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For Criminal Courts & Remand Advocates HANDBOOK FOR CRIMINAL COURTS & REMAND ADVOCATES Prepared by Jharkhand State Legal Services Authority NYAYA SADAN, Near A.G. Oce, Doranda, Ranchi Phone : 0651-2481520, 2482392, Fax : 0651-2482397 Email : [email protected], Website : www.jhalsa.org This Handbook is also available on ocial website of JHALSA “www.jhalsa.org” For Private Circulation : Educational Purpose Only HANDBOOK FOR CRIMINAL COURTS & REMAND ADVOCATES Year of Publication : 2016 Compiled By Jharkhand State Legal Services Authority Nyaya Sadan, Near AG Office, Doranda, Ranchi – 834002 Ph No. 0651-2482392, 2481520, 2482397 (F)“www.jhalsa.org” E-mail :[email protected], Website : www.jhalsa.org This is booklet is also available on Official Website of JHALSA Justice Virender Singh Chief Justice, High Court of Jharkhand cum Patron-in-Chief, JHALSA MESSAGE It is a matter of great contentment that Jharkhand State Legal Services Authority is publishing a Handbook for Remand Advocates and Criminal Courts. Crime and punishment are very sensitive issues and every civilised society aspires of crime-free environment and suitable punishment for the offender. At the same time a civilized society craves for protection of basic human rights of prisoners. Article 39-A of the Constitution of India mandates legal aid to all eligible persons including the prisoners and it is, thus, the duty of the legal services Institution to protect and promote their legal and constitutional rights. I am very optimistic that this work of JHALSA will be used by the Bench and Bar alike. It will not only be a useful book for the DLSAs and Remand Advocates of the State, but, would also be useful for the human rights activists who keep vigilant eye on the persons under vulnerable circumstances including prisoners. (Virender Singh) Dated : 29th September, 2016 Justice Navin Sinha Chief Justice, Rajasthan High Court cum Patron-in-Chief, Rajasthan SLSA MESSAGE I am happy to learn that JHALSA is organising a One day Training Programme for Remand Advocates on 4th of October, 2016, at Ranchi. A Handbook for Remand Advocates and Criminal Courts is also to be released that day. The Society owes a duty, moral and legal to ensure protection of human rights of those who have erred in conduct. It is an essential attribute of a civilised society. It is the duty-moral as well as legal - of a civilised society to ensure protection of legal as well as human rights of persons in custody. In Ramamurthy v. State of Karnataka, (1997) S.C.C. (Cri) 386, nine major problems afflicting the prison system were identified as overcrowding, delay in trial, torture, ill treatment, neglect of health and hygiene, inadequate food, inadequate clothing, prison vices, deficiency in communication, streamlining of jail visits and management of open air prisons. Unhealthy living conditions inside the jail was identified as a severe problem. It is the duty of the Legal fraternity in general and Legal services Authority in particular to uphold the Constitutional law and protect the rights of prisoners right from the stage of remand. The Judicial System of our country guarantees to all the prisoners the Right to Life of with human dignity. Justice D.N. Patel has laboured hard for this outstanding compilation. It will be very useful for Members of Legal Fraternity in general and Remand Advocates in particular. With best wishes. (Navin Sinha) Justice D.N. Patel Judge, High Court of Jharkhand & Executive Chairman, JHALSA A Society is known by how it treats its women, children, differently abled persons, prisoners and marginalized sections of the society. It is constitutional mandate to provide legal aid to the persons in custody, right from the time of his arrest. The concept of Remand Advocate is to fulfil the aforesaid constitutional mandate and provide legal aid to unrepresented accused produced in custody and oppose his remand, move bail applications, miscellaneous applications etc and undertake such action as may be necessary to effectively represent the accused. Soon after the arrest, the arrested person comes under difficult circumstances. His personal liberty is restricted. Hon’ble Supreme Court of India in catena of judgements has upheld the position that Article- 21, which guarantees Right to life with dignity is applicable to prisoners also with full force. Therefore, the duty of Remand Advocate is not only onerous but also pious one. They have not only to discharge it whole heartedly but diligently. There is urgent need to keep Remand Advocates updated through continuous training programmes. There is further need for Reading Material comprising of letters and circulars as well as judgements on the subject for the Remand Advocates and Legal Fraternity. Legal Aid to poor does not, cannot and should not mean poor