Gaur POORVICTIMUSES 1993

POOR VICTIM OF USES AND ABUSES OF CRIMINAL LAW AND PROCESS IN INDIA
Author(s): K.D. Gaur

Source: Journal of the Indian Law Institute , OCTOBER-DECEMBER 1993, Vol. 35, No. 4
(OCTOBER-DECEMBER 1993), pp. 183-232
Published by: Indian Law Institute
Stable URL: https://www.jstor.org/stable/43953211
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms
Indian Law Institute is collaborating with JSTOR to digitize, preserve and extend access to
Journal of the Indian Law Institute
This content downloaded from

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
All use subject to https://about.jstor.org/terms
POOR VICTIM OF USES AND ABUSES OF CRIMINAL LAW AND
PROCESS IN INDIA
K.D. Gaur
I Introduction
THE INDIAN criminal law, being gift of British, is based cm the colonial concept
of jurisprudence. It is establishment oriented and pro elitist. It appears to be a
little hostile to the poor and weaker sections of the society, such as women,
children, physically, economically and mentally handicapped groups, prisoners,
religious and political dissenters, inhabitants of geographically remote regions,
victims of crime and the like. It operates oppressively on them despite consti-
tutional guarantees to the contrary.
The objective differences in social values and social behaviour of various

groups very often mean that the poorest and the least privileged in society bear
a disproportionate share of socio-economic consequence of crime.1 There is
also a status-gap between the judge and the judged. Perhaps, the socio-economic
value and milieu of the court system is unfriendly to the poverty sectof. Today
in India a big smuggler, tax-evader, blackmarketeer through clever advocacy
may get away with it with no imprisonment, while a poor man lives in the cage
in tears because he has no tongue to explain his innocence. Pavement dwellers
and palace hovers often fair differently in court, in prison and even after release.
In other words, those who invade the health and wealth of the nation (i.e., white
collar and socio-economic criminals) have still an upper hand as brave law
becomes soft justice and loopholes are their invariable luck.
The justice system in India which is based on adversorial model of common
law is known for being cumbersome, expensive and cumulatively disastrous.
The poor can never reach the temple of justice because of the heavy cost of its
process and the mystique of legal ethos. The hierarchy of courts, with appeals
after appeals puts legal justice beyond the reach of the poor. Professional service
is monopoly of a few rich professionals (lawyers), who are too dear to be fed for
the poor. Making the legal process costlier is an indirect denial of justice to the
people and this hits hard on the lowest of the low in the society. With the result
the poor are loosing faith in the capacity of legal system to bring about changes
in their life conditions and to deliver justice to them. The law is regarded by the
poor as something mysterious and forbidding- always taking something away
* B.Sc., LL.M. (Alld.) Ph.D.(Lond.), F.R.A.S.(Lond.). Visiting Professor, Law Faculty,

University of Malaya, Kuala Lumpur, Malaysia. Professor and former Head Post-Graduate,
Department of Law, Utkal University, Bhubaneswar.
1. S.D. Gokhale, 14 Social Defence 4 (1979).

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
184 JOURNAL OFTHE INDIAN LAW INSTITUTE [VoL 35 : 4
from them and not as a positive and constructive social device for ch
socio- economic order and improving their lot.2
This article in brief discusses as to how the law and legal process
instead of safeguarding the rights and privileges of the poor and to
interests have often been used and abused by the state functiona
powerful sections of the society against the poor, the weak, the
downtrodden and the like. An endeavour has been made to provi
and suggestions for appropriate preventive and curative measures so t
becomes meaningful for whom it is meant.
II The poor: victim of criminal law and penology

