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Critical Perspectives in Criminal Procedure Law

Critical Perspectives in Criminal Procedure Law

CRITICAL PERSPECTIVES IN

Dissertation submitted in part fulfillment for the requirement of the degree of

LL.M.

Submitted by Supervised by

SIDHARTH DAHIYA PROF. G.S.BAJPAI

National Law University Delhi

2014

DECLARATION BY THE CANDIDATE

I hereby declare that the dissertation entitled CRITICAL PROSPECTIVES IN CRIMINAL PROCEDURE CODE submitted at NATIONAL LAW UNIVERSITY, DELHI is the outcome of my own work carried out under the supervision of DR. G. S. BAJPAI, Professor of , NATIONAL LAW UNIVERSITY, DELHI.

I further declare that to the best of my knowledge the dissertation does not contain any part of work, which has not been submitted for the award of any degree either in this University or any other institutions without proper citation.

I followed the research guidelines of the University and applied the Turnitin- Anti Plagiarism software.

(Signature of the Candidate)

SIDHARTH DAHIYA

Roll. No.: 19

Place: Delhi NATIONAL LAW UNIVERSITY, DELHI

Date:

CERTIFICATE OF SUPERVISOR

This is to certify that the work reported in the LL.M. dissertation entitled CRITICAL PROSPECTIVES IN CRIMINAL PROCEDURE CODE submitted by SIDHARTH DAHIYA at National Law University, Delhi is a bonafide record of his original work carried out under my supervision. To the best of my knowledge and belief, the dissertation: (i) embodied the work of the candidate himself (ii) has duly been completed; and (iii) is up to the standard both in respect of contents and language for being referred to the examiner.

(Signature of Supervisor)

Prof. G. S. BAJPAI

Place: NATIONAL LAW UNIVERSITY, DELHI

Date:

ACKNOWLEDGEMENTS

Foremost, I would like to express my sincere gratitude to my supervisor Prof. G.S. Bajpai for his continuous support during my L.LM. study and research, for his patience, motivation, enthusiasm. His guidance helped me at all the time of research and writing of this dissertation. I could not have imagined having a better supervisor and mentor for my L.LM. study. I am so thankful to my supervisor for keeping his trust in me for pursuing this research and it was not possible without his immense knowledge and experience. It’s an honour to work under his precious guidance. It is because of his long hours he spent with me for discussing the ideas and jotting down the important points for the purpose of starting the research and on the way till it is completed. I must say that the end product has turned out a highly satisfying document because of his gracious supervision.

Besides my supervisor I also want to thanks Prof. Ranbir Singh, Vice Chancellor, National Law University. Delhi and Prof. Sri Krishna Deva Rao, Registrar, National Law University, Delhi for being a continuous motivator and for providing an efficient environment for the commencement of this research.

I am also indebted to the library staff for providing me with necessary documents in every possible manner.

Last, but not least, I am sincerely grateful to my dear parents for motivating me and being there for me to guide and support me in every aspect of life. They provided me with inner strength and power to bear the pressure of work with sincerity and efficiency. I would be nothing without their blessings and devotion.

SIDHARTH DAHIYA TABLE OF CONTENTS

Page Number TITLE

DECLARATION BY THE CANDIDATE

SUPERVISOR’S CERTIFICATE

ACKNLOLEDGEMENTS

LIST OF ACRONYMS AND ABBREVIATIONS

TABLE OF STATUTUES

LIST OF CASES

LIST OF TABLES

LIST OF GRAPHS/FIGURES CHAPTER-1

INTRODUCTION 2 1.1 BACKGROUND 1.2 THE PRINCIPAL OF PROCEDURAL REGULARITY 1.3 ORIGINS AND DEVELOPMENT 1.4 MEANING AND DEFINITION 1.5 SPECIAL FEATURES OF THE CODE OF CRIMINAL PROCEDURE 1.6 RESEARCH METHODOLOGY 1.7 THEORIES OF CRIMINAL PROCEDURE 1.7.1 THEORY BY HERBERT PACKER 1.7.2 VALUES UNDERLYING THE MODELS 1.8 THEORISATION OF CRIMINAL PROCEDURE CODE BY JEROME HALL 1.9 THEORISATION OF CRIMINAL PROCEDURE CODE BY JOEL SAMAHA 1.10 THE CRIMINAL PROCESS BY ANDREW ASHWORTH

1.11 THE THEORY AND PRACTICE OF CRIMINAL PROCESS BY RONALD DWORKIN 1.12 OBJECTIVES OF THE CRIMINAL PROCEDURE CODE 1.13 BASIC CONSIDERATIONS (41st REPORT OF , 1969)

CHAPTER-2 KEY ASSUMPTIONS IN CRITICAL CRIMINAL PROCEDURE 24

CHAPTER-3 CRITICAL PERSPECTIVE ON CRIMINAL AGENCIES (POLICING, AND PROSECUTION) 66

3.1CUSTODIAL RAPE AND TORTURE 3.1.1 THE 1996 OF D.K. BASU CASE 3.2 VIOLATION OF OF LAW 3.3 ILLEGAL ARREST 3.4 NON-REGISTRATION OF FIR 3.5 DEVIANCE 3.6 CRITICAL PERSPECTIVE ON JUDICIARY 3.7 JUDICIAL MISCONDUCT 3.8 3.9 CRITICAL PERSPECTIVE ON PUBLIC

CHAPTER-4 104 CONCLUSION AND SUGGESTIONS

BIBLIOGRAPHY

LIST OF CASES

1. Aziz v. State of Kerala, 1984 (Cri. LJ) 1060, 23rd March 1984 2. Adambhai Sulemanbhai Desai v. State Of Gujarat, 2004 (GLR) 906, 26 June, 2003 3. Abdul Karim v. State of Karnataka, 2000 (Cr. LJ) 741-743, 7th November 2000 4. Additional District v. S. S. Shukla Etc., 1976 (SCR) 172, 28 April, 1976 5. Bachan Singh v. State Of Punjab, 1980 (SC) 898, 9 May, 1980 6. Coffin v. , 1895(U.S.) 156 OF 432, 12th September 1895 7. D.K. Basu v. State Of West Bengal, 1997 SC 610, 18th December 1996 8. Dr. Subhramanian Swamy & Othrs. v. Raju Thr. Member Juvenile Justice Board, 2014, (Crl. Appeal) 695 , 28th March 2014 9. Hussainara Khatoon v. State Of Bihar, 1979 SCR (3) 532, 9th March 1979 10. Haricharan & Anr v. State of M.P. & Ors., 2011 (SC) 581-584, 9th March, 2011 11. Himanshu Singh Sabharwal v. State Of M.P. And Ors, 2008 (SC) 175, 12th March, 2008 12. Jayendra Vishnu Thakur v. State of Maharashtra, 2009 7(SCC) 104, 11th May 2009 13. Joginder Kumar v. State of U.P, 1994 (SC) 1349, 25th April 1994 14. Krishan Singh Kundu v. State of Haryana, 1989 (P&H) 1309, 31st March 1989 15. Khatri v. State Of Bihar, 1981 SC (SCC) (1) 627, 19th December 1980 16. Kishore Singh v. State of Rajasthan & Anr. 1954(Cri.LJ) 1672, 26th October, 1953 17. Lalita Kumari v. Govt. Of U.P. &Others, 2008 (Crl.Appeal) 68, 12th April, 2013 18. Mantoo Majumdar v. State Of Bihar, 1980 (SC) 846, 27th February, 1980 19. Mukul Dalal v. Union of India, 1988 3 (SCC) 144, 4th May 1988 20. Motilal Saraf v. State Of J&K, 2006 SC (Crl.J) 774, 29th September 2006 21. Mehboob Batcha & Ors. v. State Rep. By Supdt. of , 2003 (SC) 1511, 29 March, 2011 22. Mrs. Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill & Anr. , 1996 (SC) 309, 12th October, 1995 23. M.H. Hoskot v. State Of Maharashtra, 1979 SCR (1) 192, 17th August 1973 24. Motiram v. State Of Madhya Pradesh, 1978(SC) 1594, 24th August1978 25. Munna Lal v. State Of Uttar Pradesh, 1964 (SCR) (3) 88, 17 April, 1963 26. Maneka Gandhi v. Union Of India, 1978(SCR) 621, 25 January, 1978 27. Mohd. Hussain @Julfikar Ali v. The State (Govt. Of Nct) Delhi, 2012 (SC) 1091, 31st August 2012 28. Nandini Sundar & Othrs. v. State Of Chhattisgarh, 2011(Civil Appeal) 250, 5th July, 2013 29. Nandini Satpathy vs Dani (P.L.) & Anr. , 1978 (SCR) 608, 7th April, 1978 30. Nilabati Behera v. State of Orissa, 1993 (SC) 1996, 24th March 1993

31. Prithipal Singh Etc v. State Of Punjab & Anr., 2009 (SC) 523-527, 4 November, 2011 32. Prakash Singh v. Union Of Indian, 1996(SC) 310 , 22nd December 2006 33. People’s Union For Democratic v. Union Of India, 1982 (SCC) 3 of 235, 18th September 1982

34. R K Jain v. State, 1980 (SC) 1510, 22nd April 1980 35. Rajendra Kumar Jain Etc. v. State Through Special Police, 1980 (SC) 1510, 2nd May, 1980 36. R.D. Upadhyay v. State Of Andhra Pradesh, 2007 (SCC) 15 of 337, 20th January 2000. 37. S.B. Sahana v. State of Maharashtra, 1995(SCC) 787, 9th November 1995 38. Sheo Nandan Paswan v. State Of Bihar & Ors, 1987(SC) 877, 20th December, 1986 39. Shamsher Singh & Anr. v. State Of Punjab, 1974 (SCR) 2192, 23rd August, 1974 40. Sukdas v. Union Territory Of Arunanchal Pradesh, 1986 SCR (1) 590, 10th March 1986 41. State of Uttar Pradesh v. Ram Sagar Yadav & Ors, 1985 (SC) 416, 18 January, 1985 42. Satya Narayan Tiwari @ Jolly & Anr v. State of U.P, 2010(SC) 1168, 28 October 43. State Of Karnataka By Nonavinakere Police Station v. Shivanna @Tarkari Shivanna, 2014(SC) 5073, 25th April 2014 44. Supreme Advocates-On-Record Association v. Union Of India, 1993 (SC) 1303, 6th October, 1993 45. Selvi & Ors. v. State Of Karnataka & Anr. 2010 (SC) 1267, 5th May, 2010 46. Sukhdev Singh v. State of Punjab, 2010(SC) 8917, 24th February 2010 47. State of Punjab v. Ajaib Singh, 1953 (SCR) 254, 10 November 1952. 48. State of U.P v. Shambhu Nath Singh And Ors, 2001 (SC) 392, 29 March, 2001 49. Tukaram & Othrs. v. State Of Maharashtra, 1979 SCR (1) 810, 15th December 1978. 50. Thakur Ram v. The State Of Bihar, 1966 (SC) 911, 26th November, 1965 51. Veena Sethi v. State Of Bihar, 1982 (SC.C.) 583, 11th May, 1982

52. Vikas Yadav v. State Of U.P. , 2009(SC) 13400, 7th August, 2009

53. Zahira Habibullah Sheikh & Anr v. State Of Gujarat & Ors, 2006(Crl.) 446- 449, 8 March 2006

LIST OF TABLES

Table Number Title Page Number

1.2 The Principle Of Procedural Regularity 3 ABBREVATIONS

1. AIR All India Reporter 2. ADM Additional District Magistrate 3. CCM Control Model 4. Cr.L.J Criminal Law Journal 5. CID Crime Investigation Department 6. Crl. Criminal 7. C.P.C Code 8. Cr.P.C. Code of criminal procedure 9. DPM Due Process Model 10. FIR First Information Report 11. Govt. Government 12. IPC Indian Penal Code 13. ICCPCR International covenant on civil and political rights 14. NHRC National Commission 15. NCT National Capital Territory 16. Ors. Others 17. PUDR People’s Union for Democratic Rights 18. SC Supreme Court 19. SPO Special Police Officer 20. SCR Supreme Court Report 21. SCC Supreme Court Cases 22. SP Superintendent of police 23. St. State 24. U.S.A. United States of America 25. UDHR Universal Declaration Of Human Rights 26. UOI Union of India 27. U.P. Uttar Pradesh 28. UK United Kingdom 29. UN United Nations 30. UPSC Union Public Service Commission 31. V. Versus

“If men were angels, no government would be necessary. If angels were to govern men; neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself ” James Madison ([1787], 1961, 349)

1 CHAPTER 1

INTRODUCTION

1.1 Background

The principles and rules that surround and frame the criminal procedure law determine duties, power of the government and citizens. The law enforcement agencies are required to follow these procedures for maintaining law and order in society. This procedure also entails process of of an accused and all other procedures to bringing both sides of the case to justice and hence propagating the superiority of law and order. Each and every civilized nation should have one thing common within their administration system and that is to provide rights to each and every accused person irrespective of his / her . It is settled that in order to keep law and order in the society, all countries have to follow the procedure where the criminal prosecution begins with ‘’ and also the guilt must end up being proved beyond a reasonable degree of doubt. This section suggests tracing of various dimensions of reasonable trial standards in the Indian criminal justice system and can also focus on the role of towards achieving justice, as defense counsel is the only individual on whom the accused trust during the course of trial.1

The Criminal Procedure Code controls and regulates the working of machinery set up for investigation and trial of offences. It provides safeguards against probable abuse of power by police or judicial officers. The nature of its subject matter is such that human values are associated with it to a greater degree than in other . As the law of criminal procedure is complementary to substantial criminal law, its failure would seriously affect the substantive criminal law, which in turn would considerably affect the protection that it gives to society. According to this code, principle of natural justice should be the guiding source for providing fair trial to an accused person. Delay in Investigation is harmful to individual as well as to the society as a whole and the procedure should make every possible effort to avoid delay and poorer section of

th 1JOEL SAMAHA, CRIMINAL PROCEDURE, 127,CENGAGE LEARNING, 9 ed. 2011

2 society should be provided a fair deal.2

The right to fair trial is a norm of worldwide human rights law. Many countries within their procedural law have adopted this law. It is made in order to protect people from the unlawful and irrelevant curtailment or deprivation of the basic rights as well as freedoms. The most prominent rights which are of concern here are the right to life and liberty. The concept associated with impartial trial is dependent on the basic concepts of natural rights. Though the type and practice of the principles of natural justice can vary from system to system and it totally depends on the conditions of the society concerned. The idea of a fair trial may be accepted as a part of the human rights within the Universal Declaration of the Human Rights, 1948 (UDHR). The provisions that come into existence with the fair criminal trial are preserved within Article 10 and 11 of the Universal Declaration Of Human Rights. Article 14 of the International Covenant on Civil and Politics Rights (hereinafter as ICCPR) reaffirmed the actual objects of UDHR and offers that “Everyone shall be eligible for a fair as well as rightful public with a competent, independent and unbiased . ”3

1.2 The Principle of Procedural Regularity4

Fair Straight, clear, free, consistent, meritorious

Just Conformity with what is right or proper

Equitable Dictated by conscience, reason, or sense

Impartial Without bias, without favoritism

Objective Detachment in observation &judgment

Dispassionate Unaffected by strong emotions

2Ibid th 3JOEL SAMAHA, CRIMINAL PROCEDURE, 142, CENGAGE LEARNING, 9 ed. 2011 4 AN OVERVIEW OF CRIMINAL PROCEDURE, http://www.drtomoconnor.com/3020/3020lect01.htm, (visited April 22,2014)

3 The standards that should be employed for judging a trial in respect of its fairness are numerous, complex, as well as constantly evolving. They might constitute binding obligations, which are enclosed within treaties of human rights, which need to be followed by the state. Nonetheless, they can also be found in paperwork, which, though not are formally binding, but can demonstrate the direction in which law is changing. 5

The adversarial system is based on the idea of reconciliation with public and personal interests. The interest of the society can be controlled by punishing the wrongdoer and also by preventing him from committing more offences. Preventing the wrongful convictions and safeguarding the freedom of the individual can protect individual interest. The procedure of a criminal trial regulates by guiding investigating agencies and government to prosecute the wrongdoer. It also regulates and abides the counsels to counter evidences produced by the prosecution. In Himanshu Singh Sabharwal case 6 , the apex court observed that when the right of fair trial is not imparted towards the parties to the case, then the concerned court has reasons to think that the prosecutor isn’t following its moral duty that’s been inscribed in its professional ethics. At such situation of misconduct, the concerned court can duly exercise its power provided u/s 311 of the Code of Criminal Procedure and u/s165 of the Indian Act (1872) to get in touch with the material witness and obtain the relevant documents in order to sub serve the reason for justice. Though the idea of an adversarial trial program is diluted within the Code of Criminal Procedure but still this technique is praised due to the protection it accords to the accused. The judiciary has always advocated that the presiding should act like a participant during a trial rather than a mere spectator to become an effective device in the dispensing of justice.7

The principle which demonstrates that how an innocent person should be assumed innocent unless the guilt is demonstrated beyond reasonable amount of doubt is of cardinal importance within the administration of justice. This notion is incorporated in similarity to the right of a person who is accused under numerous conventions. Actually this principle is dependent on legal adage, which infers that it is better if ten criminals escape from custody than the wrongful conviction of one individual person. This

5 th JOEL SAMAHA, CRIMINAL PROCEDURE, 144, CENGAGE LEARNING, 9 ed. 2011 6Himanshu Singh Sabharwal v. State Of M.P. And Ors, 2008 (SC) 175, 12th March, 2008

7Supra Note 6

4 principle had been recognized by American Legal System long ago in 1895 when the judgment in Coffin v. United States stated that ‘the principle that there's a presumption of innocence towards the accused may be the undoubted law, axiomatic as well as elementary, and its enforcement lies in the foundation of the administration in our criminal law.’ It should be noted that the Supreme Court of the United States has raised the degree of presumption of innocence to the amount of a fundamentally correct and admissible order by reading it to the ‘due process’ terms.8

The element of Right to Fair trial can be supported with the presumption of purity which means that the responsibility of inside a criminal trial lies on the prosecution and that’s how the accused has the advantage of beyond reasonable doubt. This presumption sometimes appears to flow in the Latin legal theory that ‘eiincumbit pro batio qui dicit, non qui negat ’ which infers that, the burden of evidence rests on that asserts, not upon who denies. The presumption of innocence is a legal ideology developed by the law in order to favour the accused in line with the legitimate inference that all people who are accused are not criminals. With regard to the facts which are critical for the case - if the crime with which the defendant is charged had been committed and if the defendant was the one who committed the crime then the prosecution has the whole burden to provide the evidence of the commission of that crime by the accused. The critical facts from the case have its own value and the defendant doesn't have any burden associated with showing the proof whatsoever. The defendant doesn't have to testify, call witnesses or present every other evidence, and when the defendant elects not to testify then that decision can't be used against him or her. The judge is expected not to draw any inferences from the defendant by observing the defendant or by knowing the character of defendant. There is no doubt that the past character of the defendant always has an influence on the judgment, but that should not totally shadow the real facts and evidence that are presented in court by its counsel. He must decide the situation solely on evidence presented during the course of trial.9

8 Supra Note 6 9Supra note 8

5 1.3 Origins & Development To trace a brief history of the present Code of Criminal procedure, one has to visit to the period of medieval Indian legal system, subsequent to the conquest through the Muslims when the Mohammedan Criminal Law arrived to prevalence. The British rulers handed the Regulating Act of 1773, which initiated the establishment of a in Calcutta and afterwards at Madras as well as in Bombay. There was absolutely no uniform law associated with criminal procedure of India. In the erstwhile provinces and the presidency towns, for the guidance of the , separate acts were enacted. 10

The Courts were obligated to use British procedural while deciding the cases from the Crown’s subjects. Following the rebellion of 1857, the crown took control of the administration in Indian states. 11

The Criminal Procedure Code, 1861 was passed by the decision in the British parliament. 12 The various Acts prevailing within the masses at that time were all absorbed within the Code Of Criminal Procedure, 1861.13The Criminal Procedure Code (1861) consolidated the acts applicable in the actual provinces. Criminal Procedure Code (1865) then replaced this act of 1861.14

The Code of Criminal Procedure of 1882 then consolidated, for the entire India as a uniform regulation of procedure. While tracing a brief history of the Code of Criminal Procedure, one finds that the uniform law of criminal procedure for India is the code of Criminal Procedure of 1882, which was consolidated for the very first time. This gave a standard law of procedure for the entire of India, both within the Presidency-towns and within the councils. The Code of Criminal Procedure of 1898 later replaced it. 15

The present code is a result of numerous amendments. Major changes were done in 1923 and in 1955. Amendments in 1955 were done to simplify the procedure and to

10CODE OF CRIMINALPROCEDURE, INTRODUCTION, 1973 (UNIVERSAL’S 2011) 11 CODEOF CRIMINAL PROCEDURE OFUNITED KINGDOM, AVAILABLE at http://en.wikipedia.org/wiki/Code_of_Criminal_Procedure,_1973 (Visited on 23rd March) 12 Supra Note 11 13 Supra Note 2 14 Supra Note 3 15 Narendra Kumar & others v. State & others, 3322/2003 (SC), (Cr. LJ) January 13,2004

6 speed up the process of trial. The State Government authorities have to make a lot of amendments to the Criminal Procedure Code of 1898.

The Law Commission was asked to conduct a detailed study of Criminal Procedure Code 1898 to make the process more comprehensive. The Law Commission presented its report on 19th day of February 1968. Meanwhile, the Law Commission was reconstituted and also the reconstituted law commission made an in depth studies of the Criminal Procedure Code of 1898 and also submitted its statement in September 1969. Thereafter another Bill (1970) was introduced within the Rajya Sabha on 10th December 1970. The Parliament adopted the Bill for consideration after Joint Select Committee of both the Houses of Parliament made integrating recommendations. 16

Approach of equal justice right was taken by the Founding Father of the of India from the preamble, which can be clearly inferred from the preamble of constitution. The promise of the preamble is further strengthened by the constitutional provisions in Articles 14, 19, 21, 22(1), 32, 39-A and 226 of the Constitution of India. Article 22(1) of the constitution, expressly provides that “no person, who is arrested shall be detain in custody, without being informed, as soon as may be, of the grounds for such arrest, nor shall be denied of the right to consult and to be defended by a defense . Before the enactment of the constitution even in the old Code of Criminal Procedure, u/s 340 (1) it had been provided that: “any person, accused of an offence or against whom proceedings are instituted, under this code, or any such code, have a right to be defended by a lawyer.” With the addition of the words ‘of his choice’ at the end, the new Code of Criminal Procedure correspond to section 303. 17

According to Article 21 of the Constitution of India, “no person can be deprived of his life or personal liberty except according to the procedure established by law”. The procedure under which a person may be deprived of his life or liberty should be reasonable, fair and just , only some resemblance to procedure provided by law is not enough18.

