Amish Ram Dabas

Release on parole is a wing of the reformative process and is expected to provide opportunity to the prisoner to transform and change himself into a useful citizen. In India, there are no statutory provisions dealing with the question of grant of parole. The Code of Criminal Procedure does not contain any provision for grant of parole. By administrative instructions, however, rules have been framed in various States, regulating the grant of parole. In our country, the action for grant of parole is generally speaking, an administrative action. According to section 2(p) of the Delhi Prisons Act, 2000 ‘Parole system’ means the system of releasing prisoners from prison on parole by suspension of their sentences in accordance with the rules. Since the term ‘Parole’ has not been defined by the legislature anywhere, its meaning can be understood and extracted from the interpretation given in various dictionaries.

According to the LAW LEXICON A parole is a form of conditional pardon, by which the convict is released before the expiration of his term, to remain subject during the remainder thereof, to supervision by the public authority and to return to imprisonment on violation of the condition of the parole.

According to WORDS AND PHRASES, ‘Parole’ ameliorates punishment by permitting convict to serve sentence outside of prison walls, but parole does not interrupt sentence.

Parole has been defined in Black’s Law Dictionary, as ‘release from jail, prison or other confinement after actually serving part of the sentence’.

Further Sunil Fulchand Shah’s case (2000) 3 SCC 409 the Apex Court describes “parole” as a form of “temporary release” from custody, which does not suspend the sentence or the period of detention, but provides conditional release from custody and changes the mode of undergoing the sentence.

HISTORY OF PAROLE

The history of parole has been discussed at length by the Hon’ble Supreme Court in Poonam Lata’s case where it is mentioned that “Historically ‘parole’ is a concept known to military law and denotes release of a prisoner of war on promise to return. Parole has become an integral part of the English and American systems of criminal justice intertwined with the evolution of changing attitudes of the society towards crime and criminals. As a consequence of the introduction of parole into the penal system, all fixed-term sentences of imprisonment of above 18 months are subject to release on licence, that is, parole after a third of the period of sentence has been served. In those countries, parole is taken as an act of grace and not as a matter of right and the convict prisoner may be released on condition that he abides by the promise. It is a provisional release from confinement but is deemed to be a part of the imprisonment. Release on parole is a wing of the reformative process and is expected to provide opportunity to the prisoner to transform himself into a useful citizen. Parole is thus a grant of partial liberty or lessening of restrictions to a convict prisoner, but release on parole does not change the status of the prisoner. Rules are framed providing supervision by parole authorities of the convicts released on parole and in case of failure to perform the promise, the convict released on parole is directed to surrender to custody.”

OBJECTIVE OF PAROLE

In the absence of any specific provision in the Code of Criminal procedure regarding parole; judgments of the Hon’ble Supreme Court, various High Courts as well as the rules framed in various States, regulating the grant of parole has led to the development of parole system in India. Parole has now become an integral part of criminal justice system in India.

The Division Bench of the Hon’ble High Court of Delhi in Shakuntala Devi v. State (1996) 36 DRJ 545 has emphasized that under our Constitution, deprivation of personal liberty as penal policy is purposive because the imprisonment of the criminal is sanctioned as a measure of social defence and individual rehabilitation. The focus of interest in penology is the individual and the goal is salvaging him for society. Time and again the Apex Court has held that all aspects of criminal justice fall under the umbrella of Articles 14, 19 and 21 of the Constitution. Further the Apex Court has sought to humanize prison administration to some extent through its various pronouncements and it has also laid great emphasis on the right of a prisoner to the integrity of his physical person and mental personality. The Apex Court views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a measure of social defence.

In Poonam Lata’s case (Supra) it has been held by the Apex Court that the release on parole is a wing of reformative process and is expected to provide opportunity to the prisoner to transform himself into a useful citizen.”

Further in Inder Singh v. State A.I.R. 1978 SC 1091 the Apex Court has held that if the behaviour of these two prisoners shows responsibility and trustworthiness, liberal though cautious, parole will be allowed to them so that their family ties may be maintained and inner tensions may not further build up. After every period of one year, they should be enlarged on parole for two months…….’

In view of the aforesaid, it is evident that the main objective and purpose of granting parole is to the rehabilitate the prisoners and to provide them an opportunity to reform themselves into a better human being, to allow them to develop a positive attitude and interest in life and also to provide them with an opportunity to maintain their social ties.

KINDS OF PAROLE

Custody Parole and Regular Parole are the two kinds of parole to which a convict is eligible. Custody Parole can be granted in emergent situations and circumstance only such as death of a family member, marriage of family member, serious illness of family member or in any other emergent circumstances. During the Custody Parole, the prisoner has to be escorted to the place of visit and return therefrom ensuring the safe custody of the prisoner. Such prisoner would be deemed to be in prison for the said period and the same would also be treated as period spent in prison.

In all other situations, it is open to the government to consider applications for Regular Parole. Some of the grounds on which the applications of the prisoner may be entertained are[1]:

1. Serious illness of a family member
2. Critical conditions in the family on account of accident or death of a family member
3. Marriage of any member of the family of the convict
4. Delivery of a child by the wife of the convict if there is no other family member to take care of the spouse at home
5. Serious damage to life or property of the family of the convict including damage caused by natural calamities
6. To maintain family and social ties
7. To pursue the filing of Special Leave Petition before the Supreme Court of India again a judgment delivered by the High Court convicting or upholding the conviction, as the case may be

DIFFERENCE BETWEEN PAROLE AND BAIL

Parole and Bail are viewed by many people as the same, however there exists difference between Parole and Bail and both have different connotations in law. Bail is well understood in criminal jurisprudence and Chapter XXXIII of the Code of Criminal Procedure contains provisions relating to grant of bail. Sections 436, 437, 438 and 439 of the Code of Criminal Procedure respectively specify the power of the Courts to grant bail. Section 436 provides for bail in bailable offences, section 437 provides as to when bail may be taken in case of non-bailable offences, section 438 talks about direction to grant of bail to person apprehending arrest and 439 stipulates about special power of High Court and Court of Sessions to grant bail. The effect of granting bail is to release the accused from internment though the Court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him.

The Apex Court in Sunil Fulchand Shah’s case (Supra) while discussing about bail has held that the effect of granting bail is not to set the defendant (accused) at liberty but to release him from the custody of law and to entrust him to the custody of his sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of law and he will then be imprisoned.

