PERSONS IN CUSTODY. Mohd. Ajmal Modh. Amir Abu Mujahid Vs. State of Maharashtra Crl. Appeal No /2011 (Supreme Court of India)

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1 PERSONS IN CUSTODY Mohd. Ajmal Modh. Amir Abu Mujahid Vs. State of Maharashtra Crl. Appeal No /2011 (Supreme Court of India) Vide order dated , the Court held in the following paras : Two years later, in Khatri (II) relating to the infamous case of blinding of prisoners in Bihar, this Court reiterated that the right to free legal aid is an essential ingredient of due process, which is implicit in the guarantee of Article 21 of the Constitution. In paragraph 5 of the judgment, the Court said: This Court has pointed out in Hussainara Khatoon (IV) case[94] which was decided as far back as March 9, 1979 that the right to free legal services is clearly an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21 and the State is under a constitutional mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer Then, brushing aside the plea of financial constraint in providing legal aid to an indigent, the Court went on to say: Moreover, this constitutional obligation to provide free legal services to an indigent accused does not arise only when the trial commences but also attaches when the accused is for the first time produced before the magistrate. It is elementary that the jeopardy to his personal liberty arises as soon as a person is arrested and produced before a magistrate, for it is at that stage that he gets the first opportunity to apply for bail and obtain his release as also to resist remand to police or jail custody. That is the stage at which an accused person needs competent legal advice and representation and no procedure can be said to be reasonable, fair and just which denies legal advice and representation to him at this stage. We must, therefore, hold that the State is under a constitutional obligation to provide free legal services to an indigent accused not only at the stage of trial but also at the stage when he is first produced before the magistrate as also when he is remanded from time to time In paragraph 6 of the judgment, this Court further said: But even this right to free legal services would be illusory for an indigent accused unless the Magistrate or

2 the Sessions Judge before whom he is produced informs him of such right. The Magistrate or the Sessions Judge before whom the accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State. We would, therefore, direct the Magistrates and Sessions Judges in the country to inform every accused who appears before them and who is not represented by a lawyer on account of his poverty or indigence that he is entitled to free legal services at the cost of the State. Unless he is not willing to take advantage of the free legal services provided by the State, he must be provided legal representation at the cost of the State. (Emphasis Added) We, therefore, have no hesitation in holding that the right to access to legal aid, to consult and to be defended by a legal practitioner, arises when a person arrested in connection with a cognizable offence is first produced before a magistrate. We, accordingly, hold that it is the duty and obligation of the magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and, in case he has no means to engage a lawyer of his choice, that one would be provided to him from legal aid at the expense of the State. The right flows from Articles 21 and 22(1) of the Constitution and needs to be strictly enforced. We, accordingly, direct all the magistrates in the country to faithfully discharge the aforesaid duty and obligation and further make it clear that any failure to fully discharge the duty would amount to dereliction in duty and would make the concerned magistrate liable to departmental proceedings. ****************

3 PIL highlighting large number of Under Trial Prisoners languishing in Jail for a long period R.D. Upadhyay Vs. State of A.P. and Others W.P. (C) No.559/94 (Supreme Court of India) This is a Public Interest Litigation filed under Art.32 of the Constitution of India by Mr. R.D. Upadhyay Advocate highlighting the large number of undertrial prisoners languishing in Tihar Jail for a very long period. Hon ble Supreme Court held that So far as the cases regarding attempt to murder are concerned, we direct that the cases which are pending for more than 2 years, the undertrials shall be released on bail forthwith to the satisfaction of the respective trial courts. Persons facing trial for Kidnapping, Theft, Cheating, Arms Act, Counterfeiting, Customs, Under Section 326 IPC, under Section 324 IPC, Riots and under Section 354 IPC who are in jail for a period of more than one year, shall be released on bail forthwith to the satisfaction of the trial courts concerned. There may be cases where the undertrial persons may not be in a position to furnish sureties etc. In those cases, the trial courts may consider keeping in view the facts of each case especially the period spend in jail-releasing them on bail by furnishing personal bonds. Vide order dated , the Court observed as under:- We make it clear that it shall not be necessary for any of the undertrials to move application for bail. The court shall, suo motu, on the authority of this Court s order, consider the bail cases. This shall be done by all the courts concerned within two weeks of the receipt of this order. We give liberty to all concerned to approach this Court for further directions, if necessary. (Para 4) A copy of this order be sent to the District & Sessions Judge, Delhi by tomorrow. He shall issue the necessary directions in this respect to all the courts functioning under his jurisdiction. A copy of this order be also sent to the Superintendent, Tihar Jail with a direction that he shall being this order to the notice of all the undertrials concerned. (Para 5) Above directions of Hon ble Supreme Court were reiterated by Hon ble Division Bench of Delhi High Court in W.P.(C) No.3892/2011 vide order dated