16Supra note 2 and 8 17Supra note 2 18Maneka Gandhi v. Union of India, 2 SCR 628, 25th January 1978

7 In the Constitution of India, 42nd amendment Act (1976) has inserted Article 39(a) as a Directive Principle of State Policies, which emphasizes that free legal service, is an unalienable element of reasonable fair and just procedure. Delay in Investigation is harmful to individual as well as to the society as a whole and the procedure should make every possible effort to avoid delay and poorer section of society should be provided a fair chance. 19

1.4 Meaning & Definition

The criminal justice system in India was inherited in the colonial era. Though 67 years have passed since India has gained its independence, but the pre-established trends are still in prevalence. The ancient colonial rulers who enacted the Indian Penal code, Indian Evidence Act and The Code of Criminal Procedure (1898) that was later modified by Code of Criminal Procedure in 1973 by the Indian Parliament led to the simplification of the criminal procedure to a large extent. It also introduced a uniform system in the United Kingdom in relation to the judicial and functions by the and to create the separation of judiciary more efficiently. The Code of Criminal Procedure, 1973 was enacted to get rid of anomalies and ambiguities which were delivered by conflicting decisions of numerous High Courts to bring uniformity throughout the nation to consolidate laws wherever possible to improve the criminal justice system in our country.20

The objective of the Criminal Procedure Code is to provide machinery for awarding punishment to the offenders for his or her . It prescribes the procedure for trial of accused under the Indian Penal Code. Section 4 of the Code provides that offences under the Code will be investigated or enquired about, will be dealt with the provisions of this particular code. It also offers that offences under the Indian Penal Code can also be tried as according to the provisions which are provided pursuant to the Criminal Procedure Code. The Indian Penal Code is a . Code of Criminal Procedure is just alike to all procedural laws. It is improved to initiate the practice of distributing justice and never to frustrate them through the introduction of limitless

th 19M.P. JAIN, INDIANCONSTITUTIONALLAW, 225,LEXISNEXIS, 6 ed., 2012 th 20R.V. KELKAR, CRIMINAL PROCEDURE, 187, EASTERN BOOK COMPANY, 5 ed., 2012

8 technicalities. The objective of this Code is to make sure that an accused person will get a complete and fair trial and to ensure the presence of fundamental notions of natural justice within our country.21

The Code of Criminal Procedure doesn't merely consolidate prior enactments but also propagates the procedure. Further, it not only consolidates pre-existing law but also amends that law. The object of this code would be to collect the upon a specific subject, and to create it. It may form an efficient code, which is applicable in all circumstances prevailing at the time of the enactment of the code. As far as it deals with any point particularly, the Code should be deemed to end up being exhaustive and the law must end up being ascertained with regard to its provisions. Nevertheless, the procedural code is exhaustive only regarding matters specifically handled by it. Where a situation arises which certainly demands interference, which is not within the purview of the Code of Criminal Procedure then it particularly provides that the court has the capacity to make such order. Inherent power is conferred underneath the Code of Criminal Procedure only about the High Court because subordinate Criminal Courts don't have any inherent powers.

1.5 Special Features of the Code of Criminal Procedure 22

On the basis of the recommendation of the Law Commission of India from time to time, the parliament in its 24th year of the republic of India enacted the Code of Criminal Procedure, 1973 repealing the earlier code of 1898. The new code came into force on April 1, 1974. The main feature of the new code is:

1. The committal proceedings which required preliminary inquiry preceding the trial by a court of session were abolished as they involve considerable delay in the trial of the offences; 2. In order to ensure speedy disposal of cases, provision was made for adoption of summons procedure for the trial of offences punishable with imprisonment up to 2years, instead of 1 year;

21Supra note 20 22DR. N.V.PARANJAPE, THECODEOFCRIMINALPROCEDURE (WITHJUVENILEJUSTICEACT& th PROBATIONOFOFFENDERSACT), 4 CENTRALLAWAGENCY, 4 ed., 2013

9 3. The scope of summary are widened by including offences punishable with imprisonment up to 1year instead of 6 months23 and summons procedure was to be adopted for summary trials; 4. The courts were empowered to order costs to be paid by the party obtaining adjournment; 5. The new provision for summons by registered post in certain cases was introduced; 6. In petty cases, the accused could plead guilty by post and remit for fine specified in summons; 7. The facility of part heard cases being continued by successors in office which was hitherto available in respect of courts of magistrates was extended to court of sessions as well; 8. Provision was made for providing legal aid to an indigent accused in cases triable in court of sessions; 9. The courts have been empowered to order payment of compensation by the accused to the victim of crime in certain cases; 10. In cases where a commission is issued for the examination of a witness for the prosecution, the cost incurred by the defense including pleaders fees may be ordered to be paid by the prosecution; 11. Before pronouncing the punishment, the accused found guilty of an offence shall be heard on the point of sentence. In other words, he will be given an opportunity to make representation against the punishment proposed that is to be imposed on him.

23Section 260, Supra note 22.

10 1.6 Research Methodology

1.6.1 Type Of Study A doctrinal method has been adopted for completing this research where the concept of Critical Criminal Procedure has been explained with the help of various theories, Supreme Court Judgments, Books and Research Papers.

1.6.2 Statement Of Problem The present study aims at examining the evolving notion of criticality in the criminal procedure law of India. The core premise behind this research is the fact that the Supreme Court in the recent past has made a very progressive and creative interpretation of laws dealing with criminal procedure code. In this process the Supreme Court has evolved a criminal procedure law, which is critical in the sense that it has examined the functioning of law, procedure and enforcement institution in a highly critical manner.

The present study is geared with the notion that through its spate of judgments, critical to the functioning of police, prosecution, defense lawyer and judiciary, the Supreme Court has evolved a new jurisprudence in the shape of critical criminal procedure.

The present study intends to document these critical perspectives and develop the notion of critical criminal procedure, which is apparently distinguished from the normative criminal procedure law.

1.6.3 Objectives 1. To examine the originating principles and normative principles in the development of criminal procedure law. 2. To examine the Supreme Court cases with a view to evolve certain critical perspectives with regard to the functioning of police, prosecution, defense lawyer and judiciary 3. To explore and synthesize the contemporary theoretical debates in the context of criminal procedure law.

11 1.7 Theories of Criminal Procedure Code

1.7.1 Theory By Herbert Packer

Herbert L. Packer24 has suggested two models of the justice process where both the models have there own distinct philosophy. First is, Due Process Model and another is Crime Control Model. He pointed that there is a large difference between these models as “due process model” emphasizes on the rights of the individual and the “crime control model” emphasizes on the regulation of criminal conduct. These models are formulated in order to summarize a system containing two separate values, which are competing to be on priority under the principles of criminal process. For the purpose of following the criminal procedure, these models are most appropriate whose regular function will include a uniform series of some minimum changes within the conflict of principle in the two-value system.

1.7.1.1 Values Underlying The Models In the development of the criminal procedure, the point of conflict between these two models is whether the crime control model is more amenable towards the welfare of the state or due process model is more concerned with the rights of the individual. In this progress, lawmakers, , police, , defense play an active role. They do not hesitate to eloquent the values that they take on any issue. It is impossible that the values, which are given under both models, has ever identified in one person. The reason is perhaps that the models are in opposition to each other, therefore, their schemes of values are also in opposition. There are some common grounds where we are concentrating only that criminal source which functions under the principle prescribed by the contemporary American society. Here are various assumptions about the criminal process that may be taken as common ground for the operation of any model of the criminal process. 25

24HERBERT L. PACKER, TWO MODELS OF THE CRIMINAL PROCESS, UNIVERSITY OF PENNSYLVANIA LAW REVIEW, Vol. 113, 1968. 25Supra note 24

12 First assumption is itself covered in the ex-post facto clause of the constitution that the conduct of a person is responsible for how he is being treated. The idea is that an under- trial person will be put separately from the convicted person.

Second assumption is that a person who is having a change in responsibility for involving the prosecution must invoke the criminal process and police department should be given wide powers for assisting in decision-making and not to invoke the criminal process. It is also commonly seen that police and prosecutors are generally not dispensing such powers. 26

Next assumption is that there are limits to the power of government for the purpose of investigating & apprehending the suspected individual related to a crime. It is only a general assumption in relation to the security and privacy of the individual, which may not be at risk.27

1.7.1.2 Crime Control Values

The whole system of the crime control model is based on the proposition that the most important function of the criminal process is to repress (put down by force) the criminal conduct and the failure of such results into the breakdown of public order. Therefore, the victims are the law-abiding citizens, of unjustifiable invasions of their interests. A member of society cannot functions with liberty when his security of and person is taken away. 28So, in order to achieve social freedom, the primary goal of the crime control model is to check efficiency of the criminal process in relation to control the persons who are convicted of crime. 29

We cannot implement the efficiency of operation in a vacuum. By “efficiency”, we mean that with what efficiency a criminal offender is convicted, apprehended and tried under a system. Under the societal establishment where only some of the serious forms

26id 25 27id 26 28id page 3 29HERBERT L. PACKER, TWO MODELS OF THE CRIMINAL PROCESS, UNIVERSITY OF PENNSYLVANIA LAW REVIEW, Vol. 113, 1968.

13 of offences against the society come under the definition of crime against society, there is a serious requirement of the involvement of more number of judicial, prosecution and police agencies on each case to work with required efficiency.30

The crime control model works on the principle that the suppression of crime is the top priority of the criminal justice system because law & order is the most essential condition for having a free society. The principle that guides the crime control model propagates that the victimization of the victim should be the foremost concern of the criminal justice system and not the rights of the defendants. The person who has been subjected to a crime should be protected and supported. Crime control model propagates the principle that the police authority should be empowered with higher powers and facilities for the purpose of investigation, search, arrest, conviction and seizure. The legal technicalities that create hurdles and limitations need to be eliminated so as to improve the efficiency of the law enforcement authorities. The process of the criminal justice system is required to be very efficient and productive in terms of solving the cases and it can happen only if it works in a uniform by following measures to solve the cases with their true diligence. The arrest performed by the police authority and the framing of charges by the public prosecutor should be given credibility by presuming the accused to be guilty because the investigation and fact finding of investigating authority is always presumed to be reliable. Criminal justice system should work hard to prove the guilt of the accused and the approach of the investigation agency should be victim centric and not defendant centric.

1.7.1.3 Due Process Model According to Herbert Packer:

“If the Crime Control Model resembles an assembly line, the Due Process Model looks very much like an obstacle course. Each of its successive stages is designed to present formidable impediments to carry the accused any further along in the process. It does not rest on the idea that it is not socially desirable to repress crime, regardless of the fact that critics of its application have been known to claim so. Its ideology is composed of a group of ideas. Some of them based on judgments about the efficacy of crime

30Supra note 29

14 control devices, and others have quite different considerations. The ideology of due process is a lot more deeply impressed on the formal structure of the law than the ideology of crime control but still an accurate tracing of the strands that make it up is strangely difficult. What follows is just an attempt at an approximation”.31

The idea of justice can only be propagated when there is due process and fundamental fairness within the purview of law and justice. There should be a balance between the rights of the victims and the accused and the court shouldn’t just presume the accused guilty from the beginning of the trial. The approach of the criminal justice system should be defendant centric and not victim centric because also in the bill of rights, it is being expressly provided for the protection of the defendant rights. The power and authority of the investigation agency and other law enforcement agency should be within the legal propensity of the criminal justice system such that it doesn’t evade the lawful rights of the defendant.

It should be noted that the rights that are inserted within the constitution are not just for the sake of making a good guidelines but they should also be followed with sincerity and fairness in such a manner to make the criminal justice authorities accountable for the rules, and procedures to make the criminal justice system more accountable. The criminal justice system should work as a speed breaker in front of a rapid investigation so that the rights of the accused shouldn’t be evaded and the procedure should be properly followed even though it's been proved that the person arrested is guilty. The idea of justice always propagates that the factual innocent should be protected and factual guilty should be convicted.

Mere presuming that a person is culpable doesn’t make him a convict. A person should be held guilty only after the use of the proper procedure and legal rules that have been provided under our criminal procedure code.

31 KEITH A. FINDLEY, TOWARDA NEW PARADIGM OF CRIMINAL JUSTICE: HOW THE INNOCENCE MOVEMENT MERGES CRIME CONTROL AND DUEPROCESS, https://media.law.wisc.edu/m/dfknm/findley_new_paradigm-10-10-08.pdf, (Visited on 27th April)

15 1.8 Theorization of Criminal Procedure Code by Jerome Hall Sir Jerome Hall explains that it is important to emphasize that what is “efficiency” in the perspective of Cr.P.C. .“Efficiency” means the capacity of the system to apprehend and convict the criminal offenders whose offences become known. For successful operation of the crime control model, it must result in a high rate of dread on arrest and conviction; therefore, there is need for speed in disposition of cases. It can be seen that an extra judicial process is preferred in the same way as informal operations preferred over formal ones. It is true that the facts can be more quickly established by way of police interrogation in comparison to the formal process of examination and cross- examination in a court. But it is very important that informality alone is not enough. It should be coupled with uniformity also. Hence, the procedure prescribed in the criminal law is a list of procedure, which starts at the filling of the FIR and finishes with either the conviction or acquittal of the accused person where each step of procedure needs to be followed to have a successful conclusion of trial. 32

According to Sir Jerome Hall, the Police and Prosecutions by applying administrative expertness determine the probability of innocence or guilt. If the person is found innocent, then he is screened out, but if the person is found guilty, then he has to pass through the remaining stages of the process. 33

The presumption of guilt and the presumption of innocence are different from each other, such as the presumption of innocence is guidance to officials on how they have to work and not just as a prediction of outcome. The presumption of guilt, however, is virtuously and simply a prediction of outcome. The presumption of guilt is prescriptive where as factual presumption of innocence is legal and normative. 34 This criminal procedure acts as a community’s way of life in its areas of greatest stress. He says that the criminal procedure act as a public utility for the benefit of the people and it's been expected that the police authority and the judicial body will follow such procedure for the welfare of society. Criminal procedure is the code, which provides better service in direct proportion to its rationality. Sir Jerome Hall also stated that this procedure could

32 JEROME HALL, OBJECTIVES OF FEDERAL CRIMINAL PROCEDURAL REVISION, THE YALE LAW th JOURNAL, VOL. 51, NO. 5 ,4 MARCH 1942, PP. 723-747 33Supra Note 32 34Supra note 33, PP. 729

16 be logical even though the substantive law is unjust or irrational. He argued that this criminal procedure must be understood as “the administration of criminal justice.” This totality is usually divided into substance, procedure and practice (discretion). The substantive part of the criminal law determines the kind of questions that should be asked. There should be a rational procedure, embodying logical principals prescribing about what kind of steps to be taken and they should be approached to get the necessary answers. Criminal Procedure has a great dilemma, where on one hand it had to save the innocent from being charged as guilty and to convict the guilty person who tries to evade arrest or against whom there is no availability of evidence.

1.8.1 Importance It is applied consistently and affects a greater number of people than any other law. The nature of its subject matter is such that human values are associated with it to a greater degree than in other laws.

As the law of Criminal Procedure is complementary of substantive criminal law, its failure would seriously affect the substantive criminal law, which in turn would significantly affect the protection that it gives to society.

1.8.2 Subjects & Principles Again Packer contributes to this discussion by stating that the fundamental principle on which criminal procedure is based is balanced. It is not incorrect to say that the Criminal Procedure is the study of constitutional democracy from an applied point of view. The ultimate ends of Criminal Law are both inharmonious as well as contrary. 35

Here the balance is expected to be between the value of the safety & security of the entire community and the value of individual autonomy, life, liberty, property, privacy and dignity.36

Criminal Procedure is also a sort of public utility, which at least is intended to provide better service in direct proportion to its rationality. This procedure can be lucid even

35HERBERT L. PACKER, TWO MODELS OF THE CRIMINAL PROCESS, UNIVERSITY OF PENNSYLVANIA LAW REVIEW,Vol. 113, 1968 36Supra Note 35

17 though the substantive law is unjust. Criminal Procedure must be seen as the administration of criminal justice.37 In a constitutional democracy, the people’s chosen representatives possess wide latitude of power to produce criminal laws that comprise punishment. However, in enforcing the law of criminal intent, officials are a lot more restricted by what the law states about the criminal process.38

1.9 Theorization of Criminal Procedure Code By Joel Samaha Joel Samaha39expressed that the balance is the fundamental principle on which criminal procedure is based. The word ‘balance’ that is being incorporated here doesn’t relate to some thinking of maintaining the justice in scales but on the other hand this term here is in the inference of understanding the idea of checks and balances. Criminal procedure can be seen as the study of constitutional democracy in an applied point of view. Criminal procedure also brings equality and balanced position on the criminal law as the result or the final destination of the criminal law results in either conviction or acquittal. It is not wrong to say that if such kind of destinations have to be reached in an efficient manner then it should be understood that no kind of judicial machinery can be enacted to achieve both the destinations, because if its already been presumed that a particular person is guilty, then its very difficult for the defense to convince the judge about the innocence of the accused and vice versa. In literary meaning, it can be said that the distance between the innocence and conviction depends upon the kind of procedure that has been used to achieve such destination of acquittal or conviction. Because once a judge presumes that a person is guilty or if the person is innocent then it’s problematic for the prosecution or the defense to drive the judge towards the other side. Therefore it’s the kind of procedure that’s been followed for enforcing the criminal law to maintain the equilibrium of innocence and guilt. Criminal Law cannot be enforced without a well-established criminal procedure.

Joel Samaha also talked about the importance of the contemporary system. He argued that we live inside a police state; officials could barge into our houses within the dead of evening and shoot us within our beds based on simply the whim from the current

37 JEROME HALL, OBJECTIVES OF FEDERAL CRIMINAL PROCEDURALREVISION, THE YALE LAW JOURNAL, VOL. 51, NO. 5 (March 1942), PP. 729 38 Id pg-5 39 th JOEL SAMAHA, CRIMINAL PROCEDURE, 142,CENGAGE LEARNING, 9 ed. 2011

18 dictator. If we live inside a pure democracy, most who won the final election could authorize law enforcement to shoot anyone whom they'd a hunch with, even he was a street member. However, we reside in a constitutional democracy, where most power is still kept in the whim of the common people. Our constitutional democracy balances the requirement to provide security to the public and safety against other similarly significant value, which is individual freedom, privacy, and self-esteem.40

1.10 The Criminal Process by Andrew Ashworth

Andrew Ashworth has laid a number of ideas about the caste of the criminal procedure code and how it is working for society. The idea of criminal justice system has an integral value which governs the philosophy of truth, fairness, justice, harmony, and balance in the society. Awarding a punishment to an accused is not for the purpose that the state wants to have revenge from that individual, but the idea is that the state wants to set an example for the other people to understand that what can happen to them if they will indulge in some unlawful activity. The reason to express this notion is because there are many instances when the state forgets the guidelines of the procedural laws and an innocent person has to face the tyranny of the criminal justice system. Also there are many instances when the person who is arrested is a guilty person but there was lack of following of procedure during his arrest and custody. He said that it is to be remembered that the criminal justice system has its ethical value and there should be every step taken to avoid an innocent conviction and the process prescribed in the criminal justice system should be properly followed with its integrity and ethical norms. He also précised the concept that administers the criminal justice system in the form of principles governing the criminal process- rectitude, avoiding conviction of innocent, integrity, ethical.41

Leventhal (1980) has explained about the methods to achieve a smooth criminal justice system that can help to maintain the balance and the principles to perform a fair procedure of trial. The most critical factor that should be there while delivering justice

th 40JOEL SAMAHA, CRIMINAL PROCEDURE, 4,CENGAGE LEARNING, 9 ed. 2011 41ANDREW ASHWORTH, MIKE REDMAYNE, THE CRIMINAL PROCESS, 64, OXFORD UNIVERSITY PRESS, 2010, 4th ed.

19 and while accessing the court for the demand of justice is consistency. It is important because as it is important to keep in mind to follow all law full means to bring the person accused to justice. The trial should not be set on suspension or break due to the inefficiency of the investigation team. If in any instance there is a possibility that there is some more evidence to be expected for the concerned trial then they should be properly addressed and they shouldn’t be just overlooked for the benefit of some individual. The idea of justice should be protected and it can only be protected when the judiciary works sincerely and the prosecutor and defense counsel always keeps in mind the principles of their work ethics. Accuracy is another criterion that is very important in the pursuit of justice because the performance of the judiciary and the prosecution depends upon the accuracy of the facts and no manipulation should be allowed in the facts.42

The right to be represented in the court of law is that a universal right which is embedded in all constitutional mandates of all countries and in all procedural booklets of the criminal justice system. Here it is the obligation of the concerned court to make it as point that the right represented in court by a defense lawyer has to be respected and followed with maximum efficiency in order to maintain the balance and to protect the idea of justice.

1.11 The Theory & Practice of Criminal Process by Ronald Dworkin

Ronald Dworkin has argued about how the right of an innocent person who is to be convicted, has its own elementary value.43The principle of right to a fair trial insists on the criminal process and the justice system to prevent miscarriages of justice as well as wrongful convictions. In comparison, according to the model of crime control, repression of criminal conduct may be the main target and avoidance of wrongful conviction is actually a derivative one. 44

42ALLAN LIND, TOM TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE, 130, 12TH ed. 43 RONALDDWORKIN,SOVEREIGN VIRTUE: THE THEORY AND PRACTICE OF EQUALITY, 22, HARVARD rd UNIVERSITY PRESS, 2002, 3 ed. 44ibid pg 49

20 In federal type of constitutional democracy, local and state officials possess a monopoly on these types of day-to-day operations. What the law states for the criminal process is such that it controls their monopoly over the . Most constitutional law in U.S.A. is made through judges and published within the reports of their individual decisions. 45

There are many instances of the pre trial process where the authorizes the arrest on the belief that the accused might evade the arrest or the accused may get involve in some other illegal activity of destroying the evidence. These two activities have their own penological effect. If the assault is finished with the intention to commit robbery, theft, rape, affray, cheating, abortion, forgery, perjury, kidnapping, still it is less serious offence in the eyes of the common law. Therefore it is an obligation for a police officer to have a warrant to perform an arrest unless the crime has been perpetrated in front of him.

The Code of Criminal Procedure provides government officials with the ability to protect public safety by enforcing the principles of criminal law. However, at the exact same time, it balances the criminal justice system by guaranteeing the fair and equivalent administration of justice to everyone, including criminal suspects, defendants, as well as convicted offenders as according to the specific rules by the Supreme Court of United States in two clauses within the Fourteenth Amendment that is “Due process of law” guarantees justness, and “equal protection from the laws” guarantees equal rights.46

Crime control, as well as individual autonomy is often highly valued objectives. The ability to attain both the objectives in one turn is difficult, and at the time of execution of duty of the State it is difficult to decide that which objective will be more satisfied. 47

Criminal Law’s greatest ends are twin and conflicting. It should be designed from inception to perform the acquittal of the innocent and to convict the responsibility. This also highlights the inescapable dilemma associated with the Criminal Procedure Code

45 ibid pg 53 46 ibid p. 50 47 ibid p. 51

21 that it is known that how easy it is to convict an innocent person and to convict a guilty person. 48

Balancing ends as well as means creates an unpleasant tension. The rules, which protect everybody from the abuse of power by the government, can also support in finding the truth where it is mandatory. This disturbance can, and most likely does, reduce the security of people. Some guilty individual gets loose in one case today to ensure that the government will play through the rules in just about all cases tomorrow. It might help to understand and to accept the significance of this stability between ends and means which should frequently remind that how the rules should be made to manage crime. Such law is applied to any or all government officials as well as all suspects, defendants, as well as offenders. These rules don’t just affect sincere police officials as well as prosecutors who follow the guidelines for catching as well as convicting guilty persons. They also affect corrupt police officials as well as prosecutors who misuse their power once they apprehend and prosecute non-guilty people.49

1.12 Objectives of the Criminal Procedure Code

Criminal procedure is the operational aspect of the criminal law, which talks about how the criminal justice system should be enhanced. The procedural aspects of the criminal law works around the society for maintaining the by mandating the constitutional promises. This procedure propagates about how the principle of truth and justice to be followed while enacting the criminal justice system in this process. Criminal Procedure Code works on the disputes of the opponent parties with the help of its given provisions and it also helps in dealing with conflicts of contending parties. Achieving justice in proper time is the goal of the criminal procedure and it is achieved by following proper rules and regulation and by obligating the investigating bodies to work efficiently without any loopholes. The moral integrity of the criminal justice system can be safely guarded when the guilty are convicted and the innocent person is protected from punishment.

48 id, p.11 th 49JOEL SAMAHA, CRIMINAL PROCEDURE, 34,CENGAGE LEARNING, 9 ed. 2011

22 The objectivity of the criminal procedure always propagates that the human dignity should be held very respectfully and it should be understood that if an innocent person is being convicted wrongfully then it could destroy the whole life of that individual. This is the reason because of which it states that the state must perform a legitimate arrest, which should be factually truthful conviction for the purpose of a guilty .

1.13 Basic Considerations (41st Report of Law Commission of India, 1969)

 An accused person should get a fair trial in accordance with the accepted principles of natural justice.

 Every effort should be made to avoid delay in investigation and trial that is harmful not only to the individuals involved but also to society.

 The procedure should to the utmost extent possible, ensure a fair deal to the poorer sections of the community.

23

CHAPTER 2

KEY ASSUMPTIONS IN CRITICAL CRIMINAL PROCEDURE

The concept of Critical Criminal Procedure entails the application of critical in understanding the various stages of criminal process. Certain key assumption identifying the notion of Critical Criminal Procedure can be formulated in terms of the following propositions –

Proposition 1 Other than normative and definitions components, there are some conspicuous features in the Criminal Procedure Law, which are critical in nature and their manifestation are the product of law and jurisprudence developed in the course of many landmark judgments delivered by the apex court in India.

