Smt. U. Priyadarshini, IV-Addl. Chief Metropolitan Magistrate, Vijayawada

TOPIC - 2 ARREST AND PRE-TRIAL DETENTION - ROLE OF JUDGE/MAGISTRATE

Sl. Officer Name and Designation Page Nos. No. Smt. U. Priyadarshini, 1. IV-Addl. Chief Metropolitan Magistrate, 2 - 16 Vijayawada. Smt G. Chandramowleswari, 2. 17 – 33 Prl. Junior Civil Judge, Machilipatnam. Smt M. Satya Kumari, 3. 34 - 43 Addl. Judicial First Class Magistrate, Gudivada. Smt S. Vara Lakshmi, 4. 44 - 65 Junior Civil Judge, Mylavaram.

ARREST & PRE-TRIAL DETENTION

By Smt. U. Priyadarshini, IV-Addl. Chief Metropolitan Magistrate, Vijayawada.

To appreciate the process of Indian criminal law, it is necessary to understand the following important terminology:-

 Bailable Offence, means an offence, which has been categorized as bailable, and in case of such offence, bail can be claimed, subject to fulfillment of certain conditions, as a matter of right under Section 436 of the Cr.P.C. In case of bailable offences, the Police is authorised to give bail to the accused at the time of arrest or detention.

 Non-bailable Offence, means an offence in which the bail cannot be granted as a matter of right, except on the orders of a competent court. In such cases, the accused can apply for grant of bail under Section 437 and 439 of the Cr.P.C. It is important to note that the grant of bail in a non- bailable offence is subject to judicial discretion of the Court, and it has been mandated by the Supreme Court of India that "Bail, not Jail" should be the governing and guiding principle.

 Anticipatory Bail, under Section 438 of the Cr.P.C. means that a person who apprehends arrest on a wrong accusation of committing a non-bailable offence, can apply before a competent court for a direction to police to immediately release such a person on bail in the event of arrest. However, the grant of anticipatory bail is discretionary and dependant on the nature and gravity of accusations, the antecedents of the applicant and the possibility of the applicant fleeing from justice.

 Cognizable Offence/case, has been defined under Section 2 (c) of Cr.P.C., as an offence/case in which a Police Office can arrest without a warrant.

 Non-cognizable Offence/case, has been defined under Section 2 (l) of Cr.P.C., as an offence/case in which a Police Officer has no authority to arrest without a warrant.

 Whether an offence/case is bailable or not bailable, and cognizable or

non-cognizable, has been qualified under the 1st Table of the 1st Schedule of Cr.P.C., which relate to the offences under IPC

Offence Cognizable Or Bailable Or Non-cognizable Non-Bailable

Punishable With Non-cognizable Bailable Imprisonment For

 Less Than 3 Years or with fine only Punishable with Cognizable Non-Bailable Imprisonment for

 3 Years or more I. “Arrest'' is not defined in Code of Criminal Procedure, 1973. According to Legal dictionary, it conveys the meaning that ''to deprive one of his liberty by virtue of legal authority.'' Another meaning- '' to stop'' or to seize''. Thus, it means an exercise of the power to deprive a person of his or her liberty; the taking or keeping of a person in custody by legal authority, especially, in response to a criminal charge''.

II. “False Arrest” - A TORT (a civil wrong) that consists of an unlawful restraint of an individual's personal liberty or freedom of movement by another purporting to act according to the law.'' An action can be instituted for the damages ensuing from false arrest, such as loss of salary while imprisoned, or injury to reputation that results in a pecuniary loss to the victim.

o Since no arrest is defined, still Sections 41 to 60A of Chapter V of Cr.P.C details about Arrest and the procedures to be followed on Arrest of a Person.

o Sections 41 to 44 contain provisions that govern the arrest of a person by police and private citizens, while, Section 46 of Cr.P.C explains ''Arrest how made''.

o Sec-41: When Police may arrest without warrant – Without any order from a Magistrate or a warrant, arrest any person --

(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person -

(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or

(b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; or

(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or

(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in section 109 or section 110.

o In the case of Joginder Kumar vs State of UP, CrLJ, 1994, it was held that no arrest can be made merely because it is lawful to do so. There must be a justifiable reason to arrest. Further, in State vs Bhera, CrLJ, 1997, it was held that the "reasonable suspicion" and "creditable information" must relate to definite averments which must be considered by the Police Officer himself before he arrests the person.

 Section 42 allows a police officer to arrest a person for a non- cognizable offence, if he refuses to give his name and residence.

 Section 42(1) when any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained. However, as per sub clause (2), the person must be released when the true name and residence of such person have been ascertained. He may be required to execute a bond, with or without sureties, to appear before a Magistrate if necessary.

Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India. Further, as per sub clause (3), should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall

forthwith be forwarded to the nearest Magistrate having jurisdiction

 Arrest by Magistrate - Section 44(1), when any offence is committed in the presence of a Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody. Further, (2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.

 Important thing to note here is that Magistrates have wider power than private citizen. A Magistrate can arrest on the ground of any offence and not only on cognizable offence. As held in the case of Swami Hariharanand Saraswati vs Jailer I/C Dist. Varanasi, AIR 1954, the arrested person must be produced before Magistrate within 24 hours, otherwise his detention will be illegal.

 Arrest how made - Section 46 - unless the person being arrested consents to the submission to custody by words or actions, the arrester shall actually touch or confine the body of the person to be arrested. Since arrest is a restraint on the liberty of the person, it is necessary for the person being arrested to either submit to custody or the arrester must touch and confine his body. Mere oral declaration of arrest by the arrester without getting submission to custody or physical touching to confine the body will not amount to arrest.

o As held in the case of Bharosa Ramdayal vs Emperor AIR 1941, if a person makes a statement to the police accusing himself of committing an offence, he would be considered to have submitted to the custody of the police officer. Similarly, if the accused proceeds towards the police station as directed by the police officer, he has submitted to the custody. In such cases, physical contact is not required. In case of Birendra Kumar Rai vs Union of India, CrLJ, 1992, it was held that arrest need not be by handcuffing the person, and it can also be complete by spoken words if the person submits to custody.

o Section 46(2) If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police officer or other

person may use all means necessary to effect the arrest. Thus, if the person tries to runaway, the police officer can take actions to prevent his escape and in doing so, he can use physical force to immobilize the accused. However, as per Section 46(3), there is no right to cause the death of the person who is not accused of an offence punishable with death or with imprisonment for life, while arresting that person. Further, as per Section 49, an arrested person must not be subjected to more restraint than is necessary to prevent him from escaping.

o Due to concerns of violation of the rights of women, a new provision was inserted in Section 46(4) that forbids the arrest of women after sunset and before sunrise, except in exceptional circumstances, in which case the arrest can be done by a woman police officer after making a written report and obtaining a prior permission from the concerned Judicial Magistrate of First class.

o In Bhim Singh, MLA Vs State of J&K And others, the Hon'ble Supreme Court held that '' the police officers should have greatest regard for personal liberty of citizens, their mala fide, high handed and authoritarian conduct in depriving the personal liberty of person has to be strongly condemned.'' In this case, the Hon'ble Supreme Court directed the Respondent no.1, the State of Jammu and Kashmir to pay to Shri Bhim Singh a sum of Rs 50,000/- within two months.

 “Pre-Trial Detention” - Prisoners in pre-trial detention, or in remand, are those who have been detained without a sentence and are awaiting legal proceedings. They are also known as untried or un-convicted prisoners. In India as many as seven out of ten Indian prisoners are pre-trial detainees.

 Section 50 CrPC provides that any person arrested without warrant shall immediately be informed of the grounds of his arrest.

