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Under trial Prisoners:

Quicker Trial and Human Rights
Ranesh Chandra Majumdar*
Discussion on the human rights violation of under trial prisoners.

*Freelance societal researcher, with judiciary in focus. E-mail: judicialresearchmailbox@gmail.com

Starting on 11 November 2011, for a few days 800 under trial prisoners in Alipur and 135 in Presidency Jails in Kolkata went on hunger strike demanding quick disposal of their cases. The strikers demand captured substantial media space. Media coverage and public interest died out. The purpose of this short paper is to rekindle public interest on the subject leading to brain storming of the nation. The spot light is on two Jails and two Sessions Divisions 1 in West Bengal, but the issues are relevant every where else in the country. It is assumed that most of the striking under-trail cases are pending in Alipore Sessions Division and Calcutta Metropolitan Sessions Division. It is also certain that all of them have access to the service of very competent lawyers either at own cost or at tax-payers cost. It is also certain that all their cases are non-bailable and bails 2 have been refused by Judiciary after careful consideration. BAIL IS THE RULE. JAIL EXCEPTION 1 Total number of criminal cases pending in Alipur Sessions Division as on 31.12.10 2 Out of column 1, total number of cases which are being tried in the courts empowered to pass prison terms exceeding 3 years up to Death sentence 7, 66, 083 3 Total number of under trial prisoners as on 1.5.11 in Alipur and Presidency Jails including Womens jail

9,21, 593

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As per Criminal Procedure Code, a territory coinciding with a district is designated as Sessions Division, headed by Sessions

Judge, who also happens to be the District Judge. Metropolitan area is one Sessions Division. Sessions Judges are immediately below the High Court and can pass any sentence authorized by law, excepting that death sentence has to be confirmed by High Court. Sessions Judges try cases beyond jurisdiction of Chief Judicial Magistrate. He also hears appeal from judges lower down.

Indian Penal Code and also Criminal Procedure Code classify offences in several ways. One classification is Bailable and

Non-Bailable. When some one is arrested for any offence classified as bailable, the arrested person has got to be released immediately on bail at the level of Police itself. When a person is arrested for an offence classified as non-bailable, only a judge can decide whether or not to grant bail. It is always a judicial decision. The Sessions Court, High Court and the Supreme Court have extra-ordinary power to grant bail to non-bailable offenders at every stage, before arrest, after arrest and even after conviction. Such power is very liberally exercised. Bail and not jail is the rule. Jail is exception. Moreover, Section 436A of Criminal Procedure Code stipulates the maximum number of days for which under trial prisoners can be held in custody. In Criminal Procedure Code, there are about 490 penal offences. Out of these, 295 are bailable and 195 are non-bailable. Broadly speaking, very serious crimes attracting severe punishments (jail for 7 years up to death sentence) are non-bailable. But there are exceptions.

eSS, Current Affairs, Majumdar, Law January 2012

Total number of criminal cases pending in Calcutta Metro Division as on 31. 3.11

Out of column 1, total number of cases which are being tried in the courts empowered to pass prison terms exceeding 3 years up to Death sentence 1,401

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3,95,147

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13,16, 740

7, 67,484 Most of 2,549 Must be very hard these are likely to be core non-bailable category non-bailable.

Points for Discussion Is it possible to dispose these cases at all? How many judicial- hours are needed to dispose these cases in trial courts? One can sit with a calculator and find the answer. And verdict this way or the other will not end the lives of the cases. These will immediately get rebirth at appellate courts. (Even assuming but not admitting that it is possible to do so) is it desirable to dispose the pending cases and immediately load these in the Appellate Courts? Example, 9,21, 593 criminal cases in the Session Division, Alipur and 395 147 criminal cases in Calcutta Metro Session Division after verdict one way or the other, most likely will immediately go and get settled in the Honble Sessions Court, Alipur and Honble High Court. A few shall stray to Supreme Court. All the Sessions Courts and High Courts in the Country shall be similarly submerged if all the criminal cases are disposed of in the trial courts. Is it desirable from the point of view of the judiciary? Will quick disposal of the cases in trial courts necessarily solve the problem of under trial prisoners? Whichever under-trial prisoner is convicted will remain under trial prisoner if the Courts do not grant bail under Sections 389 and 397 of Criminal Procedure Code (Cr.PC)3. Do all the under trial persons, including lakhs of those who are on bail and those under sections 389 and 3974 of Criminal Procedure Code are they convinced that they would be acquitted and the State would not appeal, really desire quick disposal of their cases? Those who are on bail are enjoying full life, job, family life, profession, pension, terminal benefit, promotion up to the highest possible constitutional position (Chief Vigilance Commissioner P.J.Thomas) and every
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Criminal Procedure Code (Cr PC) tells various procedures to deal with offenders.