Description The Supreme Court has always tried to make the criminal procedure productive and more decisive so that it can exercise a control over the violation of natural justice. Rule of law is the factor that supports and safeguards the proficiency of natural justice and propagates the theory that the stability of a nation depends on the factor that the citizen of that nation has a faith in the criminal justice system and for that the rule of law is to be preserved in that system. The idea of criminal justice system states that the laws that are prescribed in the Criminal Procedure Code are for the benefit of the nation and its people and has always been propagated by the Supreme Court by the means of a number of judgement so as to prevent an innocent person to be put behind the bars because if that happens then it will be the failure of the criminal justice system. The criticality of the criminal procedure highlights those facets where it’s been observed by various judicial bodies in the Mathura case1 or the D.K. Basu2 case and many more,

1Tukaram & Othrs. v. State of Maharashtra, 1979 SCR (1) 810, 15th December, 1978 2D.K. Basu v. State of West Bengal, 1997 SC 610, 18th December, 1996

24 which highlight how the laws that are prescribed under the criminal justice system has been manipulated as according to the self benefit of the enforcement bodies or the prosecutions or the political parties where the criminalization has been budding its seeds since the enactment of the criminal procedure.

In case of Tukaram & Others v. State of Maharashtra3 where the victim was a girl who was raped in police custody by the accused police officials. Now from this act of crime against an innocent girl by the officials of the law enforcement agency demonstrates that the principle of rule of law was mimicry to them and they can do what ever they want to do. The Supreme Court also said that the powers that are given to the people are for the purpose of the protection of those people and not for harming them.

In the case of D.K. Basu4, where the Supreme Court has laid down eleven guidelines that have to be followed while the arrest of an accused person is to be conducted by the police official. The idea is that the Supreme Court also says that it is true that the number of judges is very less in our country and that the problem gets double when the investigation team and the police department fail to perform its duty with proper diligence. It is because of the regular role-playing mode of the Supreme Court that by the means of much landmark judgement there have been a lot of changes in the conduct of the police administration and also other government officials. In the D. K. Basu case5, also by the mean of the eleven guidelines the Supreme Court has set the rules for being in possession of an identity during the arrest. The person to be arrested has to be informed of all the charges against him. His nearest relative should be immediately informed of the arrest and the reason for the arrest. The formation of the memo, which has to be attested by at least one witness at the time of the arrest, is the procedure to authenticate that the arrest is lawful. The accused should be presented to the court within the next 24 hrs. Now this procedure of producing the accused within next 24 hours from the arrest is a safeguard that protects any accused from being just kept in police custody for indefinite time because once the accused is produced in court, then it’s the court that has to decide about the future charges of the accused. The notification

3Tukaram & Othrs. v. State of Maharashtra, 1979 SCR (1) 810, 15th December, 1978

4D.K. Basu v. State of West Bengal, 1997 SC 610, 18th December, 1996 5D.K. Basu v. State of West Bengal, 1997 SC 610, 18th December, 1996

25 to the nearest relative of the accused is for the reason so that the relative can arrange a defense lawyer for the accused who can defend him in the court of law. Also the maintenance of diary at the place of the detention of the accused are those steps which have been introduced by the judgement of the Supreme Court in the D.K. Basu Judgement that is a very strong effort to protect the accused from any unlawful torture or custody and to give him an opportunity to defend him in the court.

The Supreme Court took a fruitful step when it gave the judgement in Hussainara Khatoon v. State of Bihar6 by rectifying that, speedy trial is definitely an essential ingredient associated with ‘reasonable just as well as fair’ procedure assured by Article 21 which is the constitutional obligation of the state to setup such a system of trial so that the practice of speedy trial can be used on daily basis and that will help in reducing the number of under trials.

In Motilal Saraf v. State of J&K7the Supreme Court explained that it is relevant to initiate the system of speedy trial as well as said that the idea of a speedy trial is a fundamental element of Article 21 of the Constitution.

In the case of Khatri v. State of Bihar8, where the Supreme Court stated that the state governments can avoid their constitutional obligation to provide free legal aid service to the poor accused by pleading financial or administrative inability. In the case of Sukhdas v. Union Territory Of Arunachal Pradesh9, the Supreme Court set aside the conviction because it was observed that the accused was not provided with free legal aid during the trial and therefore it is violative of Article 21. Now here in this case, it was said that it is the duty of the to check if the parties to the case are having a proper representation in the court, its not the duty of the Supreme Court to provide the legal aid at the trial court. This statement of the Supreme Court was seen as a warning and the concerned trial court immediately accepted the mismanagement during the trial.

6Hussainara Khatoon v. State of Bihar, 1979 SCR (3) 532, 9th March 1979 7Motilal Saraf v. State Of J&K, 2006 SC (Crl.J) 774, 29th September 2006 8Khatri v. State Of Bihar, 1981 SC (SCC) (1) 627, 19th December 1980 9Sukdas v. Union Territory Of Arunanchal Pradesh, 1986 SCR (1) 590, 10th March 1986

26 In the landmark case of Zahira Sheikh10, the moment it was realized by the Supreme Court that there were some unlawful compliance with the procedure because of the non performance of the duty by the public prosecutor and also the weak position of the prime witness, Zahira Sheikh, the Apex court transferred the case from the Gujarat High Court to the Maharashtra High Court so that proper decision can be obtained without any malpractices.

The procedure of registration of FIR, which always remains in doubts, was rectified when the Supreme Court of India gave the judgement in Lalita Kumari v. Govt. of U.P. & Othrs11. There was a major issue regarding the registration of FIR in this case but after understanding the issues and argument, Justice P. Sathasivam propounded a set of guidelines that should be followed when a victim approaches the police station for the registration of the FIR. The procedure to provide the victim with the photo copy of the FIR and the regular intimation about the progress of the investigation team are some of the very remarkable steps that’s been taken by the Supreme Court for the purpose of accountability of crime in our society.

In the case of, Nandini Sundar & Othrs. v. State of Chhattisgarh12, the Supreme Court criticized the appointment of special police officers as unconstitutional. It decided that the unguided power under the Chhattisgarh Police Act, 2007 to appoint SPO is unconstitutional. It also said that the State of Chhattisgarh has to refrain from allowing these kinds of activities in future. The distribution of the firearms was suspended and recalled. The operation of Salwajudum 13 and other private armed groups was also suspended. These actions by the Supreme Court acted as the role played in guiding the procedure in a manner to improve the criminal justice system and strengthening the essence of the rule of law.

10Zahira Habibullah Sheikh & Anr v. State Of Gujarat & Ors,2006(Crl.) 446-449,8 March 2006 11Lalita Kumari v. Govt. Of U.P. & Othrs, 2008 (Crl.Appeal) 68, 12th April, 2013 12Nandini Sundar & Othrs. v. State Of Chhattisgarh, 2011(Civil Appeal) 250, 5th July, 2013 13Since June 2005, the Government of Chhattisgarh, with the support of the Home Ministry has been waging a counter-insurgency operation against the Naxalites in the guise of a ‘spontaneous’, ‘self- initiated’,’ peaceful’, ‘people’s movement’ named the Salwa Judum in Dantewada district of Chhattisgarh. The district administration claims that upset with the Maoist strike call on collecting tendu leaves and opposition to development works like road construction and grain levies, people in some 200 villages began mobilizing against the Maoists, going on processions and holding meetings.

27 Proposition 2 The Supreme Court of India evolved considerable jurisprudence pertaining to procedural law while criticizing the application of law and procedure.

Description Since the time of enactment, the Supreme Court has developed and produced a number of procedural guidelines, which should be followed by various agencies of the government from the district level to the center level. These procedural scenarios put forward the theme in which the criminal justice system should perform without failure so as to safeguard the philosophy of rights for all and equality for all in the eye of law and justice.

Due process of law is that factor which was evolved for the Supreme Court through the various landmark judgments. Due process of law is the theory, which propounds that the rights of the individual are important when the accused is arrested for the commission of offence. The Supreme Court says that when an individual is arrested for a charge and if it is proved that he is guilty then it becomes a sole target of the prosecution of demand for the strictest punishment. But at the same time it should also be remembered that the right of the accused to be provided with free legal aid should be remembered and respected. The accused should be given a proper opportunity for defending himself. The due process of law is a fact that should be kept in mind by every judge when a trial has to be initiated. The concerned judge has to check all the basic guidelines prescribed in the Criminal Procedure Code before starting the trial. This concept of due process of law has been established by the Supreme Court by the means of landmark judgement in the cases of Hussainara Khatoon v. State of Bihar14, Khatri v. State of Bihar15, Sukhdas v. Union Territory of Andhra Pradesh16, Zahira Sheikh v. State of Gujarat & Others17, Lalita Kumari v. Govt. of U.P. &Other’s and many other situations where the Supreme Court has taken a stand for the purpose of motivating the lower judiciary and the law enforcement agencies to follow the principle of due process of law. There are a number of procedures like registration of the FIR, intimation of the

14Hussainara Khatoon v. State Of Bihar, 1979 SCR (3) 532, 9th March 1979 15Khatri v. State Of Bihar, 1981 SC (SCC) (1) 627, 19th December 1980 16Sukdas v. Union Territory Of Arunanchal Pradesh, 1986 SCR (1) 590, 10th March 1986 17Zahira Habibullah Sheikh & Anr v. State Of Gujarat & Ors,2006(Crl.) 446-449,8 March 2006

28 arrest of the accused, procedure of the investigation, maintenance of diary at the place where the accused has been put before the trial, presenting the accused in the court within 24 hours of his arrest, free legal aid is just some of the results of the landmark judgement of the Supreme Court. The modification and proper implementation of these procedures is for the benefit of the society and state. It also helps in keeping a relation of accountability between the numerous agencies of the Union.18

The rights of the accused which were properly addressed and strengthened because of the D.K. Basu judgement which guides the police agencies who have to perform the arrest of the accused to follow the eleven guidelines given under that judgement. Those guidelines were declared by the Supreme Court because of the reason that the Supreme Court observed it in the earlier cases that the accused was not treated as according to the procedure and the accused was not provided with the free legal aid because of which the accused get punished. Like in the case of Sukhdas v. Union Territory of Arunachal Pradesh19, where the accused had to be set free because he was not provided with legal aid in the trial court.

As the Constitution of India says under Article 1420 about the right to equality, the Code of Criminal Procedure also propagates to the right of the accused to get free legal aid. Under any circumstances, if such duty has not been performed that it is a serious problem. This is the reason because of which in 1997, Supreme Court came up with a set of guidelines under the D.K. Basu case.

Rights of the victim is another very important procedural aspect which was evolved in a totally new form and with new strength after the support of the Supreme Court by means of various judgments and rulings to provide legal aid. Legal aid is that evident right which is promised to every person who wants to file a suit or petition in the court of law, where it’s the duty of the court to provide the victim with a legal council who can also represent the victim in the trial. An indigent person is that person who can’t

18VINAYAK D. KAKDE, CRIMINAL TRIALS, 35, UNIVERSAL LAW PUBLISHING, 2nd ed., 2009. 19Supra Note 65

20Right to equality, including equality before law, prohibition of discrimination on grounds of religion, race, caste, gender or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles.

29 afford to hire a private prosecutor and hence will be provided with the same on government expenses. In the case of Hussainara Khatoon v. State of Bihar21, it was observed that there were a number of under trials who were in jail because of the reason that they were not been provided with the right to legal aid. Due to the of the trial court and no representation of such under trials they have to wait to be tried in court. The right of legal aid comes with a promise as dictated by the Supreme Court of India that under no circumstances a person be denied from availing the right to have a legal representative.

The law of arrest consists of the prescribed rules, which guides the procedure of arrest by the police administration and other law enforcement agencies. It is not wrong to say that when in a society some one is arrested then he or she will be automatically considered as a wrongdoer even though there is some misunderstanding, therefore the Supreme Court order to the enforcement agencies about crosschecking the information before conducting an arrest because the person who is arrested will face public criticism even after its been proved that he is innocent. Human dignity is a perishable commodity and it should be respected as very precious. The guidelines under D.K. Basu that depict the procedure to be followed when a person is arrested are for the purpose of providing security and justice to the accused. Supreme Court said that until it is not proved that the person who is accused is a real culprit and hence be presumed as innocent and every person who is presumed innocent has the right to notify his relatives about the place where he will be kept and all other formalities were authenticated by the premise of this judgement.

The Supreme Court has decided in the case of Nandini Satpaty case 22 about the importance of the procedure of the registration of FIR. In this judgement, certain guidelines were provided which should be taken care of while the victim approaches the police station for the registration of the FIR, but it should be noted here that on one hand where the court has declared the rights of the victim about the registration of the FIR, it has also propounded the principle that the FIR can be quashed only by the High Court so as to avoid any wrong use of the right to register an FIR in Rupan Deol Bajaj

21Hussainara Khatoon v. State Of Bihar, 1979 SCR (3) 532, 9th March 1979 22Nandini Satpathy vs Dani (P.L.) & Anr, 1978 (SCR) 608, 7th April, 1978

30 Case23. The conclusion of the Supreme Court of India on the registration of FIR is that there should be a unified system in each police station where a genuine FIR has to be registered without any denial by the concerned authority.

The concept of witness program has developed due to the various guidelines that were propounded by the Supreme Court of India in the Best Bakery case, the court said that the state has a obligatory role to play by protecting the witness so that there will be a fair and smooth trial in those cases where there is a chance of harm to the witness. This kind of situation occurs in those cases where either one party or both the parties is strong parties with money and power and the role of witness can tilt the judgement of the case in favour of the party who bought the witness. Therefore the state should take proper care of the witness.

The court has also ruled that it’s the duty of the state to make a witness comfortable and make the witness feel safe and away from the fear of the people against whom he is deposing. The guidelines that were propounded by the Delhi high court under the Nitish Katara Case 24 can be designated as the initial point of success for the witness protection in India.

Another landmark judgment that was evolved for the benefit of the children of the ladies in jail in the case of R.D. Upadhyay v. State of Andhra Pradesh25where special guidelines have been issued by the supreme court for the purpose that there should be a proper maintenance of the health of the children of the women who are in jail i.e. the court said that the child doesn’t have to be treated as an under trial in jail with his mother. If a pregnant woman is to be shifted to a jail, then it’s the duty of the state to check the particular jail for all necessary facilities that would be required by the lady. It is the responsibility of the state to provide proper care about the food, shelter, clothing, medical, education and recreation of the children of the women in jail.

These were some of the steps that were taken by the Supreme court from time to time to continue its practice of providing justice and harmony by providing an efficient form of

23 Mrs. Rupan Deol Bajaj & Anr.v. Kanwar Pal Singh Gill & Anr., 1996 (SC) 309, 12th October 1995 24Vikas Yadav v. State Of U.P, 2009(SC) 13400, 7th August 2009 25R.D. Upadhyay v. State Of Andhra Pradesh, 2007, (SCC)15 of 337, 20th January 2000.

31 procedure for the maintenance of due process of law, rights of the victim and the accused, witness protection, fair trial, legal aid and the protection of women and children in jail.

Proposition 3 Considerable inputs relating to the protection of women, children and other vulnerable section were evolved while the Supreme Court had occasion to address the relevant issue relating to these groups.

Description According to the Supreme Court of India, an individual who has an age of less than 18 years will be considered as a juvenile as according to the judgement in the case of Dr. Subhramanian Swamy & Othrs. v. Raju Thr. Member Juvenile Justice Board26, where it was propounded by Justice Gogoi that if the differentiation of the juvenile from an adult is set up at the age of 18 years then why there is again a question about the age factor of the juvenile. Justice Gogoi also interpreted that the Indian legal system has already accepted the Juvenile Justice Act then there is no such requirement for again questioning the status of the age of the juvenile delinquent. This judgement is given in this direction so as to shut off the entire confusion of the juvenile age and also to protect children from being tried as adult in the normal conditions. The juvenile justice is basically to protect the rights of juveniles in the criminal justice system.

Fast track of the rape victims and witnesses statement is another field where the Supreme Court has threw the light of security, justice, and accountability by issuing certain guidelines for the recording of the statements in the presence of a lady magistrate. In the case of State of Karnataka by Nonavinakere Police Station v. Shivanna @Tarkari Shivanna 27 Justice Gyan Sudha Mishra and Justice V. Gopala Gowadahave stated in the guidelines which are binding on all the police stations in India as the power of Mandamus was used under Article 14228 by the Supreme Court

26Dr. Subhramanian Swamy & Othrs. v. Raju Thr. Member Juvenile Justice Board, 2014,(Crl. Appeal)695 , 28th March 2014 27State Of Karnataka By Nonavinakere Police Station v. Shivanna @Tarkari Shivanna, 2014(SC)5073, 25th April 2014 28Enforcement of and orders of Supreme Court and unless as to discovery, etc.

32 such that when an information is received about the incident of sexual assault then the victim should be taken immediately to the metropolitan/preferably lady magistrate for the purpose of recording the statement under Section 164 of Code of Criminal Procedure. The judiciary is also planning to introduce more such reforms in the Criminal Procedure Code for the protection of women. It was also obligated under Section 164 Cr.P.C that it will be the duty of the investigation officer to get the victim medically examined and send one copy to the magistrate immediately who will record the statement of the victim. These guidelines have to be followed along with the other set of guidelines, which were evolved in continuation of this order by the Supreme Court.

The offence of human trafficking is another major issue and in light of that the Supreme Court came up with the guidelines in the People’s Union For Democratic Rights v. Union Of India29, where a PIL was filed for the purpose of safeguarding the rights of the bonded labours. The Supreme Court took a stand and defined forced labour under Article 23 of the Constitution of India as unconstitutional. Owing to the huge amount of suits regarding the labour trafficking, this judgment is very important. The final standing of the Supreme Court on this issue was that under no circumstances, there will be any labour employed with a pay less than the minimum wages and it will be the duty of the nodal officer of the concerned area to keep a check on such activity.

Criminal law amendment Act 2013 that came into shape after a long debate and criticism of some of the legal facts and has introduced a lot of changes in the field of criminal law in India regarding the age and punishment of the victim and accused. The issue is how the phenomenon of introducing such amendments took place and the answer is the critical commentary by the apex court on various issues that arises in various acts of criminal conduct.

(1) The Supreme Court in the exercise of its may pass such or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe (2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself 29People’s Union For Democratic Rights v. Union Of India, 1982 (SCC)3 of 235, 18th September 1982

33 Proposition 4 Right of complainant, bailee, witness and victims were also shaped in the process of positioning a critical and determinant stand of the Supreme Court on the related matters.

Description In various situations whenever its been observed by the honourable Supreme Court that the right of the accused or the victim are in jeopardy or been violated then it has always step forward either by the suo moto petition or due to the appellate jurisdiction of the Supreme Court in verge of safeguarding the philosophy of natural justice by initiating the binding guidelines in form of various landmark judgments. The Apex Court of India decided a judgment, which condemned the act of violence in custody and made a number of recommendations. This judgement was a huge step towards the complete exile of the illegal conduct of arrest and detention, which had a marvelous impact on the procedure under which a person can be arrested and detained. This judicial pronouncement obligated the enforcement agencies to amend there procedure in a more uniform and accountable manner for arresting of the accused and also for the following of prescribed formalities before an accused is put in police custody for interrogation .In 1996, the D. K. Basu judgement30 set forth a pack of procedural pointers to be followed by the police and other law enforcement agencies for the purpose of maintaining an ethical and uniform code for the practice of arresting a person and by bringing him to the books but with taking care of the right of the accused protected according to the procedure. In the Mathura Rape Case31, the Supreme Court who put up strict bindings in the respective judgement very strictly criticized the case where the police officers were held as accused and were later been convicted of custodial rape. Also there are a number of instances where it has been observed that the role-played by the Supreme Court acted as a ray of light in the darkness of abuse of certain rights and duties. In the case of Lalita Kumari where the Supreme Court introduced guidelines about the registration of the FIR and how the process of investigation should be carried out. It also talk about the proper report of the findings also to be given to the applicant and if no findings are there then it should be explained with a written reason for such

30D.K. Basu v. State Of West Bengal, 1997 SC 610, 18th December 1996 31Tukaram & Othrs. V. State Of Maharashtra, 1979 SCR (1) 810, 15th December 1978

34 investigation and on the other hand in the landmark judgement of Rupan Deol Bajaj32where the court highlighted the factors of registering the FIR immediately when the offence is a cognizable offence. The Supreme Court has always tried to stop any government body from abusing its power.

Lalita Kumari v. Govt. of U.P. &Othrs33. There was a genuine issue regarding the registration of FIR in this case but after understanding the issues and argument, Justice P. Sathasivam propounded a set of guidelines that should be followed when a victim approaches the police station for the registration of the FIR. The procedure to provide the victim with the photo copy of the FIR and the regular intimation about the progress of the investigation team are some of the very remarkable steps that’s been taken by the supreme court for the purpose of accountability of crime in our society.

In the case of Motiram v. State of Madhya Pradesh34 the Court was needed to decide: (i) whether an individual can be released on bail under the Criminal Procedure Code, 1973 (Cr.P.C) on the personal bond, (ii) the criteria for repayment of the bail amount (iii) whether the offered by an individual can be rejected simply because s/he resides inside a different district or even state or simply because her/his property can be found in a various States and Districts.

So the fact is that its been observed that the procedural law is lacking in many ways in representation of poor people because of the complexities. There are a lot of situations that need to be solved and modified in such a way that there should be a balance for the procedure of law for all classes of the society. Constitutional law of India explains under Article 14 -- Equality before Law, which protects all citizens inside the territory of India.

32Mrs. Rupan Deol Bajaj & Anr vs Kanwar Pal Singh Gill & Anr, 1995 SCC (6) 194 33Lalita Kumari v. Govt. Of U.P. &Othrs, 2008 (Crl.Appeal) 68, 12th April, 2013 34Motiram v. State Of Madhya Pradesh, 1978(SC) 1594, 24th August1978

35 The procedure of bail was strengthened by the decision of the Supreme Court. In the case of Hussainara Khatoon35where the apex court has laid out binding guidelines for the lower courts and offices for the purpose of right to speedy trial. This was one of the major step that was taken by the Supreme Court because it was observed by the source of various research that a lot of under trials had to stay in the prison much longer than the maximum punishment for the crime they were accused of, so in order to rectify such kind of mistake, the method of speedy trials and fast track courts was initiated which is now a major development of our criminal justice system.

Proposition 5 Critical criminal procedure is a dynamic extension of normative procedural law. Critical connotations of substantive procedural law appear when the provisions are applied giving new meanings and considering fresh challenges in the context of constitutional democracy.

Description The guarantee of a fair trial is reflected within Constitutional scheme in addition to its procedural regulation. According to the 118th report of the Law Commission of India on Article 20(3) and right to silence, before trial when the accused is called for interrogation then it is up to the accused to speak or not. If the accused is silent at that time, then it doesn’t mean that he is guilty, because the accused has the right to remain silent.36

In India every individual has the right to fair trial under Article 22 and has been protected under the verge of trial procedure and trial procedure inscribed in the code of criminal procedure. It is not wrong to say that there is a philosophical synonymy between the provision of the Constitution of India and the Criminal Procedure Code of India. The point that strengthens this relation is that the rights of the people in India are enshrined in the Constitution of India but it’s the Criminal Procedure Code that provides with the procedure for making it sure that those rights are been properly utilized for the people in need.

35Hussainara Khatoon v. State Of Bihar, 1979 SCR (3) 532, 9th March 1979 36180th Report of Law Commission of India, Article 20(3) of The Constitution of India and The Right to Silence, lawcommissionofindia.nic.in/reports/180rpt.pdf. Visited on 17th may, 2014

36

At the time of the framing of the Constitution, for the purpose of making rules and regulations, the framers had the chance to copy the ideas that were incorporated in the British legal system and the procedure of the British police conduct. But on the other hand, the framers developed the Indian Constitution on the thinking level of an Indian constable. 37

The Supreme Court at the time of newly independent India glorified the procedural conduct of the criminal law by evolving the civil and political rights. The constitutionalization of the criminal procedure is itself necessary for the ratification of the promises done by the framers of the Constitution via the provisions of the Constitution, which can be performed under the procedure of the criminal justice system.38

During the 1975 emergency, deflation of fundamental rights reached the high water mark and the Supreme Court acquired the taint of partnership in authoritarianism. The disturbing disclosure of the emergency with the excess before the Shah Commission brought the police system and the criminal justice system, structures and institutions at the “comparison of incomparable.”39

The common law generally authorized arrest without warrant on the ground that at the time a warrant was obtained, the suspect might escape or the evidence might be destroyed. The common law however draws a distinction between common law and felonies and ’s. The differences between these two kinds of offences were more than penological. In India section 41 of the code of criminal procedure of 1973 authorizes the police to make warrantless arrest in respect of the cognizable offences only. As the police make an arrest on the possible suspicion, complaint or information, the section insists that the police should act on reasonable suspicion or credible information. The object of this section is to allow the police to act swiftly to arrest a person in order to prevent or detect a crime.