 Section 50-A making it obligatory on the part of the police officer to inform the friend or relative of the arrested person about his arrest and also to make an entry in the register maintained by the police. See Joginder Kumar v. State of Uttar Pradesh, 1994 SCC (4) 260 and D.K. Basu v. State of West Bengal, 1997 (1) SCC 416

 Arrest and Bail : In Siddharam Satlingappa Mhetre Vs. State Of

Maharashtra [(2011) 1 SCC 694], the Honourbale Apex Court has observed at that, "116. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case."

 According to Article 22 of Constitution of India, a person who is arrested for whatever reason gets Three independent rights.

1. right to be told or informed the reasons for the arrest as soon as an arrest is made;

2. right to be produced before a Magistrate within 24 hours;

3. right to be defended by an advocate of his choice;

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“Magistrate ROLE”

Magistrate in investigation can be understood in terms of Five steps:

1. Step – I : Soon after the registration of FIR;

2. Step – II : In cases where the arrest is effected by the Investigating officer, on his production before the court and while deciding the question of the validity of arrest and need for further custody – Judicial or Police;

3. Step – III : Magisterial interventions while deciding misc. applications for recording of statement(s) u/s 164 of the Cr.P.C, test identification parades, etc;

4. Step – IV : Monitoring of investigation;

5. Step – V : Further investigation, post-filing of police report u/s 173 of the Cr.P.C;

Step-I - Soon after the registration of FIR:

1. Criminal justice Administration is set into motion with the receipt of information with respect to the commission of a cognizable offence (Section 154 of the Cr.P.C).

2. Section 157 mandates the sending of a report to this effect to the area Magistrate forthwith, to bring the matter to his scrutiny. A FIR (often termed ‘occurrence report’) is to be brought to Magistrate as soon as possible, and any delay can adversely affect the prosecution case at trial.

3. The Andhra Pradesh Civil Rules of Practice and Circular Orders mandates the Magistrate to make an endorsement on the FIR regarding date/time, place of receipt & sign on the FIR legibly, forthwith on its receipt.

Step-II - Production of the Accused before the court for the first time:

1. In cases covered u/s 41(1)(b) of the CrPC where the case relates to offence punishable with imprisonment of 7 years or less, arrest can be

made by the police only on satisfaction (recorded in writing) to the effect that, the arrest is imperative for:

1. prevention of further offences; 2. proper investigation of the offence; 3. prevention of tampering or disappearance of evidence; 4. prevention of any undue influence/threat to the complainant or witnesses; 5. ensuring His presence in the Court;

1. The recording of these reasons, therefore, is a condition precedent for arrest. Section 41A of the CrPC provides for service of a notice on the Accused by the Investigating Officer (‘IO’) seeking participation in investigation and the necessary information from him.

2. If the Accused does not comply with the notice, He can be arrested, after recording the factum of His non cooperation in writing.

3. After examining the validity of the arrest, the next point of inquiry is: 1. whether there are grounds to keep the Accused in detention [or] whether he can be released on bail, or otherwise discharged.

2. The Hon'ble Supreme Court recently in Arnesh Kumar v. State of Bihar has ruled that, decision to detain & remand is not a mechanical act and a remand order has to be a reasoned order and should reflect due application of mind. Mere mechanical reproduction of above elements in remand application is also to be deprecated.

(a) The Magistrate is also under an obligation to peruse the Arrest Memo/Medical examination report of the Accused (to rule out cases of police torture) as well as the victim (to preserve crucial medical evidence).

(b) Magistrate to ensure production of the Accused before itself within 24 hours of arrest and communication of information to relatives/friends about His arrest and compliance of the detailed guidelines laid down by the Supreme Court in D.K.Basu.

(d) When a person arrested is produced before a Magistrate for remand, the Magistrate has to peruse and scrutinize copies of FIR/Case Diary, which ought to be in the form of a volume, contain statements of the witnesses recorded U/s. 161 of the CrPC and reflect the progress of investigation.

(e) The High Court Rules make it upon the Magistrate to record reasons for the grant of remand and to sign and date every page of the case diaries or copies thereof as a token of His having seen them. This rule out any fabrication, embellishment or interpolation of case diary at a later Step.

(f) The Magistrate is duty bound to ensure Legal Representation for the Accused at the very first production and to give Him an effective opportunity of being heard. If the Accused does not have a private counsel, Legal Aid from the State is to be ensured.

(g) Remand to Police Custody: a. Detention in police custody (permissible only within 15 days of the first remand), is usually dis-favoured by law and needs to be seen cautiously.

(h) In view of police’s predilection for disclosure statements & confessions (often extorted), instead of scientific and objective methods of investigation, therefore, at the time of giving police remand, the Magistrate has to ensure and record the imperative need for police custody, and as to why it is necessary for an effective investigation.

(i) The need for discovery of the weapon of the offence, fruits of crime, unearthing a larger conspiracy and facilitating the arrest of co-Accused by disclosure are important considerations. However, mere verification of information given by the Accused is not a ground for police custody.

(j) Similarly, the Magistrate has duty to ensure that remand is not taken merely to make a ‘pointing out’ memo. Such pointing-out memos, needless to state, have no statutory sanction or admissibility in a court of law. Only when there is a certain physicality to a discovered fact:- i. that the same falls within the definition of Section 27 of the Evidence Act. Practice has shown that ‘Pointing out Memos’ are

recorded with a view to circumvent the clear embargo on police confessions under Section 25 of the Evidence Act, and to permit a rather dangerous inclusion of incriminating facts through a indirect route.

(k) Magistrates to remember that Police custody ought not to be given at the drop of a hat and at the mere asking of the police.

(l) Magistrate to scrupulously ensure medical examination of the Accused before and after the grant of police custody, so as to rule out torture at the hands of the police.

(m) In many a cases the injuries on the person of the Accused are suppressed in the Medical Certificates. In such cases, the Magistrate may order a fresh medical examination of the Accused by a team of doctors at a reputed and independent medical institution and entrust the safety of the Accused personally to a higher police functionary.

(n) Release by special order in case of unjustified arrests. a. If the arrest seems unwarranted in the facts of the case, Magistrate can always disallow both judicial and police custody and release the person on bail (on surety or personal bonds), or even by way of a special order U/s. 59 of the CrPC. A more active use of this provision is the need of the hour.

1. Special Provisions relating to juveniles:

(i) While dealing with juveniles, the Court ought to proceed strictly in line with the principles of parens-patriae & best interests of the child and zealously guard their welfare.

(ii) Any offender under the age 18 ought to be tried by the Juvenile Justice Board and is not to be exposed to the rigors of ordinary criminal law process.

(iii) Whenever a plea of juvenility is taken by an Accused, the age determination enquiry has to be conducted by the court only, in accordance with the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000. Where, in the opinion of the Magistrate, the Accused is patently (from the physical appearance or otherwise) below

18, the court shall immediately transfer the child to observation home and order production of the juvenile before the Juvenile Justice Board concerned.

(iv) In other cases, the inquiry has to be conducted by the court, and if the Accused turns out to be a juvenile, he shall be ordered to be transferred to observation home the same day and if person has turned an adult on the date of such order, in that case, to a place of safety.

(v) Contrary to popular misconceptions, an age inquiry, envisaged under the Act is a summary inquiry to be completed within 30 days of Juvenile Justice (Care and Protection of Children) Act, 2000 and not a full blown investigation or trial. Oral evidence need not be recorded to arrive at a finding. Lengthy examination/cross examinations are also out of the question, unless of course, a vexed question of fact arises. The input for such an inquiry may be prima face opinion on the basis of documents.

