v union of India seek effective implementation of sec 436A .
Setting up the review mechanism for the implementation of Section 436A, the Court passed the following directions:
➢ Composition - The jurisdictional Magistrate/ Judicial Magistrate/ Sessions Judge will have the authority to review under-trial prisoners for purposes of implementation of Section 436A.

➢ Frequency - The concerned authority shall hold one sitting every week in each jail for two months, commencing from 1st October 2014.

➢ Function - The concerned judicial officer will identify under-trial prisoners who have spent half of their maximum sentences in jail or the maximum period of imprisonment provided for the said offence under the law. The judicial officer will pass an order in the jail itself for the release of such under-trial prisoners who fulfill the requirement of Section 436A.

➢ Monitoring Mechanism – The report of each sitting will be forwarded to the Registrar General of the concerned High Court, and at the end of two months, the Registrar General of each High Court will submit the report to the Secretary General of the Supreme Court. The Jail Superintendent has to provide all necessary facilities for holding the court sittings.

Two contravening principles are encountered 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 and foremost principle is the “presumption of innocence” and a person unless proved of the offence is to be treated as an innocent in the eyes of law and the second issue is – it is primilarly the duty of state and courts established to see that justice is done to people or the victims. So, for achieving of the justice, the process of investigation and examination of witnesses and production of accused in court of justice is to be done without any lapse.

Right To Speedy Trial:
The right to a speedy trial can be said to be an extension of right to liberty, security and protection against arbitrary detention and a precursor to the right to be presumed innocent until proven guilty. In relation to bail , the guarantee of speedy trial serves the under –trials . “The speedy trial of offences is one of the basic objectives of the criminal justice delivery system. Once the cognizance of the accusation is taken by the court then the trial has to be conducted expeditiously so as to punish the guilty and to absolve the innocent. Everyone is presumed to be innocent until the guilty is proved. So, the quality or innocence of the accused has to be determined as quickly as possible. It is therefore, incumbent on the court to see that no guilty person escapes, it is still more its duty to see that justice is not delayed and the accused persons are not indefinitely harassed. It is pertinent to mention that delay in trial by itself constitutes denial of justice which is said to be justice delayed is justice denied. It is absolutely necessary that the persons accused of offences should be speedily tried so that in cases where the bail is refused, the accused persons have not to remain in jail longer than is absolutely necessary. The right to speedy trial has become a universally recognized human right.” Cr.p.c while giving the court power to postpone or adjourn proceedings lay stress upon trial within reasonable time .’In every inquiry or trial proceedings shall be held as expeditiously as possible and in particular when the examination of witness has once begun ,same shall be continued from day to day until all the witness in attendance have been examined’ . A person detained on a criminal charge is entitled to trial within a reasonable time or to release pending trial . Article 14[3][c] of ICCPR to which India is a state party says that accused person has the right to be tried without undue delay and that criminal proceedings should be started and completed with reasonable time . S.C in Thane singh v central bureau of narcotics held inordinate delay in bringing an accused person to trial violates right to personal liberty guaranteed by article 21 of constitution.

In Abdul Rehman Antulay v. R.S. Nayak, the Supreme Court laid down guidelines for speedy trial for all the courts in the country:
1. Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in favor the accused to be tried speedily. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in such circumstances; 2. Right to speedy trial flowing from Article 21 encompasses all the stages namely the investigation, inquiry, trial, appeal, revision and re-trial; 3. The accused should not be subjected to undue or unnecessary detention prior to his conviction .The worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; 4. Undue delay may result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise; 5. However, it cannot be ignored that it is usually the accused who is interested in delaying proceedings. Delay is a known defense tactic. Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Moreover, non-availability of witnesses, disappearances of evidence by lapse of time, work against the interests of prosecution.


The right to speedy trial is not specifically enumerated as a distinct fundamental right but in Maneka Gandhi v union of India , J.Bhagavathi held that ‘Article 21, though couched in negative language, confers the fundamental right to life and liberty. It does not exclude Article 19. Even if there is a law prescribing procedure for depriving a person of personal liberty and there is consequently no infringement of the fundamental right conferred by Article 21, such law in so far as it abridges or takes away any fundamental rights under Article 21 would have to meet the challenge of Article 21. Such law would also be liable to be treated with reference to Article 14. The expression personal liberty in Article 21 is of the widest amplitude and covers a variety of rights which go to constitute the personal liberty of men and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19(1). Thus articles 19(1) and 21 are not mutually exclusive.