legal aid. A competent lawyers well versed in law with up to date knowledge is able to protect the interests of arrested persons. There should be good knowledge of Code of Criminal Procedure and more particularly the requirements of Sec. 41 Cr.PC. The Legal position is that whoever doesn’t have a private lawyer to represent him at the time of remand, needs to be represented by the Remand Advocate deputed by Legal Services Authority. This work of JHALSA is not only for Remand Advocates and Criminal Courts but also for the entire legal fraternity and common man. It goes without saying that to include the latest case-laws, updated version will be published at regular intervals so that all the stakeholders may continue to be benefited from this work of JHALSA. (Justice D.N. Patel) INDEX IMPORTANT LETTERS 1. National Legal Services Authority ........................................................................................ 3 D.O.No.L/43/2015/Nalsa, Dated 5th July, 2016 2. National Legal Services Authority ........................................................................................ 4 F.No. L/43/2015/Nalsa, Dated: 20th January, 2016 3. National Legal Services Authority ........................................................................................ 5 F.No.L/12/2016/Nalsa, Dated: 5th July, 2016 4. National Legal Services Authority ........................................................................................ 9 F.No.L/17/2016/Nalsa, Dated: 19th July, 2016 5. Jharkhand State Legal Services Authority .......................................................................... 12 Jhalsa/1864, Dated 26th July, 2016 IMPORTANT JUDGMENTS 6. Md. Ajmal Md. Amir Kasab @Abu ... vs State Of Maharashtra ......................................... 15 Criminal Appeal Nos.1899-1900 Of 2011 7. State Of Madhya Pradesh vs Shobharam And Ors ............................................................. 66 8. Sunil Batra Etc vs Delhi Administration And Ors. Etc ...................................................... 79 Equivalent citations: 1978 AIR 1675, 1979 SCR (1) 392 9. Sunil Batra vs Delhi Administration .................................................................................. 94 Equivalent citations: 1980 AIR 1579, 1980 SCR (2) 557 10. Hussainara Khantoon & Ors vs Home Secretary, State Of Bihar ...................................... 99 Equivalent citations: 1979 AIR 1377, 1979 SCR (3) 760 11. Prem Shankar Shukla vs Delhi Administration ............................................................... 105 Equivalent citations: 1980 AIR 1535, 1980 SCR (3) 855 12. Rudul Sah vs State Of Bihar And Another ....................................................................... 111 Equivalent citations: 1983 AIR 1086, 1983 SCR (3) 508 13. Sheela Barse vs State of Maharashtra ............................................................................... 116 Equivalent citations: 1983 AIR 378, 1983 SCR (2) 337 14. Shri D.K. Basu, Ashok K. Johri vs State of West Bengal, State Of U.P ............................ 123 15. State of Andhra Pradesh vs Challa Ramkrishna Reddy & Ors ........................................ 138 16. R.D. Upadhyay vs State Of A.P. & Ors .............................................................................. 145 Writ Petition (Civil) 559 of 1994 17. Ramraj @ Nanhoo @ Bihnun vs State of Chhattisgarh .................................................... 158 SPECIAL LEAVE PETITION (CRL.)NO.4614 OF 2006 18. Siddharam Satlingappa Mhetre vs State of Maharashtra And Ors .................................. 163 CRIMINAL APPEAL NO. 2271 of 2010. (Arising out of SLP (Crl.) No.7615 of 2009) 19. Arnesh Kumar vs State of Bihar & Anr ............................................................................ 188 CRIMINAL APPEAL NO. 1277 OF 2014 (@SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013) 20. Dr.Mehmood Nayyar Azam vs State of Chattisgarh and Ors .......................................... 193 CIVIL APPEAL No. 5703/2012 (Arising out of SLP (C) No. 34702 of 2010) 21. RE - INHUMAN CONDITIONS IN 1382 PRISONS ....................................................... 204 WRIT PETITION (CIVIL) NO.406/2013 22. Mahadev Gope & Ors. Versus The State of Jharkhand ..................................................... 218 I.A. No. 1105 of 2013 In Cr. Appeal (DB) No. 1088 of 2012 23. Mahadev Gope & Ors. Versus The State of Jharkhand ..................................................... 220 I.A. No. 1105 of 2013 In Cr. Appeal (DB) No. 1088 of 2012 24. Mahadev Gope & Ors. Versus The State of Jharkhand ..................................................... 225 LA. No. 1105 of 2013 in Criminal Appeal (DB) No. 1088 of 2012 25. Jinda Oraon Versus The State of Jharkhand ....................................................................
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