The Indian Penal Code, I8603 and the Criminal Procedure Co
embody the substantive and procedural criminal law. The Penal
general penal law of the country and is the sole authority in respect to
conditions of liability, the definition of specific offences and the co
exemptions from criminal liability. Some crimes are cognizable a
not.5 Traditional and conventional crimes are rooted in time and cus
Indian Penal Code represents its core. The code covers a vast range of
behaviour in relation to the state of society as it existed more than
years ago. It is supplemented by local and special statutes to pun
categories of behaviours or acts which are prejudicial to the inte
citizens and the state.
A careful perusal of the provisions of the code would reveal that it is

undoubtedly a manifestation of the will of the dominant class determined by
economic and political motives. It makes a broad classification of crimes against
property, person and the state. Out of a total of 511 sections and over6 in the
code, 85 sections have been devoted to offences against property and 33
2. Hussainara Khatoon v. Home Secretary, State of Bihar, A.I.R. 1979 S.C. 1369.
3. The substantive criminal law is codified in the Indian Penal Code, 1860. The Code was
drafted by the Second Law Commission of India with Lord Macaulay as its President and Macleod,
Anderson and Millet as members. It has been adopted in most of the countries of the
commonwealth in South East Asia and Africa (former British subjects), such as Malaysia, Brunei,
Pakistan, Bangladesh, Ceylone, Myanmar (Burma) West- Africa, Nigeria, Somali, Sudan, Kenya,
Tanzania, Zanizibar, etc.
4. The earlier Criminal Procedure Code of 1898 (drafted by the British) has been replaced
by the new Criminal Procedure Code of 1973 on the recommendation of the Law Commission of
India. See, Law Commission of India, Forty-first Report (1969).
5. Cr. P.C., 1973, s. 2(c) says "cognizable offence" means an offence for which, and
"cognizable case" means a case in which, a police officer may, in accordance with the First
Schedule or under any other law for the time being in force, arrest without warrant". S. 2(1 ) says
"non-cognizable offence" means an offence for which and "non-cognizable case" means a case in
which a police officer has no authority to arrest without warrant".
6. In I.P.C. three ch. viz., V-A, IX-A and XX-A and a number of ss. have been added and a
few deleted. Abbreviation I.P.C. has been used for Indian Penal Code and Cr. P.C. for Criminal
Procedure Code in the article.
7. See, I.P.C., ss. 378-462.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
1993] POOR VICTIM OF USES AND ABUSES 185
sections to the offences relating to the documents

respectively to protect and safeguard the interest of
single section is enacted to take care of the poor and
man who treats a generous benefactor with gross
deserves more severe reprehension than the man who
or breaks a window in a frolic, but the law punishes f
not for ingratitude. Likewise, the rich man who refu
save a fellow creature from death is a far worse man and criminal than the
starving man (wretch) who snatches and devours the rice, but the law punishes
the latter for theft and not the former for hard heartedness and killing the starving
man.9 The law is much more comfortable sentencing a telephone coin box thief
to three years of imprisonment10 than sentencing a business executive to a
nominal admonition for over and under invoicing in business transactions
resulting in loss of revenue to the tune of millions, evasion and avoidance of
taxes, theft and misappropriation of public property and funds, trafficking in
licences, permits, profiteering, black-marketing and hoarding, etc. 1 1
Of late, relevance of the criminal justice system has been seriously ques-
tioned. In Re Sreerangyee^2 and in Re Maragaiham^ the very basis of founda-
tion of criminal law and penology appears to be at stake. The two cases depict
the pathetic state of affairs and social canvas under which our criminal judicial
administration operates.
In Sreerangyee, 14 the accused was a hard working but unfortunate woman.

She was deserted by her husband. She tried desperately to earn a living which
could support her five children (aged between 2 to 11 years) and herself but
failed. Her economic condition further worsened on account of her youngest
child's severe illness and the doctor's demand for money for the treatment.
Sreerangyee failed to raise the sum. In exasperation, she killed all her five
children by drowning them and finally jumped into a well. To her ill luck, she
was rescued and convicted under section 302 of IPC for killing her children.
The High Court held that poverty cannot justify grave offences and ruled out
poverty as an excuse for murdering her children and attempting to put an end to
her life.
In Re M aragaîham, 1 5 the two accused, husband and wife starving for about
1 0 days could find neither work nor anyone to give them food. They ultimately
8. Id., ss. 463-484E.

9. Draft Penal Code, note "Q" p. 174.
10. I.P.C., s. 379.
1 1. Govt, of India, Report of the Committee on the Prevention of Corruption 53-4 (1964).
12. (1973) 1 M.L.J. 205.
13. A.I.R. 1961 Mad. 498.
14. See, supra note 12.