(vi) In case of person arrested being within 18 to 21 years of age, the Investigating officer of the case has to mandatorily prepare an age memo and collect proof regarding the age of the Accused, and court also has to conduct an age inquiry in such cases, if juvenility is pleaded.

Step – III – Magisterial interventions while deciding applications for recording of statement u/s 164 of the Cr.P.C/Test Identification Parade.

(a) Coming back – Section 164 allows recording of statement of witnesses & confessions by the Magistrate. The statement of witnesses under this section is recorded on oath.

(b) The underlying objective is to preserve evidence, get an account of the testimony of the witness at the first instance (while it is still fresh), and to prevent retraction of testimony at a later Step. Another upside of a statement recorded U/s. 164 of the CrPC is that the same can be used for corroboration of the witness’s testimony at trial, thereby strengthening the veracity of prosecution case. Step – IV – Monitoring Of Investigation

 Apart from the magisterial interface with the investigation, as discussed above: The question as to how a case has to be investigated has been traditionally considered to be the sole prerogative of the

investigating officer, premised on.

 There is no provision in CrPC that allows the Magistrate to monitor an investigation has been debunked by the Supreme Court conclusively in Sakiri Vasu case wherein such power has been read within Section 156(3) of the CrPC.

 Power to direct investigation U/s. 156(3) of the CrPC is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation. Therefore, in appropriate cases, the victim, complainant or a witness can approach the court seeking necessary directions to the police and supervision of investigation. The fact that he ought not to remain a mute spectator to the distortions and inadequacies of investigations, but make meaningful interventions.

Step – V – Further investigation after filing of police report.

 Magisterial vigil does not terminate on the filing of the police report on the conclusion of the investigation and the court is not bound to accept the results of an investigation conducted by the police.

 In the case the police conclude that, no case is made out against the Accused, the Magistrate has to issue a notice to the informant/victim and hear him out. After hearing the informant, the court can, notwithstanding the closure report, choose to proceed with the matter, as a case based on police report or even on a prior complaint.

 Section 173(8) of the CrPC expressly lays down such a course of action. However, the section does not enlist considerations that will govern the exercise of such power. Illustrative cases where further investigation may be ordered are-:

i. where the police acts in a partisan manner to shield the real culprits and the investigation has not been done in a proper and objective manner but is tainted, non-examination of crucial witnesses, clearing of doubts and to substantiate the prosecution case.

ii. To conduct fair, proper and an unquestionable investigation is the obligation of the investigation agency and the court in its supervisory capacity is required to ensure the same.

 Having said that, further investigation is to be distinguished from reinvestigation or a de-novo investigation, which is not permissible.

 In cases where vital evidence has been disregarded by the police, the court can order further investigation that aspect. The result of the further investigation is called a ‘supplementary report’ and can supplement the primary police report, already on record.

 The earlier investigation is not wiped-off from the record and the subsequent investigation only supplements the earlier investigation.

 The Magistrate also cannot order a further investigation by a different agency (agency other than the original investigating agency) either, as that will amount to re-investigation.

 Only the higher courts have the power to order reinvestigation by a different agency, such as the CBI. Having said that, in such cases, the Magistrate is not powerless, if the Magistrate suspects foul play in investigation, he can always pass orders for senior officers to supervise the investigation personally and file periodic compliance reports, in a process akin to a continuing investigation.

Conclusion: The Hon’ble Apex Court has framed very strict & obligatory guidelines in the light of Judgments of Joginder Kumar & Arnesh Kumar to adhere before any person can be arrested. Order of Remand is a judicial order to be passed on application of mind to the contents of the Remand report submitted by the investigating officer. Perusal of the case diary is a must before remand of any kind – be judicial or police custody. It is a dereliction of duty if the Magistrate did not ask for and peruse the case diary before he authorizes any custody. Trilochan Singh v. State, Cri. Misc. (Main) No. 298 of 1981, decided on 17th July, 1981 (reported in 1981 Cri. LJ 1773). The Magistrate before whom case diary is produced has to scrutinize the act of Police and has to see whether the act of arrest was legal, proper and other formalities required by law had been complied with.

The Magistrate has to be watchful as the power to arrest without warrant on suspicion U/s. 41 of CrPC is liable to be abused. The Magistrate should not authorize detention of an accused to any custody mechanically in routine. A remand to Police custody should not be given unless the officer making the Application is able to show definite and satisfactory grounds, since, great care has now been taken to see that the accused persons are not unnecessarily remanded.

Personal feelings of the police officer or vague surmise would not be enough. The word “reasonable” brings in the requirement of honest belief based on facts. The words “reasonable” and “credible” in section 41 of CrPC, 1973, have reference to the mind of the Police officer receiving information and such information must afford sufficient material for the exercise of an independent judgment at the time of making arrest and sending the Accused to Remand.

ARREST AND PRE-TRIAL DETENTION ROLE OF JUDGE/MAGISTRATE

By Smt G. Chandramowleswari, Prl. Junior Civil Judge, Machilipatnam.

Our Indian Constitution guarantees that every person should have a right to enjoy, respect for their life and liberty. Article 21 of Indian Constitution guarantees that 'No person shall be deprived of his life or his personal liberty except according to procedure established by law'. So, without any efficient mechanism and effective legal remedies, it is highly difficult to protect the guarantees in respect of life and liberty envisaged in the Constitution of India.. Article 22 specifies that protections to which each arrested person is entitled by law, namely the right to be informed the grounds for his/her arrest as soon as possible after being taken in to the custody, the right to consult and be represented by legal practitioner of his/her choice and right to be produced before Magistrate within 24 hours of arrest and not to be detained beyond 24 hours without approval of Magistrate. So it casts an obligation on detaining authority to show that the detention is in accordance with these Constitutional imperatives. The key components engaged in criminal administration of justice are the courts, police, prosecution and defence. Administering the criminal justice satisfactorily in a democratic society governed by rule of law and guaranteed Fundamental Rights is a challenging task. The Judge is a custodian of all this. Powers of arrest to Magistrate Section 44: A Magistrate can arrest when a person within his jurisdiction who commits a crime in his presence and through the issue of a warrant of arrest. Powers of arrest to police Section 41(1): a. The person has been “concerned in a cognizable offence, or against whom a reasonable complaint has been made,...credible information has been received, or a reasonable suspicion exists”.

b. The person has “any implement of house-breaking” in his/her possession without a lawful excuse. c. A person is declared a proclaimed offender under the Code of Criminal Procedure or by State Order. d. Anything that an officer reasonably suspects is stolen property in the possession of an individual whom the officer reasonably suspects to have committed an offence related to that property. e. A person attempts to escape from legal custody or obstructs a police officer in the execution of his/her duty. f. A person is reasonably suspected of deserting the armed forces. g. Any situation involving a released convict breaching specific rules laid out in the Code of Criminal Procedure. h. An officer receives a proper requisition from another officer, which indicates the person to be arrested and the offence committed, and where it appears that the arrest will be lawful without a warrant. Section 41 (2): Finally, any officer in charge of a police station may arrest, or have arrested, any person whom the officer in charge reasonably believes is concealing himself/herself with the purpose of committing an offence, or if that person is a habitual offender. The Hon’ble Apex Court has discussed at length about the applicability of Section 41 CrPC and also framed guidelines as to how an officer should act while making an arrest in a case of Arnesh Kumar v. State of Bihar1 held as follows: “Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:” Section 41A of Cr.PC aimed to avoid unnecessary arrest. In above case it was observed that the Magistrate has to be first satisfied that the arrest

1 (2014) 8 SCC 273

19 made is legal and it is held in accordance with law and all constitutional rights of a person is satisfied before he remanded to judicial custody. If the arrest is effected by the police officer does not satisfy the requirements of section 41 of Cr.PC, Magistrate concern has a duty not to authorize his further detention and release the accused. Procedure for Arrest

As per Section 46(1) Cr.PC, the officer making the arrest must “actually touch or confine the body of the person to be arrested,” unless the person submits to custody after a verbal command. The arresting officer may use all means necessary to effect the arrest of a person who forcibly resists or attempts to evade arrest, as given under section 46(2)CrPC. Section 46(3) CrPC says, in the course of making an arrest, the police have no power to cause the death of a person who is not accused of an offence punishable by death or life imprisonment. Seticon 50(1) CrPC mandates every officer or other person arresting any person without a warrant shall immediately inform the arrested person of the full particulars of the offence for which he/she is arrested or other grounds for such arrest. Section 50(2) CrPC enunciates that Where a police officer arrests any person without warrant, other than a person accused of a non-bailable offence, he shall inform the person that he is entitled to be released on bail and that he may arrange for sureties.