37MOHAMMAD GHOUSE, THE PRE – TRIAL CRIMINAL PROCESS AND THE SUPREME COURT. 183, Vol. 13, INDIAN REVIEW, (1986) 38Supra Note 86, Pg. 184 39 Supra Note 86, Pg. 185

37

Section 56, read with section 57 from the code, requires the police to produce the person arrested without a warrant before the nearest magistrate within 24 hrs. Section 57 of code prohibits any police officer from detaining any person in police custody who is arrested without warrant for a longer period than is reasonable under all the circumstances of the case, which shall not exceed 24 hrs. These two sections contemplate an early review of arrest without warrant by a judicial officer so that the police do not use the police lock ups at prisons and do not exploit the rights against unlawful arrest and detention of the accused to extract a confession or information from him.

Article 22(2) of the Constitution of India has provided that every person arrested and detained in custody shall be produced before the nearest magistrate within 24 hrs. The striking difference between Article 22(2) and section 56 and 57 of the code is that, unlike the latter, the former does not expressly address itself to warrantless arrests. Never the less the Supreme Court has said in Ajaib Singh40 that Article 22(2) does not cover arrest with warrant as there is in such intervention. The court therefore held that production of a person arrested on magistrates warrant before a magistrate was unnecessary. The Constitution of India does not contemplate any part of arrest restraint on the power of the police. The statutory requirement that the police could make warrant less arrest on the basis of reasonable suspicion is hardly of any avail as the magistrate ordinarily looks at reasonableness from the point of view of the police. On balance, the law of arrest is more responsive to the needs of the police than to the rights of the individual. This may be because the power to arrest is so essential for the detection and prevention of crime. But arrest in connection with criminal investigation damages irreparably a person’s reputation, tarnishes the fair name of his family, deprives the family of its sole or the main source of sustenance and endangers his employment or occupation. The stigma that comes with arrest survives the release of the person even after 24 hrs. Nonetheless, not all those, who are arrested, ultimately, turn out to be criminals. The law of arrest thus, demands an exorbitant price from the innocent. 41

40State of Punjab v. Ajaib Singh,1953 (SCR) 254, 10 November 1952. 41MOHAMMAD GHOUSE, THE PRE – TRIAL CRIMINAL PROCESS AND THE SUPREME COURT. 187, Vol. 13, INDIAN BAR REVIEW, (1986)

38 The Constitution of India under Article 21 ensures that "no person will be deprived of his or her life or individual liberty except in accordance with the procedure established by law". "Procedure established by law,” pointed out herein means the way and form associated with enforcing the law, which is prescribed through the . This post, therefore, simply implies that you cannot deprive a person of his personal liberty. What are prohibited under Article 20 from the Constitution of India are just conviction and not really the trial thereof 42.

The Code of Criminal Procedure, 1973 not only provides machinery for the punishment of an offence, but also is intended to preventing crimes. It also formulates the duties to be done by the police in looking into an offence as well as it prescribes the procedure by which arrests should be made. Besides, it empowers the magistrate or officer to take assistance of the public in preventing the escape of the offender in the actual prevention or suppression of the breach of serenity. This code is principally, an adjective law or procedural law, in as much since it contains in a sizable measure, the body associated with the rules whereby the machinery from the court is put in place for the consequence of offenders.

The rationale in Bachan Singh 43 requires that the prosecution must prove that the conviction is a threat to society and is beyond repair. These two mitigating circumstances, apart from various others, which have been enclosed in said case, must be proved by the prosecution to be absent, and obviously the accused will have a chance to participate and rebut the evidence produced by the prosecution. The Supreme Court in stated case endorsed in paragraph 206 that the mitigating circumstances suggested by the learned counsel should be justified. So when the prosecution demands the death sentence, it must satisfy these tests. That is how application of the death sentence is restricted on the verge of protecting the right of the accused under Article 21 of the Constitution of India. The judgement of this kind can be criticized due to the fact that the court didn’t endorsed the principle of aggravating and mitigating factors in Bachan Singh44. The situation of the criminal and the category of crime have there own

42M.P. JAIN, INDIAN CONSTITUTIONAL LAW, 1153- 1158,LEXIS NEXIS, 2008, 6th ed.

43Bachan Singh v. State Of Punjab, 1980 (SC) 898, 9 May, 1980 44Supra Note 91, 1159

39 value at the time of judgement. Its unfortunate that the impact of death penalty has not been taken as serious as it should be, because of which now death penalty is slowly getting surrounded by judge centric approach instead of principals of theories of punishment.

Proposition 6 Much of Critical Criminal Procedure also emerged while criticizing the formalism and objectivism components of legal theories.

Description Joel Samaha said that, it is difficult to decide about how the ideology of equality and also the balancing of ideas work in practice or, for instance, most of what else is going on in the journey with the law of crime unless it is realized that the importance is associated with discretionary decision making. No one can understand the significance of discretion before understanding the distinction between decisions made based on the formal law associated with criminal procedure and also the leeway within the actual formal law directed at informal official discretionary choice making. So let’s appear briefly at these types of differences.45 Formal decision making includes decisions based on the law of criminal procedure—namely, the rules spelled out within the Constitution, judicial views, laws, other written sources which can be found out throughout the textual content, and cases.46

Andrew Ashworth concedes that the criminal process doesn’t approach to achieve a secure and safe avenue for the human rights of the people as its supreme goal, 47 which leads to a problem associated with why we process cases with the system for the purpose of a courtroom appearance. The most important purpose of the Criminal process forces it to obtain a confession from the guilty and to assist in the acquittal of an individual who is innocent.48 Therefore it is very important that the protection of human rights has to justify its fundamental position and its importance in the lifestyle of

th 45JOEL SAMAHA, CRIMINAL PROCEDURE, 54,CENGAGE LEARNING, 9 ed., 2011 46Supra Note 94, Pg. 56 47ANDREW ASHWORTH, MIKE REDMAYNE, THE CRIMINAL PROCESS, 64, OXFORD UNIVERSITY PRESS, 2010, 4th ed. 48 Supra Note 96, Pg. 67

40 an individual who wants to live his life with dignity and freedom. Ashworth’s framework is really a method for resolving criminal justice issues. It also consists of a balance in privileges and interests, which follow a lengthy and careful procedure, where a pursuit to the rights is observed. Arguments for including a few and excluding others are put down and appropriate weights tend to be assigned to particular privileges and interests. Most importantly, this must be an adequately researched, reasoned, and principled span of arguments. His increased exposure of procedural fairness could be considered as a defense of the key principle of Packer’s due process model. Human rights norms do effectively support the adoption of the due process rather than crime control model.49

Additionally, human rights jurisprudence has now succeeded to the stage embracing a good guiding principle where at least a few of the conflicting interests are at stake inside the criminal justice system. Moreover, as a result of the Human Rights Act of 1998, human rights standards will play an infinitely promising part in the periphery of the criminal procedure of the future. 50

Two models of Herbert Packer have been explained in such a manner where first model i.e. the due process model supports the rights of the individual. Where as on the other hand the second model i.e. crime control model propagates to the benefit of the whole society. In order to maintain the constitutional guarantee to the citizen of India, the due process model is more efficient then the crime control model other wise if the crime control model is supported then there will be exploitation of individuals right and failure of the constitutional mandate of rights given under Article 19,21,22, 32 and 226 of the Constitution of India.

49 id at 31,32 th 50JOEL SAMAHA, CRIMINAL PROCEDURE, 4,CENGAGE LEARNING, 9 ed. 2011

41 Proposition 7 Jerome Hall 51 finds criminal procedure to be the microcosm of society and Joel Samaha finds it to bring balance in the competing interest of enforcing the law and protecting the individual interest in the course of the criminal process. The embedded notion in criminal procedure is to create a framework of fairness and to provide an arrangement to the aggrieved people to resolve their conflicts in most accepted ways in the society. It is in this form of the criminal procedure, which assumes a critical function of expressing the expectation of the society and process of regulation of state stand in processing the stakeholders in the criminal process.

Description Jerome Hall has said that the criminal procedure is that part of the society, which is very vital for maintaining the stature of the criminal justice system. Criminal procedure cannot override the interest of the society under any circumstances because what constitution promises about the rights of the people, it’s the duty of the criminal procedure to make it sure that those promises be fulfilled. The above statement is not to demonstrate about who is superior amongst the law or the people because it’s the law that is being made for the benefit of the people. The procedural aspects of the law are those directions, which are acting like the binding rules, which should be followed by all the enforcement agencies.

Joel Samaha has correctly identified that there is always conflict of interest between the criminal justice system and the personal rights of the people but the balance is very important for the purpose of enforcing of the rules and regulations and for maintaining rule of law and to provide the people with the rights promised to them. Code of Criminal Procedure works with a framework where people have been given satisfaction that their rights will not be violated and there will be proper enforcement of the rights. Criminal procedure is enshrined in the form of whole bunch of laws that regulates, the rights of the victim, rights of the accused, procedure of arrest, procedure of legal aid,

st 51JEROME HALL, GENERAL PRINCIPLES OF CRIMINAL LAW, 23-25, THE LAWBOOK EXCHANGE, LTD., 1 ed. 2005

42 and the procedure of trial of case. These all procedures are put in that code in order to make it binding on all and because of this if there is an unlawful violation of any of the laws prescribed in the code then the person will be punished as according.

The idea of Joel Samaha explains that it’s the duty of the criminal procedure to make the contradictions between the law and the individual go away in such a manner that there be proper maintenance of the rights of the people without breaking any law prescribed in the code of criminal procedure. This totality is generally divided into material, procedure, and exercise (discretion), but without thinking about any differentiae at the moment, we may observe that the procedure and substance need to do with explicitly mentioned prescriptions. What must be stressed is the true dependence of the additional, and the unavoidable adaptation of each one of the above three sections of criminal justice towards the conditions and changes within the other.

The word balance that is being incorporated here doesn’t relate to some thinking of maintaining the justice in scales but on the other hand this term here is in the inference of understanding the idea of checks and balances. Criminal procedure can be seen as the study of constitutional democracy in an applied perspective.52

Criminal procedure also brings equality or balanced position on the criminal law as the result or the final destination of the criminal law is either conviction or acquittal. It should not be wrong to say that if such kind of destinations have to be reached in an efficient manner then it should be understood that no kind of judicial machinery can be enacted to achieve both the destinations, because if its already been presumed that if a particular person is guilty then its very difficult for the defense to convince the judge about the innocence of the accused and vice versa. In literary meaning, it can be said that the distance between the innocence and conviction depends upon the kind of procedure that has been used to achieve such destination of acquittal or conviction. Because once a judge presumes that a person is guilty or if the person is innocent then it’s difficult for the prosecution or the defense to drive the judge towards the other side. Therefore it’s the importance of the kind of procedure that’s been followed which

52Supra Note 100, Pg. 29

43 enforces the criminal law to maintain the equilibrium of innocence and guilt. Criminal Law cannot be enforced without a well-established criminal procedure. 53

Proposition 8 The notion of the critical criminal procedure can be traced to the theory of ‘ Limits of Criminal Law’. Over criminalization is the fundamental challenge of the Criminal Process.54 However, this challenge is more about controlling the substantive criminal law. In case of procedural law, it is more about regulating the discretion and protecting the interest of the parties involved in the criminal process. Herbert Packer has examined the dichotomy of these two contending poles and his two models- Due Process and Crime model – offer the existence of two types of underlying values in these two models. The procedural law in these two models appear in two forms – one, where the value structure is totally in consonance with due process framework and second, where the value structure for the enforcers and adjudicators become more and more guided by the requirement of controlling crime. Procedural law becomes critical in case of the second model as specifically the court is for that matter ; organizations etc. take strong positions of criticism in pointing out the aberration’s and violations by the law enforcers. This process leads to a reactionary criminal jurisprudence, which emphasizes due process and criticizes the adventure and discretion of the agencies of criminal justice system.

Description Herbert L. Packer55 has rightly pointed that there is a large difference between these models as “due process model” emphasizes on the rights of the accused and the victim also where as the “crime control model” emphasizes on the principles of criminal procedure. These models are an effort for the summarization of the two distinct value systems, which competes for being preferred over another in the criminal process. For the purpose of following the criminal procedure, these models are most appropriate

53ANDREW ASHWORTH, MIKE REDMAYNE, THE CRIMINAL PROCESS, 69, OXFORD UNIVERSITY PRESS, 2010, 4th ed. st 54JEROME HALL, GENERAL PRINCIPLES OF CRIMINAL LAW, 23, THE LAWBOOK EXCHANGE, LTD., 1 ed. 2005 55HERBERT L. PACKER, TWO MODELS OF THE CRIMINAL PROCESS, UNIVERSITY OF PENNSYLVANIA LAW REVIEW, Vol. 113, 1968.

44 whose regular function will include a uniform series of some minimum changes within the conflict of principle in the two-value system.

In the development of the criminal procedure, the point of conflict between these two models is whether the crime control model is more amenable towards the welfare of the state or due process model is more concerned with the rights of the individual. In this progress, lawmakers, judges, police, prosecutors, defense lawyers play an active role. They do not hesitate to eloquent the values that they take on any issue. It is impossible that the values, which are given under both models, has ever identified in one person. The reason is perhaps that the models are in opposition to each other, therefore, their schemes of values are also in opposition

The whole system of the crime control model is based on the proposition that the most important function of the criminal process is to repress (put down by force) the criminal conduct and the failure of such results into the breakdown of public order. Therefore, the victims are the law-abiding citizens, of unjustifiable invasions of their interests. A member of society cannot functions with liberty when his security of property and person is taken away. 56 So, in order to achieve social freedom, the primary goal of the crime control model is to check efficiency of the criminal process in relation to control the persons who are convicted of crime. 57

Efficiency of an operation can’t be implemented in vacuum. By “efficiency”, it means that with what efficiency a criminal offender is convicted, apprehended and tried under a system. Under the societal establishment where only some of the serious forms of offences against the society come under the definition of crime against society, there is a serious requirement of the involvement of more number of judiciary, prosecution and police agencies on each case to work with required efficiency.”58

“If the Crime Control Model resembles an assembly line, the Due Process Model looks very much like an obstacle course. Each of its successive stages is designed to present

56id page 3 57HERBERT L. PACKER, TWO MODELS OF THE CRIMINAL PROCESS, UNIVERSITY OF PENNSYLVANIA LAW REVIEW, Vol. 113, 1968. 58Supra Note 106

45 formidable impediments to carry the accused any further along in the process. Its ideology is not the right converse of what underlying Crime Control Model. It does not rest on the idea that it is not socially desirable to repress crime, regardless of the fact that critics of its application have been known to claim so. Its ideology is composed of a group of ideas. Some of them based on judgments about the efficacy of crime control devices, and others have quite different considerations. The ideology of due process is far more deeply impressed on the formal structure of the law than the ideology of crime control but still an accurate tracing of the strands that make it up is strangely complicated. What follows is just an attempt at an approximation”.

The idea of justice can only be propagated when there is due process and fundamental fairness within the purview of law and justice. There should be a balance between the rights of the victims and the accused and the court shouldn’t just presume the accused guilty from the beginning of the trial. The approach of the criminal justice system should be defendant centric and not victim centric because also in the bill of rights, it is being expressly provided for the protection of the defendant rights.59 The power and authority of the investigation agency and other law enforcement agency should be within the legal propensity of the criminal justice system such that it doesn’t evade the legitimate rights of the defendant.

It should be noted that the rights that are inserted within the Constitution are not just for the sake of making a good guidelines but they should also be followed with sincerity and fairness in such a manner to make the criminal justice agencies accountable for the rules, regulations and procedures to ensure the fairness of the criminal justice system. The criminal justice system should work as a speed breaker in front of a rapid investigation so that the rights of the accused shouldn’t be evaded and the procedure should be properly followed even though it's been proved that the person arrested is guilty. The idea of justice always propagates that the factually innocent should be protected and factually guilty should be convicted. Mere presuming that a person is guilty doesn’t make him a convict. A person should be held guilty only after the follow-

59 UNITED STATES BILL OF RIGHTS, http://en.wikipedia.org/wiki/United_States_Bill_of_Rights, Visited on 23rd March

46 ups of the proper procedure and legal rules that have been provided under our criminal procedure code. 60

Jerome hall explains that it is important to emphasize that what is “efficiency” in this sense. “Efficiency” means the capacity of the system to apprehend the conviction and dispose of a high proportion of criminal offenders whose offence is proved. For successful operation of the crime control model, it must produce a high rate of conviction; therefore, there is need of speed and suddenness. Speed depends on informality whereas uniformity & finality depends on minimizing the occasions for challenge. The criminal process is seen as a screening process in which there is successive state like pre-arrest investigation, arrest, post-arrest investigation, preparation for trial, trial on entry of plea, conviction disposition, which involves a series of recognized operations whose success is measured basically by their successful conclusion. 61

The presumption of guilt is not the opposite of the presumption of innocence, but they are different from each other, such as the presumption of innocence is a direction to officials about how they have to precede not a prediction of outcome. The presumption of guilt however, is purely a prediction of outcome. The presumption of guilt is prescriptive & factual where as on the other hand presumption of innocence is normative & Legal. 62 It is more constantly used and affects a greater amount of people than any other law. The nature of its subject matter is such that human values are associated with it to a greater degree than in other laws. As the Criminal procedure is complementary of substantive criminal law, its failure would seriously affect the substantive criminal law, which in turn would considerably affect the protection that it gives to society.

Again Packer contributes to this discussion by stating that the fundamental principle on which criminal procedure is based is balanced. Think of Criminal Procedure as the study of constitutional democracy from an applied perspective. Criminal procedure also

60MOHAMMAD GHOUSE, THE PRE – TRIAL CRIMINAL PROCESS AND THE SUPREME COURT. VOL 13, INDIAN BAR REVIEW, (1986) 61JEROME HALL, OBJECTIVES OF FEDERAL CRIMINAL PROCEDURALREVISION, THE YALE LAW JOURNAL, VOL. 51, NO. 5 (March 1942), Pg. 736 62Supra Note 112

47 brings balance to criminal law because the ultimate ends of Criminal Law are dual.63Balancing at the heart of our constitutional democracy is the idea of balancing values indispensable to the quality of life. One balance is between the value of the safety, security of the entire community and the value of individual autonomy, consisting of life, liberty, property, privacy and dignity.64

Code of Criminal Procedure is also a sort of public utility, which at least is intended to provide better service in direct proportion to its rationality. Procedural law can be logical despite the fact that the substantive law is unjust.65

Proposition 9 In its critical positioning, criminal procedure enforcement poses a special challenge when it performs in a heterogeneous society where the location of the individuals is varied by caste class and affiliations to access the justice.

Description The cumulative impact of the rights of the speedy trial, bail, the non availability of free legal aid to the suspect as well as the organic defects in the criminal justice system burst upon the nation with disturbing force when Hussainara Khaatoon case66 came before the court. In the legal and the constitutional system, insensitive to the right of the poor in quest of justice depends on judicial officers of the trial court. As admitted by Justice Bhagwati, the system of bail operated very harshly against the poor. 67

The police generally proceed from the criminal to the crime, which the experts say is unscientific. In any case, the person arrested is the sole breadwinner for the family existing near or below the poverty line. It is therefore necessary to sensitize the bail process to the peculiarities of the police system and to the problems of poverty in India.

63Supra Note 110

th 64JOEL SAMAHA, CRIMINAL PROCEDURE, 4,CENGAGE LEARNING, 9 ed. 2011 65JEROME HALL, OBJECTIVES OF FEDERAL CRIMINAL PROCEDURALREVISION, THE YALE LAW JOURNAL, VOL. 51, NO. 5 (March 1942), Pg. 738 66Hussainara Khatoon v. State Of Bihar, 1979 SCR (3) 532, 9th March 1979 67MOHAMMAD GHOUSE, THE PRE – TRIAL CRIMINAL PROCESS AND THE SUPREME COURT, VOL 13, INDIAN BAR REVIEW, (1986)

48 The right to bail is concomitant of the accusatorial system. This system maintains that a person is deemed to be innocent until he is proved guilty i.e. no punishment shall be inflicted on him before his conviction, he must not be hampered in the preparation of his defense. A person in prison cannot investigate his case, earn money to employ counsel and meet other expenses connected with his defense, and support and sustain his family. The accusatorial system has therefore favoured a bail system that ordinarily enables a person to stay out of jail until a trial has found him guilty. 68

In India69 bail is available as a right in bailable offences at the discretion of the court in non-bailable offences not punishable with death or life imprisonment and only to women and children in non-bailable offences punishable with death or life imprisonment. In non-bailable offences not punishable with death, the criteria for release on bail are reasonable ground to believe that the accused is not guilty of the offence with which he is charged. The likelihood of the person not turning up before the court for trial does not constitute a statutory condition. 70

The right of the police to oppose bail, the absence of legal aid for the poor and the right to speedy trial reduce to the vanishing point. The classification of the offences into bailable and non-bailable, so as to make the prolonged incarceration of the underprivileged during the pendency of the investigation by the police and trial by the

68MOHAMMAD GHOUSE, THE PRE – TRIAL CRIMINAL PROCESS AND THE SUPREME COURT. VOL 13, INDIAN BAR REVIEW, (1986) 69Sec 435- The Code of Criminal Procedure-State Government to act after consultation with Central Government in certain cases: (1) The powers conferred by sections 432 and 433 upon the State Government to remit or commute a sentence, in any case where the sentence is for an offence- (a) Which was investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, or (b) Which involved the misappropriation or destruction of or damage to, any property belonging to the Central Government, or (c) Which was committed by a person in the service of the Central Government, while acting or purporting to act in the discharge of his official dutyshall not be exercised by the State Government except after consultation with the Central Government. (2) No order of suspension, remission or commutation of sentences passed by the State Government in relation to a person, who has been convicted of offences, some of which relate to matters to which the executive power of the Union extends, and who has been sentenced to separate terms of imprisonment which arc to run concurrently, shall have effect unless an order for the suspension, remission or commutation, as the case may be, of such sentences has also been made by the Central Government in relation to the offences committed by such person with regard to matters to which the executive power of the Union extends. 70Supra Note 119

49 court. No one therefore unduly perturbed when the seventy-eighth report of the law commission disclosed that on January 1, 1975, the under trials constituted 57.6 percent of the prison population in India. The nation was however shocked when Bihar disclosed that in Hussainara Khatoon Case71, the under trials formed a large number of the prison population, their period of imprisonment ranged from a few months to 10 years, in some cases it increased the period they were charged with. The destitute men, children, women, victims of crime and police witness were kept in jails.

In Mantoo Majumdar v. State of Bihar72the court ordered the release of the petitioners on their own bond and without as they had spent six years in prison waiting for their trial. The court deplored the delay in the police investigation and the mechanical operation of the remand process by the magistrates, incentives to the freedom of under trials, and the magistrate's failure to monitor the detention of the under trials remanded by them to prisons. Where as in Veena Sethi v. State of Bihar73 a letter was written to justice Bhagwati of the free legal aid committee, which brought to light the facts too shocking for words. Out of 16 prisoners who were of unsound mind at the time they were put in prison, 14 were there from 2 to 3 decades. Some of them had long back regained sanity but not freedom.