On the contrary, in India, there are no statutory provisions dealing with the question of grant of parole. The Code of Criminal Procedure does not contain any provision for grant of parole. By administrative instructions, however, rules have been framed in various States, regulating the grant of parole. The Hon’ble Supeme Court in State of Haryana v. Mohinder Singh while distinguishing bail from parole has mentioned that Parole is a provisional release from confinement but is deemed to be a part of the imprisonment. Release on parole is a wing of the reformative process and is expected to provide opportunity to the prisoner to transform himself into a useful citizen. Parole is thus a grant of partial liberty or lessening of restrictions to a convict prisoner, but release on parole does not change the status of the prisoner. Rules are framed providing supervision by parole authorities of the convicts released on parole and in case of failure to perform the promise, the convict released on parole is directed to surrender to custody.

POWER TO GRANT PAROLE

The power to grant Parole is essentially the function of the executive and to consider the request made by the prisoner for his release on parole is the prerogative of the executive only. Rules have been framed in every state regulating the grant of parole. Every prisoner before his entitlement for his release on parole has to meet certain eligibility criteria.

As per the Parole/Furlough Guidelines 2010(Supra) in order to be eligible for release on parole (i) a convict must have served atleast one year in prison excluding any period covered by remission (ii) the conduct in prison must have been uniformly good (iii) during the period of parole, if granted earlier, the convict should not have committed any crime(iv) the convict should not have violated any terms and conditions of the parole granted previously (v) a minimum of six months ought to have elapsed from the date of termination of the earlier parole. However, under the belomentioned circumstances, the prisoners/convicts would not be eligible for being released on parole: Convicts whose release on parole is considered dangerous or a threat to national security or there exists any other reasonable ground such as a pending investigation in a case involving serious crime; (ii) Prisoners who have been involved in crimes and offences against the State, like sedition or who have been found to be instigating serious violation of prison discipline;(iii) Prisoners who have escaped from jail;(iv)The prisoner is not a citizen of India.

Further in the following cases, parole would ordinarily be not granted except, if in the discretion of the competent authority special circumstances exist for grant of parole;

(a) If the prisoner is convicted of murder after rape;

(b) If the prisoner is convicted for murder and rape of children;

(c) If prisoner is convicted for multiple murders.

The period of release on parole shall not, ordinarily, exceed one month at a time except in special circumstances to be mentioned in the order granting parole. The Government shall decide the period of release on the merits of each case, for reasons to be specified in the order granting parole.

WRIT JURISDICTION AND PAROLE

Time and again the Hon’ble Supreme Court has held that all the aspects of criminal justice fall under the umbrella of Articles 14, 19 and 21 of the Constitution. No doubt the grant of parole is essentially an executive function, however, if the Court finds that any Government action in rejecting the grant of parole to a prisoner has the effect of suffocating the Article 14 or 21 of the Constitution, then the Court has all the powers to restore the rule of law and respect the residuary fundamental rights of an aggrieved prisoner.

It has been held by the Hon’ble High Court of Delhi in Sharda Jain’s case (2010) 167 DLT 655 that the grant of parole being essentially an executive function, it is for the Government to consider the request made by the convict for the purpose and to pass an appropriate order on it. If however, the order passed by the Government declining parole is based upon irrelevant ground or extraneous considerations or is otherwise wholly unsustainable being an order which no reasonable person could, in the facts and circumstances of the case have passed or is totally perverse, it is open to the Court, in exercise of its powers under Article 226 of the Constitution to set aside an order and direct the release of a convict on parole.

The Apex Court in Poonam Lata’s case (supra) has also held that ‘On the principle that exercise of administrative jurisdiction is open to judicial review by the superior court, the High Court under Article 226 or this Court under Article 32 may be called upon in a suitable case to examine the legality and propriety of the governmental action. There is no scope for entertaining an application for parole by the court straightway’.

In Sunil Fulchand Shah’s case(Supra), the Constitutional bench of the Apex Court has held that, ‘the bar of judicial intervention to direct temporary release of a detenu would not, however, affect the jurisdiction of the High Courts under Article 226 of the Constitution or of this Court under Article 32, 136 or 142 of the Constitution to direct the temporary release of the detenu, where request of the detenu to be released on parole for a specified reason and/or for a specified period, has been, in the opinion of the Court, unjustifiably refused or where in the interest of justice such an order of temporary release is required to be made. That jurisdiction, however, has to be sparingly exercised by the Court and even when it is exercised, it is appropriate that the Court leave it to the administrative or jail authorities to prescribe the conditions and terms on which parole is to be availed of by the detenu’.

Parole was introduced as a way to encourage responsible behavior in rehabilitating the prisoners and at the same time to provide them an opportunity to reform themselves into a better human being and also to provide them with an opportunity to maintain their social ties. Some of the major concepts that underlie the parole system include the reduction of jail term after good and responsible behavior in prison and to allow the prisoners to develop a positive attitude, self confidence and interest in life.

Power to grant parole is purely an administrative decision, however, the executive must exercise the discretion vested in it judiciously and not arbitrarily and always keeping in mind the objectives of the parole and also taking into consideration that regardless of the crime a man may commit, he still is a human being and has human feelings also. Therefore the nature and length of sentence or the magnitude of the crime committed by the prisoner are not relevant for the purpose of grant of parole.

Police plays one of the most significant roles in the criminal justice system. The responsibility of maintaining law and order is on the police. The investigation of an offence is the field exclusively reserved for the police officers whose powers in this field are unfettered. Immediately after the registration of FIR (First Information Report), the powers of police to investigate the case comes into play.

The Hon’ble Supreme Court of India in case of H.N. Rishbud v. State of Delhi AIR 1955 SC 196 has mentioned that under the Code of criminal Procedure, investigation consists generally of the following steps:

“(1) proceeding to the spot,

(2) ascertainment of the facts and circumstances of the case,

(3) discovery and arrest of the suspected offender,

(4) collection of evidence relating to the commission of the  offence which may consist of:

(a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit,

(b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and

(5) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under Section 173.

It is evident that investigation by a police officer includes power of arrest, search and seizure. Search and seizure is a necessary exercise and plays an important role in the collection of evidence during the process of investigation of an offence.

There are several provisions under the Code of Criminal Procedure regarding search and seizure. Section 47, 51, 52, 93, 94, 97, 99, 100 to 103, 105E, 165 and 166 are the significant and relevant sections for search and seizure. Powers of the Court as well as powers of police officer concerning search and seizure are mentioned and given in these sections. Section 100 and 165 are one of the most important sections concerning search and seizure. These sections also specify about the procedure to be followed during search and seizure. In Partap Singh (Dr.) v. Director of Enforcement, the Apex Court has held that the provisions contained in the Criminal Procedure Code relating to search and seizure are safeguards to prevent the clandestine use of powers conferred on the law-enforcing authorities. They are powers incidental to the conduct of investigation and the legislature has imposed certain conditions for carrying out search and seizure in the Code. In the Criminal Procedure Code there are four groups of sections regulating the searches authorised under it.