Section 50(A)(1) Cr.PC enables that Every police officer making an arrest is obliged to give information regarding the arrest and place where the arrested person is held to any of his friends, relatives or any other person nominated by him. In the case of D.K. Basu v State of West Bengal2 the Hon’ble Supreme Court of India has laid down 11 specific requirements and procedure that the

2 . AIR 1997 SC 610

20 police and other agencies have to follow for the arrest, detention and interrogation of person. These are as follows:- 1. Police arresting and interrogating suspects should wear “accurate, visible and clear” identification and name tags, and details of interrogating police officers should be recorded in a register. 2. A memo of arrest must be prepared at the time of arrest. This should have the time and date of arrest, be attested by at least one witness who may either be a family member of the person arrested or a respectable person of the locality where the arrest was made and be counter-signed by the person arrested. 3. The person arrested, detained or being interrogated has a right to have a relative, friend or well-wisher informed as soon as practicable, of the arrest and the place of detention or custody. If the person to be informed has signed the arrest memo as a witness this is not required.

4. Where the friend or relative of the person arrested lives outside the district, the time and place of arrest and venue of custody must be notified by police within 8 to 12 hours after arrest. This should be done by a telegram through the District Legal Aid Authority and the concerned police station.

5. The person arrested should be told of the right to have someone informed of the arrest, as soon as the arrest or detention is made.

6. An entry must be made in the diary at the place of detention about the arrest, the name of the person informed and the name and particulars of the police officers in whose custody the person arrested is.

7. The person being arrested can request a physical examination at the time of arrest. Minor and major injuries if any should be recorded. The "Inspection Memo" should be signed by the person arrested as well as the arresting police officer. A copy of this memo must be given to the person arrested.

8. The person arrested must have a medical examination by a qualified doctor every 48 hours during detention. This should be done by a doctor who is on the panel, which must be constituted by the Director of Health Services of every State.

9. Copies of all documents including the arrest memo have to be sent to the Area Magistrate (laqa Magistrate) for his record.

10. The person arrested has a right to meet a lawyer during the interrogation, although not for the whole time.

11. There should be a police control room in every District and State headquarters where information regarding the arrest and the place of custody of the person arrested must be sent by the arresting officer. This must be done within 12 hours of the arrest. The control room should prominently display the information on a notice board. These requirements were issued to the Director General of Police and the Home Secretary of every State. They were obliged to circulate the requirements to every police station under their charge. Every police station in the country had to display these guidelines prominently. The judgment also encouraged that the requirements be broadcast through radio and television and pamphlets in local languages be distributed to spread awareness.

In addition to these requirements other rights and rules to be followed, such as: 1. The right to be informed at the time of arrest of the offence for which the person is being arrested. 2. The right to be presented before a magistrate within 24 hours of the arrest.

3. The right not to be ill-treated or tortured during arrest or in custody. 4. A boy under 15 years of age and women cannot be called to the police station only for questioning.

As Per Section 51(2) CrPC, If the person arrested is a female, the searching police officer must also be a female and perform the search “with strict regard to decency”.

Section 46(4) says, Women are specially protected from being arrested between sunset and sunrise, except in exceptional circumstances when prior permission must be obtained from a Judicial Magistrate. Police personnel making an arrest must wear accurate and visible identification tags showing their name and designation. In Joginder Kumar v State of UP3, the Hon’ble Court said: “The law of arrest is one of balancing individual rights, liberties and privileges on the one hand and individual duties, obligations and responsibilities on the other; on weighing and balancing the rights of the single individual and those of individuals collectively….”

The Hon'ble Apex Court of India also held in this case that a police officer “must be able to justify the arrest apart from his power to do so”. It went on to declare that “a person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified.” The Supreme Court then went on to specify 3 requirements to ensure the protection of every individual’s constitutional rights:

 If an arrested person so wishes, he/she may inform a person of his/her choosing of the fact of his/her arrest and her location

 A police officer must inform an arrested person of his/her right to inform a person of her choosing of her arrest

 Officials must keep a record of the arrested person’s request and to whom it was made.

3 AIR 1994 SC 1349

In Pranab Chaterjee vs State of Bihar4 the Hon’ble Supreme Court held that section 50 of Cr.PC is mandatory. If particulars of offence are not commercial to an arrested person, his arrest and detention are became illegal.

Right to Be Brought Promptly Before a Magistrate

Article 22(2) of the Constitution guarantees that “every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate”

Section 56, 57 and 76 CrPC specifies the procedure that the police must follow when making an arrest or detaining an individual. A police officer making an arrest without a warrant must take or send the arrested person to a Magistrate or an officer in charge of a police station without undue delay, but not beyond 24 hours unless there is a special order by a Magistrate. Section 167(1) & (2) CrPC: If a person is arrested and detained in custody and it appears that the investigation cannot be completed within the designated 24 hours, and there are grounds for believing that the accusation or information is well-founded, then the police officer in charge of the police station or the investigating police officer, if not below the rank of sub inspector, must transmit a copy of the required diary entries along with the accused to the nearest Magistrate. The Magistrate to whom the accused and the information are forwarded may authorise the detention of the accused in the custody he/she deems appropriate for not more than 15 days, whether or not the Magistrate has jurisdiction to try the case.

Section 167(3) & (4) CrPC: If the Magistrate does not have jurisdiction to try the case or to commit it for trial and finds that further detention is unnecessary, he/she may forward the accused to a Magistrate with the

4 1970 (3) SCC 926

necessary jurisdiction. While doing this, the Magistrate must also transmit all the relevant information, including diary entries, to the new Magistrate. As a safeguard against prolonged detention and violence in custody, no magistrate can authorise detention in any custody unless the accused is produced before him. Where the Magistrate authorises police remand beyond the statutory 24 hours he/she must record the reasons in writing. The copy of this reasoned order must be sent to the Chief Magistrate.

Section 167(5) & (6) CrPC: If in a summons case triable by a Magistrate, the investigation is not concluded within six months from the date on which the police arrested the individual, the Magistrate must make an order stopping the investigation unless the investigating officer convinces the Magistrate of some special reasons to extend the investigation. The Sessions Judge may overrule a Magistrate’s order to stop the investigation in such a case if he/she is convinced through a separate explanation that there are grounds for further investigation.