Issues on Juvenile Delinquency came in the of the Supreme Court in Munna Lal v. State of U.P. 74, which brought into focus the moral depravity of the prison culture. Indian express published a report which alleged that there were 100 juvenile under trial prisoners in Kanpur central jail and that young boys were being supplied to the convicts for there delectation and that munna, after molestations by the adult convicts, was in agony. As the allegation, if true, constitutes a violation of Article 21; the court initiated a probe into them. Although the allegations were not substantiated yet, but it was clear that the prison authorities were ignorant about the Uttar Pradesh Children Act, 1951 and that Kanpur Central Jail did have juveniles as prisoners and that they were released within a few days after the publication of the report in the Indian express and the filing

71Hussainara Khatoon v. State Of Bihar, 1979 SCR (3) 532, 9th March 1979 72Mantoo Majumdar v. State Of Bihar, 1980 (SC) 846, 27th February, 1980 73Veena Sethi v. State Of Bihar,1982 (SC.C.) 583 , 11th May, 1982 74Munna Lal v.State Of Uttar Pradesh, 1964 (SCR) (3) 88, 17 April, 1963

50 of the writ petitions. After expounding the relevant provisions of the aforesaid act requiring remand of juvenile under trials to children’s home. Justice Bhagwati said,

“A nation which is not concerned about the welfare of its children cannot look forward to a bright future.”75

Proposition 10 Critical Criminal Procedure is the evaluator of the performance of criminal justice agencies. In this shape criminal procedure is agency specific and it emphasizes the requirement of agencies faith in the Constitution.

Description All the law enforcement agencies in India are bound to follow the provisions enshrined in the Constitution of India except the state of Jammu & Kashmir. 76 The police department in India has a distinct value premises. It denies that the police are supra constitutional and asserts that though it cannot supervise the police but it can certainly enforce the constitutional mandates against them. It denies the constitutional approbation to police misconduct in order to serve the imperative of judicial integrity and to refuse partnership in crime. It maintains that even in the administration of criminal justice the end does not justify the means and that the state should not be permitted to commit a crime in order to get the criminal convicted. The object of this policy is to do justice without any favour either to the prosecution or the accused and without undermining the constitution and the law. Viewed from this value premise, any argument against the enforcement of the bill of rights against the police appears to be an argument that the police must be allowed to be supra constitutional so that they may protect the society from the criminals and law breakers. 77

The procedure of registration of FIR, which always remains in doubts, was rectified when the supreme court of India gave the judgement in Lalita Kumari case.78 There

75Supra Note 125 th 76M.P. JAIN, INDIAN CONSTITUTIONAL LAW, LEXIS NEXIS, 6 ed., 2008 77MOHAMMAD GHOUSE, THE PRE – TRIAL CRIMINAL PROCESS AND THE SUPREME COURT. 188, VOL 13, INDIAN BAR REVIEW, (1986) 78Lalita Kumari v. Govt. of U.P. &Other’s. , 2008 (Crl. Appeal) 68, 12th April, 2013

51 was a genuine issue regarding the registration of FIR in this case but after understanding the issues and argument, Justice P. Sathasivam propounded a set of guidelines that should be followed when a victim approaches the police station for the registration of the FIR. The procedure to provide the victim with the photo copy of the FIR and the regular intimation about the progress of the investigation team are some of the very remarkable steps that’s been taken by the supreme court for the purpose of accountability of crime in our society.

Sukhdas v. Union Territory of Andhra Pradesh, Zahira Sheikh, Lalita Kumari v. Govt. of U.P. & Othrs. and many other situations where the Supreme Court has taken a stand for the purpose of motivating the lower judiciary and the law enforcement agencies to follow the principle of due process of law. There are a number of procedures like registration of the FIR, intimation of the arrest of the accused, procedure of the investigation, maintenance of diary at the place where the accused has been put before the trial, presenting the accused in the court within 24hrs. Of his arrest, free legal aid is just some of the results of the landmark judgement of the Supreme Court. The modification and proper implementation of these procedures is meant for the benefit of the society and state. It also helps in keeping a relation of accountability between the various agencies of the Union.79

Each and every citizen is guaranteed the freedom of information and expression, faith, right in order to residence, industry, business as well as assembly. The essential rights tend to be basic for any liberal culture. Parliamentary democracy as well as the federal structure would be the two salient options that come with India's up bringing. Nonetheless, aberrations appear to be emerging within both these types of areas.80

The principle explaining the rightful arrest and custody was led to a next level with the eleven guidelines, which were evolved with the 1996 judgment. On 26 July 1986 D.K. Basu who was the executive chairman of the legal aid commission81, wrote a letter to

nd 79VINAYAK D. KAKDE, CRIMINAL TRIALS, 56, UNIVERSAL LAW PUBLISHING, 2 ed., 2009. th 80JOEL SAMAHA, CRIMINAL PROCEDURE, 4,CENGAGE LEARNING, 9 ed. 2011 81D.K. Basu v. State Of West Bengal, 1997 SC 610, 18th December 1996

52 the Chief Justice of the Supreme Court highlighting the issues of custodial violence within the state. He argued that it was vital to look at the issues and to create “custodial jurisprudence”, by formulating steps with regard to awarding compensation to the victims or their own relatives, and ensure accountability of police officers that are found responsible with regard to such custodial torture.

After accepting the request of D. K. Basu, the apex court considered his letter as a public Interest Litigation and the State of West Bengal was made the party to the case for answering the charges, which were produced in the Public Interest Litigation. The government of Western Bengal replied that the police were inefficient in some situations and it was stated that strict action would be brought against any official who will be found guilty.

The Supreme Court has obligated for all the agencies to follow the binding judgement with and to safeguard the rights of the people. The effectiveness of parliamentary system is based on the support from the popular representation associated with divergent viewpoint in India when it comes to regional, vocabulary, culture, religion representing within the decision producing process inside legislature.

In our legal system, judiciary has got the primacy participation from the executive as well as representatives associated with enlightened open public opinion, which will give a powerful safeguard. Article 356 from the Constitution also takes a re-look. It's been probably the most misused provision. The break up of constitutional machinery is really a complicated idea. Circumstances that constitute with the failure of the constitutional machinery should be spelt away under Article 356 by itself.

The critical criminal procedure is like an examiner, which helps the criminal procedure to be more exact, accurate, and higher efficiency. When a loophole is pointed out in the criminal procedure code by the criticism done by the critical criminal code then it should be duly noted by the judiciary, legislature and the enforcement agencies so as to correct that blind spot and to make the criminal procedure more accountable and approachable by the common men which can happen only when the criminal justice agencies will follow the mandate of the criminal procedure code specifically under the guidance of the constitutional safeguards.

53 Proposition 11 Critical Criminal Procedure views procedural violations in a critical manner as in every violation there is a beneficiary and this process serves to certain illegitimate interest.

Description Whenever there is a violation of a right or the non-compliance of the criminal procedure then the basic principle that tells the reason behind such activity is the negligence of the police officials or the mismanagement in the judicial proceedings. The public is unhappy not just with the police but also with the functioning of other agencies from the criminal justice program.

When there's an upsurge within criminal activities or perhaps a particularly heinous criminal offence is committed. The general public tends to blame law enforcement. The general tendency would be to hold the police solely accountable for any increase within crime. This attitude is actually reinforced by the way the police respond to public criticism. These people either quote criminal offence statistics, which aren't too impressive or explain inadequacies of manpower as well as equipment at their personal disposal.82

Crime statistics are not very reliable. A common complaint against the police is the fact that they don't register crime easily. Concealment or burking of crime is very common. One major factor behind this is that the police performance is evaluated on the basis of crime statistics.

A lot more than an increase within crime, it may be the failure of the machine to deal quickly, justly and effectively with people who commit it which is responsible for

82JAMES VADACKUMCHERY, NATIONAL POLICE COMMISSION. ISSUES FOR RETHINKING, Pg 47, APH nd PUBLISHING, 2 ed., 1998

54 losing faith and confidence of the public on the efficiency of the criminal justice system. There's been a sudden decrease within the conviction rate. 83

Every citizen expects that the state will construct a framework of rule of law and will protect him or her from violence and crime. The failure of the state in fighting with the crime is a great point of concern .The concern of the people because of crime has a self- inhibiting phenomenon, which gets stronger by its own fear in the mind of the people. It is because of increase in the crime rate which sometimes make the law enforcement agencies from following the lawful methods and that’s the time when accused are tortured and in some cases murdered in custody. The instance when some convicts were blinded in Bhagalpur police station is the situation, which totally supports the argument against the police administration. Blinding of convicts done by Bhagalpur Police long ago in the early eighties was one of those instances, which support the above argument against the police.

Proposition 12 The notion of Critical Criminal Procedure is to smoothen the positional skewness of the agencies in Criminal Justice System.

Description The relation between police administration and the judiciary is such that one has the duty to bring the accused to the custody and the other has the duty to put the accused through the trial and test the accusations on the accused. This relation has been surrounded by various procedural guidelines, which are enshrined in the Code of Criminal Procedure about how the arrest of the accused has to be done, what are the points that should be kept in mind at the time of the arrest of the accused. The duty of the police to allow the accused to contact his relative as well as lawyer for the purpose of bail or other legal formalities. These all major principles of criminal procedure got there stand when the Supreme Court gave its judgement in D.K. Basu case84 where a set

83CRIME IN POLICE CUSTODY, NATIONAL CRIME RESEARCH BUREAU, http://ncrb.nic.in/index.htm, visited on 13th May, 2014 84D.K. Basu v. State Of West Bengal, 1997 SC 610, 18th December 1996

55 of eleven guidelines were introduced for the purpose of maintaining a uniform system for the conduct of arrest of the accused and bringing the accused to the trial.

At the time of the trial, it’s also the duty of the presiding judge to see if the accused has been provided with proper representation or not.

In the case of Lalita Kumari, where the question of FIR raised because the police authority were not registering the FIR but later when the superior authority intervened then the FIR was registered and for this purpose Supreme Court of India gave out a set of guidelines to protect the rights of the victim. Now here if the reason has to be given about why the FIR was not been registered in the first place and why the victim has to go to the superiors for the purpose of registration of FIR, then it will be very difficult to answer because no one agency can take the responsibility due to absence of the exact parameters for the registration of FIR. But after the Lalita Kumari judgement, all police department were directed to follow the guidelines given in this judgement. The idea is that when there is confusion or a uniform procedure for the performance of a function by the law agency then the theory that guides the Supreme Court or other judicial body to modify that provision so as to make it more precise and uniform is the notion of critical criminal procedure.

The Hussainara Khatoon Case85 is another example of this where the right to a speedy trial was empowered by the Supreme Court, which was motivated because of the criticism, which was raised against the procedural aspect of the criminal law. In order to finish the loopholes and legal tussle, the principle of the critical criminal procedure is very essential because it is the critical criminal procedure that is responsible for maintaining and protecting the decorum among the criminal justice agencies.

85Hussainara Khatoon v. State Of Bihar, 1979 SCR (3) 532, 9th March 1979

56 Proposition 13 Critical Criminal Procedure also views that procedure performance can be judged through the manner in which cases are decided by the court.

Description The easiest way to judge the quality of the criminal justice system is by examining the method of the delivery of the judgement. The Supreme Court of India has shown its valor by delivering out proud judgement that has introduced a number of amendments in our criminal procedure system. The D.K Basu judgement, the Lalita Kumari judgement, the Bachan Singh judgement, Hussainara Khatoon Judgement. Supreme Court has also widely used its power under Article 142 of Mandamus guiding various government bodies to perform their duties.

Nevertheless, also there are other judgments, which have shown the points at which the Indian judiciary remained weak due to some internal or external contingencies. There were many cases in which the supreme court could have taken a strong step in order to protect the idea of justice such as the ADM Jabalpur Case86, Maneka Gandhi Case87, Supreme Court Advocates-on-Record Case88 and many more like that where there were certain loopholes which have been properly explained in the next chapter.

In a landmark judgement of Himanshu Sabharwal89, the apex court observed that the fair trial envisaged underneath the code is not imparted towards the parties and courtroom has reasons to think that a prosecutor isn't acting in the requisite actual manner. It was also held that the court can physically exercise its power below section 311 in the Code or under section 165 from the Indian Evidence Act, 1872 to get in touch with the material witness and obtain the relevant documents in order to sub serve the reason for justice. Though the idea of adversary trial program is diluted within the Code but still this technique is praised not only due to the protection it accords to the

86Additional District Magistrate v. S. S. Shukla Etc., 1976 (SCR) 172, 28 April, 1976

87Maneka Gandhi v. Union Of India, 1978(SCR) 621, 25 January, 1978 88Supreme Court Advocates-on-Record Association v. Union Of India, 1993 (SC) 1303, 6th October, 1993 89Himanshu Singh Sabharwal v. State Of M.P. And Ors, 2008 (SC) 175, 12thMarch, 2008

57 accused but also because of its competitive type of presenting evidence and the arguments are expected to make a more accurate outcome than an in which the judge monopolizes proof taking.

The principle of how the accused person is assumed innocent unless their offence is proved beyond reasonable question is of cardinal importance within the administration of rights. This notion is incorporated similar to the rights of the accused person under numerous conventions. Actually this principle is a dependent on legal adage that it's better if ten criminals escape then the wrongful conviction of an innocent person. This principle had been recognized in U.S. long ago in 1895 in Coffin v. United States90that ‘the principle that there's a presumption of innocence regarding the accused may be the undoubted law, axiomatic as well as elementary, and its enforcement lies in the foundation of the administration in our criminal law. ’ It may be worth noting that the United States Supreme Court raised the level of the presumption of innocence to a great level by reading it to the ‘due process’ terms.

Critical criminal procedure sees to it that the basic element of the right to fair trial, the actual presumption of purity, inter alia, means that the responsibility of proof inside a criminal trial lies on the prosecution and about the accused that has the advantage of doubt. This presumption sometimes appears to flow in the Latin legal theory that “eiincumbit pro batio qui dicit, non qui negat” which means that - the burden of evidence rests on that asserts, not upon who denies. The presumption of innocence is actually a legal instrument, which is developed by the law in order to favour the accused with the legal inference that many people are not criminals. The actual presumption means: With regards to the critical facts from the case - if the crime charged had been committed and if the defendant was the one who committed the crime – then the State has the entire burden of evidence. With respect towards the critical facts from the case, the defendant has no burden associated with proof whatsoever. The defendant doesn't have to testify, call witnesses or present fresh evidence, and when the defendant elects to not testify or existing evidence; this decision can't be used against him or her.

90Coffin v. United States, 1895(U.S.)156 OF 432, 12th September 1895

58 There is no doubt that the justice is getting delayed but it has to be accepted that now the judiciary is getting back into its shoes and is trying its level best to maintain and improve the justice delivery system in India

Proposition 14 In criticizing the act/omission of the Criminal Justice Agencies, the judiciary evolves the correct law and proper jurisprudence on the subject.

Description It is in the Maneka Gandhi91case where the passport of the petitioner was seized on the ground of interest of the public by the central government under section 10(3) (c) of the Passport Act 1967 without giving her opportunity of any hearing. Hence she filed a writ petition under Article 32 on following grounds –

(1* Section 10(3)(c) is violative of Article 21 as it does not prescribe any procedure for the seizure of the passport. (2* Section 10(3) (c) is violative of Article 14, as power conferred to the delegate is excessive. (3 * Section 10(3) (c) is violative of Article 19 (1) (a) and Article 19(1) (g). (4 * She was denied from the opportunity of hearing which amount to the arbitrary exercise of the power, violation of Article 14.

In this case, the Supreme Court observed after assessing the evidences that the seizure of the passport was mala fide in violation of Article 14, 19, 21. Procedure established by law means a procedure which is just, fair and reasonable. Rule of Audi Alteram Partem is part of protected under Article 21. Illegal seizure of passport violates Article 19 (1) (a), 19(1) (g) having a direct bearing on the right to food protected under Article 21. Realizing that there was fatal defect and decision of the court would render the central government’s order, as void. The attorney general gave the assurance that - “The opportunity of hearing and representation shall be given to the

91Maneka Gandhi v. Union of India, 1978(SCR) 621, 25 January, 1978

59 petitioner within two weeks and representation will be dealt with expeditiously in accordance with the law “. On getting this assurance, the Supreme Court disposed the case. This case was criticized on the following grounds-

(1 * Duty of the supreme court is to render restitutive justice under Article 14 but it failed to render complete justice and hence Article 142 remained unanswered. (2 *The judgment of the supreme court holds the authority of law under Article 141, and so it is expected to resolve all the issues once for all, in the form of judgment not observations. It is a justice delivery institution not to a compromise making body. (3 * Supreme Court failed to take the notice of section 166 of IPC under section 57(I) of the Indian Evidence Act 1872, and punishing the wrongdoers.

In the judgement of Selvi case92where the honourable Supreme Court has stated that an accused cant be forced for the narco analysis and brain mapping. The report of the narco analysis is not alone sufficient as evidence, but it can be in a direction for the investigation to find out sufficient evidence. The guidelines in the D.K Basu 93 judgement, Lalita Kumari judgement94, Hussainara Khatoon judgement95, Moti Ram Judgement96, are some of the prominent judgement that can be said as the path breaking judgments which have straitened the criminal procedure code in so much ways that now it has become a acceptable code of procedure for conducting various functions by the various law agencies.

92Selvi & Ors.v. State Of Karnataka &Anr. 2010 (SC) 1267, 5th May, 2010 93D.K. Basu v. State Of West Bengal, 1997 SC 610, 18th December 1996 94Lalita Kumari v. Govt. Of U.P. &Othrs, 2008 (Crl.Appeal) 68, 12th April, 2013 95Hussainara Khatoon v. State Of Bihar, 1979 SCR (3) 532, 9th March 1979 96Motiram v. State Of Madhya Pradesh, 1978(SC) 1594, 24th August1978

60 Proposition 15 At appeal level, procedural law assumes critical methodology as it examines the sides overlooked. This provides that the occurrence of a dialectical process where the competing views is accommodated to churn out the truth.

Description The court has its appellate jurisdiction under Article 136 where the appeal is being filed in the Supreme Court under various circumstances. It can be a civil appeal or a criminal appeal, the constitutional matters or the special leave appeal. Now at this stage the court does not just start from the beginning of the case when it started in the lower court, but on the other hand the supreme court hunt for those points or issues which were left by mistake or for benefit by one of the party or both.

In the case of Lalita kumari case 97where it was found by the apex court that the victim was not provided with legal aid at the district level and therefore she was not able to represent her properly. In another case also known as the best bakery case, it was found by the Supreme Court that the prosecution was working with the defendant, as the prosecution never took the interview of the injured persons in that case. Similarly in the Husainara Khatoon judgement it was observed that how a number of under trials were waiting for their trial to finish and in this judgment the Supreme Court came out with the concept of a speedy trial for the purpose of disposing the cases.

There is a whole chain of cases, which are a perfect example of the brilliant role played by the Supreme Court by delivering such path breaking judgement and by removing the loopholes and mistakes because of which the cases were jolted in the queue for judgement for a long time.

97Supra Note 145

61 Proposition 16 Criminal procedure law has a critical bearing on state policy and in this shape the procedural law finds occasion to evaluate the performance of the state policy on certain concepts.

Description The Supreme Court has every now and then entered into a protective position for the welfare of the states from being abused by the central government. During the declaration of emergency in 1976 when Mrs. Indira Gandhi was the then prime minister of India, it was observed that the president was recommended to declare the emergency even without consulting the other council of ministers and the president on the suggestion of Mrs. India Gandhi declared emergency. Later Supreme Court stated various rules and regulations where it was held mandatory in future to consult the ministers of the concerned state and other states before the declaration of emergency. This was a very ironic and bold step taken by the Supreme Court without coming under any kind of pressure of the government.

Supreme Court in the landmark judgment in Prakash Singh v. Union of India98 directed the central as well as state governments to act prior to the guidelines associated with seven directives, which lay out practical mechanisms in order to initiate any kind of changes in the police departments. The objectives of those directives were two fold:

Functional autonomy of the police departments should be controlled by the medium of the protection of tenure, unified and fair procedure for appointment and regular meetings with the superiors. There should be an establishment of a regulating body between the state police and the central departments of law enforcement for the systematic transfer of police officials for permanent and temporary postings. Special measures should be taken to improve accountability of the police departments, both with regard to organizational performance as well as individual misconduct. Supreme Court, hence, required all government authorities, at the center as well as state levels, to

98Prakash Singhv. Union of Indian, 1996(SC) 310, 22nd December 2006

62 adhere to the seven directives on dated 31st December 2006 and also to file affidavits of compliance through the 3rd of January 2007.

The response from the State government greatly varied, ranging from compliance with the directives through professional orders and some by indicating strong objections towards the directives and asking for an overview of the same, while remaining others requested the court to provide them with additional time to comply with its judgment.

In the judgement of Nandini Sundar Case 99 where the complaint was filled in the issue regarding the disturbances created by the government for supporting the vigilante team by the name Salvajudum. It was asked that how the State government has permitted such kind of group to be active with having the possessions of arms. The Supreme Court seriously criticized this kind of carelessness.

These judgments are some of the inferences that demonstrate about the role of critical criminal procedure, which guided the Supreme Court in evaluating the modified procedures in order to have a uniform legal system, and it helps to examine the performance of the state policy.

Proposition 17 Critique of the agencies is the principal focus in procedural law.

Description This phenomenon of criticizing the procedural law is owing to the reason as to make the criminal justice system more and more efficient and controlled. Whether it is a new Supreme Court judgement or a new criminal amendment, these all are the weapons of the critical criminal procedure in order to correct the mistake and loopholes that were present earlier. The idea of justice is such that in order to make the reliability of the criminal procedure code, it needs to be patted on its back again and again by criticizing arguments of the critical criminal procedure with the help of legal . The latest criminal amendment Act 2013 is also the result of such critical criminal procedure,

99Nandini Sundar &Othrs. v. State Of Chhattisgarh, 2011(Civil Appeal) 250, 5th July, 2013

63 where the goal of the framers was to find out the weakness and barriers that should be demolished in order to make the law more efficient and promising.

In case of the police reforms, Supreme Court has prescribed all kind of directions and guidelines in the procedure for the registration of FIR in the Lalita Kumari case100. Supreme Court also stated in Mrs. Rupan deol bajaj case that the FIR could be quashed only by the concerned high court. The process of arrest has also been codified in a new manner and more uniformly by the Supreme Court in the form of eleven guidelines that were given in the judgement of D.K. Basu 101 . The Supreme Court criticized the prosecution and the police in the best bakery case for irregularities in the investigation and for not taking the interview of the victims. The right to speedy trial has been supported by the Supreme Court in the Hussainara Khatoon case, which also helped a number of under trials who were waiting for justice. Procedural laws are those guidelines that act as a framework and each and every government institution whether it is police or the prosecution or the judiciary, they have to perform within the boundaries of the criminal procedure code.

Proposition 18 Feminist leaning is the part of the movement world over. To identify the criticality of the criminal procedure, we can refer to the criminal law amendment in 2013.

Description To identify the criticality of the criminal procedure, we can refer to the criminal law amendment in 2013. Critical legal studies 102 (CLS) are a really revolutionary motion that challenges as well as seeks to overturn recognized norms and requirements in the legal concept and practice. CLS looks to fundamentally alter jurisprudence, exposing it as not really a rational system associated with accumulated wisdom but as an ideology which supports and allows an unjust political system. It is clearly found in the latest

100Lalita Kumari v. Govt. Of U.P. &Othrs, 2008 (Crl.Appeal) 68, 12th April, 2013

101D.K. Basu v. State Of West Bengal, 1997 SC 610, 18th December 1996 102 rd CRITICAL LEGAL STUDIES, http://www.law.cornell.edu/wex/critical_legal_theory, visited on 23 April.

64 amendments that the procedural law has been geared to the feminist centric as in most provisions the women in their gender orientation have been given a special place regarding sexual offences against them. Laws that have been incorporated in the new Criminal amendment Act 2013 103 are framed in female centric notion. The arguments that have been always stated by the critical studies movement are that women are always kept as a weaker section and proper rules and regulations are required for impletion of the protective shield around them by the criminal justice system. Many philosophers from around the world have argued over this feminist centric approach of the critical studies movement but it has been observed that because of the amount of rapes and crime against women is increasing in all parts of India and the world, this kind of approach will be benefactor for the modern criminal justice system.

103 th IDEAS ON CRIMINAL AMENDMENT ACT, http://indiacode.nic.in/acts-in-pdf/132013.pdf, visited on 26 April

65 CHAPTER 3

CRITICAL PERSPECTIVE ON CRIMINAL JUSTICE AGENCIES (POLICING, JUDICIARY & PROSECUTION)

The objective of this section is to critically assess the normative compliance of the provisions relating to criminal justice agencies entailed in the Code of Criminal Procedure. This critique is to be mainly ascertained from the selected cases decided by the Supreme Court, which has demonstrated the departure and deviation on the part of the police and judiciary in the adherence of normative cannons of the Code of Criminal Procedure.