Section 47 provides that if any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or is within, any place, then the police officer has power to search the place entered by person sought to be arrested. Section 51 provides for search of an arrested person by the police officer. Whenever a person is arrested by a police officer under a warrant he may search such person, and place in safe custody all articles, other than necessary wearing-apparel, found upon him and where any article is seized from the arrested person, a receipt showing the articles taken in possession by the police officer shall be given to such person. Section 52 gives the power to a police officer to seize offensive weapons while making an arrest.

Section 93 lay downs the power to be exercised by the Court to issue search warrant. Vide this section the court has the power to direct the police to search or inspect. The Court may also, if it thinks fit, specify in the warrant the particular place or part thereof to which only the search or inspection shall extend; and the person charged with the execution of such warrant shall then search or inspect only the place or part so specified. Section 94 specifies about search of place suspected to contain stolen property, forged documents, etc. Section 97 provides the  power to a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class to issue a search warrant, if he has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence and the person to whom such warrant is directed may search for the person so confined;

Section 100 specifies that the persons in charge of closed place shall allow search to the search team. He shall, on demand of the police officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein. Clause (4) of section 100 mandates that before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. Further a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; Clause (6) provides that the occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person. Further clause (7) mentions that when any person is searched, a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person.

Under section 102, the police officer has the power to seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. The police officer who is acting under sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction.

Under section 103 any Magistrate may direct a search to be made in his presence of any place for the search of which he is competent to issue a search warrant. Section 105-E provides the power to a police officer conducting an inquiry or investigation, to make an order of seizure or attachment of a property if has a reason to believe that any property in relation to which such inquiry or investigation is being conducted is likely to be concealed, transferred or dealt with in any manner which will result in disposal of such property.

Section 165 is an important section and specifically mentions about Search by police officer. Finally section 166 reads ‘when officer in charge of police station may require another to issue search warrant’.

From the aforesaid sections it is apparent and evident that police has extensive powers to carry out search and seizure and it plays a very important role for the same. Apart from the powers which are given under the Code of Criminal Procedure, special acts such as NDPS act (section 50) also provides a special procedure, safeguards and steps which are to be followed during investigation and for search and seizure. The provisions of Sections 100 and 165 CrPC are not inconsistent with the provisions of the NDPS Act and are applicable for affecting search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure, comes across a person being in possession of the narcotic drug or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided thereunder.

VIEW OF INDIAN COURTS ON SEARCH AND SEIZURE

In State of Punjab v. Balbir Singh 1994(3) SCC 299 after referring to a number of judgments, the Bench opined that failure to comply with the provisions of CrPC in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and evaluate the evidence on record keeping that in view.

The Hon’ble Supreme Court in State of M.P. v. Paltan Mallah has held that in India, the evidence obtained under illegal search is not completely excluded unless it has caused serious prejudice to the accused. The discretion has always been given to the court to decide whether such evidence is to be accepted or not.

In Radhakishan v. State of U.P. speaking for a three-Judge Bench, Justice Mudholkar held:  “So far as the alleged illegality of the search is concerned it is sufficient to say that even assuming that the search was illegal the seizure of the articles is not vitiated. It may be that where the provisions of Sections 103 and 165 of the Code of Criminal Procedure are contravened the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues.”

In Modan Singh v. State of Rajasthan, (1978) 4 SCC 435 it has been held that “If the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses do not support the prosecution version”.

The case of State of Punjab v. Balbir Singh is one of the landmark judgments in the field o search and seizure. The Hon’ble Supreme Court had laid down certain guidelines in the said case. The same are:

(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.

(2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.

(2-B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction.

(2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.

To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.

(3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.

(4-A) If a police officer, even if he happens to be an “empowered” officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CrPC fails to strictly comply with the provisions of Sections 100 and 165 CrPC including the requirement to record reasons, such failure would only amount to an irregularity.

(4-B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of CrPC namely Sections 100 and 165 CrPC and if there is no strict compliance with the provisions of CrPC then such search would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.

(5) On prior information the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial.

(6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case.

Liberty is the most precious of all the human rights. The Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on December 10, 1948, contains several articles designed to protect and promote the liberty of individual.Fundamental Rights occupy a place of pride in the Indian Constitution. Article 21 of the Constitution of India, “Protection of life and personal liberty”, proclaims and declares that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law. Even Article 20 and Article 22 clauses (1) and (2) are born out of a concern for human liberty. Undoubtedly, liberty along with equality is the most fundamental of human rights and the fundamental freedoms guaranteed by our Constitution. Clause (1) of Article 22 declares and provides that “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice”. Clause (2) of Article 22 says that “Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate”

In our country, the Hon’ble Supreme Court and all the High Courts too have been emphasizing the inalienable and invaluable nature of liberty as also the societal interest in peace and law and order.

Whether it is for securing the liberty of an individual or for maintaining the peace and law and order in the society, law is essential. Not only should there be a proper law, there should also be proper implementation of law.

For this very reason and to maintain law and order numerous provisions have been provided in the Code of Criminal Procedure and out of them Chapter V deals with the powers of police to arrest. However, more often a large number of complaints persist, complaining of unlawful deprivation of liberty of the citizens at the hands of Police and other enforcement authorities, of their resort to unlawful methods of investigation and of cruel and unusual treatment of the accused while in their custody.

As per the 177^th Report of the Law Commission of India on law relating to Arrest, in Delhi, while the total number of persons arrested for substantive offence is 57,163, the total number of persons arrested under preventive provisions is 39,824. 50% of the persons arrested were arrested for bailable offences. If we take U.P., the number of arrests under the preventive provisions is far above the total number of arrests for substantive offences. While preventive arrests are 4,79,404, the number of arrests for substantive offences are 1,73,634. The percentage of persons arrested in bailable offences is 45.13. In Haryana, the percentage of arrests under bailable provisions is 94%, in Kerala it is 71%, in Assam it is 90%, in Karnataka it is 84.8%, in M.P. it is 89% and in Andhra Pradesh it is 36.59%. Indeed a perusal of the said abstract/Annexure II would disclose the unduly large number of arrests under preventive provisions as well as for bailable offences. It is difficult to believe that in all these arrests for bailable offences, warrants were issued by the magistrates. Indeed an overwhelming percentage of those arrests were by the Police without a warrant. This is equally disturbing even if some of them are preventive arrests, as was suggested by some police officers during one of the seminars.”