In the case of Chiguluri Krishna Rao, President, the Bezawada Bar Association v Station House Officer, II Town Police Station and Ors.5 The High Court of Andhra Pradesh held that, in case of arrest by police, there is no choice for anyone, neither the courts nor the police, but to apply Article 22(1) and (2) in letter and spirit, which would mean that an arrested person must:

1. Be informed of the reasons for his arrest as soon as possible;

2. Shall not be denied his right to consult a lawyer of his choice;

3. Be brought before a Magistrate within 24 hours, excluding travelling time.

No difficulties that the police or magistracy may face, even the absence of infrastructure, “can be reason for violating the mandate of Article 22 of the Constitution. Absence of requisite infrastructure cannot be a reason for defeating the fundamental rights of the detenues”

5 . 2006(1) ALT 259

In case of Francis Voralie Mullain vs Administrates Union Territory of Delhi6: it was held that “Any form of torture, cruel, in human or degrading treatment or punishment, offensive to human dignity, violates the all important right to life and personal liberty under article 21 of Constitution is plainly be unconstitutional and violation of article 14 and 21 of Indian Constitution.”

In case Nilabaki Behra vs State of Orissa7 wherein it is held that “in addition to any civil remedy in tort, victims and families of them have a right to monetary compensation under public law.”

Magistracy to Guard Against Illegal Detentions

Personal liberty is paramount. Any deprivation of this, however short or temporary, has to be justified. The Magistrate is the main bulwark against unnecessary detention and abuse of power and process. It is his/her duty to guard citizens vigilantly against needless and illegal detentions.

There are no exceptions under the Criminal Procedure Code regarding bringing an accused before a Magistrate within 24 hours. The police officer, who fails to comply with this rule, is guilty of the offence of illegal detention/confinement. The Magistrate’s duty is to take note of that and act on it. It cannot be ignored or condoned.

At the first production before him, the Magistrate must assure himself/ herself that all the documents which must accompany the accused are presented to him. These include the first information report, the arrest memo, the inspection memo, the medical examination certificate, and the case diary along with the general diary entry number. Later, there are also documents,

6 . AIR 1981 SC 746

7 . 1993 SCC 746

26 specifically the case diary, that indicates the pace and directions the investigations are taking. The presence of these papers at this time is a factual necessity that must be complied with.

It is mandatory at first production for all the papers to be available. And it is mandatory for the Magistrate to peruse them. In the absence of a careful examination of a full set of papers, there can be no proper application of mind and the process of remand becomes a mechanical exercise for the convenience of the police and in violation of the rights of the accused. Such remands are likely to be challenged and set aside.

The guidelines to be testified before accepting a remand:

4. A remand to police custody of an accused person should not ordinarily be granted unless there is reason to believe that material and valuable information would thereby be obtained, which cannot be obtained except by his remand to police custody.

5. Where a remand is required merely for the purpose of verifying a statement made by the accused, the Magistrate should ordinarily remand the accused person to magisterial custody.

6. If the Magistrate believes that it is not necessary for the purposes of the investigation to remand the accused in police custody, he should place the accused person in magisterial custody. In case he has no jurisdiction to try the offence charged, he should issue orders to forward the accused person to a Magistrate having the jurisdiction.

7. If the Magistrate is of the view that the police not only require more time for their investigation, but that for some good reason, they require the accused person to be present with them during that investigation, the Magistrate may remand him to police custody, but while doing so, he must record the reasons for his order

If the criminal jurisprudence is keenly seen, a person has to be arrested in three broad conditions. They are

6. If there is a chance of committing same offence by the accused. 7. If there are chances of influencing the witnesses by the accused. 8. If there are chances of non appearance of accused for the trial.

The above mentioned conditions are the criterian for even granting bail to an accused. If the accused could satisfy the court that he would not fall in any one of the conditions dealt above, he may be granted bail, if not, no.

Cases Where Bail Can be Taken:

Bailable offences are those in which the police can grant bail themselves. If the police then produce the person before a Magistrate, as they usually do, the Magistrate must grant bail, with or without conditions, as a matter of course. The arrested person can seek bail at any point of the proceedings. Bail will be granted with or without conditions, and on an assurance of future appearances.

Section 436(1) CrPC: Where the court is satisfied that a person is too poor to provide a money guarantee and is also unable to provide any other sureties to stand up for him, the court may, at its discretion, release the person on his/her own personal bond that he/she will be available to appear at all trial hearings. Where the offence is bailable, the court has no discretion, and must release him/her on his/her bond within seven days of the arrest.

Section 436 A CrPC: There are three further circumstances under which bail must be granted by law and cannot be refused. An indefeasible right to be released on bail arises where a person has been held in custody for a period which amounts to half or more of the maximum sentence he would have served for the offence he has been accused of, if he were found guilty, must be released on bail under a personal bond with or without sureties

Section 167 (2)(a)(i)&(ii)CrPC: Where a person is accused of an offence punishable with death, life imprisonment or imprisonment for a term of not

less than ten years, and no charge sheet has been filed within 90 days of his arrest, whether or not investigations have been completed, the court must release the arrested person on bail and cannot authorise any further detention beyond 90 days. Similarly, in every other case if ongoing investigations stretch beyond 60 days and no charge sheet has been filed, the accused must be released on bail and cannot be detained beyond 60 days.

Section 437 CrPC: While bail is the rule, in very serious offences bail should not be granted to the accused where there appear “reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life”, or if the accused has been previously convicted of an offence punishable with death, life imprisonment, or imprisonment for seven years or more; or has been previously convicted on at least two occasions of a cognisable offence punishable with imprisonment for three years or more but not less than seven years. However, in these circumstances, persons below 16 years, women and infirm people may be released on bail. Equally, the court may also release on bail a person accused of a cognisable offence and previously convicted of an offence punishable with death or life imprisonment, if it is satisfied that it is just and proper to do so. However, the court is bound to hear the Public Prosecutor before releasing such a person on bail.

While dealing with the issue of fixing the amount of bond for releasing the accused on bail, the Hon'ble Apex Court had held as follows in the case of Hussainara Khatoon v State of Bihar8 “It was a travesty of justice that people spend extended time in custody, not because they are guilty but because the courts are too busy to try them and the accused are too poor to afford bail. Quite often the bail amount fixed by the magistrate is “unrealistically excessive” and the poor cannot arrange for it. The Court asserted that “courts must abandon the antiquated concept under which pre-trial release is ordered only against bail with sureties.”

8 1980 1 SCC 84

Releasing all persons incarcerated, the Court gave the following directives: when satisfied of the accused’s roots in community the Magistrate should release the accused on a personal bond without sureties and that the bail amount should notbe based merely on the nature of the charge but should be fixed keeping in mind the individual financial circumstances of the accused and the probability of his absconding.

In Motiram v State of Madhya Pradesh9 the Hon'ble Apex Court held as “it shocks one’s conscience to ask a mason to furnish a surety of Rs. 10,000 for a release on bail”. The Court also expressed anguish that the Magistrate demanded surety from the appellant’s own district and wondered:

“What is a Malayalee, Kannadiga, Tamilian or Andhra to do if arrested for alleged misappropriation or theft or criminal trespass in Bastar, Port Blair, Pahalgam or Chandni Chowk?”

Directing the release of the petitioner on his own bond for Rs. 1,000 the Court said that bail should be given liberally to poor people simply on a personal bond if reasonable conditions are satisfied. The bail amount should be fixed keeping in mind the financial circumstances of the accused and the accused should not be required to produce a surety from the same district especially when he/she is a native of some other place.

Conditions for granting the Bail:

While a detailed examination of evidence and elaborate documentation of the merits of a case are not usually necessary, there is a need to provide clear, reasoned orders about why bail is granted or rejected. Courts need to take account of following Whilst fixing bail/sureties: 1. The nature of the accusation; 2. The gravity of the crime; 3. The circumstances of the individual concerned; 4. Whether further detention is at all necessary;

9 1978 4 SCC 47

5. The risk of flight; 6. The risk of subverting or tampering with evidence; 7. The nature of the evidence in support of the accusation; 8. The severity of the punishment which conviction would entail; and 9. Whether the sureties are independent, or indemnified by the accused person.