It is notable with these cases; certain critique would be identified in the selected domains of working of criminal justice agencies. The idea behind doing this exercise is to document and develop a critical commentary on the existing provision dealing with the police, prosecution and judiciary. The apex court has critically commented on the unlawful conduct of the police officials which is not hidden from the society and every now and then, whether it is the unlawful arrest, undue influence in the investigation of a case, custodial rape and torture and also the violation of the due process.

The right, which is guaranteed under the provisions of our Constitution, includes that it’s the right of every individual to live with dignity and respect. The state is not only obliged to prosecute people who violate fundamental privileges. It also includes a duty to spend monetary compensation to correct the wrong carried out by its brokers because they were not having the ability to discharge their public duty of maintaining peoples rights.1

The judiciary recognized how the worst violations associated with human rights occur during the investigation when the police use torture and third degree techniques to get

th 1M.P.JAIN, INDIAN CONSTITUTIONAL LAW , 1059, LEXIS NEXIS, 6 ed., 2008

66 confessions. In many cases, which are not recorded and where prolonged interrogation possibly disguises arrests. The principle remains that the state or its agents would not attack or torture individuals. They then laid down a more sophisticated set of guidelines for arrest as well as interrogation. The court directed how the guidelines that are given as ought to be circulated to the Director General of Police and also the Home Secretary of each and every state. Violation of these directives by the police officer associated with the jail authority can be punished under the contempt of court act, 1971 along with other provisions of the law.

3.1 Custodial Rape & Torture

Custodial rape and custodial torture put a question on the efficiency of the enforcement agencies. There are plenty of instances where the Supreme Court has criticized the working of the police administration in this regard. The approach of the critical criminal procedure here is to highlight some of these instances and to demonstrate how the Supreme Court has taken a position that changed the ideology behind the process of investigation, arrest, and other police procedures.

Custodial torture and custodial rape are the two major forms of atrocities that have been made in cases where mostly the defendant party is a police officer or the accused is a law enforcement agent. An instance that can be adduced in this regard is Tukaram & Others v. State of Maharashtra, 1978.2 In the Mathura case, two policemen apparently raped a teenaged orphan named Mathura in the police station. The judgment, which was delivered by Justice Khosla, caused so much outrage that it provided an incentive for the law to be amended.

In Khatri v. State of Bihar 3, which highlighted an issue of victimization of an accused who was been tortured in the police custody evolved how the police officials in some cases have totally degraded the procedure of criminal code as under this case, writ petitions were filed by several petitioners under Article 32 4 so as to enforce there

2Tukaram & Othrs. V. State Of Maharashtra, 1979 SCR (1) 810, 15th December 1978 3Khatri v. State Of Bihar, 1981 SC (SCC) (1) 627, 19th December 1980 4Article 32- Remedies for enforcement of rights conferred by this Part

67 fundamental rights as guaranteed under Article 215 because they were blinded in the police custody. A question was raised in the trial about whether the reports submitted by CID to the state government can be order by the court including some conversation of the government with its officials. This instance of custodial torture put a set back and destroyed the belief of the Indian legal system for the police custody that is being demanded time and again.

This judgement gives a direction to the filing of the writ petition of habeas corpus for the purpose of getting a person free from illegal detention. Under no official circumstances can a state refuse to provide free legal aid to the poor accused who is proving that he is an indigent person or who cant afford to hire a counsel to defend his case. It was also regulated as the constitutional principle of producing an accused in front of a judicial magistrate within 24hours of his arrest.

The ability to prevent abuse by the police is securely set in Sections 101 to 114 from the Indian Evidence Act, 1872 which claim that it's for the criminal prosecution to prove that the fundamental elements of the actual offence charged and when those essential components are proved, it's for the charged person to prove how the case falls inside the general or unique exceptions to criminal liability identified by the criminal regulation. As the law stops at the moment, there is absolutely no special provision for proving that whether a person in law enforcement custody received accidental injuries.

In the case of State of U.P. v Ram Sagar Yadav 6 that referred to the 113th Law Commission of India report about the problem of injuries within police custody. Based

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part (3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ) (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution 5Article -21Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law

6State of Uttar Pradesh v. Ram Sagar Yadav & Ors, 1985 (SC) 416, 18 January, 1985

68 on the case, a farmer called BrijLal had some differences with his neighbour who, consequently, filed a complaint against him with regard to cattle trespass. The police officials demanded cash from BrijLal in substitution for hushing up the problem. After persistent needs, he offered an amount of Rs. 100 to the constable who was unsatisfied with this particular paltry sum. He complained to the Superintendent of Police who consequently forwarded the problem to the Station House official, Hussaingunj. Enraged only at that bold step used by BrijLal, the Station House Officer chose to teach him the lesson and delivered two other constables to bring him to police station. BrijLal was brought to the police station at ten o'clock. By noon, he was having a critical condition and needed to be taken to the court of additional judicial magistrate. He was not able to walk by himself to the court. ADM did record the declaration of BrijLal by which he charged the Station House official and two law enforcement constables who were responsible for the accidental injuries by beating him up while he was under police custody. He passed away that evening.

The Supreme Court in the Brijlal case expressed that it should be understood that when a victim approaches a police station to register the complaint, the police officials must understand their duty as law enforcers and should not forget for what they have been appointed. The court noted that a police officer must always work to find the real truth and to struggle to help the victim to achieve justice. The court also stated that it has been observed countless time that the police atrocity has tried to manipulate the actual incident by covering it with some other artificial story. The Supreme Court was anxious that the officer who commits atrocities on persons within the custody of law enforcement could get away without being sentenced. Therefore it is better off to follow the procedure inscribed in the code of criminal procedure.

The next observations by the Supreme Court judgement was “Before all of us close, we want to imply to the Government that the requirement to amend the law appropriately so as to ensure that policemen who imply atrocities on persons who're in their custody aren't allowed to get away by reason associated with paucity or lack of evidence. Police officials alone, can give evidence about the circumstances when a person in their custody is inflicted with injuries during their custody. The people, upon whom the

69 police in the police station inflict atrocities, are left with no evidence to tell about whom the offenders tend to be. It is so ironical, if an individual who files a complaint to the police with regard to bribery was carried out to death through that policeman, their two companions as well as his superior official, the Station House Officer”

In the case of Mehboob Baccha & Ors. v. State Rep. By Supdt. of Police7, where the whole of the facts were so terrifying that after getting acquaintance with them, a common man can lose its confidence on the police authority. Justice Markandey Katju decided in this judgement that if there should be an award of the death penalty then that punishment should be perfect in this judgement but it was so surprising that none of the accused were charged with murder. The manner in which the deceased was tortured during the custody of the Annamalai police station by the accused police officials and the act of rape of the wife of the deceased by the accused in front of her husband demonstrates how evil an unlawful custody can be.

In the case of Mahmood Baccha, the apex court highlighted that the degree of offence is so severe that it has let down the whole criminal justice system and it should be taken as an eye opener for avoiding such incidence in the future. Nonetheless, the truth is that there is no end to such unlawful activity by the persons who have been appointed as the savior of the law.

If the justice givers are exploiting the public in such a way then what can be expected from the criminal justice system prevailing in India. There should be an increment in the methods of the investigation techniques; otherwise there will be no progress in our system. And therefore, if development of the system is hampered then it is obvious that the development of the nation will be kept falling and India will remain a developing nation.

The Parliament of India set up the National Human Rights Commission to deal with such abuses however police torture proceeds unabated. Accordingly towards the latest

7Mehboob Batcha & Ors. v. State Rep. By Supdt. of Police, 2003 (SC) 1511, 29 March, 2011

70 available government data, there had been 1307 reported fatalities in police as well as judicial custody within India in 2002.8

Torture of habitual criminal suspects as well as political prisoners by police is highly widespread. Custodial torture is a way to extort confession, money, favour and also to punish the detainees. The various methods of torture and bad treatment comprises of electric shocks, suspension through ceiling etc. Majority of the torture happened in the unrecorded arrests where there is nothing registered on the behalf of the accused.

Practice of custodial violence is still on large even after so much initiatives by the government and which inhibit in spite of official acknowledgement of the problem and a number of binding judicial pronouncements as well as governmental initiatives recently. There is a developing culture of judicial activism within India, where the courts have interpreted the importance of the fundamental rights and how they have been still violated in many instances time and again. People are entitled to demand for these rights and this fact has been strengthened by the introduction of the public interest litigation.

3.1.1 D.K. Basu Case

The principle explaining the rightful arrest and custody was led to a next level with the eleven guidelines, which were evolved with this 1996 judgment. On 26 July 1986 D.K. Basu who was the executive chairman of the legal aid commission9, wrote a full group of suggestion for the Chief Justice of the Supreme Court highlighting the issues of custodial violence within the state. He argued that it was vital to look at the issues and to create “custodial jurisprudence”, in order to award compensation for the victims and his family.

After accepting the request of D. K. Basu, the apex court considered his letter as Public Interest Litigation and the State of West Bengal was made the party to the case for

8POLICE&PRISON STATISTICS, http://ncrb.gov.in/CD-ADSI2011/ADSI-2011%20REPORT.pdf, Visited on 19th March, 2014 9D.K. Basu v. State of West Bengal, 1997 SC 610, 18th December 1996

71 answering the charges which were filed in the petition. The government of West Bengal replied that the police were inefficient in some situations and it was stated that strict action would be brought against any official who will be found guilty.

On stating the D. K. Basu judgement on 14 July 1987, the Apex Court observed that there is an increase in the custodial violence resulting in death in almost all cities and it was needed to be stopped. It was also described by the court that till now there is an absence of such machinery, which can assist in dealing with such allegations of custodial torture and custodial death. An official request was made to all the state governments to input their responses on the allegations and to find out the exact reasons responsible for such unlawful practice by enforcement agencies. An official request was also made to the Law Commission of India for the purpose of finding out solutions to deal with the menace of custodial crimes by police officials.

In response to the above order, all most all the state governments submitted their part of explanation to Law Commission of India on custodial violence. To articulate more information and to decide the dispute of custodial violence, the Supreme Court hired Dr. M. Singhvi as amicus curiae. Custodial violence was the prime issue in the D.K. Basu judgement. It’s the D.K. Basu judgement, which set out the guidelines to be followed for the purpose of avoiding custodial violence. It was raised to highest priority to ensure that a person who is arrested is not an innocent person and to judge the facts efficiently while interrogating an accused in custody following all legal procedure without failing.

The D.K. Basu v. State of West Bengal10 judgement came in 1996 where the Supreme Court has mentioned about the ever growing number of instances of custodial torture and deaths which was very less in previous years. This judgement explains all factors that arise after an instance of custodial violence and torture is registered. When an innocent person is arrested wrongfully and the interrogation team tortures him then it lead to a serious shock to the mental and physical well being of the individual. Custodial violence can be regarded as a direct attack on the human dignity. ”

10D.K. Basu v. State Of West Bengal, 1997 SC 610, 18th December 1996

72 3.2 Violation of Due Process of Law

Failure to due process of law by the investigating team and the law enforcement bodies creates another decline in the development of the criminal justice system. Due process of law is that process where the rights of the individual (Fundamental Rights) and the rights assured to the accused or victim of the criminal procedure code. Because of some instances under numerous landmark cases Supreme Court of India has evolved certain guidelines.

The Right Against Self-Incrimination case much known as Nandini Satpathy v. P. L. Dani 11 , is a case which has its constraining influence on coming judgment’s, as Nandini Satpathy requested previous Chief Minister (Orissa) who was already facing a charge under prevention of Corruption Act, was asked to question the deputy superintendent of police in regarding the questioning during interrogation. The police desired to interrogate her giving her a chain of questions on paper. She refused to answer the set of questions, on the grounds that it constituted a violation of her basic right against self-incrimination. The interrogation team insisted that she had to answer the questions and arrested her under section 17912in the Indian Penal Code of 1860, which prescribes consequence if anyone refuses from answering any question when a public official is asking such questions with an authoritative sanction. The issue, which was in front of the Supreme Court, was that whether Nandini Satpathy had the right to silence.

The Supreme Court held that Article 20 (3)13 of the Constitution propounds that nobody shall be required to become a witness against her/himself. Section 161 (2) 14of the

11Nandini Satpathy v. Dani (P.L.) & Anr , 1978 (SCR) 608, 7th April,1978

12Section 179 - Refusing to answer public servant authorized to question.—Whoever, being legally bound to state the truth on any subject to any public servant, refuses to answer any question demanded of him touching that subject by such public servant in the exercise of the legal powers of such public servant, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. 13Article 20(3) in The Constitution Of India 1949 (3) No person accused of any offence shall be compelled to be a witness against himself. 14Section 160 (2)-Examination of witnesses by police. - (2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

73 Criminal Procedure Code, 1973 (Cr.P.C.), casts a duty on the person to honestly answer all queries, except those, which lead to witness against one. The Supreme Court accepted that there's a rivalry between societal curiosities about crime detection and also the constitutional rights of the accused person. They admitted how the police had to do a complex job particularly when crimes were improving and criminals had been outwitting detectives. Regardless of this, the protection given by the fundamental rights enshrined within our Constitution is of major importance, the Court stated. In the curiosity of protecting these types of rights, we do not have the means to be feared from the custodial torture, as it would be resulting in forced self-incrimination. While any declaration which is given freely as well as voluntarily by an accused person is admissible as well as invaluable to a study, use of stress whether subtle or even crude, mental or even physical, sufficiently substantial for the police to get information isn't permitted as this violates the constitutional assurance of fair process. The Supreme Court affirmed that how the accused has the right to silence during interrogation when the answer exposes her/him in to admit guilt when either the situation is under investigation or in any further offence. They noticed that ground realities were so that a police officer is really a commanding and authoritative figure and for that reason, is clearly in a situation to exercise influence.

The Supreme Court directed that: An accused person can't be coerced into giving the statement pointing to her/his guilt. The accused person should be informed of her/his right to remain silent as well as to the correct rule of right against self-incrimination. The person being interrogated has got the right to possess a lawyer by her/his aspect if s/he therefore wishes. An accused person should be informed to consult a lawyer during the time of questioning, irrespective from the fact whether s/he is actually under arrest or even in detention.15

In the case of Zahira Habibulla Sheikh v. State of Gujarat16(2004) which brought out a lot of guidelines that restructured the procedure in many ways. It has several unusual features and some of them pose very serious questions of far reaching consequences. The case is commonly to be called the best bakery case. One of the appeals was by Zahira who is supposed to be an eyewitness to macabre killings allegedly as a result of

15Supra Note 169 16Zahira Habibullah Sheikh & Anr v. State Of Gujarat & Ors, 2006(Crl.) 446-449,8 March 2006

74 communal dispute. She made statements and filed affidavits after completion of trial and judgment by the trial court, alleging that during trail she was forced to depose falsely and turn hostile on accounts of threats and coercion. During the trial in the court certain points were raised about the witness protection besides the quality and credibility of the evidence before the court and should be taken care of in a lawful manner and justice should be given. It was shown that there was improper conduct of trial by the public prosecutor. It was also noted that the role of the investigating agency itself was not impartial. Later after observing the entire tussle within the state, the high court of Gujarat transferred the case to the Maharashtra High Court an appeal was also granted.

In Adambhai Sulemanbhai v. State of Gujarat17, while acquitting the accused the Court also held that “”Before parting with the judgment, we intend to express our anguish about the incompetence with which the investigating agencies conducted the investigation of the case of such a grievous nature, involving the integrity and security of the Nation. Instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and imposed the grievous charges against them which resulted in their conviction and subsequent sentencing.”

3.3 Illegal Arrest

In Chapter 5 of the Code of Criminal Procedure of India, the right and proper procedure has been scheduled for the procedure of arrest. The Supreme Court has always took a step further to limit the practice of the police to conduct an illegal arrest by the approach of some landmark judgement and the case of D.K. Basu’s eleven guidelines. In the case of Kishore Singh v State of Rajasthan18, the Supreme Court showed its concern for the police atrocities and stated. “No police conduct relies on fists as compared to wits. When a person is tortured for any reason, then it’s a straightforward violation of the fundamental rights guaranteed by the Constitution of India. The police agency has been enacted for the purpose to safeguard the society and to maintain law and order.

17Adambhai Sulemanbhai Desai v. State Of Gujarat, 2004 (GLR) 906, 26 June, 2003 18Kishore Singh v. State of Rajasthan & Anr. 1954(Cri.LJ) 1672, 26thOctober, 1953

75

Also in Joginder Kumar v. State Of U.P. and other19, where the plaintiff was a lawyer by profession and was asked to be at the local police station for some critical issue by the senior superintendent of police. He was told that it will take a little time but joginder was forced into custody for next 5 days without any information to his family. Later the matter came into light when his family raised the alarm to the higher authorities. The question that was raised was how could a police officer keep an individual without notifying his family. The person who is being arrested must be brought to court within 24hrs, but the officers performed no such action. The judiciary criticized this act of unlawful arrest and recommendations were asked to develop those laws.

This practice of illegal arrest and detention is very common practice of the police officials as referred in the judgements. Ashworth says that the right to have a fair trial is important but the fear is that an individual can enjoy the right to a fair trial only when he is being given with an opportunity to be at the trial. The incidents like the case of Baccha Singh and the incident of Tukaram, or the case of Hussainara Khatoon20where due to one reason or other i.e. whether it’s the fear and torture or whether it’s the undue delay in trial or whether the victim is dead, it becomes very difficult to achieve justice and then it creates a question mark on the criminal justice system. The police authorities have made promises, by the judicial bodies and other government agencies, but the fulfillment of those promises is in a dark and it needs a lot of effort to complete those promises.

In the case of Hari Charan v. State of Madhya Pradesh21It was held “ the appellate court would not interfere with the order of acquittal, unless the conclusion recorded by the lower court is held to be perverse and has resulted in miscarriage of justice. The appellate court should also not interfere with an order of acquittal if two reasonable conclusions are possible. The High Court had correctly concluded that there was sufficient evidence on record to prove that the deceased was taken into an illegal

19Joginder Kumar v.State of U.P, 1994 (SC) 1349, 25th April 1994 20Hussainara Khatoon v. State Of Bihar, 1979 SCR (3) 532, 9th March 1979 21Haricharan & Anr v.State of M.P. & Ors., 2011 (SC) 581-584, 9th March, 2011

76 custody. This fact was adverted to by PW6. When this witness appeared in court, he was absolutely terror stricken. The evidence in the record clearly showed that death of the deceased was a direct result of the inexcusable and inhuman torture by the police”.

An instance of unlawful arrest and custodial murder has been brought to justice in Prithipal Singh v. State of Punjab 22where the deceased has been falsely arrested and then murdered by the police officials for their own interest. The accused were being awarded punishment as according which was challenged in Supreme Court where the appeal of revision was filed. After understanding the facts and the judgement of the high court, the Supreme Court upheld the High court judgement and refuses to admit the review petition. The Supreme Court also stated that this act of police officers definitely put the trust of the people in the police force in question and hence to rectify the damages done.

Arrest and detention for some unlawful purpose can lead to irreparable injury to the status and dignity of an individual. Arrest should not be made on mere doubt about an individual; it’s the duty of the officer on duty to investigate properly before arresting a person. If a police officer does not desire to face legal or even disciplinary action, they ought to see that arrests are created only after reaching an acceptable satisfaction of the actual complaint being true and also the case being genuine.

3.4 Non-Registration of FIR FIR under Section 154 prescribes the rules that should be followed while registration of FIR, but in many cases it has been found that the police authority has failed the ideals of criminal procedure regarding the procedure of the registration of FIR. The apex court has intervened by the medium of numerous landmark judgement, that highlighted the mistakes of the police administration and laid some binding rules to eradicate those loopholes.

In the landmark judgement of Lalita Kumari v. Govt. of U.P. and Ors23, a petition under Article 3224 was filled by victim’s father for invoking of the writ of Habeas Corpus25

22Prithipal Singh etc. v. State Of Punjab & Anr., 2009 (SC) 523-527, 4 November, 2011 23Lalita Kumari v. Govt. Of U.P. & Othrs , 2008 (Crl. Appeal) 68, 12th April, 2013

77 against the defendants who kidnapped his minor daughter. The point in dispute aroused when the victim’s father approached the local police station for the filing of his complaint, where the officer-in-charge didn’t took any cognizance of the report. The father was even refused for registering his FIR. Later when the victim’s father approached the superintendent of police, after that only the FIR was registered in the concerned police station. Even after the registration of FIR there was no further progress in the police procedure for pursuing the kidnapping of the girl.

Justice Sathasivam propounded that –

“Its necessary to observe whether the immediate non-registration of FIR leads to scope for manipulation by the police which affects the right of the victim /complaint to have a complaint immediately investigated upon allegations being made. Whether in a case where the complaint /information does not clearly disclose the commission of a cognizable offence but the FIR is compulsory registered then does it infringe the rights of an accused.”26

After that the Supreme Court stated that registration of FIR is mandatory u/s 154 of Cr.P.C. 27, if a cognizable offence is not proved but if the situation of crime needs an

24Article 32- Remedies for enforcement of rights conferred by this Part (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part (3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ) (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution 25Supra Note 179 26 Lalita Kumari v. Govt. Of U.P. &Othrs , 2008 (Crl.Appeal) 68, 12th April, 2013 27Information in cognizable cases. (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing asaforesaid,

78 inquiry then the inquiry can be initiated but only to investigate if the crime is cognizable or not.

It is mandatory to register an FIR when there is a report of a cognizable offence. When the preliminary investigation is concluded then a copy of the completion of such investigation report must be provided to the first informant within one week. There are certain factors, which will decide about the type and the cases in which preliminary inquiry can be initiated. Mostly preliminary inquiry occurs in the cases of medical negligence, matrimonial dispute, corruption cases, and errors in the initiation of some legal process.

At the time when Justice Markanday Katju stated the judgement in Mehmood Baccha case28, he also cited two very relevant cases to again highlight about how the police authorities are indulged in destroying the trust of people in the law enforcement agency, by citing Satya Narain Tiwari @Jolly And Anr. v. State of U.P. 29 and also in Sukhdev Singh v. State of Punjab30 and said that when a crime is committed against a women, they are not ordinary crime similar to crime for property or anger but they are crime against the society and will be regarded as social crimes. Such crimes totally destroy the life of the victim and it becomes almost impossible for the women to go back on her foot for a long time and hence for such crimes serious punishments should be awarded.

shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. (2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant. (3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.

28Mehboob Batcha & Ors. v. State Rep. By Supdt. of Police, 2003 (SC) 1511, 29 March, 2011 29Satya Narayan Tiwari @ Jolly & Anr v. State of U.P, 2010(SC) 1168, 28th October 2010 30Sukhdev Singh v. State of Punjab,2010(SC) 8917 , 24th February 2010

79 3.5 Law Enforcement Deviance Various reasons and evidences define police deviance in India. A lot of incidents comprising violence, irregularity, corruption, extorting the accused and victims are some critical issues that can be seen in newspapers now and then. Almost all complaints received through the National Human Rights Commission (NHRC) tend to be against police staff. Even the prominent statistical diagrams demonstrate that the public complaints against police officials received by the police departments are extremely high. Illegal arrest, as well as detention counted as a routine wrong of police behavior in a lot of places in India.

The way in which police conduct raids and search, file complaints and execute investigations clearly demonstrates the absence of rule of regulation. By the inference of the above cases, it seems very easy for the police officials to perform any unlawful activity that violates the human rights of the accused and plaintiff.

Also in the case of Nilabati Behera v. State Of Orissa 31Nilabati Behera, the distressed mother, wrote a letter to the Supreme Court requesting that she end up being momentarily compensated for the death of her 22 year aged son in custody of local police station. She stated that her boy, Suman Behera was outdone to death in a police post following being detained regarding the theft.

The Supreme Court after hearing the appeal immediately admitted the writ petition on her behalf and stated the case. Rejecting the explanation version of the police officials that the running train wiped out Suman Behera after he escaped from their custody. The Court asserted that how the post-mortem report clearly showed that he died due to being beaten very harshly. The question that was in the court was about the fact that is Nilabati Bahera entitled for the death of the person who tried to run from the custody or who was beaten in custody. The Supreme Court said on the issues that the Article 9 (5) from the International Covenant of Civil and Politics Rights, 1966 lays down that those who have been the target of unlawful police arrest or detention shall come with an

31Nilabati Behera v. State of Orissa, 1993 (SC) 1996, 24th March 1993

80 enforceable right in order to compensation. This covenant may be ratified by Indian law, which means how the state has undertaken to follow its terms.