In Raj Deo Sharma versus State of Bihar, the Supreme Court issued certain directions for effective enforcement of the right to speedy trial. The Supreme Court laid down, among other things, that if an offence is punishable with imprisonment for a period.

i. Not exceeding seven years, whether the accused is in jail or not, the court shall close the prosecution evidence on completion of a period of two years from the date of recording the plea of the accused on the charges framed, irrespective of whether the prosecution has examined all the witnesses or not and the court can proceed to the next stage of trial. Furthermore, if the accused has been in jail for a period of over half of the maximum period of punishment prescribed for the offence, bail shall be granted.

ii. Exceeding seven years, whether the accused is in jail or not, the court shall close the prosecution evidence on completion of a period of three years from the date of recording the plea of the accused on the charges framed, whether the prosecution has examined all the witnesses or not

Causes For Delay In Trial of Cases :
Shortages of Judges:
shortages of judges and delay in filing up of vacancies has led to pendency of cases across the country.

Non Service of Summons: sec 61 of cr. p .c impose compulsion on the officer authorised to ensure summons to visit personally to place of residence of persons upon whom summons are to be served . sec 69 of cr .p. c can be adopted in cases where witnesses belong to farther places and summons can be served by registered post address to witness at the place where he ordinarily resides . Even if summons are properly served there is no hard rule for witnesses to appear and their negligence lead to undue delay.

Non Appearance of Police Witness: Since in India Investigation and law and order are carried by same department they find it to be cumbersome .S.C in Prakash Singh & ors v union of India directed government to ensure separation of investigation from law and order.

Non Production of Undertrials From Jails: The high rate of under- trial non- production despite requests for police escorts or video conferencing appointments ,is a serious failing and points to a lack of political will by state governments to protect under -trial rights . Police often prioritize other competing demands for deployment of personal over requests for escorts for under-trial .

Delay Tactics By Advocates And Accused
Non Production of Case Property:
Case property are normally kept in police station under supervision of police clerk .They are not produced on time in many occasions .In some cases they are handed over to lawful claimants on orders of trial courts and they do not produce the same on the date of hearing and this trial is delayed.

Adjournments Because of Magistrate On Leave
General Living Conditions of Under Trial:

The prison manual advocates that no under trial prisoner shall be kept in same area in which convicted prisoners are kept or be allowed to enter the under-trial yard or block. 67.2 percent of total inmates are under trials where they are kept along with convicted prisoners . section 27(3) of Prisons Act, 1894 provides that under-trials should be kept separate from the convicted prisoners, nonetheless they are kept together due to lack of space in detention facilities.

Legal Aid
The basic idea behind legal aid is that legal remedies should not be out of reach of poor and justice should be accessible to them . Constitution of India by 42 amendment inserted article 39 A “The state shall secure that the operation of the legal system promotes justice ,on the basis of equal opportunity ,and shall ,in particular ,provide free legal aid ,by suitable legislation or schemes or in any other way,to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities .” to make access to legal aid more effective . Moreover sec 304 of cr.p.c states that when an accused is presented before a criminal court ,he is to be provided with legal representatives if he cannot afford a lawyer .Legal service authority act ,1987 was enacted providing free and competent legal services to people from vulnerable sections of society . S.C in Khatri v state of Bihar directed magistrates and sessions court judge to inform accused person of their right to free legal representation.

If a detained person doesn’t have a legal counsel of his choice ,he shall be entitled to have a legal counsel assigned to him by a judicial or other authority so requires and without payment by him if he doesn’t have sufficient means to pay.

Conclusion
Justice delayed is justice denied . They are separated from their family for the best part of their life even though they may be innocent. In certain cases they have to live in prison for a longer period than the period of imprisonment which would be awarded to them if they were found gui1ty .To avoid such hardships the things in paper should be implemented properly . Decisions about custody or release should not be influenced to the detriment of person accused of an offence by factors such as gender ,race , ethnicity , financial conditions or social status. Right to speedy trial and right to bail which has been considered as fundamental right need be properly enforced by judiciary to access justice.

Legal Research Award This article has been Awarded Certificate of Excellence for Original Legal Research work by our Penal of Judges

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