If a Magistrate is satisfied after making an enquiry into the condition and background of the accused that the accused has his roots in the community and is not likely to abscond, he can safely release the accused on order to appear or on his own recognizance.

When the accused is too poor to find sureties, there is no point in insisting on his furnishing bail with sureties, as it will only compel him to be in custody with the consequent handicaps in making his defence.

The only reason for remaining in custody cannot be poverty. The law itself has recognized this and now requires the release on the personal bond of indigent under trials. This course of action should be resorted to in most cases where there is no substantial risk of non-appearance of the accused.

Legal Aid to the Accused at State Expense in Certain Cases:

Every court should appoint an attorney to the accused at the expense of the state when he “is not represented by a pleader, and where it appears to the court that the accused has not sufficient means to engage a pleader”. With the approval of the state government, the High Court may fashion the rules that will provide for the mode of selecting lawyers, the “facilities” allowed to the lawyers, and the fee to the appointed lawyers are to receive.

The Legal Services Authorities Act, 1987 mandates the setting up of legal aid authorities and committees at the state, district and block (taluk/tahsil) levels which are expected to maintain a panel of lawyers to provide free services to needy persons. Section 12 of the Act provides that every person who has to file or defend a case will be entitled to legal aid, if that person is:

6. A member of a Scheduled Caste or Scheduled Tribe;

7. victim of trafficking in human beings or beggar;

8. A woman or a child;

9. A mentally ill or otherwise disabled person;

10. person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; 11. industrial workman;

12. n custody, including custody in a protective home; or

13. receipt of an annual income less than rupees nine thousand or such other higher amount as may be prescribed by the state government, if the case is before a court other than the Supreme Court, and less than rupees twelve thousand or such other higher amount as may be prescribed by the central government, if the case is before the Supreme Court.

In, Khatri (II) v State of Bihar10 the Hon'ble Supreme Court reaffirmed that the right to legal representation begins when the accused is first brought before a Magistrate and not merely at the trial stage. It is at this stage that the accused is at highest risk, and thus he is entitled to legal representation. The Court remarked that it would be unfair to expect an illiterate person to ask for representation because he most likely did not even know that he was entitled to this right. Therefore, the Court held that magistrates and judges must inform every accused person that he is entitled to free legal services at the state’s expense.

In Nandini Satpathy v P.L. Dani11 the Hon'ble Supreme Court held that simply because every arrested person has the right to an attorney of his choice, it does not necessarily mean that people not under arrest or in custody can be

10 . 1981 1 SCC 627 11 AIR 1978 SC 1075; (1978) 2 SCC 424,

32 denied that right. The Court went on to say: “The spirit and sense of Article 22(1) is that ‘it is fundamental to the rule of law that the services of a lawyer shall be available for consultation to any accused person under circumstances of near custodial interrogation. Moreover, the observance of the right against self incrimination is best promoted by conceding to the accused the right to consult a legal practitioner of his choice’.”

The Legal aid for the accused must be provided from the stage of remand. No accused shall be deprived of his legitimate right to have a legal aid. This was reiterated by the Hon'ble Supreme Court in the case of Md.Ajmal Md.Amir Kasab @Abu ... vs State Of Maharashtra on 29 August, 2012.

The Indefeasible right of the accused to have the legal aid at the cost of state is also dealt in the case of State (NCT of Delhi) v. Navjot Sandhu and in the case of Kartar Singh v. State of Punjab.

Conclusion:

No person can deprive such right of an individual unless there is strong reason and of course, under due process of law. Depriving a person of liberty is a last resort. Always remember that person is innocent until guilty proved. The dominant priciple in Democratic society is “Bail, but not Jail”. Joginder Kumar's case12, D.K.Basu's case13 and Arnesh Kumar's case14 are very prominent decisions in respect of arrest and are most relevant decisions to follow for the best administration of justice. Exceptions are how ever can be dealt in accordance with the law. The duty of the police officer and the Judge/Magistrate is very crucial in safeguarding the interests of the persons and their role in justice delivery system is pivotal in dealing with arrest,

12 AIR 1994 SC (2) 260

13 1997 (1) SCC 416

14 2014 (8) SCC 273

33 remand and bail. No individual can be even deprived of his right to have legal aid and it is also established law that the person has to be provided free legal aid at the cost of state when he is unable to get it for himself. The Magistrate being instrumental to the justice delivery system has a prime role in dealing with the personal liberty of an accused and he has to take all precautionary measures while remanding him to judicial custody and granting bail.

ARREST AND PRE-TRIAL DETENTION

By Smt M. Satya Kumari, Addl. Judicial First Class Magistrate, Gudivada.

The three major criminal statues, namely the Code of Criminal

Procedure, the Indian Penal Code and the Indian Evidence Act cannot operate de hors or outside the fundamental rights given in the Constitution. That is to say, that the three do not function in a vacuum. Their operation is governed by the standards and limitations laid down in the Constitution. The

Constitution’s normative framework defines the everyday working of the court and forms the benchmark by which the performance of all the officers of the court, the prosecutor, the defence counsel and most importantly the judge will be evaluated. The quality of a trial will be judged by the measure of compliance with constitutional norms and it is the presiding officer who ha sthe onerous duty of ensuring that fair trial norms are strictly adhered to without fear or favour. From this comes the old saying that justice must nor only be done but be seen to be done.

Everywhere, the treatment of suspects, accused and detainees is governed by the need for fairness. Just as the notion prevails that the punishment must fit the crime the laws governing the administration of justice are designed both substantively and procedurally to balance the interests of all the state and the individual, the accused and the victim, the prosecution and defence. Thus, safeguarding human liberty is a prime constitutional value and

35 the law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligation and responsibilities on the other;

Arrest and detention of a person in police custody can cause incalculable harm to the reputation and self esteem of the person. Therefore, arrests should not be made in a routine manner on the mere allegation that a person has committed an offence. Arrests must only be made after reasonable satisfaction that the complainant has adequate substance to ground a sensible suspicion that an offence has been committed by that person.

Right to Freedom from Arbitrary Arrest and Detention

Freedom from arbitrary arrest and detention means that no one may be deprived of his or her personal liberty except through means that are “fair, just and reasonable”. The state cannot take away life or personal liberty by the mere enactment of a law. The law itself, its procedures and its actual implementation must all pass the test of being “fair, just and reasonable”. If they do not, then the actions of the state and its agents are liable to be considered arbitrary and unjust and will be struck down by the courts.

Domestic law

Police and Magistrate’s powers of arrest are clearly laid out in the Code of

Criminal Procedure. This creates two types of offences – cognizable and non cognizable. Cognizable offences are of a more serious nature. Non cognizable

36 offences are of a somewhat less serious nature, where the apprehension that the accused may commit more offences and pose an instantaneous danger to society is not so high. Where the person is suspected of committing a cognizable offence, and in certain specified circumstances, the police are empowered to carry out an arrest without a warrant from a judicial magistrate.

In other instances (non cognizable offences), arrests can only be carried out after obtaining a warrant from a magistrate. The implication of this distinction is that in some matters, a judicial mind must be applied before an arrest can be justified, while in others, the police have the discretion to arrest. However, it is equally necessary for the arresting authority to apply its mind.

There is a common misconception – both within the public and the police

– that the latter have unlimited powers to arrest. But he power to arrest is conditioned by the limitations mentioned above and those placed on it by the procedure for arrest. Repeated disregard of these procedures has led to concern about the numbers and reasonableness of arrests and to repeated

Supreme Court pronouncements and statutory amendments giving content to the freedom from arbitrary arrest, by carefully detaining every step of the procedure.