1 5. See, supra note 1 3.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
1 86 JOURNA L OF THE INDIA N LAW INSTITUTE [Vol. 35:4
determined to put an end to their lives and to their female infant, aged
and a half months (probably feeling that none could look after the ch
them). They tied themselves together with a rope and jumped in
carrying the female infant. The child slipped and was drowned when t
accused had jumped into the well. But they were rescued by a passerby
The accused were convicted of attempt to murder of their female

under section 307 read with section 34 IPC and under section 309 IPC fo
to commit suicide.
Situations like Sreerangyee and Maragatham raise serious doubts about

the free will foundation theory of criminal law and the propriety of administra-
tion of criminal justice. How can the social order apply its punitive norms
particularly when it fails to respect their basic survival interests? The cases raise
significant issues with respect to philosophy and efficacy of punishment. Can
any system of rehabilitation be able to reform and restore such a "criminal"? Is
not the guarantee of social security and employment the best way of rehabilitat-
ing a large majority of criminals in our society? Perhaps a radical penological
policy is needed where sentencing will be sensitive to social justice.
No doubt, occasionally the tenor of judicial pronouncement shows deeper

concern for the poorer sections of the society who suffer more within our legal
system than others. But such casual utterances are no solution. In Boyadas
Bowri v. State of A ssam , 16 the appellant, who was an indigent and disabled man
belonging to a backward class was convicted of murder under section 302 IPC
and was sentenced to life imprisonment. In the exercise of his right of private
defence, he used a pen knife against strong adversary who was assaulting him
with a bamboo stick. It was for that the appellant was forced to fight for his life
and a thrust given in all circumstances resulted in the death of the assailant.
Conceding the right of private defence of the appellant, the court observed
that the entire case had been conducted sluggishly. Poor quality of justice
dispensed to the poor is a common feature of the judicial administration. Justice
Lahiri of Gauhati High Court emphasised that the stance of prosecution in a
welfare state must be within the parameters set out in the Constitution, viz.,
preamble, directive principles of state policy and articles 14, 19 and 21 of the
Constitution,17 wherein lies the mandate of being fair, just and reasonable
as laid down by the Supreme Court in Maneka Gandhi v. Union of
16. (1982) Cr. L.J. 213 (Gau.).

17. Ait. 14 guarantees equality before law and equal protection of laws; ait. 19 confers the
right to freedom of speech and expression, etc., and art. 21 guarantees protection of life and
personal liberty of individuals.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
Indials The court said a public prosecutor must have t

the poor, bend his knees before the insolvent might. T
of judiciary is to do justice within the four come
conviction cannot be the object of a welfare state nor
prosecutor to achieve that end. This is a welcome obs
Ill The poor: victim of exploitation of ju

