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Protection of the Custodial Dignity of the Accused Under the Criminal Justice System in India: a Study of the Emerging Trends During 1987-2007

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Protection of the Custodial Dignity of the Accused Under the Criminal Justice System in India: a Study of the Emerging Trends During 1987-2007 PROTECTION OF THE CUSTODIAL DIGNITY OF THE ACCUSED UNDER THE CRIMINAL JUSTICE SYSTEM IN INDIA: A STUDY OF THE EMERGING TRENDS DURING 1987-2007 A THESIS IS SUBMITTED TO THE UNIVERSITY OF NORTH BENGAL FOR THE AWARD OF THE DEGREE OF DOCTOR OF PHILOSOPHY IN LAW Sub Abhijit Bhattacharjee Registration No.AB-5626(1989-90) Supervisor Prof. Gangotri Chakraborty Department of Law University of North Bengal DEPARTMENT OF LAW UNIVERSITY OF NORTH BENGAL RAJA RAMMOHANPUR, DIST. DARJEELING, WEST BENGAL, INDIA dsL~<O ·tr56Q·511~ "i\_ UNIVERSITY OF NORTH BENGAL P. 0. NORTH BENGAL UNIVERSITY, Raja Rammohunpur, Dist. Darjeeling, DEPARTMENT OF LAW West Bengal, India Pin - 734013 Ph.: (0353) 2776307 I 2776310 I 2776325 Fax : 2776307 I 269900 l Ref ........................................... .. Date ....................................... CERTIFICATE Thi-; is to certify that Sri Abhijit Bhattacharya has pursued research on the topic entitled "Protection of the Custodial Dignity of the Accused Under the Criminal Justice ,\)·stem in India: A Stu((V of the Emerging Trends during 1987-2007" under !11) supervision for more than two years and fulfilled the requirement of the <)rdinances relating to the Doctor of Philosophy of the University of North Bengal. f k has completed his work and the thesis is ready for submission. To the best of 111) Knowledge and belie( the thesis contains the original vvork done by the candidate and it has no1 been submitted by him or any other candidate to this or any other Universit; fnr :m: degree pre\ iousl:. In habit and character the candidate is a lit und proper person t(lr award of Ph. D. degree. I !"','commend the !-,Ubmission of his thesis. Supen isor ~ok~\_£V~ Dr. Gangotri Chakraborty, 1~. i. fw1o Professor, Departmentof Law University ofNorth Bengal Professor Department of Lav. .-r("t fknl!.al l)nivt~rsit) CONTENTS Page No. ACKNOWLEDGEMENT TABLE OF CASES INTRODUCTION 1-8 Chapter - I 9-29 CUSTODIAL DIGNITY: MEANING, CONCEPTS AND EMERGING TRENDS Chapter- II 30-113 ROLE OF THE FUNCTIONARIES IN CRIMINAL JUSTICE SYSTEM IN PROTECTING CUSTODIAL DIGNITY • Role of Police in Ancient India • Role of police in Pre and Post British Period (i) Role of Police under Indian Constitution and Other Statutory Framework (ii) Arbitrary Arrest and Detention by the Police (iii) Harassment and ill- treatment by Police while under custody during Investigation (iv) Role of Police during Search (v) Role of Police during Seizure (vi) Role of Police during questioning /investigation and use of "Third Degree" force (vii) Scientific Test for Criminal Investigation (viii) Narco analysis (ix) D.N.A. • Role of Police during Remand of Police Custody • Degrading Treatment to Women by Police • Degrading Treatment to Children accused of Offenders by the Police • Torture by the Police in Custody • Terrorism, Police Encounters and Human Rights • Role of Police Special reference to West Bengal • Role of Prosecution • Role of Witness • Report of Mallimath Committee Chapter- III 114-218 PROTECTION OF CUSTODIAL DIGNITY UNDER INTERNATIONAL LAW : • United Nations Charter 1945 • Universal Declaration on Human Rights 1948 • International Covenant on Civil and Political Rights 1966 • International Covenant on Social, Economic and Cultural Rights 1966 • U.N. Standard Minimum Rules of Prisoner 1955 • U.N .Basic Principles of justice for the Victim of Crime 1985 • U.N. Body of Principles 1988 • U.N. Convention against Torture & Other Cruel Inhuman and Degrading Treatment or Punishment 1984 • U.N. Code of Conduct for Law Enforcement Officials • U.N. Convention on the Elimination of Discrimination against Women 1993 (CEDAW) • U.N. Standard Rules for Juvenile Justice in 1985 • Regional Convention : (i) American Convention (ii) European Convention (iii) African Charter • Geneva Convention 1949 and optional Protocol • World Conference on Human Rights (Vienna Conference) 1993 : • Declaration on the Elimination of Violence against Women 1993: • Beijing Declaration 1995 : Chapter- IV 219-279 PROTECTION OF CUSTODIAL DIGNITY IN INDIA: A STUDY OF THE STATUTORY FRAMEWORK : • India Constitution • Indian Penal Code • Criminal Procedure Code • Indian Evidence Act • Juvenile Justice Act 1986 and 2000 • Police Act 1861 and other Manuals • Prison Act 1894 and Other Manuals • Prison Bill 1996 and 1998 • Protection of Human Rights Act 1993 • West Bengal Correctional services Act 1992 Chapter - V 280-332 JURISPRUDENCE EVOLVED BY THE SUPREME COURT FOR PROTECTION OF CUSTODIAL DIGNITY Chapter- VI 333-355 CONCLUSIONS AND SUGGESSIONS