From the abovementioned Report, it can be said that the procedure established by law which affects the liberty of a citizen must be right, just and fair and should not be arbitrary, fanciful or oppressive and that a procedure which does not satisfy the said test would be violative of Article 21.

In spite of the Constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, growing incidents of abuse of powers by the police and torture during the police interrogation has been a disturbing factor.

The Hon’ble Supreme Court of India and all the High Courts from time to time have given numerous decisions and passed various judgments for the protection of an individual in cases of his naked violation of human dignity. One of the landmark Judgments of the Hon’ble Supreme Court in this regard is D.K. Basu v. State of West Bengal, AIR 1997 SC 610. This decision exhaustively referred to the law relating to arrest with reference to earlier decisions of the courts and further held that cases of torture, rape, custodial death in police custody/lock-up leads to sheer infringement of Article 21 as well as basic human rights and strikes a blow at rule of law and also that third degree methods used by police during interrogation are totally impermissible.

This case was taken up when the Executive Chairman, Legal Aid Services, West Bengal, a non-political organisation registered under the Societies Registration Act, on 26-8-1986 addressed a letter to the Chief Justice of India drawing his attention to certain news items published in The Telegraph dated 20-7-1986, 21-7-1986 and 22-7-1986 and in the Statesman and Indian Express dated 17-8-1986 regarding deaths in police lock-ups and custody. The Executive Chairman after reproducing the news items submitted that it was imperative to examine the issue in depth and to develop “custody jurisprudence” and formulate modalities for awarding compensation to the victim and/or family members of the victim for atrocities and death caused in police custody and to provide for accountability of the officers concerned. It was also stated in the letter that efforts are often made to hush up the matter of lock-up deaths and thus the crime goes unpunished and “flourishes”. It was requested that the letter along with the news items be treated as a writ petition under “public interest litigation” category. The Hon’ble Apex Court considering the importance of the issue raised in the letter and being concerned by frequent complaints regarding custodial violence and deaths in police lock-up, treated the letter as a writ petition and issued notice.  In response to the notice, affidavits were filed on behalf of States of West Bengal, Orrisa, Assam, Himachal Pradesh, Madhya Pradesh, Haryana, Tamil Nadu, Meghalya, Maharashtra, Manipur, Union Territory of Chandigarh and also by the law Commission of India.

The Apex Court discussed in detail the issue of Custodial violence and raised great concern regarding the protection of an individual from torture and abuse by the police and other law enforcing officers. It was further discussed that “custodial violence” and abuse of police powers is not only peculiar to this country, but its wide spread. Custodial Death is perhaps one of the worst crimes in a civilized society governed by law. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law-breakers, it is bound to bred contempt of law and would encourage lawlessness and everyman would have the tendency to become law unto himself thereby leading to anarchanism. Moreover the precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials, detenues and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as permitted by law.

The Apex Court further strictly took notice of that fact that Police is, no doubt, under a legal duty and has legitimate right to arrest a criminal and to interrogate him during the investigation of an offence but it must be remembered that the law does not permit use of third-degree methods or torture of accused in custody during interrogation and investigation with a view to solve the crime. End cannot justify the means. The interrogation and investigation into a crime should be in true sense purposeful to make the investigation effective. By torturing a person and using third-degree methods, the police would be accomplishing behind the closed doors what the demands of our legal order forbid. No society can permit it.

 

A ‘Victim’, as per Section 2(wa) of the Code of Criminal Procedure(Amendment) Act, 2008 is as a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression ‘victim’ also includes his or her guardian or legal heir.

Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim.

Clause 4 of the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power  declares that the victims should be treated with compassion and respect for their dignity. They are entitled to the access to the mechanism of justice and to prompt redress, as provided by national legislation for the harm that they have suffered.

The victim of a crime sets the machinery of criminal investigation into motion by giving information to the police and thereby registration of FIR. Section 154 CrPC places an obligation upon the police authorities to register the FIR of the information received, relating to commission of a cognizable offence, whether such information is received orally or in writing by the officer in charge of a police station. The victim as an informant is entitled to a copy of the FIR forthwith free of cost.

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 sub-section (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.

A police officer is authorised to investigate such cases without the order of a Magistrate, though, in terms of Section 156(3) CrPC the Magistrate empowered under Section 190 may direct the registration of a case and order the police authorities to conduct investigation, in accordance with the provisions of CrPC. Such an order of the Magistrate under Section 156(3) CrPC is in the nature of a pre-emptory reminder or intimation to the police, to exercise their plenary power of investigation under that section. This would result in a police report/chargesheet under Section 173 CrPC, whereafter the Magistrate may or may not take cognizance of the offence and proceed under Chapter XVI CrPC. The Magistrate has judicial discretion, upon receipt of a complaint to take cognizance directly under Section 200 CrPC, or to adopt the above procedure.

Once the investigation is conducted in accordance with the provisions of CrPC, a police officer is bound to file a report before the court of competent jurisdiction, as contemplated under Section 173 CrPC, upon which the Magistrate can proceed to try the offence. However, in the eventuality where the report states that no offence appears to have been committed, the Magistrate has three options: (a) he may accept the report and drop the proceedings; (b) he may disagree with the report and take the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process; (c) he may direct further investigation to be made by the police. If the Magistrate is of a view that relying on the closure report he may drop the proceedings, then the victim/ complainant has a right to file a ‘Protest Petition’ before the magistrate stating that the investigation has not been conducted properly by the police authorities and there are lacunas in the same and therefore, the matter may be further investigated. Furthermore, in a situation where the Magistrate dismisses the protest petition then the victim/ complainant has a statutory right to approach the Hon’ble High Court or the Court of Sessions by invoking the revision Jurisdiction as given under section 397 CrPC.

The victim has a say in the grant of bail to an accused. Section 439(2) CrPC, as interpreted by the Courts recognizes the right of the complainant or an aggrieved person to move to the High Court or Court of Sessions for cancellation of a bail granted to the accused. Also compounding of an offence cannot happen in absence of the victim/ complainant.