Some of the decisions handed over by the Suprem
19 20 21 22 2Í
viz., Hoskot, Moti Ram, Hussdnara, S unii Batrą Sheela Borse,
Charles S obrajt have demonstrated that the constitutional mandate and statu-
tory guarantee of legal rights, remain non- existent for a large percentage of the
illiterate, ignorant and poor population of the country. The courts in these cases
did not simply articulate legal norms, but have tried to assess and examine the
role played by the law enforcement agencies at different levels, viz., investiga-
tion, inquiry, trial, bail, judgment, sentencing rehabilitation and reformation of
prisoners, etc. The findings disclose the vast gap existing between the law in
words and the law in action and reveal the enormous power that various organs
of the state wield over the life and liberty of persons under the existing criminal
justice administration.25
1 8. A.I.R. 1978 S.C. 597. The petitioner's passport was impounded by the government under
s. 10(3)(c) of the Passport Act 1976 by an order dated July 2, 1977, because her presence was
likely to be required in connection with the proceedings before a commission of inquiry. The
government declined in public interest to furnish reasons forits decision. Thereupon the petitioner
filed a writ petition under art. 32 of the constitution challenging the action of the passport
authorities being violative of art. 21 of the Constitution which guarantees personal liberty to
individuals. Rejecting the petition, the court held the right to go abroad in the circumstances of
this case was not a fundamental right. But it observed that the reasons for such deprivation must
be communicated to the petitioner so as make the action fair, just and reasonable. Mere procedure
wül not be sufficient to deprive a person of his right under ait. 21. It must satisfy the test of
reasonableness, which, inter alia, incorporate the rule of natural justice, i.e., audi alteram partem
- no one will be condemned unheard.
19. M.H. Hoskot w.State of Maharashtra, A.I.R. 1978 S.C. 1548; Raman v. Francis, (1988)
Cr. L.J. 1359 (Ker.).
20. Moti Ram v. State of U.P., A.I.R. 1978 S.C. 1594.
21. Hussainara Khatoon v. State of Bihar, (1980) 1 S.C.C. 81, 91, 93, 98, 108, 115
respectively. These six cases are numbered serially. See also, Sanjay Suri v. Delhi
Administration, (1988) Cr. LJ. 705 (S.C.).
22. S unii B atra v. Delhi Administration, A.I.R. 1980 S.C. 1579; Hazari Choubey v. State
of Bihar, (1988) Cr. L.J. 1390 (Pat).
23. Sheela Barse v. State of Maharashtra, A.I.R. 1983 S.C. 378; Sheela Borse v. Union of
India, (1986) Cr. L.J. 1736.
24. Charles S obraj v. Superintendent, Central Jail, A.I.R. 1978 S.C. 1514.
25. O. Chinnappa Reddy, "Judicial Process and Social Change", 25 J.I.L.I. 149-157 (1983).

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
1 88 JOURNA L OF THE INDIA N LAW INSTITUTE [Vol. 35 : 4
In Hoskot ,26 the accused was convicted and sentenced to thre

imprisonment in 1973 for various offences, such as cheating and atte
cheat, forging of valuable security and using as genuine forged docum
He was supplied a copy of the judgment which could have entitled him
only after he had served his full term of sentence of 3 years. In the
was virtually at the mercy of the prison authorities without even bein
about his legal right to prefer appeal against his sentence.
The Supreme Court took an exception of the matter and obser
procedural safeguards are the indispensable essence of personal li
fundamental right guaranteed under articles 19 and 21 of the Constit
court rightly held that service of a copy of the judgment to the prison
to file an appeal, and the provision of free legal services to a prisoner
indigent or otherwise disabled from security legal assistance (where t
justice call for such service) are state responsibilities under article
Constitution of India.
In Hussainara?1 the Supreme Court found that in the State of Bih

number of under - trial prisoners-men and women were kept behind
bars awaiting trial in courts for years. The offences for which m
unfortunate victims were charged were of trivial nature and in most
punishment in all probability be less than the period of their detention
Directing the state government of Bihar to release all those un
prisoners forthwith who have already been in jail for a period longer
they would have been sentenced to suffer, if convicted, the court sai
This discloses a shocking state of affairs and betrays complete lac

concern for human values. It exposes the callousness of our legal a
26. Supra note 19. The accused aged 30 years a Reader in Saurashtra University
Ph.D. cf Karnataka University approached Dabhoikar, a block maker of Bombay, pla
to prepare an embossing seal in the name of the Karnataka University, Dharwar and for
of authority purporting to have been signed by the personal assistant to the Vice Chanc
said university authorising him to get the seals made. In the meantime the concerned bl
of Bombay suspecting about the authority of the deal informed to the police le
unearthing in time of the criminal design. The petitioner was held guilty of attempt
(under s. 417 read with s. 51 1, 1.P.C.) and forging a valuable security for the purpose
and using as genuine a forged document (under ss. 467, 468 and 471 I.P.C.). The s
took a lenient and soft view and sentenced the accused to imprisonment till the rising o
But in appeal by the state government, the High Court enhanced the sentence to thr
rigorous imprisonment in view of the seriousness of the offence. The petition for sp
appeal against the heavy sentence was of course, rejected by the Supreme Court.
27. A.I.R. 1979 S.C. 1369. A writ petition was filed by an advocate before the Supr
under art. 32 of the Constitution for the issue of a writ of habeus corpus for release of
prisoners on the basis of a news item written by K.F. Rustamji, former member of
commission which appeared in tnc Indian Express, 8, 9 Jan. 1979. The article reveal
and alarming revelation about the plight of undertrial prisoners in jails in the state of B