The Supreme Court declared in this judgement that convicts, prisoners or under trials aren't denuded of their own fundamental rights below Article 21 which is right to life and personal liberty from the Constitution and there's a corresponding responsibility that is enshrined in the ethics of the police and prison authorities to make certain that persons in custody aren't deprived of the Right to Life.

The State has a formal duty to ensure that the guarantee associated with Article 21 isn't denied to anybody. The state should take responsibility for such unlawful act by paying the compensation to the representative of the person, who may be deprived of her/ his life through the wrongful acts of the police investigation. Nevertheless, the Court affirmed how the state has the right to recover the actual compensation amount from the wrongdoers.

The object of law is not just to civilize public power but also to maintain decorum in the state and to create and develop the trust of the people of the state and its authority, which protect their own interests and maintains their rights. And so the High Courts and also the Supreme Court act as protectors of civil liberties not just because they have the power to do that but they also have the legal duty to correct the damage brought on by officers of their state to fundamental privileges of citizens. Here the Supreme Court ruled that the concerned state has an obligation to provide compensation to a victim or to the heirs of the victim whose fundamental rights happen to be violated. The state can recover the compensation amount from the guilty officials following appropriate proceedings or even inquiry.

3.5.1 Abuse of Police Powers The of various countries also have prescribed safeguards towards cruel and inhuman treatment and also have guaranteed the right to life and individual liberty. Constitutions of various countries guarantee basic rights and municipal liberties enforceable in their respectable courts. The Constitution of India under Article 21 guarantees the fundament right of the right to life as well as personal liberty. This article had been the topic of expansive interpretation by the apex court of India. It may

81 be held that 'the right to life also covers the right to livelihood, healthy environment along with a right to reside with human self-esteem. The right to education up to the age of 14 years and the right to shelter which express the right to dwell in a house. In spite of these safeguards, it can't be said that people worldwide are already liberated to enjoy all these types of rights.

Torture during the police investigation as well as suppression of crimes continues to be present in many parts of the world. Modern scientific approach to investigation is yet to be fully established. Third degree torture techniques are used to extract confession. Rape of women and girls in police custody and custodial passing away are reported from some other part of the world. The responsibility is always on the prosecution to prove how the confession is non-reflex.

The assembly of the United Nation passed a resolution demanding that all police officials should respect as well as protect human self-esteem and uphold the human rights of persons. Unfortunately there are allegations in certain parts of the planet against the misuse of authority or even assuming pseudo expert by police. They violate the human rights, which are constitutionally guaranteed to the people. All these are criticism which have been appearing recently within the media about police atrocities and its been observed in many parts of the world about how the enforcement agencies violates the rights of the accused and the plaintiff.32

The aforesaid resolution from the United Nations comes with an annexure containing 8 Articles prescribing the actual Code of conduct of police and that ought to surely help the enforcement agencies understand their part and functions in the region of human privileges. 33

The code associated with conduct prescribed that according to the articles enumerated above is designed to all categories associated with law-enforcement officials. Police officials are the first and most important authority that needs to be maintained at all

32Supra Note 186 33 THE JUDICIARY AND LAW ENFORCEMENT, http://www.uncjin.org/Standards/Compendium/pt1d.pdf, VISITED ON 2nd May 2014

82 conditions and to be protected from corruption and other malpractices. Hence, the police and also the public cannot disregard the duties imposed on the police by law.

The latest report by the Law Commission of India has additionally proposed modifying the Cr. P. C., more specially the investigation procedure. It is strongly recommended that in instances of serious accidents punishable with 7 years imprisonment as well as above, there be any, independent agency in order to monitor the progress in the stage of signing up the FIR to the level of conclusions from the trial. It is suggested that the delay could be avoided in accelerating the trials if a completely independent investigation agency is exclusively made for investigation purpose. It's also inferred by the law Commission of India that there's need to implement changes with the provisions guiding the procedure for prosecution and the relation of the investigation agency and the plaintiff should be transparent. It is suggested that there must be a separate cadre associated with Public Prosecutors for working independently outside the power of police authority such that the prosecution agency cant be manipulated by the force or some other methods and there should be a check on any kind of political or other forms of interference using the police investigation. Again it is strongly recommended that there be coordination between the actual prosecuting agency and also the investigating agency to help the courts with regard to effective dispensation of justice. The National Human Rights Commission of India in a conference in January 1996 discussed the requirement for systemic reforms regarding the police force. Reviewing the implementation by the report of the 2nd Commission of National Police, the Human Rights Commission recommended the establishment of an autonomous body of state Security Commission. 34

3.5.2. The Dirty Harry Problem

The “Dirty Harry Problem” is a genuine moral problem encountered by police officers throughout their work, and involves using misconduct to accomplish an urgent as well as unquestionably good end result35. Genuine moral problems are unique for the reason that, regardless of the actual inherent “goodness” from the outcomes, the officer cannot

34 Supra Note 188 35CARL B. KLOCKARS, THE DIRTY HARRY PROBLEM.ANNALYS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE, 33-37, VOL. 452, THE POLICE AND VIOLENCE. (Nov. 1980)

83 emerge in the situation as completely innocent. 36 The immorality associated with violating both honest and legal codes within the interest of justice isn't simply negated due to the possibility of attaining some benefit.37

Policemen are fast to absolve on their own of any harm caused due to questionable means, which is thought to be a consequence from the development of the crude and negative perception of actuality 38 The actual quote, which shuts debate, is to discuss the ability of police official to morally justify using “dirty” means depending on a utilitarian honest framework. The problem along with Dirty Harry ethical dilemmas is not the truth that wrong needs to be done to achieve a great end, but that officials absolve themselves of the wrongdoing solely on the basis that good ends are now being sought. Because Klockars says, “the danger in experiencing a Dirty Harry problem is not in getting guilty of wrong that's inevitable, but in convincing that one has found a method to escape a dilemma that is inescapable”. The “wrongness” related to dirty is not in question, but instead, concern along with police misconduct is that it may be justified based upon adherence to some moral standards. Essentially, police officers make use of a “shorthanded” interpretation associated with utilitarianism that proves that “the completion to justify the actual means”, suggesting that any available strategy is acceptable as long as it results for the purpose of a greater joy 39

The Dirty Harry issue asks us to think about “When and as to what extent the greater end warrants or even justifies an ethically, politically, or legally dangerous way to its achievement”. Prior to the morality of particular courses of action could be determined; Klockars argues that firstly it's necessary to prove how the Dirty Harry issue exists. This principle propagates about forgetting the morality of duty and to go after the wrong doer to an extent to deter him from doing another wrong. Next, it is associated with crucial importance how the mild end indeed be looked at morally “good”. The positive outcome is definitely an inevitable consequence from the performance of misconduct. If a legitimate strategy can be recognized (that produces an identical or higher level of total happiness), or if it may be determined that the end of this in itself is

36Supra Note 188, pg. 33 37Supra Note 188, pg. 38 38Supra Note 188, pg. 34. 39Supra Note 188, pg. 35

84 morally reprehensible, the actual Dirty Harry problem ceases to be found. In this respect, the existence associated with any dirty harry issue is difficult to prove simply because they suffer from the actual “Problem of Prediction”, which is the most typical criticism of any kind of utilitarian justification,40 which simply mentioned that, it is not possible to predict along with any accuracy about how good the end will certainly result from the selected strategy, at best all we are able to do is predict some likely outcomes.

Since the Dirty Harry problem is really a “genuine moral dilemma”, which by definition is really a situation that may produce no genuine resolution where each quality is necessarily “defective” 41 The very first defective resolution towards the Dirty Harry issue involves the idealized “Professional Model” associated with policing, whereby officers act only prior to both legal doctrine and also the mandates of what the law states to the enforcement agency 42. It's believed that the officers may naturally resist being a loyal pawn within the state’s crime control agenda due to the elimination of persons moral decision-making forces, which makes the actual determination of “right” as well as “wrong” courses solely the duty of the law enforcement department.

In order to make the police officials to look to their wrong doings, Klockars claim that we apply retributive concepts (such as punishment) towards the behaviors of officials. It is contended that only following the wrongful acts are punished will make the officers to repent for what they have done.

Non-compliance with the procedure of registration of the complaint has been observed in many cases. Hiding and manipulation of the original facts is again a much concerning situation to deal with. The answer to this critical situation is only the fact that the criteria for the performance evaluation are totally based on crime statistics. It is because of this reason, which motivates the police officials for following unlawful and wrong methods for controlling and regulating the crime. On the other hand the conduct of the police officials should be also included in judging the performance. There is another critical side to this situation, which demonstrates with facts and figures that whenever a prescribed procedure is followed, then it will also increase the duration of

40Supra Note 188, pg. 36 41Supra Note 188, pg. 44-45-46. 42Id 188

85 all the procedures in investigation, and trial, which leads to public outcry and protest criticizing the slow process and weak criminal justice system. Therefore there needs to be a formulation of a proper planning and management for the purpose of providing a guidance to the police officers for performing their duty.43

The non-registration of FIR is the first step towards irregularity in following the procedure of the criminal process. This leads to a phenomenon of refusing the right of access to justice to poor and indigent persons in the society. In many cases where the accused is set free due to lack of evidence and manipulation of facts, it results into decline in faith and efficiency of the system. When crime in a country keeps on increasing then it is an indication that the system is not apt to deal with crime justifiably, effectively and promptly and become a reason for the loss of faith and confidence in the effectiveness of the system in the mind of people. In 1971, the conviction rate under the provisions of the Indian Penal Code is 62% but by the year 2013 it come down to 37%. Justice is denied as well as delayed. The courts are burdened with many cases under trial.44

About 25 million cases were pending for trial under different courts of the country, as pointed out by the 61st report of parliamentary standing committee on home affairs. Citizens of a country expect that state should provide crime free environment and establish the rule of law. Public fear of crime and criminals increases when state fails to fulfill its duty. Fear of crime grows faster than crime. Police officers take advantage of this fear and ignore the law and deal roughly with the criminals. One example is the blinding of criminals by the Bhagalpur police in early 80’s. Police anomalies required to increase whenever the crime, criminals and terrorist activities increases. The method used by the police in fulfilling their goal of fighting against crime and criminals is not questioned by the society, societies only concerned about the filling of security. 45

rd 43JOHN DEMPSEY, AN INTRODUCTION TO POLICING,83, CENGAGE LEARNING, 3 , 2014

44Supra Note 196, Pg. 85

45 ARVIND VERMA, THE NEW KHAKI: THE EVOLVING NATURE OF POLICING IN INDIAADVANCES IN POLICE THEORY AND PRACTICE, 44, CRC PRESS, 2010

86 3.6 Critical Perspective on Judiciary In Indian judicial system, it is a well-known factor that the witness examination is very important and also difficult step to be performed by the court. The reason behind this issue is very straight, the delay by the court for the witness examination because of the number of cases pending for a long time and the inability of the court to conduct the witness examination on time.

In the judgement of State of U.P. v. Shambhu46, Justice Thomas has shown his concern by stating that the witness is some time so terrified to give their examination in court that they certainly get hostile or just avoid coming to the court due to the long time taking procedures and complexities. The above case is a brilliant example of how the defendant was able to dodge the conviction because of the absence of the evidence. It was observed that at the time of the conviction there were witnesses who registered for being as witness, but because of the delays and no examination of the witnesses, the direction of the case got manipulated.

It should be understood that the person who is coming as a witness is probably a person who has nothing to do with any of the party, may be he was just a bystander when the crime was committed, or may be he a third party who can authenticate the identity of the accused because of some reason. The idea here is that, the witness should be treated as guests of the court as they are in the court to help the court in the process of granting justice. However, in reality it’s been very common to see that many times the condition of the witness is much severe than the litigants. It is not that our procedural system has some weakness in protecting and facilitating the witness but it is because of large number of trials and huge amount of pendency of cases in the Indian courts, its very right to say that the Indian courts have actually no time to give a proper concern to a witness. They are just used as an accessory in the trial and that also when the court summons them otherwise it's very difficult for the witness to demonstrate its credibility.

46State of U.P v. Shambhu Nath Singh And Ors, 2001 (SC) 392, 29 March, 2001

87 Ashworth believes that almost all citizens do not object to some little illegal activity if evidently major criminals are delivered to book.47A powerful consideration in public places interests the desirability of the prosecution of the serious offenders.

Dr. Martin Luther King, Jr. has said that, “injustice anywhere is really a threat to justice almost everywhere.” 48 The fact is that innocent individuals are convicted and later exonerated. America, England, and other countries have experienced several cases where people who are innocent had been later murdered. Many were executed even if there was great doubt regarding their guilt, and several others have been innocent had their lives finished by the hands of the executioner just after appeal. 49Bedaus and Radelet’s investigation showed that in U.S.A. during the period through 1905 and 1974 where twenty-three not guilty persons were executed.50For each wrongful conviction, the actual offender unjustly remains free of charge, perhaps to victimize extra citizens. In a number of instances, errors have been discovered within the investigation and trial stages, which resulted in wrongful convictions, followed by defendants investing extensive years in jail for serious crimes they did not commit. 51

Within the Birmingham Six case (1975), the defendants were found guilty of murder through causing an explosion. 52 Their appeal was dismissed. In 1987, the Home Secretary referred the situation back to the court of Appeal, on the causes that the defendants have been beaten while they were in police custody. The appeal was ignored.53

3.7 Judicial Misconduct Judicial misconduct occurs whenever a judge acts with techniques that are unethical and violate the judicial conduct. The actions which are prejudicial as well as expeditious with the administration of the courts, using judge's office to acquire a

47 Supra Note 199 48 C. RONALD HUFFETAL, CONVICTED BUT INNOCENT. WRONGFUL CONVICTIONS AND PUBLIC POLICY, 150, SAGE PUBLICATIONS, (1996). at 150

49 Supra Note 201 50 Supra Note 201 51 JOSHUA ROZENBERG, MISCARRIAGES OF JUSTICE, IN CRIMINAL JUSTICE UNDER STRESS, 91-117, nd STOCKDALE PUBLICATION, 2 ed., 1992. 52 R. v. McIlkenny, 93 (Cr.App.R.) 287 (1991). 53Supra Note 205

88 special remedy for members of family and friends for accepting bribes, gifts, or additional personal favors associated with the judicial workplace. For having incorrect discussions along with parties or even counsel for just one side for a case proceeding, treating litigants or attorneys in the demonstrably egregious as well as hostile method are some of the malpractices that shouldn’t be kept unnoticed.

In USA, there is a procedure of a judicial investigation committee which is a panel associated with judges selected to research a judicial misconduct problem against the judge charged with judicial misconduct. Judicial investigation committees tend to be rarely hired. According to U.S.A. court data, only 18 from the 1, 484 judicial misconduct issues filed in the USA courts in between September 2004 to September 2007 which justified the development of judicial investigation committees.

There's been a substantial debate in the past one year relating to the establishment of the Constitutional Evaluation Commission. It's been argued that the Commission comprising eminent jurists, parliamentarians who examine the actual functioning associated with five years of India's establishment and suggests regions of review, in the event if any. Obviously, this had resulted in an irrational criticism. Some suggested it as an attempt to ruin the luxurious character from the Constitution while some have suggested that it's an effort to undermine an excellent document made by Dr. Bhim Rao Ambedkar.54

The Indian judiciary is that shield to the rule of law in the Indian nation that has a very deep importance for securing the and harmony in the heart of the common people of India. A lot of research has been conducted which states that a large number of people wait for trial to get started. The inference is that in some areas it's been observed that the Indian judiciary is unable to grant justice to all. A research paper which was written by Mr. Nick Robinson 55who worked as a senior research fellow in India and conducted an intensive study on the working of the Supreme Court, stated about how the Indian judiciary is lagging behind in the verge of delivering justice. According to

th 54M.P. JAIN, CONSTITUTIONAL LAW OF INDIA, 7, LEXIS NEXIS, 6 ed., 2008 55 NICK ROBINSON, THE INDIAN SUPREME COURT& ITS BENCHES, http://india- seminar.com/2013/642/642_nick_robinson.htm

89 statistical data it can be infer that presently on an average one judge presides over the cases filed by 1 million people, which are a very small number.

The huge amount of cases which are pending in the courts has a very negative impact on the criminal justice system where on one hand the people are promised that there rights will be protected and on the other hand many people have to wait as under trials in the court for 2 to 5 year and some for more than that, because either they are not able to file there bail because of money and the court doesn’t have the time to come up to there case to be heard. It is an eye opener fact, which should be dealt with great efficiency. In the land mark judgement of Hussainara Khatoon and Others v. Home Assistant State of Bihar,56The apex court admitted a writ petition to check out the administration of rights in Bihar following the publications of the Indian Express articles where a number of news items regarding appalling conditions within Bihar jails. The paper stated that a lot of people, including women and children have been in prison for a long time without trial. Even though a number of them were charged for very minor offences, which carry punishment for some months or a few years at best, but those people were kept in prison for 3 to 10years. The Supreme Court said that Article 21 from the Constitution lays down that nobody shall be deprived of life or individual liberty except based on the procedure established legally. The procedure ought to be reasonable, fair and otherwise such deprivation will be illegal.

The Supreme Court said that it's a travesty of justice that particular persons end up spending extended amount of time in custody, not since they're guilty but since the courts are too busy to start there trial, and also the accused are too poor to pay for bail. Poor people find it difficult to arrange for bail, because frequently the bail amount fixed through the magistrate or law enforcement, which is unrealistically extreme. This happens because of bail being given a value with a property-oriented way. Such an approach is dependent on the mistaken presumption that risk associated with monetary loss may be the only deterrent that prevents an individual from fleeing the actual judicial process.

56Hussainara Khatoon v. State Of Bihar, 1979 SCR (3) 532, 9th March 1979

90 The Supreme Court said that it's very sad as despite re-enactment in 1974. The Criminal Procedure Code, 1973 (Cr.P.C.) has to depend on money for the purpose of creating fear in the minds of the accused. While they indicated that the Parliament would produce suitable amendments within the law, the Court declared that even underneath the law as this stands today, courts at each level must abandon the actual antiquated concept below which pre-trial discharge is ordered just against bail along with sureties. They affirmed that what they've said with regards to the courts also pertains to the police.

Access to the courts is another very important issue that is creating hurdles in the delivery of justice by the apex court to the common people. Many time when the fundamental rights of an individual are violated or there is a special leave to appeal to be filed to the Supreme Court, then it is convenient for the person who lives around New Delhi and its difficult for a person who lives in down south or east India. The impression here is that the theory of access to justice also plays a deep role in granting the justice to a victim. Nick Robinson also talks about the cost of litigation in India, he says that the litigation in India is the game of the rich and if a person who wants to appeal in the court must have some strong proof to defend his arguments otherwise he might be defeated and the state is not going to compensate the money he spent for the hiring of lawyers and other expenditure.

The bail and sureties are another issue in today’s legal system. It is such that an individual has to deposit a sum with the court to make as a promise that he will respect the order of the court and will not jump his bail, but if the person jumps the bail then that amount of money, which he submitted, would be confiscated. In the case of a weak person who can’t afford to give his bail has to face a lot of problem if he doesn’t have anyone who can bail him out.

Similar kind of situation was observed in the case of Motiram v. State of Madhya Pradesh 57Now here the Court was needed to decide: (i) whether an individual can be released on bail under the Criminal Procedure Code, 1973 (Cr.P.C.) on the personal bond, (ii) the criteria for repayment of the bail amount (iii) whether the surety offered

57Motiram v. State of Madhya Pradesh, 1978(SC) 1594, 24th August1978

91 by an individual can be rejected simply because s/he resides inside a different district or even state or simply because her/his property can be found in a various States and Districts. So the fact is that it's been observed that the procedural law is lacking in many ways in representation of poor people because of the complexities. There are a lot of situations that need to be solved and modified in such a way that there should be a balance for the procedure of the law for all classes of the society. Constitutional Law of India explains under Article 14 -- Equality before Law, which protects all citizens inside the territory of India.

In M.H. Hoskot v. State of Maharashtra 58 the court declared that “if a prisoner sentenced to imprisonment is virtually unable to exercise his constitutional and statutory right of appeal inclusive of special leave to appeal for want of legal assistance, then it is implicit in the law under article 142 read with articles 21 and 39A of the constitution, that the power to assign counsel for such imprisoned individual ‘for doing complete justice” should be followed. In this case, it was held that an accused is expected to get free legal aid under Article 39A. However, it doesn’t mean that he can move to the Supreme Court and compel the state under the writ of mandamus to provide financial assistance for engaging a counsel of his choice. Two years thereafter, in the case of Khatri v. State of Bihar 59 , Justice Bhagwati while referring to the Supreme Court’s mandate in the aforesaid Hussainara Khatoon’s case held in this case that “Right to free legal aid and reasonable procedures is a fundamental right. It is elementary that the jeopardy to his personal liberty arises as soon as the person is arrested and is produced before a magistrate, for it is at this state that he gets the 1st opportunity to apply for bail and obtain his release from the police custody. This is the stage at which an accused person needs competent legal advice and representation. No procedure can be said to be just, fair and reasonable which denies legal advice & representation to the accused”. Thus, state is under the obligation of the Constitution of India to provide free legal advice to the accused “in this

58M.H. Hoskot v. State of Maharashtra, 1979 SCR (1) 192, 17th August 1973 59Khatri v. State of Bihar, 1981 SC (SCC) (1) 627, 19th December 1980

92 case, the court declared the right to legal aid as a fundamental right of an accused by a process of judicial construction of Article 21”.60

Giving judgement after understanding the facts and arguments is a practice that needs to be favoured more and more but it has been observed from various research and analysis that the thinking of the judge and the views of a judge are also very important criteria when a judgement is been given on a particular case.

The issue of appointment, transfer of the judges is also another barrier for the disposal of cases in India. Since a long time it has been discussed that the supreme court of India is under the blanket of collegium system for the appointment of the judges of the high court and the Supreme Court. This system was challenged when an appellant filed a petition under the case of Supreme Court Advocates-on-Record Association v. Union of India 61 where a question was raised about the grounds on which the judges were appointed in the high courts and Supreme Court where it was asked to also explain the authority of the chief justice of India. In the judgement, it was produced that the decision of the appointment will be taken by the collegium in which the Chief Justice of India should consult at least 2 senior most judges. The direction of the chief justice will be binding on the president. The Supreme Court has the power to increase the number of judges as according to the requirement. This judgment was full of loose points and there were many points that should be corrected. This judgement by the Supreme Court destroyed the arrangement of power, which was provided by the Constitution of India. The term concurrence can be called in place of consultation, as it would change the ideology on which the Constitution laid down the principles for the judiciary to follow. It's been observed that the bench superseded the amount of power with which it was vested by the grundnorm of our country i.e. the Constitution of India. The latent power is with the president as been prescribed by the Constitution but the procedure that has been used here by the court was against the court procedures and the above judgement needs to be challenged in the court of law. It's true that the power has been given to the Supreme Court of India under Article 142 but still the power is to perform its duty

th 60M.P. JAIN, CONSTITUTIONAL LAW OF INDIA, 1053, LEXIS NEXIS, 6 ed., 2008

61Supreme Court Advocates-on-Record Association v. Union of India, 1993 (SC) 1303, 6th October, 1993

93 under the dimensions of the constitution and the legal and not just override them. The order to convert the term consultant to concurrence leads to the constitutional amendment but here it was done without the procedural establishment by the Constitution. It’s a point that can be left untouched. In the above judgement it was been stated that the opinion of the chief justice of India will not be just primacy but instead must be treated as determinative for the purpose of transfer of judges but if we refer to Article 222 62, it will say that the president may after consultation with the chief justice of India can transfer a high court judge which means that the president is not bound to the opinion of the chief justice of India. Therefore the fact is that the judgement which was given is a per inquirium judgement that challenged the constitutional mandate of India. There is another area which demonstrates that how the judiciary tried sometimes to interfere with the work of the executive. In the above case also the judgement said that the determination of the number of judges in the supreme court will be done by the collegium of the supreme court judges where as if we refer to the constitution of India where it is written that the power to decide the number of judges of supreme court will be with the executive of the union.