The position of victims who happen to be women and children needs special attention. Particularly the women and girl child who are victims of rape and sexual harassment greatly need strict laws for their protection. Rape of a girl child of an immature age has a greater traumatic effect which often persists throughout her life leading to various disorders, both physical and psychological. The effects of rape on the victim are multidimensional. She would be looked down upon by the society including her own family, relatives, friends and neighbours. Family honour would be at stake leading to uncertainty in respect of the future of her brothers and sisters, if any. Thus rape would almost inevitably and invariably result in mental torture and suffering to the victim.

While deciding a public interest litigation concerning the pathetic plight of four domestic servants who were subject to indecent sexual assault by seven army personnel, the Hon’ble Supreme Court in Delhi Domestic Working Womens Forum’s case (1995) 1 SCC 14 laid down certain broad parameters in assisting the victims of rape which reads as follows:

(1) The complainants of sexual assault cases should be provided with legal representation. It is important to have someone who is well acquainted with the criminal justice system. The role of the victim’s advocate would not only be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind counselling or medical assistance. It is important to secure continuity of assistance by ensuring that the same person who looked after the complainant’s interests in the police station represent her till the end of the case.

(2) Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her.

(3) The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.

(4) A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.

(5) The advocate shall be appointed by the court, upon application by the police at the earliest convenient moment, but in order to ensure that victims were questioned without undue delay, advocates would be authorised to act at the police station before leave of the court was sought or obtained.

(6) In all rape trials anonymity of the victim must be maintained, as far as necessary.

(7) It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example, are too traumatised to continue in employment.

(8) Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape.

Section 164A CrPC provides medical examination of a rape victim. The police authorities are under statutory obligation when an offence of committing rape or attempt to commit rape is under investigation, to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert and such woman shall be sent to such registered medical practitioner within twenty-four hours from the time of receiving the information relating to the commission of such offence. Furthermore, the police authorities also has to record the statement of the victim as a material witness to that case under section 161 CrPC. Provided that no male person under the age of fifteen years or woman shall be required to attend the police station for recording of their statement as a witness as their statement has to be recorded by the investigating officer at a place in which such male person or woman resides{ S. 160 (1) of the Code of Criminal Procedure, 1973}. Further proviso to Section 157 (1) CrPC mandates that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.

While the victim of a crime may move the government to appoint a special prosecutor for a given case {24(8) of the Code of Criminal Procedure (Amendment) Act, 2009}, there is no scope under CrPC for a victim or the informant or her lawyer to directly participate in the trial. S 301(2) CrPC mandates that a private person may instructs a pleader to prosecute any person in any Court, however, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.

The victim’s right of participation in the post trial proceedings stands on a better footing. An appeal against order of acquittal of an accused can be preferred with the prior leave of the High Court both by the victim as well as the state government. The right of a victim’s near relative, who was not a party to the proceedings, to file a Special Leave petition under Article 136 of the Constitution of India challenging an order of acquittal has been duly recognized by the Hon’ble Supreme Court of India in P.S.R. Sadhanantham v. Arunachalam, (1980) 3 SCC 141.

 

CHALLENGES FOR VICTIMS IN INDIA

 In the process of prevention of victimization and the protection of victims, there are many challenges faced in India. Lack of a separate law for victims is one of the biggest challenges. Another biggest challenge which needs critical evaluation and deterrent laws is the corruption in the Indian Criminal Justice System. Corruption by public officials especially the police and other investigating agencies erode the entire health of the society and victimize people in all sections of the population. Despite of the fact that many steps to reduce the level of corruption and accumulation of illegal wealth have been taken by the Government still stern laws are needed for its proper implementation.

 

CHANGES THAT ARE REQUIRED IN ORDER TO MAKE THE SYSTEM RESPOND TO THE RIGHTS OF VICTIMS

There is a need for renewal of emphasis and an enhanced sensitivity to the rights of the victims. These rights should be the central concern for those who participate in the criminal justice system and it is time all of us paid greater heed to the plight of the victim.

The UN Declaration recognized four major components of the rights of victims of crime. Access to just and fair treatment, Restitution, Compensation and Assistance. Victims do not receive even a fraction of the protection and defence that is available to the accused in India. Though section 357 CrPC and provisions of Probation of Offenders Act, 1958 provide for payment of compensation to the victim, it offers little relief for identical reasons. Moreover, all these provisions being discretionary with the courts are only meant to do lip services to the victims. Even the victim cannot claim compensation as a matter of right. The constitutional right of a victim of a custodial crime to receive compensation was reiterated by the Supreme Court in Nilabati Behera v. State of Orissa,  1993(2) SCC 746. Although the Hon’ble Supreme Court has passed numerous judgments and laid down various guidelines for the protection of the victim, still there is great need for enactment of a special law, specific to the victims. Measures such as establishment of victim compensation fund, involvement of the NGOs for pro-active participation in the process of implementation Organising awareness campaigns, highlighting the rights of the victims and appealing to the citizens for doing what they may in support of the rights of the victim also needs great attention for providing assistance and relief to the victims of a crime.

 

There are number of judgments and judicial pronouncements which significantly led to the development of law on upliftment and protection of women in India. Some of the important judgments which led to the development of law on the protection of women and their rights are mentioned herein under:

Women has right to get equal pay for equal work for women

In Randhir Singh v. Union of India (1982) 1 SCC 618 the Hon’ble Supreme Court held that “Equal pay for equal work for both men and women” means equal pay for equal work for everyone and as between the sexes. The Supreme Court held that it is true that the principle of “equal pay for equal work” is not expressly declared by our Constitution to be a fundamental right. But it certainly is a constitutional goal. Article 39(d) of the Constitution proclaims “equal pay for equal work for both men and women” as a directive principle of State Policy. “Equal pay for equal work for both men and women” means equal pay for equal work for everyone and as between the sexes. directive principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation. Article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clauses of the Constitution must mean something to everyone.

A Muslim woman has the right of maintenance under section 125 CrPC

The Hon’ble Supreme Court in case of Begum Subanu v. A.M. Abdul Gafoor (1987) 2 SCC 285 deals with the right of maintenance under section 125 CrPC of muslim women. The Hon’ble Supreme Court in the present judgment held that “In so far as muslim wife is concerned there cannot be discrimination between the two situations contemplated by the explanation in section 125(3), CrPC namely of the husbands contracting another marriage or of taking a mistress. The explanation places a second wife and mistress on the same footing and does not make any differentiation between them on the basis of their status under matrimonial law. From the point of view of the neglected wife, for whose benefit the explanation has been provided, it will make no difference whether the woman intruding into her matrimonial life and taking her place in the matrimonial bed is another wife permitted under law to be married and not a mistress.” The Supreme Court further held that “a muslim husband contracting another marriage is equally liable to pay maintenance to previous wife who thereby has a right to live separately. That muslim law permits polygamy is irrelevant to the injury caused to the previous wife. Husband therefore, is liable to maintain previous wife and children.”