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
1 993] POOR VICTIM OF USES AND AB USES 1 89
judicial system which can remain unmoved by such e

and suffering resulting from totally unjustified depri
liberty. It is indeed difficult for us to understan
government could possibly remain oblivious to the c
ceration of these under-trial prisoners for years wit
trial being commenced. The judiciary in the State of B
escape its share of blame because it would not have b
the fact that thousands of under-trial prisoners are l
awaiting trial which never seems to commence.28
In the impugned case it was further disclosed that a n

prisoners could not move the court for their release be
of their rights to be released on bail, and being indigen
a lawyer who could apprise them of their rights and se
jail. The court while construing article 21 of the Consti
Maneka Gandhi, held that in a criminal case legal aid to
tional mandate not only by virtue of article 39A, bu
30
and 21 of the Constitution of India, which cannot be
Justice Bhagwati speaking through the court said:
Today, unfortunately, in our country the poor are p

judicial system with the result that they are losing fa
of our legal system to bring about changes in their li
to deliver justice to them. The poor in their conta
system have always been on the wrong side of the li
always come across 'law for the poor' rather than Ma
The law is regarded by them as something mysterio
- always taking something away from them and not
constructive social device for changing the social, ec
improving their life conditions by conferring right
them. The result is that the legal system has lost its c
weaker sections of the community. It is, therefore, n
inject equal justice into legality and that can be done
and activist scheme of legal services.31
28. id at 1374.
29. Ait. 39-A of the Constitution provides that, "The State shall secure that the operation of
the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide
for legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities
for securing justice are not denied to any citizen by reason of economic or other disabilities".
31. See, supra note 27 at 1375.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
1 90 JO URN A L OF THE INDIA N LAW INSTITUTE [Vol. 35 : 4
Perhaps taking note of the courts' verdict and constitutional manda

Parliament in 1987 passed the Legal Services Authorities Act, 198732 in
to provide legal aid and legal services to indigent on a uniform pattern th
the country. The Act provides for the constitution of national legal
authority, and state legal services authority in every state and distr
services authority in every district for proper and effective implemen
legal aid and legal service schemes. The national legal service auth
headed by the Chief Justice of India, who happens to be the patron-in-
is doing a remarkable job in implementation and co-ordination of the st
aid programmes throughout the country.
But unfortunately policies have invaded even legal aid schemes and
number of briefless lawyers are allegedly appointed on political conside
drawing a monthly salary ranging between Rs. 800 to Rs. 1 ,300 per mon
hardly any case to handle.33 The scheme of legal aid to the poor is b
aid to the poor lawyers. Such partisan practices should be avoided, other
will bring discredit tot the entire scheme of legal aid and frustrate
objectives of taking justice to the poor.34
The Act besides providing a comprehensive plan for legal aid an

services has also provided for the establishment of lok adalats (peoples'
for quick and cheap justice. It is a welcome step and will go a long
properly implemented, in mitigating the hardships of the people in
justice.
But to one's dismay and surprise lok adalats have become a source of
publicity rather than a source of resolving the disputes. It is noted that the lok
adalats are generally organised on week ends and public holidays and hundreds
of cases are disposed of in one day. One wonders the logic of such large number
of disposal of cases in a day or two. This appears to be making a mockery of
the entire judicial process. Justice should not only be done, but it must appear
to have been done. If the lok adalats are to stay and serve the real purpose of
delivering justice to the people, it should not be taken casually and organised on
week ends. It must be organised on a permanent basis and have regular courts
with a permanent structure. And the scope and jurisdiction of lok adalats be
enhanced. As at present its scope is limited only to those cases where the parties
to the suit make a joint application to the court or tribunal indicating their
intention to compromise the matter or to arrive at a settlement.36 In fact, such a
32. The Legal Services Authorities Act, 1987 is a small Act consisting of 30 ss. divided into
7 ch. Ch. 1 is preliminary (ss. 1 - 2); ch. II and III deal with the constitution of national legal service
authority (ss. 3-5) and state legal service authority (ss. 6-11) respectively; ch. IV prescribes the
criteria for the entitlement of legal aid and legal services (ss. 12-13); ch. V deals with finances,
accounts and audit (s. 14-18); ch. VI provides for the constitution, organization and powers of lok
adalats (ss. 19-22) and eh. VII deals with miscellaneous provisions (ss. 23-30).
33. "Legal Aid Farce", Blitz, 22 Oct. 1983.
34. V .R. Krishna Iyer, Law versus Justice 1 69 ( 1 98 1 ).
35. See, supra note 32, ss. 19-22.
36. M s. 20(1).