From the above points its very obvious to say that the Indian judiciary has tried to override the constitution which is a critical issue and the point is that the appointment of judges which is an intrinsic power of the executive was been tried to override by this Supreme Court judgement.

The criticality of this issue, which was discussed above, is complex but can’t be neglected. The point is at the time of the enactment of the Constitution. Most of the framers were from the law field and they were well aware of the importance to limit the powers of each pillar of our Indian legal system. Whether it’s the legislature, judiciary or the executive, but its been seen many times that the Supreme Court sometime do not consider the constitutional provision or it tries to suppress the powers that are vested with the executive by just stating that the judiciary is doing what is best for the nation.

62 Article 222- TRANSFER OF a JUDGE FROM ONE HIGH COURT TO ANOTHER, CONSTITUTION OF INDIA

94 There is a whole chain of instances where the judgement of the Supreme Court was criticized. In the case of Maneka Gandhi v. Union of India63 the main issue was the seizure of the passport of the plaintiff on the grounds of public security by the central government under Sec 10(3) (c) of the Passport Act 1967. She was not given any opportunity to defend herself during the seizure of the passport and writ petition under article 32 of the constitution was filed in the Supreme Court as because of the violation of article 1464, 1965, and 2166. But it failed on certain ground of justice. The rendering of the restitutive justice under Article 14 was expected from the court, which was not there which lead to the situation where article 142 remained unanswered.

When a petition is been filed in the court of law then it is been expected from the court that all the issues will be resolved as Supreme Court holds the highest authority of law under article 141 67, but only in the form of judgement and not observation because it has to be remembered that the supreme court of India is a temple of justice and not a compromising body. Section 57(1)68of the Indian Evidence Act and the section 166 of the Indian Penal code were neglected by the Supreme Court for punishing the wrongdoers. After the analysis of the above judgement there are a very conflicting ideas about the authenticity of the judiciary in certain issues and which must be discussed.

The President of India declared the national emergency under Article 35269under the recommendation of the prime minister of India, and right to move to court under Article 32 of the constitution was also suspended. The case, which was in question because of all this dispute of suspension of the rights, was the ADM Jabalpur v. Shivkant Shukla70, where the extent of the judicial scrutiny was questioned and the validity of the

63Maneka Gandhi v. Union Of India, 1978(SCR) 621, 25 January, 1978 64CONSTITUTION OF INDIA, Article 14- Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. 65CONSTITUTION OF INDIA, Article 19- Protection of certain rights regarding freedom of speech etc 66 CONSTITUTION OF INDIA, Article 21- Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law. 67 Article 141- Law declared by Supreme Court to be binding on all courts The law declared by the Supreme Court shall be binding on all courts within the territory of India 68 Section 57(1) Facts of which Court must take judicial notice.—The Court shall take judicial notice of the following facts:— (1)All laws in force in the territory of India;]

69Article 352- Proclamation of Emergency, constitution of India 70A.D.M. Jabalpur v. Shivkant Shukla, 1976 (SCR) 172, 28th April, 1976

95 fundamental right to access High Court under article 226 for filing the petition of habeas corpus. Later in the judgement, it was evolved that the direction of the emergency for the suspension of the fundamental rights was to avoid some immediate contingencies but if such rights will be allowed at that time than it would frustrate the objectives of the emergency. And therefore no person was allowed to question his detention during the period of emergency under Article 359(1)71.

This judgement was criticized by pointing out its major loophole as the violation of the fundamental right of the individual. The state doesn’t possess a right to suspend the right to life and liberty of a person without stating any relevant factor. The court under no circumstances can suspend the right to access court under Article 32 because then it will automatically violate Article 14, 19, 20,21,22. It understoods that the petition at the time of emergency can frustrate the objective of the emergency, but that doesn’t mean that the court has the right to put an individual to detention without any question asked. It will be a total violation of the principle of the rule of law. Another issue that should be kept in mind is that the Article 359(1)72, the right to access the court will be suspended, but it does not mean that the power to avail procedural safeguards under the preventive detention act can be availed. It should be noted that the power of the executive cant override the rights guaranteed under the basic feature of the constitution until there is no other way to perform. It should be noted that the issue of national emergency suspends the enforcement of the fundamental rights but it does not mean that it will limit the power of the courts to issue writs under Article 22673 and Article 3274, hence they have the power to issue the writ of habeas corpus when ever there is a situation of wrongful confinement. 75

71Suspension of the enforcement of the rights conferred by Part III during emergencies

(1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III (except Article 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order 72Article 359(1)- Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III (except Article 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order. 73 Article 226- Power of High Courts to issue certain writs 74 Article 32- power of Supreme Court to issue certain writs. th 75M.P. JAIN, CONSTITUTIONAL LAW OF INDIA, 1430-1437, LEXIS NEXIS, 6 ed., 2008

96

The reason for discussing the above case was to highlight the kind of discrepancy which was been conducted by the Supreme Court on a particular issue of emergency where the judgement is given in such a manner that it wont hurt the mandate of the central government and demonstrated a bias thinking of the judiciary.

3.8 Legal Aid

The concept of legal aid is that initiative which is prescribed into the Indian legal system for helping the accused or victims by providing them with legal counsel who can defend them in court. But it has been observed in a number of cases where the accused or the victim were unable to represent them in the court of law because they were not been provided with the right of legal aid. In a very recent landmark judgement of Mohd. Hussain @Julfikar Ali v. the State (Govt. of NCT) Delhi 76 where the accused was arrested on the ground of being a terrorist who was responsible for a bomb blast in Delhi. In the appeal in the Supreme Court, the appellant who is being punished with death punishment stated that he is an uneducated foreign national who was unable to represent himself in the trial court. It is known that in the need of a legal council it’s the duty of the trial court to provide legal counsel for the representation. The trial court doesn’t give any consideration to this requirement of legal aid and the accused was unable to exercise his right to have legal aid. After the inquiry at the apex level it was observed that the accused was not provided with legal aid, there was a council who use to come as a representative of the accused, but he then stop coming on behalf of the accused and hence the accused was not having any representative. It’s the duty of the state to provide the accused with a counsel to represent him in the court of law. At the time of examination of the material witness in the trial court, it has been observed that there was no counsel for the accused at that time making the accused defense less. The state failed to perform its duty by not providing the accused with the council and this lead to the violation of the fundamental Articles 21and 22. The court hence violated the rights promised by the constitution to every citizen and non-citizen in India.

76Mohd. Hussain @ Julfikar Ali v. The State (Govt. of NCT) Delhi, 2012 (SC) 1091, 31st August 2012

97 The same kind of incident was challenged in the judgement of Jayendra Vishnu Thakur v. State of Maharashtra77 it was again stated by the Supreme Court that the right to be represented by a council is to be protected by the court and at the time of the examination of the witness and examination-in-chief, the accused must be represented by a defense council who can lay his defense in the court of law. As according to the mandate of our constitution, every individual has the right to have a fair trial in the court of law and should be efficiently followed at all level of judiciary because it’s the supreme duty of the presiding judge to takecare of the fact that the accused and the victim are been properly represented.

“Justice not only be done, but it seem to be done” should be the excepted norm of the judiciary. Fight against corruption could not sustain if judiciary itself keep on providing safeguards to the public servant as constitutional authority and act against the right to information act. 78

The legal judgement, which is wrong, given by the Supreme Court and still followed in the country, should be corrected. Unlike Maneka Gandhi case, court should provide justice whenever an aggrieved person comes to its door, as provided by restitutive justice under Article 14. 79 Judges should not be the silent spectator of the issue but must play an effective role. The act should not be presumed to be constitutionally valid because it tends to provide power in favour of one party and create imbalances. This process destroy the principal of parity of power as enshrined under article 13 (1), 13(2), 14 and destroy the equal protection of law when an aggrieved person is asked to prove the injury or wrong. Such an opinion of the court is unethical and should not be followed.

77Jayendra Vishnu Thakur v. State of Maharashtra, 2009 7(SCC) 104, 11th May 2009

79Restitutive Justice- made by giving the same thing or giving an amount equal to it as compensation is called as restitutive justice

98

3.9 Critical Perspective On Public Prosecutor

The commission of a criminal act is commonly regarded as an offence against the state, which is dealt by the Criminal Justice machinery of the State Executive. Therefore, on thorough considerations of the above material, it is crystal clear that it is not the duty of Public Prosecutors to quest conviction at all cost, nor, is there a duty to act as an avenging angle for the victim. On the contrary, their fundamental duty is to make sure that justice is delivered and in pursuance of this they should lay before the court all relevant evidence including the evidence that favours the accused. Corollary to this is the duty of a Public Prosecutor to bring to attention of the court, an issue that the defense could have raised, but has failed to do. Nonetheless, in doing so, they cannot act as if they are defending the victim, nor can they appear on behalf of the accused. When the act of the prosecutor is such that he was defending the accused, then there is no fair trial. A Public Prosecutor80 is an independent entity from police and police cannot order her/him to conduct the prosecution in a particular way. Police, politicians or any other extraneous party cannot influence her/his actions, including her/his discretion to decide withdrawal of a case. The Public Prosecutor represents the state but not the police and can only be influenced by the public interest. In pursuance of their duties, public prosecutors should not use improper methods calculated to produce wrongful convictions and she/he must discharge her/his functions in a scrupulously fair and honest way. A Public Prosecutor is not simply an advocate but has obligations of a minister of justice.

Despite the fact that the state and central governments apparently have adversary system of justice but only the affluent people and partnerships can bear to pay for hundreds – maybe thousands – of hours of representation by trial advocates and the expense of examination, witnesses and different expenditures of shielding a criminal case inside the framework. Poor individuals blamed for wrongdoings are frequently unrepresented or spoke to by legal counselors who know little or nothing about them and the charges against them, can commit just a couple of minutes to their cases, and

TH 80R.V. KELKAR, SECTION 26, EASTERN BOOK PUBLICATION, 5 EDITION, 2012

99 have no right to gain access to examiners or specialists. For poor people, the framework is inquisitorial and the inquisitor is not a nonpartisan legal officer. 81

Governments administer staffed business locales that represent considerable authority in the arrangement of cases. Many of those workplaces have inside them units that spend significant time in specific sorts of cases so as to bring more amazing aptitude to the arrangement of specific wrongdoings, for example, murders, sex offenses, driving affected by liquor and other mind boggling or special cases. Prosecutors normally show up in court and numerous judges depend on their suggestions on issues running from pre trial discharge to sentence. Some judges even depend on prosecutors to compose their requests.

Prosecutors use state law agencies to research cases and state crime labs to direct exploratory tests and present master affirmation, and on government mental health expert to inspect the charged. They have a power that no other defendant has – the capacity to remunerate witnesses for giving data or affirmation by allowing insusceptibility of arrangement, releasing or decreasing criminal indictments, or educating sentencing judges of their collaboration. They can hold witnesses as needed to aid in planning and displaying their cases. These examinations are the primary practice in most cases against poor litigants.

Few prosecutors make supplication offers molded upon the respondent not documenting any movements or looking for revelation. The Supreme Court has held that prosecutors are not needed to unveil exculpatory proof to a bench before it chooses whether to issue formal charges or to resist directly before passage of a liability supplication.

Prosecutors choose whether to charge, what to charge, whether to permit litigants to enter redirection programs, whether to consent to pretrial discharge as a component of a request, and whether to give invulnerability.

81Supra Note 233

100 The case of Zahira Habibullah v. State of Gujarat 82 , in the Gujarat High Court, involving the burning down of an establishment in Vadodara which caused the death of 14 persons, came up for consideration before the Supreme Court, leading to what Rajeeva Dhavan has described as ‘’ The severest indictment ever of the Justice and governance system of any State’’. The Supreme Court ordered retrial of the matter in the High Court of Maharashtra, and observed that, ‘The Public Prosecutor acted more as a defense counsel than as a prosecutor whose duty was to present the truth before the Court’. Another loophole, which was highlighted in this trial, was that there was no witness examination of the victims of the best bakery. The position of the public prosecutor was questioned by many fresh facts, which came in light. It was the duty of the public prosecutor to order the examination of the victims of the burning of the macabre, but he failed in doing so. It was also observed that the public prosecutor was trying to delay the judgment by not following various essential steps that they had to follow while performing their duty as the public prosecutor.

In another case the Supreme Court held quoting Shamsher Singh v. State of Punjab83, it was decided that the office of public prosecutor is treated as executive in the meaning and context of executive powers. Public Prosecutor is treated on the same footing as that of any other counsel appearing before the court (Kerala High Court) and suggested that he must be impartial. He must represent the case of his client with complete diligence as far as possible. 84

In Thakur Ram vs. State of Bihar 85, the Apex Court held: “Barring a few exceptions, in criminal matters the party who is treated as aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all steps necessary for bringing the person who has acted against the social interests of the community to book” The rationale behind the State undertaking

82Zahira Habibullah Sheikh & Anr v. State Of Gujarat & Ors,2006(Crl.) 446-449 ,8 March 2006

83Shamsher Singh & Anr.v. State Of Punjab, 1974 (SCR) 2192, 23rd August, 1974 84Aziz v. State of Kerala, 1984 (Cri. LJ) 1060 , 23rd March 1984 85Thakur Ram v. The State Of Bihar ,1966 (SC) 911, 26th November, 1965

101 prosecutions appears to be that no private person uses the legal apparatus to wreak private vengeance on anyone.

In The Malimath Committee Report (2003), it is acknowledged that there is a crisis in the Indian Criminal Justice System. However, its analysis of the crisis is disturbing. Rather than focusing on key issues that plague the Criminal Justice System, the Committee recommended changes that amounted to a complete departure from jurisprudential norms.

In R K Jain v. State 86 the Supreme Court outlined the power of public prosecutor in withdrawal of cases. In Shonandan Paswan v. State of Bihar 87the Supreme Court provided that public prosecutor, subject to the limitation can withdraw a prosecution at any stage.

In Abdul Karim v. St. of Karnataka 88 where the issue was about withdrawing prosecution against a notorious criminal. The Supreme Court deprecated the decision of the State Government and upheld the right of the general public to prevent withdrawal of prosecution being permitted by the court for the support of the State Government.

Supreme Court decision in SB Sahana v. State of Maharashtra 89found that whether the nature of the office of public prosecutor is executive or judicial and he must be fair and impartial in the criminal prosecution. The Supreme Court in Mukul Dalal v. Union of India 90 also decided that the public prosecutor office is a public office and it is established for the social purpose. But its values and purposes are degrading due to malpractice adopted by some public prosecutors.

Prosecutors can cheat respondents so as to build their bargaining power in acquiring a blameworthy demand. For instance, a prosecutor may look for capital punishment in

86R K Jain v. State , 1980 (SC) 1510, 22nd April 1980 87Sheo Nandan Paswan v. State Of Bihar & Ors,1987(SC) 877, 20th December, 1986 88Abdul Karim v. State of Karnataka, 2000 (Cr. LJ) 741-743, 7th November 2000 89S.B. Sahana v. State of Maharashtra, 1995(SCC)787, 9th November 1995 90Mukul Dalal v. Union of India, 1988 3 (SCC) 144, 4th May 1988

102 any expectation of acquiring a liability request and a sentence of life imprisonment. If the litigant rejects the demand offer, the prosecutor will take the case to trial and acquire capital punishment. Prosecutors may look for further upgraded punishments and obligatory least sentences to constrain the litigant into confessing for a less serious sentence.

It's been observed that the poor were being separated from their liberty. Anytime, excessive amounts tend to be fixed as surety with regard to bail. The victims invariably are actually from disadvantaged parts of society; who belong to linguistic or additional minorities; or are the residents from far corners within the country.

103 CHAPTER 4 CONCLUSION AND SUGGESTIONS

The philosophy of the spirit of procedural laws would be the protection of the freedom and honour of the innocent persons towards whom mistrust is shown as well as an allegation is leveled. It isn't to aid the actual criminals or offenders in order to deny the rights of the victim or the actual complainant. Law is equal for all. The courts and the police administration have to do something according to the law and also over all it would be to administer justice expeditiously. Where an offence is actually proved beyond any kind of reasonable doubt the conviction would be tantamount to suffer the result.

In the First Chapter, The criticality in the criminal procedure code explaining about the concept of this study was displayed. Various theories on the ideas of the criminal procedure code have also been produced here in this study including the theorization of the criminal law by Jerome Hall and the proper crystallization of the criminal law procedure by Andrew Ashworth and Joel Samaha. Two models of Herbert packer have critically demonstrated that how important it is to gain a better understanding of the two sides of the criminal justice system that according to him are the crime control model and the due process model. The objective of the criminal procedure code has also been discussed in the first chapter to demonstrate the genuine spirit of this topic and to make the reader more comfortable about the ideas that are in contradiction.

The Second Chapter is the soul of this study, which undertakes the critique of the three main branches of the Indian criminal justice system, the police, judiciary and prosecution and also highlights the points at which they are lacking and also an attempt has been made to relate the issues to each other with the help of various theories of criminal law and procedure.

The Third Chapter concentrates on the case analysis and the theory part of the critical examination of the wrongful practice by judiciary, policing and prosecution with the help of case study method and case analysis considering the relevant facts and critic only.

104

The above study was taken in order to examine the shortcomings and the grey areas, which are creating a great harm to the Indian criminal justice system by destruction of the judicial, law enforcement system and the prosecution body who is responsible to fight in the court of law for the justice to the victim. There was a greater need to collect the critical issues that should be modified in a definite manner so as to improve the criminal justice system in India. It is true that where there is a population, there will always be a possibility of quarrels, fights, robbery, misappropriation, and other serious crime, but in order to fight from these social evils, the code of criminal procedure was drafted. This code consists of all the procedure that should be monitored by the police officials while they are conducting a raid or arrest or other police work. This code also tells about how a trial is of great importance to the purpose of providing justice and equality.

When a crime is committed, the first step to take is the registration of the FIR under Section 154 of the code of criminal procedure. Nonetheless, in this study, some instances have been shown where the police authorities refrained from registering the FIR and stopped the victim forcefully. In some instances, until the victim approached the senior official with the complaint that his junior was not registering a FIR, there was no registration of FIR. These are those issues which need to be brought in knowledge of the society and the higher governmental bodies otherwise there is a serious threat to our legal system where on one side the Supreme Court of India which is the highest authority of Law in our country is propagating about the right to equality and justice and simultaneously at that very movement the trial court would be again be a failure by failing to provide the right to legal aid and representation in the witness examination, therefore an even balance is very necessary in our system. That balance can be achieved when there will be a respectable following of checks and balances without any misappropriation in following the procedure of the criminal justice system. The courts have to be more focused about the welfare of the both parties and remember that both the sides who are present in the court are a part of the justice pendulum where it’s the duty of the presiding judge to maintain the dignity of that justice pendulum by performing its duty efficiently including the step of keeping an eye if both the parties are getting a proper representation during the trial. The effective judicial process requires the cooperative effort of all three organs of the government. All the three

105 organs of the government have to work together with mutual cooperation in order to have an effective judicial process.

4.1 Suggestions The present study attempted to venture into a rather a known territory as the notion of criticality of criminal procedural law was almost non-existent in the body of literature on the subject. The research was prompted by the notion that law offers most fruitful contribution when it is seen in the context. In other words this study attempted to expand the reach and coverage of procedural law by reviewing its normative and applied applications.

Some desirable submissions can be summarized as below: -

1. There is need to view criminal procedure in its historical and jurisprudential context. The historical context to provide an insight into the evolving of procedural law with its changing interpretation and focus in the context of new social challenges. This was remarkably displayed in this study that the evolving procedural law adopted a drastic shift from being purely normative to become more applied and socially sensitive when it faced certain forms of crisis and challenges. The law of arrest, bail, death penalty, juvenile and women are the best examples.

2. The jurisprudential foundations of procedural law are seldom examined and they rarely form the part of teaching curriculum. In fact the theorization of procedural law is a neglected notion in the Indian context. Tracing the writings by Jerome Hall, Ashworth, Joel Samaha, the present study underlines the theoretical and jurisprudential facets in the criminal procedure.

3. The present study envisages offering a theoretical structure of criminal procedure, which should be built up on the jurisprudential foundations.

106 4. Critical perspective and criminal procedure is a new form of method in examining the procedural law. It is the application of the critical perspective and thinking in exploring the criminal procedure law.

5. Critical perspective of criminal procedure also underlines the characteristics and forms of bold scrutiny of the criminal justice agencies and their performances. This study has examined a series of judgements of the apex court where the role and performances of legislature, police, prosecution and judiciary was critically reflected upon.

6. Assembling of the critical evaluation made by the apex court on several subjects of social concern tend to display the criminal procedural law of a new variety which was more alive to the social realities.

This study was a modest attempt to explore a critical perspective in the study of criminal procedural law. If the findings of this study succeed in suggesting a new methodology of approaching criminal procedure, contextualizing criminal procedure and developing a theoretical form of the study of criminal procedure, the study will have served its purpose.

107

Blessed are they who hunger and

Thirst for justice,

For they

Shall have their fill’.

—The Eight Beatitudes, The Bible

108 BIBLIOGRAPHY

BOOKS: -

 Joel Samaha, Criminal Procedure, 127, Cengage Learning, 9th Ed. 2011  M.P. Jain, Indian Constitutional Law , 225,Lexisnexis, 6th Ed., 2012  R.V. Kelkar, Criminal Procedure, 187, Eastern Book Company, 5th Ed., 2012  Dr. N.V.Paranjape, The Code Of Criminal Procedure (With Juvenile Justice Act & Probation Of Offenders Act), 4 Central Law Agency, 4th Ed., 2013  Herbert L. Packer, Two Models Of The Criminal Process, University Of Pennsylvania Law Review, Vol. 113, 1968.  Keith A. Findley, Toward A New Paradigm Of Criminal Justice: How The Innocence Movement Merges Crime Control And Due Process  Jerome Hall, Objectives Of Federal Criminal Procedural Revision, The Yale Law Journal, Vol. 51, No. 5 , 4th March 1942, Pp. 723-747  Andrew Ashworth, Mike Redmayne, The Criminal Process, 64, Oxford University Press, 2010, 4th Ed  Allan Lind, Tom Tyler, The Social Psychology Of Procedural Justice, 130, 12th Ed.  Ronald Dworkin, Sovereign Virtue: The Theory And Practice Of Equality, 22, Harvard University Press, 2002, 3rd Ed.  Vinayak D. Kakde, Criminal Trials, 35, Universal Law Publishing, 2nd Ed., 2009  Mohammad Ghouse, The Pre – Trial Criminal Process And The Supreme Court. 183, Vol. 13, Indian Bar Review, (1986)  Jerome Hall, General Principles Of Criminal Law, 23-25, The Law Book Exchange, Ltd., 1st Ed. 2005  James Vadackumchery, National Police Commission. Issues For Rethinking, Pg. 47, Aph Publishing, 2nd Ed., 1998  Carl B. Klockars, The Dirty Harry Problem. Analysis Of The American Academy Of Political And Social Science, 33-37, Vol. 452, The Police And Violence. (Nov. 1980)  John Dempsey, An Introduction To Policing, 83, Cengage Learning, 3rd , 2014  Arvind Verma, The New Khaki: The Evolving Nature Of Policing In India Advances In Police Theory And Practice, 44, Crc Press, 2010  C. Ronald Huffetal, Convicted But Innocent. Wrongful Convictions And Public Policy, 150, Sage Publications, (1996). At 150  Joshua Rozenberg, Miscarriages Of Justice, In Criminal Justice Under Stress, 91-117, Stockdale Publication, 2nd Ed., 1992  Nick Robinson, The Indian Supreme Court & Its Benches

STATUTES: -

 Code of Criminal Procedure, 1973.

WEBSITES:-

 http://en.wikipedia.org/wiki/Code_of_Criminal_Procedure,_1973  http://www.shareyouressays.com/118063/essay-on-the-brief-history-and-development- of-the-code-of-criminal-procedure

 http://en.wikipedia.org/wiki/United_States_Bill_of_Rights

 http://www.law.cornell.edu/wex/critical_legal_theory

 http://indiacode.nic.in/acts-in-pdf/132013.pdf

 http://ncrb.gov.in/CD-ADSI2011/ADSI-2011%20REPORT.pdf

 http://www.drtomoconnor.com/3020/3020lect01.htm

 https://media.law.wisc.edu/m/dfknm/findley_new_paradigm-10-10-08.pdf

 http://india-seminar.com/2013/642/642_nick_robinson.htm

REPORTS:-

 180th Report of Law Commission Of India

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