Supreme Court took serious view regarding cases of bride burning

The Apex Court vide the judgment of Kundula Bala Subrahmanyam v. State of A.P. (1993) 2 SCC 684 had taken a various serious view regarding cases of bride burning. Hon’ble Justice A.S. Anand, the former Chief Justice of India has observed that “..Of late there has been an alarming increase in cases relating to harassment, torture, abetted suicides and dowry deaths of young innocent brides. This growing cult of violence and exploitation of the young brides, though keeps on sending shock waves to the civilised society whenever it happens, continues unabated. There is a constant erosion of the basic human values of tolerance and the spirit of “live and let live”. Lack of education and economic dependence of women have encouraged the greedy perpetrators of the crime. It is more disturbing and sad that in most of such reported cases it is the woman who plays a pivotal role in this crime against the younger woman, as in this case, with the husband either acting as a mute spectator or even an active participant in the crime, in utter disregard of his matrimonial obligations. In many cases, it has been noticed that the husband, even after marriage, continues to be ‘Mamma’s baby’ and the umbilical cord appears not to have been cut even at that stage…”

Rights of women against sexual harassment in work places

The Hon’ble Supreme Court in the landmark judgment of Vishaka v. State of Rajasthan 2003(8) SCC 440 has laid down guidelines regarding rights of women against sexual harassment in work places. In this landmark judgment the Hon’ble Supreme Court laid down guidelines and norms for protection and enforcement of the rights of women at their work places, which shall be observed and followed at all workplaces or other institutions. The Supreme Court has held that “each incident of sexual harassment of woman at workplace results in violation of the fundamental rights of “Gender Equality” and the “Right to Life and Liberty”. It is a clear violation of the rights under Articles 14, 15 and 21 of the Constitution. One of the logical consequences of such an incident is also the violation of the victim’s fundamental right under Article 19(1)(g) “to practise any profession or to carry out any occupation, trade or business”. Such violations, therefore, attract the remedy under Article 32 for the enforcement of these fundamental rights of women. Thus, the power of this Court under Article 32 for enforcement of the fundamental rights and the executive power of the Union have to meet the challenge to protect the working women from sexual harassment and to make their fundamental rights meaningful. In view of the above, and the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at workplaces, we lay down the guidelines and norms specified hereinafter for due observance at all workplaces or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it is further emphasised that this would be treated as the law declared by this Court under Article 141 of the Constitution.

The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort

The Apex Court in case of Vinny Parmvir Parmar v. Parmvir Parmar 2003(8) SCC 440 while discussing the law of maintenance has held that amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and mode of life she was used to live when she lived with her husband. It has been held that “..No fixed formula can be laid for fixing the amount of maintenance. It has to be in the nature of things which depend on various facts and circumstances of each case. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay, having regard to reasonable expenses for his own maintenance and others whom he is obliged to maintain under the law and statute. The courts also have to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and mode of life she was used to live when she lived with her husband.”

Recent Judgments on Domestic Violence Laws

Relationship in the nature of marriage is akin to a common law marriage and live in partner has the right under the domestic violence act to seek relief

The Apex Court in case of D. Velusamy v. D. Patchaiammal (2010) 10 SCC 469 has held that a “relationship in the nature of marriage” is akin to a common law marriage. Common law marriages require that although not being formally married:
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
In our opinion a “relationship in the nature of marriage” under the 2005 Act must also fulfil the above requirements, and in addition the parties must have lived together in a “shared household” as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a “domestic relationship”.
32. In our opinion not all live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005. To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence. If a man has a “keep” whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage.

Relief available under the provisions of domestic violence, act may also be sought for in any legal proceeding even before a civil court and family court

The Hon’ble Supreme Court in the recent judgment of Juveria Abdul Majid Patni v. Atif Iqbal Mansoori (2014) 10 SCC 736 has held that “It is not necessary that relief available under Sections 18, 19, 20, 21 and 22 can only be sought for in a proceeding under the Domestic Violence Act, 2005. Any relief available under the aforesaid provisions may also be sought for in any legal proceeding even before a civil court and Family Court, apart from the criminal court, affecting the aggrieved person whether such proceeding was initiated before or after the commencement of the Domestic Violence Act. This is apparent from Section 26 of the Domestic Violence Act, 2005 as quoted hereunder:
“26. Relief in other suits and legal proceedings.—(1) Any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, Family Court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.
(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.
(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.”
26. The appellant has filed an FIR against the first respondent for the offence committed under Section 498-A IPC. The High Court refused to quash the FIR qua first respondent on the ground that prima facie case has been made out. Even before the criminal court where such case under Section 498-A is pending, if allegation is found genuine, it is always open to the appellant to ask for reliefs under Sections 18 to 22 of the Domestic Violence Act and interim relief under Section 23 of the said Act.

Husband not allowing wife to live in a shared household even after order of restitution of conjugal rights was passed is a continuance of domestic violence

It has been held by the Apex Court in case of Saraswathy v. Babu 2014 (3) SCC 712 that “In view of the fact that even after the order passed by the Subordinate Judge the respondent husband has not allowed the appellant wife to reside in the shared household/matrimonial house, we hold that there is a continuance of domestic violence committed by the respondent husband against the appellant wife. In view of the such continued domestic violence, it is not necessary for the courts below to decide whether the domestic violence is committed prior to the coming into force of the Protection of Women from Domestic Violence Act, 2005 and whether such act falls within the definition of the term “domestic violence” as defined under Section 3 of the DVA, 2005.”

Police has to look upon any complaint made by a woman alleging offence under domestic violence act seriously

The Hon’ble Supreme Court in a recent case of Santosh Bakshi v. State of Punjab (2014) 13 SCC 25 Supra has held that “The complaint, if made, by any woman alleging offence under the Protection of Women from Domestic Violence Act, 2005 committed by any member of the family, the matter is to be looked upon seriously. The police without proper verification and investigation cannot submit a report that no case is made out. The investigating agency is required to make proper enquiry not only from the members of the family but also from neighbours, friends and others. After such enquiry, the investigating agency may form a definite opinion and file report but it is for the court to decide finally whether to take cognizance for any offence under any of the provisions of the Act”.