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
1993] POOR VICTIM OF USES AND ABUSES 19!
power of disposal of cases by compromise through t

under the Code of Civil Procedure, 1908.37 To mak
part of the judicial set up it would be appropriat
jurisdiction. Perhaps to begin with they may be emp
rent control, accident claims, life insurance claims, m
with sufficient checks to avoid miscarraige of justic
on question of law to the district civil and sessions j
IV The poor: victim of indebtedness
Poverty is writ large amongst the rural as well

middle class. These sections of the population live
social set up is conducive to the growth of clandestin
lenders, particularly due to the paucity of regular n
distribution of loans and borrowings on concessio
through the government sponsored agencies and phi
"JO
tions. The securities asked for loans by the creditors are disproportionately
high and are always to the disadvantage of the debtors. The gain received by
the money lenders are basically unproductive idle gains which pampers the
social parasites to impoverish the poor men further. The exorbitant rate of
interest multiply the lenders capital in inverse ratio at the same time multiplying
the misery of the poor borrowers. The tentacles of these money lenders are quite
sharp. The debtors remain in their deep clutches for long.
Though several slates have sought to provide protection against the eco-
nomic exploitation of debtors at the hands of creditors, by enacting the debt relief
laws, the menancing effect of money lending remains uncurbed. The Bombay
Money Lenders Act 1946 is an example of such a measure. However, inspite
of the restrictions imposed of money lending by law the money lenders manage
to graze in the green pastures outside the legal limits, particularly when the rate
of interest is as high as 100 per cent per annum.
Perhaps the courts have not visualised the magnitude of the problems and
hardships caused to the poor debtors as a result of exploitation by the money
lenders. The decision in Bhavarlal Pruthvirai Jain, illustrates that the courts
insist on technical compliance of the law instead of interpreting the provisions
37. Civil Procedure Code, 1908, order 23 rule 3 provides for compromise of suit. Rule 3 reads:
"Where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part
by any lawful agreement or compromise in writing and signed by the parties ... the court shall
order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in
accordance therewith
38. Fatehchand v. State of Maharashtra, (1977

39. Bhavatial Pruthiviraj Jain v. State of Mah

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
192 JOURNA L OF THE INDIAN LA W INSTITUTE [Vol. 35 : 4
in the light of its objective. In the impugned case the accused money-lend
to visit a village named Ambet in the State of Maharashtra (which was o
the area for which he was granted a licence to transact business) w
complainant Abdul Shakur lived. He gave a loan of Rs. 3,200.00
complainant at the rate of 36 per cent, interest per annum m pled
ornaments of his wife. The courts below convicted the accused under section
540read with section 3441 of the Bombay Money Lenders Act 1946 for carrying
on business in the village Ambet, without the requisite licence in that behalf.
However, the High Court of Bombay in revision acquitted the accused on

a technical ground that the particular lending transaction was not proved to have
taken place in the village Ambet outside the area of operation of the business for
conviction as required by the law. The case is an admirable example that the
existing legal provisions have not given adequate protection to those under-pri vi-
leged for whom the debt laws are supposed to have been enacted. The malady
goes unabated and the business of money-lending flourishes.42
The debt relief laws should be drafted in such a way that the unscrupulous
traders might not escape from the clutches of the law. At the same time the
courts should take a liberal and pragmatic attitude in interpreting the provisions
of the statute and look into the object and policy of the law instead of sticking
to the compliance of the letters of the law.
V The poor: victim of bondage
The bonded labour system which is vestige of feudal exploitative society