The Fundamental Protection of Life and Liberty Under the Constitution

Article 21 of the Indian Constitution guarantees that “no person shall be deprived of his life or his personal liberty except according to procedure established by law”.

Article 22 specifies the protections to which each arrested person is entitled by law, namely the right to be informed of the grounds for his/her arrest as soon as possible after being taken into custody; the right to consult and be represented by a legal practitioner of choice, and the right to be produced before a Magistrate within twenty four hours of arrest and not to be detained beyond twenty four hours without the approval of a Magistrate.

Personal liberty guaranteed under article 21 is sacrosanct, in that it casts an obligation on any detaining authority to show that the detention is in accordance with these constitutional imperatives.

Right to Be Brought Promptly Before a Judge or Judicial officer

The fundamental principle in relation to the power of arrest is that it is granted strictly for the purpose of bringing a suspect before a court of law. The power is coupled with the duty to produce the arrested person before a judicial authority at the very earliest. This means that after arrest, a person cannot be held by the police on any grounds whatsoever beyond the statutory time limit.

Any further detention beyond that must only be on the Magistrate’s order. The

Magistrate’s determination about the need to hold the person in custody, and the duration of that custody, must be based on clear necessity, with personal liberty being a paramount consideration in that determination.

Arrested person to be taken before a Magistrate of Officer in charge of a

38 police station

The Criminal Procedure Code specifies the procedures that the police must follow when making an arrest or detaining an individual. A police officer making an arrest without a warrant must take or send the arrested person to a

Magistrate or an officer in charge of a police station without under delay, but not later than 24 hours unless there is a special order by a Magistrate.

Procedure when Investigation cannot be completed within twenty four hours

If a person is arrested and detained in custody and it appears that the investigation cannot be completed within the designated 24 hours, and there are grounds for believing hat the accusation or information is well founded then the police officer in charge of he police station or the investigating police officer if not below the rank of sub inspector, must transmit a copy of the required diary entries along with the accused to the nearest Magistrate. The

Magistrate to whom the accused and the information are forwarded may authorize the detention of the accused in the custody he/she deems appropriate for not more than 15 days, whether or not the Magistrate has jurisdiction to try the case.

If the Magistrate does not have jurisdiction to try the case or to commit it for trial and finds that further detention is unnecessary, he/she may forward the accused to a Magistrate with the necessary jurisdiction. While doing this,

39 the Magistrate must also transmit all the relevant information including diary entries, to the new Magistrate. As a safeguard against prolonged detention and violence in custody, no magistrate can authorize detention in custody unless the accused is produced before him. Here the Magistrate authorizes police remand beyond the statutory 24 hours he/she must record the reasons in writing. The copy of this reasoned order must be sent to the Chief Magistrate.

If in a summons case triable by a Magistrate, the investigation is not concluded within six months from the date on which the police arrested the individual, the Magistrate must make an order stopping the investigation unless the investigating officer convinces the Magistrate of some special reason to extend the investigation. The Sessions Judge may overrule a Magistrate’s order to stop the investigation in such a case if he/she is convinced through a separate explanation that there are grounds for further investigation.

The First Remand

Recognizing that Magistrates too often mechanically allow remand of the accused under sections 167 or 309 of Code, without satisfying themselves that there are reasonable grounds for such remand, the Bombay High Court, in a circular to all Magistrates, laid down the following guidelines.

1. A remand to police custody of an accused person should not ordinarily be granted unless there is reason to believe that material and valuable

40 information would thereby be obtain, which cannot be obtained except by his remand to police custody.

2. Where a remand is required merely for the purpose of verifying a

statement made by the accused, the Magistrate should ordinarily

remand the accused person to magisterial custody.

3. If the Magistrate believes that it is not necessary for the purpose of

the investigation to remand the accused in police custody, he should

place the accused person in magisterial custody. In case he has no

jurisdiction to try the offence charged, he should issue orders to

forward the accused person to a Magistrate having the jurisdiction.

4. If the Magistrate is of the view that the police not only require more

time for their investigation, but that for some good reason, they

require the accused person to be present with them during that

investigation, the Magistrate may remand him to police custody, but

while doing so, he must record the reason for his order.

Cases where Bail can be taken

Bailable offences are those in which the police can grant bail themselves.

If the police then produce the person before a Magistrate, as they usually do, the Magistrate must grant bail, with or without conditions, as a mater o f course. The arrested person can seek bail at any point of the proceedings. Bail will be granted with or without conditions and on a assurance of future

41 appearances. These assurances can be underwritten by money forfeits or assurances from the arrested person or their guarantors.

Where the court is satisfied that a person is too poor to provide a money

guarantee and is also unable to provide any other sureties to stand up

for him, the court may, at its discretion, release the person on his/her

own personal bond that the/she will be available to appear at all trial

hearings. Where the offence is bailable, the court has no discretion, and

must release him/her on his/her bond within seven day of the arrest.

If at any time a person fails to comply with the time and location

conditions of the bail bond, the court may refuse to release the person on

bail on a later occasion. This refusal will not prejudice the court in

calling for the individual to pay the penalty on the bond.

Right to Legal counsel

The right to legal counsel which necessarily includes the right to communicate with counsel is one of the most essential elements of a fair trial.

A suspect/accused without counsel is often unaware of all his rights and will therefore often be more compliant with the investigative authorities. It is crucial that the suspect/accused has early access to counsel in order to gain such information, as to how long he may be detained, what are the allegations against him what the allegations actually mean, and what the consequences of a refusal to make a statement might be. An early access to counsel is also

42 important in order to draw up a sound defence strategy.

Domestic law

The Constitution provides every arrested person with the right to

consult and be defended by a legal practitioner of his choice.

Right of person against Whom proceedings are instituted to be defended

The Code of Criminal Procedure provides that any person accused of an offence may of right be defended by a lawyer of his choice.

Legal aid to the accused at State Expense in Certain Cases

The Legal Services Authorities Act, 1987 mandates the setting up of

Legal aid authorities and committees at the state, district and block

(taluk/tehsil) level which are expected to maintain a panel of lawyers to prove free services to needy person. Section 12 of the Act provides that every person who has to file or defend a case will be entitled to legal aid, if hat person is:

1. A member of a schedule caste or scheduled tribe;

2. A victim of trafficking in human beings or begar;

3. A woman or a child;

4. A mentally ill or otherwise disabled person;

5. A person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster;

6. An industrial workman;

7. In custody, including custody in a protective home; or

8. In receipt of an annual income less than rupees nine thousand or such other higher amount as may be prescribed by the state government, if the case is before a court other than the Supreme court, and less than rupees twelve thousand or such other higher amount as may be prescribed by the central government, if the case is before the Supreme court.

Arrest and Pre-trial detention - Role of a Judge/ Magistrate

By Smt S. Vara Lakshmi, Junior Civil Judge, Mylavaram.

Arrest : Means the deprivation of the person of his liberty by legal authority or at least by apparent legal authority.

Arrest how made:

The circumstances in which police officers magistrates and private citizens are authorized to make arrest without warrant have been mentioned in Sections 41 to 44 of Cr.P.C. The manner in which the arrest can be effected by any such person is provided by Section 46 of Cr.P.C which is as follows.

Sec 46 Cr.P.C (1) In making an arrest the police officer or other person shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

(Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest)

(2) If such person forcibly resists the Endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.

(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.

((4)Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of first class within whose local jurisdiction the offence is committed or the arrest is to be made).