False allegations of domestic violence tantamount to mental cruelty and the same is a valid ground for divorce

It is noteworthy that the Hon’ble Supreme Court in case of Dr. (Mrs.) Malathi Ravi, M.D. versus Dr. B.V. Ravi, M.D. (CIVIL APPEAL NO.5862 OF 2014), while passing its judgment on 30th June 2014, has specifically held that false allegations of domestic violence tantamount to mental cruelty and the same is a valid ground for divorce. The Hon’ble Court has observed and held: “As we have enumerated the incidents, we are disposed to think that the husband has reasons to feel that he has been humiliated, for allegations have been made against him which are not correct; his relatives have been dragged into the matrimonial controversy………….The launching of criminal prosecution can be perceived from the spectrum of conduct……From this kind of attitude and treatment it can be inferred that the husband has been treated with mental cruelty and definitely he has faced ignominy being an Associate Professor in a Government Medical College. When one enjoys social status working in a Government hospital, this humiliation affects the reputation. That apart, it can be well imagined the slight he might be facing. In fact, the chain of events might have compelled him to go through the whole gamut of emotions. It certainly must have hurt his self-respect and human sensibility. The sanguine concept of marriage presumably has become illusory and it would not be inapposite to say that the wife has shown anaemic emotional disposition to the husband. Therefore, the decree of divorce granted by the High Court deserves to be affirmed singularly on the ground of mental cruelty….”

Judicial separation did not mean severance of ties between a husband and wife and hence she cannot be denied her stridhan

The Hon’ble Supreme Court in case of Krishna Bhatacharjee versus Sarathi Choudhury and ANR, (Criminal Appeal No. 1545 of 2015) while drawing a distinction between decree of divorce and decree of judicial separation has held that in the latter, relationship between husband and wife continues as it has not been snapped and the wife will fall under the definition of “aggrieved person” under the Protection of Violence from Domestic Violence Act, 2005 and she has the right to claim for her stridhan under the Act and she cannot be denied her stridhan. The Court further held that stridhan property is the exclusive property of the wife.

In domestic violence cases there is no harm in mediating without Court indulgence

It is submitted that the bench of Chief Justice Mohit Shah and Justice RS Dalvi, of the Bombay High Court on September 2015, while treating a letter written by Ms. Jaya Sagade, Director of the Women Studies Centre, ILS Law College, Pune as a Public Interest Litigation (PIL) has stated that the ultimate aim is to provide a fair, meaningful and substantial one-time settlement for the woman through negotiations. Setting aside a state government circular that prohibited counselling and mediation in domestic violence cases without a court order, the Bombay High Court has held that the circular was “discriminatory, arbitrary and unreasonable.” Further, it laid down guidelines on how pre-litigation counselling may be conducted by any registered service provider, including NGOs, counselors and police officers.

Like you and me, prisoners are also human beings. Hence, all such rights except those that are taken away in the legitimate process of incarceration still remain with the prisoner. These include rights that are related to the protection of basic human dignity as well as those for the development of the prisoner into a better human being. If a person commits any crime, it does not mean that by committing a crime, he/she ceases to be a human being and that he/she can be deprived of those aspects of life which constitutes human dignity. A citizen does not cease to be a citizen just because he/she has become a prisoner.

Prison and its administration is a State subject as it is covered by item 4 under List II in Schedule VII of the Constitution of India. Prison establishments in different States/UTs comprise several tiers of Jails. The most common and standard Jail Institutions which are in existence in the States/UTs are better known as Central Jails, District Jails and Sub Jails.

According to S. 3(1) of the Prisons Act, 1894 “Prison” means any jail or place used permanently or temporarily under the general or special orders of a State Government for the detention of prisoners, and includes all lands and buildings appurtenant thereto, but does not include—

(a) any place for the confinement of prisoners who are exclusively in the custody of the police;

(b) any place specially appointed by the State Government under Section 541 of the Code of Criminal Procedure, 1882 (10 of 1882); or

(c) any place which has been declared by the State Government, by general or special order, to be a subsidiary jail;

The word ‘undertrail prisoner’ has not been defined anywhere however, in general it means a person kept in prison (judicial custody) while the charges against him are being tried.

According to the Prison Statistics INDIA-2011 published by National Crime Records Bureau, Ministry of Home Affairs, Government of India, the maximum of undertrial prisoners in various jails in India at the end of the year 2011, was reported from Uttar Pradesh (54,062) followed by Bihar (23,417), Madhya Pradesh (16,701), Maharashtra (16,064), West Bengal (13,567), Jharkhand (12,073), Rajasthan (11,899) and Punjab (10,295). States/UTs which have reported least number of undertrials in their jails are Sikkim (120), Puducherry (112), Arunachal Pradesh (49), Lakshadweep (30), D&N Haveli (25) and Daman & Diu (17). The proportion of undertrials male inmates was reported as 95.5% while female inmates were of 4.5% at the end of 2011. Further a total of 554 undertrial civil prisoners were reported from 6 States/UTs at the end of the year 2011. Punjab (271) has reported the highest number of undertrial civil prisoners accounting for 48.9% of total such 32 prisoners in the country followed by Jammu & Kashmir (205), Uttar Pradesh (44), Bihar (11), Chhattisgarh and Gujarat (7 each), Karnataka (6), Jharkhand (2) and Haryana (1). Only Punjab (15) and Jammu & Kashmir (12) have reported female undertrial civil prisoners lodged in their jails.

Every convict and undertrial prisoner has been conferred with certain rights which have been enumerated in Part III of the Constitution of India so that their life as a prisoner is dignified and comfortable because a prisoner remains a ‘person’ in prisoner. Though these rights are must for every prisoner to maintain and balance his mental status as a human being, the inefficiency of our law enforcement system prevents prisoners from enjoying these rights. Besides the constitution, there are certain other statutes like the prisoners act, 1900, prisons act, 1894 and prisoners attendance in courts act 1955. In states there are jail and police manuals which also have certain rules and safeguards for the prisoners and cast an obligation on the prison authorities to follow these rules.

The Supreme Court and High Court rulings have played a crucial role in enumerating the rights of prisoners and have elaborately commented upon the deplorable conditions prevailing inside the prisons, resulting in violation of prisoner’s rights. Prisoners’ rights have become an important item in the agenda for prison reforms. The need for prison reforms has come into focus during the last three to four decades. The Supreme Court of India has been active in responding to human right violations in Indian jails and has, in the process, recognised a number of rights of prisoners by interpreting Articles 21, 14, 19, 22, 32, 37 and 39A of the Constitution in a positive and humane way. Given the Supreme Courts‟ overarching authority, these newly recognised rights are also binding on the State under Article 141 of the Constitution of India which provides that the Law declared by the Supreme Court shall be binding on all courts within the territory of India.