BIBLIOGRAPHY 356-361 ADDENDUM ACKNOWLEDGEMENT I express my profound sense of gratitude to my supervisor, Prof. Gangotri Chakraborty, Department of law, University of North Bengal, for giving her valuable time while going through each and every page of my thesis with meticulous care and intense thought. This work is immensely influenced and enriched by her scholarly advice and critical analysis. She has been a constant source of inspiration behind this work from the very beginning. It has been a memorable and pleasant experience to work under such a phenomenal and dynamic scholar and above all, a great human being. I acknowledge my respect to Prof. Bishnu Prasad Dwivedi, Department of Law, University of North Bengal, for his kind support and suggestions. He has provided me with several relevant information that I have incorporated in my work. I also express my gratitude for Dr.Rathin Bandopadhyay, Department of Law, University of North Bengal for encouragement and inspiration throughout the working period. I want to thank Dr. Sujit Kumar Biswas, Department of Law, University of North Bengal, for his wholehearted assistance in this work. I also express my deep appreciation for Sri Diganta Biswas for having stood by me during the stressful period of this research. My gratitude for all the staff of the library, National University of Juridical Science, Indian Institute of Law, Department of Law, University of North Bengal and Jalpaiguri Law College. I owe my sense of gratefulness to my mother, my brother, Prasenjeet Bhattacharjee for their continuous support and encouragement. I offer my special thanks to my wife, Mou, for her love and support. I also want to thank my students especially, Ripon Bhattacharjee and Avijit Chakraborty. ~~~~ Department of Law Abhijit Bahttacharjee University of North Bengal Date: Table of Cases [A] 1. A.K. Gopalan v. State of Madras, AIR 1950 SC 27. 2. A.R. Antulay v. R.S. Naik, AIR 1992 SC 730. 3. Advocate on Record Association v. Union of India, AIR 1994 SC 268. 4. Afzal v. State of Haryana,(1994)1 SCC 425. 5. Air India Statutory Corporation v.United Labour Union. 6. Arvinder Singh Bagga v. State of U.P., AIR 1995 SC 117. [B] 7. Babu Singh v. State of U.P.,(1978)1 SCC 579. 8. Bachan Singh v. State of Punjab, AIR 1980 SC 898. 9. Bharwada Bhoginbhai v. State of Gujrat, 1983 Cr. L.J. 1096(SC). 10. Bhim Singh v. State of J&K AIR 1986 SC 494. 11. Bhuvan Mohan Patnaik v. State of Andhra Pradesh, AIR 1974 SC 2092. 12. Board of Trustees of the port of Bombay v. Raghavendranath Nadkarni, 1983(1)SCC 124 13. Bodhisattwa v. Subhra Chakroborty, AIR 1996 SC 922. [C] 14. C.B.I. v. Anupam J. Kulkarni, (1992) 3SCC 155. 15. Chaban Factory Board v. Chandrima Das (2000) 2 SCC 465. 16. Chairman, Railway Board and Others v. Mrs. Chandrima Das. AIR 2000 SC 988. 17. Chameli Singh v. State of U.P. AIR 1996 SC 1050. 18. Chandra Sekhar Kumar v. State of Bihar, 1998 (2) Crimes 481 (P & H). 19. Charles Sobraj v. Supdt. Central Jail, Tihar, AIR 1978 SC 1514. 20. Citizen for Democracy v. State of Assam, (1995) 3SCC 743. 21. Confederation of Ex- Servicemen Assns. V. Union of India, 2006(8)SCC 399. 22. Consumer Education and Research Centre v. U.O.I.(1995) 3 SCC 42. [D] 23. D.K. Basu v. State of W.B. AIR 1997 SC 610. 24. Dalbir Singh v. State of Punjab, AIR 1962 SC 1106. 25. Daljit Singh v. State of Punjab, 1992 Cr.L.J. 105 (P & H). 26. Dalmia Cement (Bharat) Ltd. v. Union of India, (1996) 10 SCC 104. 27. Delhi Domestic Women's Forum v. Union of India, (1995) 1 SCC 14. (F] 28. F.K. Hussain v. Union of India, AIR 1990 Ker. 321. 29. Francis Coralie v. Union Territory of Delhi, (1981)1 SCC 608. [G] 30. Gouri Shankar Sharma v. State of U.P. AIR 1990 SC709. 31. Goutam Kundu v. State of W.B. AIR 1993 SC 2295. 32. Griswold v. Connecticut, (1965) 381 U. S.479. 33. Guddu v. State of U.P., 1990 Cr. L.J. 1531 (ALL) 34. Gurubaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632. [H] 35. Hari Kishan and Hariyana v. Sukhbir Singh, AIR 1988 SC 2127. 36. Haribhai Chanabhai v. Keshubhai Haribhai Vora, AIR 2005 Guj. 157. 37. Hitendra Vishnu Takhur v. State of Maharastra, (1994) 4 SCC 602. 38. Hitendra Vishnu Thakur v. State of Maharastra, (1994) 4 SCC 602. 39. Hudson v. Me Millan. 403 US 1. 40. Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1819. 41. Hyde v. Hyde and Woodmansee,(1866) LR1 P & D 130. [J] 42.Jamuna Chowdhury v. State of Bihar, 1974 Cr.L.J. 890. 43. Joginder Kumar v. State of U.P. (1994) 4 SCC 260. 44.Joginder Singh v. State of Uttarpradesh, (1994) 3 SCC 423. 45. Jolly George Varghese v. Bank of Coachin, AIR 1980 SC 470. [K] 46. K. Rajanna v. State of Andhrapradesh, (2007)Cri.L.J. 2031 (A.P.). 47. Kadra Pehadiya v. State of Bihar, AIR 1982 SC 1167. 48. Kartar Singh v. State of Punjab, 1994(2)SC 423. 49. Kehar Singh v. Union of India, AIR 1989 SC 653. 50. Kent v. Dullas (1957) 377 US 116. 51. Keshwananda Bharati v.
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