For example, IPC tells what murder is and what the punishment is. Cr PC tells how to arrest, detain and try a murderer. (There are also other special acts on special offences which have not been considered here.)

An accused after conviction may be granted bail pending disposal of his/ her appeal. There is no time limit. Sanjay Dutt, the

actor is on such bail.

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good thing in life. No social stigma. Only a scientific survey will reveal if these lakhs want or do not want early disposal of their cases. Is it desirable, from the point of view of the Good Samaritans, to enlarge all the under trial prisoners on bail and to grant bail in every non-bailable case? Websites show that a substantial number of NGOs, including international are working for under trial prisoners. Keeping vigil of these is almost a hard task. It seems that they have no dearth of funds. It can be even the tax payers funds. We can assume that substantial number of employment generated by this vigil. If there are no under trial prisoners what these good souls shall do? Will any state, or the whole Indian state, can cope with disposal of the cases? Let us assume that 9, 21,593 cases pending in Alipur Sessions Division are finally disposed. Meaning no side goes to the Appellate Courts. Let us assume that 6, 21,593 acquitted and 300 000 convicted to be jailed. It means that the State Government will have to find enough prison space to house these 3, 00,000 persons, separate for males and females. Treatment should be given at Super-speciality hospitals enough trained teachers to teach Tagore Dance Drama 5 enough number of religious preachers for all faiths and sects. Provide TV and other games, library, college facilities, engineering / Management teaching, campus interview (like Tihar Ashram6), good food----that too with special menu at Eid, Durga Puja, XMas. All these have to be done under the vigil of NGOs. And of course, there will have to be entries in good numbers, to prevent non-convicted persons pretending to be convicts and trying to sneak entries into the correctional homes (Jails) to enjoy a good life7. Is it violation of human rights to hold a person in prison without bail pending trial? Several websites openly or by implication have been asserting that it is, indeed, violation. At least one non-judicial officer of the West Bengal Government has been in this chorus. The under trial prisoners, assisted by able lawyers at own or tax-payers cost 8 are denied bail by wise judges, after getting fully convinced against grant of bail. To term these detentions as human rights violation, by implication, means that as per the chorus, our judges have been violating human rights. What else can be the worse form of contempt of courts? And it is also moral intimidation of the wise judges. NGOs and other Samaritans positioning themselves above our judiciary! And being tolerated?

An NGO has become famous by training convicts in Tagore Dance drama in Calcutta. Recently, the convicts gave a

performance in New Delhi. A very well-publicised life-convict who had killed his father, step mother and step brothers and sisters, so much impressed the authorities by his Tagore Dance-Drama performance that he got bail under section 389 Criminal Procedure. He committed dacoity and was caught by cruel police! Incidentally, Judges Sentence accused persons to hard labour.

Tihar Jail so named by Dr. Kiran Bedi when she was in charge See West Bengal Correctional Service Web page image of very well-cared for children of the convicts. The Legal Services Authority Act and also Section 304 of Criminal Procedure Code make it obligatory on the part of the tax-

payers via the state to pay for the lawyers of persons under trial.

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Human right is a sacred fire. Only a few qualify to carry this sacred fire. We also know that the wide spread abuse of this fire in international politics. Countries are being devastated on the plea of protection of human rights. We ignorant barbaric Indians have a right to know the bench mark of dealing with arrested persons in the USA and Canada (where human rights are at the best): Use of force to arrest, handcuffing, searching, arrest of women after sunset up to sunrise 9, arrest of juveniles, quantum of bail bonds, radio-banding at the ankles of people released on bail, standard of food, medical facilities, clothing, beds. We ought to know also how convicts under hard labour are handled, consecutive running of sentences (may be running up to a few hundred years) solitary confinement, meaning of life imprisonments and so on. We Indians have right to know our deviations so that we can correct ourselves and become civilized in the eyes of the NGOs and not get militarily devastated by international protectors of human rights.

Criminal Procedure Court has made it virtually impossible to arrest a woman after sunset to sunrise.

eSS, Current Affairs, Majumdar, Law January 2012