Article 21 of our Constitution i.e., Protection of Life and Personal Liberty mandates that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The Supreme Court of India, by interpreting Article 21 of the Constitution, has developed human rights jurisprudence for the preservation and protection of prisoners‟ rights to maintain human dignity. Although it is clearly mentioned that deprivation of Article 21 is justifiable according to procedure established by law, this procedure cannot be arbitrary, unfair or unreasonable. In a celebrity case, Maneka Gandhi Vs. Union of India 1978(1) SCC 248, the Apex Court opened up a new dimension and laid down that the procedure cannot be arbitrary, unfair or unreasonable. Article 21 imposed a restriction upon the state where it prescribed a procedure for depriving a person of his life or personal liberty.

Any violation of this right attracts the provisions of Article 14 of the Constitution, which enshrines right to equality and equal protection of law. In addition to this, the question of cruelty to prisoners is also dealt with, specifically by the Prison Act, 1894 and the Criminal Procedure Code (CRPC). Any excess committed on a prisoner by the police authorities not only attracts the attention of the legislature but also of the judiciary. The Indian judiciary, particularly the Supreme Court, in the recent past, has been very vigilant against violations of the human rights of the prisoners.

In one of the landmark judgments on prison reforms Sunil Batra v. Delhi Administration (1978) 4 SCC 494, the Apex Court has held that under-trials shall be deemed to be in custody, but not undergoing punitive imprisonment. So much so, they shall be accorded more relaxed conditions than convicts. It was further held that fetters, especially bar fetters, shall be shunned as violative of human dignity, within and without prisons. The indiscriminate resort to handcuffs when accused persons are taken to and from court and the expedient of forcing irons on prison inmates are illegal and shall be stopped forthwith save in a small category of cases dealt with next below. Moreover, Legal aid shall be given to prisoners to seek justice from prison authorities, and, if need be, to challenge the decision in court — in cases where they are too poor to secure on their own. If lawyer’s services are not given, the decisional process becomes unfair and unreasonable, especially because the Rule of law perishes for a disabled prisoner if counsel is unapproachable and beyond purchase. By and large, prisoners are poor, lacking legal literacy, under the trembling control of the jailor, at his mercy as it were, and unable to meet relations or friends to take legal action. Where a remedy is all but dead the right lives only in print. Article 39-A is relevant in the context. Article 19 will be violated in such a case as the process will be unreasonable. Article 21 will be infringed since the procedure is unfair and is arbitrary. In Maneka Gandhi’s case the Rule has been stated beyond mistake.

Again in the year 1980, the constitutional bench of V.R. Krishna Iyer, R.S. Pathak and O. Chinnappa Reddy, JJ. in Sunil Batra (II) v. Delhi Admn., 1980 has affirmed that where the rights of a prisoner, either under the Constitution or under other law are violated, the writ power of the court can and should run to his rescue. The court has a continuing responsibility to ensure that the constitutional purpose of the deprivation is not defeated by the prison administration. It was further held that all actions against and treatment of the prisoner must be commensurate with his sentence and satisfy the test of Articles 14, 19 and 21.

The Rudal Shah’s case is an instance of breakthrough in Human Rights Jurisprudence. The petitioner Rudal Shah was detained illegally in prison for more than fourteen years. He filed Habeas Corpus before the court for his immediate release and, interalia, prayed for his rehabilitation cost, medical charges and compensation for illegal detention. After his release, the question before the court was “whether in exercise of jurisdiction under Article 32, could the court pass an order for payment of money? Was such an order in the nature of compensation consequential upon the deprivation of fundamental right? There is no expressed provision in the Constitution of India for grant of compensation for violation of a fundamental right to life and personal liberty. But the judiciary has evolved a right to compensation in cases of illegal deprivation of personal liberty. The Court granted monetary compensation of Rs.35,000 against the Bihar Government for keeping the person in illegal detention for 14 years even after his acquittal. The Court departed from the traditional approach, ignored the technicalities while granting compensation.

The decision of Rudal Shah was important in two respects. Firstly, it held that violation of a constitutional right can give rise to a civil liability enforceable in a civil court and; secondly, it formulates the bases for a theory of liability under which a violation of the right to personal liberty can give rise to a civil liability. The decision focused on extreme concern to protect and preserve the fundamental right of a citizen. It also calls for compensatory jurisprudence for illegal detention in prison.

In India, the courts have acknowledged and several judgments recognise a wide array of fundamental and other rights of prisoners. There are still many rights that are not recognised by the Indian legal system. For example, in January 2010, considering the rapid increase in the number of HIV positive prisoners, the Bombay High Court asked the Maharashtra government to examine the possibility of allowing jail inmates to have sex with their wives in privacy.

BASIC RIGHTS OF UNDERTRAIALS ARE BELOWMENTIONED:

Right to be lodged appropriately based on Proper Classification, Special Right of young prisoners to be segregated from adult prisoners, Rights of women prisoners, Right to healthy environment, Right to bail, Right to speedy trial, Right to free legal services, Right to basic needs such as food, water and shelter, Right to have interviews with one‟s Lawyer, Right against being detained for more than the period of sentence imposed by the court, Right to protection against being forced into sexual activities, Right against arbitrary use of handcuffs and fetters, Right against torture, cruel and degrading punishment, Right not to be punished with solitary confinement for a prison offence, Right against arbitrary prison punishment, Right to air grievances and to effective remedy, Right to evoke the writ of habeas corpus against prison authorities for excesses, Right to be compensated for violation of human rights, Right to visits and access by family members of prisoners, Right to write letters to family and friends and to receive letters, magazines, etc., Right to rehabilitation and reformative programmes, Right in the context of employment of prisoners and to prison wages, Right to information about prison rules, Right to emergency and reasonable health care.

Various judgments passed by Indian courts suggest that they are sensitised to the need for doing justice to people to whom justice had been denied by a heartless society for generations. Although several judgments have recognised the rights of prisoners, these have resulted in few amendments to legislation and unfortunately, little has changed. There have been no worthwhile reforms affecting the basic issues of relevance to prison administration in India. Though various rights have been granted to prisoners, in reality, they do not reach the prisoners. An outstanding example is the right to speedy trial. A huge backlog of cases impedes the delivery of justice and this is a violation of the rights by the court itself. Similarly, free legal aid is an idealistic goal, but presently far from reality. Many of the prisoners do not know about the services and they are unable to utilise it.