Arrest being a restraint of the liberty of a person it can be effected by

45 actually contacting or touching the body of such person or by his submission to the custody of the person making the arrest. An oral declaration of arrest without actual contact or submission to custody will not amount to an arrest.

The submission to custody may be by express words or may be indicated by conduct. If a person makes a statement to a police officer, accusing himself of having committed an offence, he would be considered to have submitted to the custody of the police officer. If the accused proceeds towards the Police Station as directed by the police officer, he would be held to have submitted to the custody of the police officer.

In case there is forcible resistance to or attempt to evade arrest, the person attempting to make arrest may use all necessary means for the same.

On the other hand sub-section(3) of section 46 Persons making arrests can use all necessary means for the purpose, they have not been given any right to cause the death of a person who is not accused of an offence punishable with death or imprisonment for life.

When police may arrest without warrant:

(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person.

(b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; or

(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

(f) who is reasonable suspected of being a deserter from any of the Armed Forces of the Union; or (g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable

46 suspicion exists, of his having been concerned in, any act committed at any place out of India, which if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or (h) who, being a released convict, commits a breach of any rule, made under sub-section (5) of Section 356; or

(i) for whose arrest any requisition, whether written or oral, has ed from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears there from that the person might lawfully be arrested with out a warrant by the officer who issued the requisition.

((2) Subject to the provisions of Section 42, no person concerned in a non- cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists or his having so concerned, shall be arrested except under a warrant or order of a Magistrate.)

Sec .41A Cr.P.C. Notice of appearance before police officer:

(1) ( The police officer shall), in all cases where the arrest of a person is not required under the provisions of sub-section(1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified, in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

(3) Where such persons complies and continues to comply with the notice., he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officers is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the offence mentioned in the notice.).

Sec 41B Cr.P.C. Procedure of arrest and duties of officer making arrest: Every police officer while making an arrest shall: (o) Ear an accurate, visible and clear identification of his name which will facilitate easy identification ; (p) Prepare a memorandum of arrest which shall be:

(vii) Attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made; (viii) Countersigned by the person arrested; and

© inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest. Sec. 41C Cr.P.C. Control room at districts: (1) The State Government shall establish a police control room: (c) In every district; and (d) At State Level.

(2) The State Government shall cause to be displayed on the notice board kept outside the control room at every district, the names and addresses of the persons arrested and the name and designation of the police officers who made the arrests.

(3) The control room at the Police Head quarters at the State Level shall collect from time to time, details about the persons arrested, nature of the offences with which they are charged, and maintain a database for the information of the general public.

Sec 41D Cr.P.C Right of arrested person to meet an advocate of his choice during interrogation: When any person is arrested and interrogated by the police,he shall be entitled to meet an advocate of his choice during interrogation, though not through out interrogation.)

Sec 42 Cr.P.C. Arrest on refusal to give name and residence:

Sec 43. Cr.P.C Arrest by private person and procedure on such arrest:

Sec 44. Cr.P.C. Arrest by Magistrate:

Sec 45 Cr.P.C. Protection of members of the Armed Forces from arrest:

Section 47 Cr.P.C.: Search of place entered by person sought to be arrested:

Sec 48 Cr.P.C. Pursuit of offenders into other jurisdictions:

Sec 49 Cr.P.C. No unnecessary restraint:

Sec 50 Cr.P.C. Person arrested to be informed of grounds of arrest and of right

48 to bail: (1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.

(2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

Sec 50A Cr.P.C. Obligation of person making arrest to inform about the arrest, etc., to a nominated person.

Sec 51 Cr.P.C. Search of Arrested person.

Sec 52 Cr.P.C. Power to seize offensive weapons.

Sec 53 Cr.P.C. Examination of accused by medical practitioner at the request of police officer.

Sec 53A Cr.P.C.Examination of person accused of rape by medical practitioner:

Sec.54 Cr.P.C: Examination of arrested person by medical officer:

Sec.54A Cr.P.C.Test identification of the accused:

Sec.55 Cr.P.C . Procedure when police officer deputes subordinate to arrest without warrant:

Sec.55A Cr.P.C. Health and safety of arrested person:

Sec.56 Cr.P.C. Person arrested to be taken before Magistrate or officer in charge of police station: A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station.

Sec.57 Cr.P.C. Person arrested not to be detained more than twenty - four hours:

No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167,exceed twenty-four hours exclusive of the time

49 necessary for the journey from the place of arrest to the Magistrate's Court. Sec .58 Cr.P.C. Police to report apprehensions:

Sec.59 Cr.P.C. Discharge of person apprehended:

Sec.60 Cr.P.C Power, on escape, to pursue and retake:

(60A.Arrest to be made strictly according to the code:)

Outline of the provisions in Cr.P.C. for arrest of a person:-

Who can arrest :- A police officer may arrest without a warrant under Cr.P.C. Sections 41 (a) to 151 of Cr.P.C; under a warrant under sections 72 to 74 Cr.P.C under the written order of an officer in charge under sections 55 and 157 ;under the orders of magistrate u/s 44 Cr.P.C and in non cognizable offence u/s 42 Cr.P.C.

* A Superior officer u/s 36 Cr.P.C. * An Officer in Charge of a Police Station u/s 42 (2) and 157 Cr.P.C. * A magistrate u/s 44 Cr.P.C. * A military officer u/s 130 and 131Cr.P.C. * A private person without warrant u/s 43 Cr.P.C,. with warrant u/s 72 and 73, under order of Police officer u/s 37 and under order of a magistrate u/s 37 and 44 Cr.P.C and also 60 (1) Cr.P.C. Powers of police officer : Sections 41,42,151 Cr.P.C. and a Police officer may arrest without warrant u/s 41 Cr.P.C.in the following conditions : * Who has been concerned in any cognizable offence: * Who has in possession, without, lawful excuse, of any house breaking weapon. * Who has been proclaimed as an offender either under Cr.P.C. or by order of the State Government. * Who is in possession of any stolen property. * Who obstructs a police officer while in the execution of his duty or who has escaped , or attempts to escape, from lawful custody. * Who is reasonably suspected of being a deserter from any of the Armed forces of the Union:

* Who has been concerned in any law relating to extradition: * Who ,being a released convict commits a breach of any rule made under sub-section (5) of Section (5) of Section 356 Cr.P.C. * For whose arrest any requisition has been received from another police officer specifying the person to be arrested and the offence and other cause for which the arrest is to be made

Rights of under trial prisoners

Meaning:- From oxford dictionary who is on trial in courts of law is called under trial prisoner.

The 78th commission 1979 under trial prisoner includes a person who is in judicial custody on remand during investigation .

Thus under trial prisoner is a person who is correctly on trial or who is imprisoned on remand whilst awaiting trial.

Hon'ble Supreme court of India in its judgments on various aspects prison administration as laid down 3 broad principals regarding imprisonment and custody.

1. A person in prison does not become a non person.

2. A person in prison is entitled to all human rights with in the limitations of imprisonment.

3. There is no justification for aggravating the suffering already inheriting in the process of incarceration.

Prisons in India and their administration is a State subject covered by Item No. 4 under State list in the seventh schedule of the constitution of India. The management and administration of prisons falls exclusively in the domain of State Government and is Governed by the Prisons Act 1894 and the prison manuals of the respective State Government . Thus every State have the primary role, responsibility and authority to change the current prisons laws, rules and regulations. The central Government provides assistance to states in this matter.

The central Government of India concerned at the large number of under trial prisoners in Indian jails has brought to the notice of the law commission

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.

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:-

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

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.

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

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.

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.

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

59 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

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.

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

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.

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

64 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.

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.