4 and directed Delhi State Legal Services Authority to move applications for bail for eligible undertrial prisoners while observing that in those cases where they are not in a position to furnish the surety, the Trial Court would consider the case by furnishing periodical bonds keeping in view the facts of each case subject to the period spend in Jail. ***************

5 Accused unable to furnish Surety Bond despite Bail Orders D.M.Bhalla Vs. State W.P. (C) 3465/2010 (High Court of Delhi) In this case DSLSA was directed to oversee how many accused persons/convicts are unable to furnish surety bond after the orders have been passed and submit a report to the Court periodically. In order dated in paragraph 4, Hon ble Court has stated that:- i. The Jail Paralegal Workers would gather instances and ascertain the reasons for the inability to meet the bail conditions and furnish it to the jail authorities and/or to the visiting lawyers of DLSA who, in turn, would prepare an appropriate application for modification/relaxation of the bail conditions. In cases where the undertrialprisoner/convicted-prisoner have their own private counsel similar/appropriate suggestions would be offered to them by the visiting lawyers; and if so instructed the latter would draft and file requisite applications on behalf of such prisoners also; ii. The bail order would be communicated by the Jail Authorities to the family of the undertrial-prisoner/convicted prisoner, with the latter s consent, so that the family could take steps to meet the bail conditions; iii. To facilitate the release on relaxed bail terms or personal bond or acceptance of surety of land, the Gram Pradhan s/sdm s certificate that the prisoner is a permanent resident of the village/subdivision or is the owner of such and such parcel of land would suffice; iv. The Bail Granted Register, in which the list of the bails granted by the court concerned is maintained, would be examined by the judge concerned to ascertain which undertrial-prisoner/convicted-prisoner has not been released from jail. Reasons for the same would be ascertained through video-conferencing and appropriate orders regarding relaxation/modification of the bail terms would be passed within ten days; v. the bail application would be expedited and disposed off as soon as possible regard being had to the objective of release of the prisoner expeditiously and

6 reasons for the delay as may be ascertained through video conferencing with the undertrial-prisoner/convicted-prisoner; vi. In case of non-disposal of the cases within the above proposed timeframe the reasons for the same would be incorporated in the Monthly Workdone Statement/Report sent to the Supervising Judge/ High Court. vii. In cases of conviction where an appeal is pending before the High Court and the sentence has been suspended the prisoner may be released on personal bond, if no local surety or cash surety is available (in view of the judgment in Moti Lal vs State of MP (1978) 4 SCC 47, Keshub Narayan Banerjee vs State of Assam AIR 1985 SC ****************

7 Arrest (with or without fine) where Imprisonment less than or extended to 7 years Arnesh Kumar Vs. State of Bihar & Ors. Criminal Appeal No. 1277/2014 (Supreme Court of India) In the Judgment dated in paragraph 5 : There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a women at the hand of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provison. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. Crime in India 2012 Statistics published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net... In paragraph 6 : Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative

8 sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive. In paragraph 7 : The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Despite this legal position, the Legislature did not find any improvement. Numbers of arrest have not decreased... In paragraph 11 : We are of the opinion that if the provisions of Section 41, Cr.PC which authorizes the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasize that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Cr.PC for effecting arrest be discouraged and discontinued. In paragraph 12 : Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorize detention casually and mechanically. In order to ensure what we have observed above, we give the following direction: (1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 Cr.PC.

9 (2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii); (3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention. (4) The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention; (5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing. (6) Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of the institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing. (7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction. (8) Authorizing detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court. In paragraph 13, the Hon'ble Court specifies that : we hasten to add that the directions aforesaid shall not only apply to the cases under section 498-A of IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than 7 years or which may extend to 7 years; whether with or without fine. ******************