is wide spread in various parts of the country. Bonded labour is a system of
usury (lending of money at high rate) under which the debtor or his descendants
or dependants have to work for the creditor without reasonable wages or with
no wages in order to extinguish the debt. At times, several generations work
under bondage for the repayment of a paltry, sum of money which had been taken
by some remote ancestor in the past, lhe interest rates are exorbitant and such
bondage cannot be interpreted as the result of any legitimate contract or agree-
ment. The system implies the infringement of the basic human rights and
destruction of the dignity of human labour.
40. S. S of the Act postulates that the money lender should hold a licence for money lending
business for a particular area.
41. S. 34 prescribes punishment for carrying on business without a licence.
42. See, D. C. Pandey, "Criminal Law", XVIII A.S.I.L. 461 at 463 (1982); see also, M.P.
Jain, "Law and the Poor: Some Recent Developments in India", 13 J.M.C.L. 23 -103 (1986).

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
It is a pity that inspite of the enactment of th

(Abolition) Act 1976, 43 which makes bonded labour p
ment, tens of thousands of bonded labourers are wor
tions in quarries and mines crushing and chipping st
in various parts of the country. These quarries and m
prisons where these unfortunates are born, live in swe
breathe their last. They are bom in indebtedness and
Justice Bhagwati in Bandhua Mukti Morcha ,44 ha
the conditions of bonded labourers in the following w
They [bonded labourers] are non-beings, exiles of

a life worse than that of animals, for the animals
roam about as they like and they can plunder or g
they are hungry but these out-castes of society ar
robbed of their freedom and they are consigned to
they have to live either in hovels or under the open
with whatever little unwholesome food they
inadequate though it be to fill their hungry stomac
choice, they are driven by poverty and hunger in
a dark bottomless pit from which, in a cruel exploi
cannot hope to be rescued.45
The Supreme Court moved by the pathetic conditi

helpless workers allowed the writ petition and issued
the federal government, the state governments and th
take a strict view of labour laws and to impose adequ
employers. The court further directed that necess
made available to the unfortunate victims of exploita
existence in small hovels, exposed to the vagaries o
43. Bonded Labour System (Abolition) Act 1976 has repla

(Abolition) Ordinance, 1975 which abolished bonded labour syste
freed and discharged from any obligation to render any bonded lab
also extinguished. The Act further gives protection to the freed
from their homestead. Contraventions of the provisions of the A
6-23). with imprisonment ranging from 1 to 3 years.
44. Bandhua Mukti Morcha v. Union of India, A.I.R. 1984
filed in the Supreme Court by Bandhua Mukti Morcha, an organ
bonded labourers), alleging that a large number of labourers fr
Madhya Pradesh, Uttar Pradesh and Rajasthan were working
conditions in stone quarries situated in Faridabad district of the St
that it was contrary to art. 23 of the Constitution of India which p
labour, and the Bonded Labour System (Abolition) Act 1976 whi
illegal and punishable with imprisonment.
45. Id. at 805.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
194 JOURNA L OFTHE INDIAN LA W INSTITUTE [Vol. 35 : 4
water, breathing heavily dust laden polluted air and breaking and bl
all their life, may one day be able to realise that freedom was
monopoly of a few but belongs to all and that they are equally
participate in the fruits of freedom and development.
In People's Union for Democratic Rights 46 the Supreme Court,

the deduction of Rs. 1 per worker per day by the Jamadars (middl
the wages payable to the workers employed by the contractors for A
in Delhi with the result the workers did not get the minimum wage
per day violate article 23 of the Constitution and amounts to force
The court further said that every form of forced labour, begg
without wages) or otherwise is within the inhibition of article 23 a
no difference whether the person who is forced to give his labour
another is remunerated or not. Even if remuneration is paid labour
a person would be hit by article 23, if it is forced labour, that
supplied is not voluntary (willingly) but as a result of force or com
The court rightly said that where a person is suffering from h

starvation, when he has no resources at all to fight disease or to fe
and children or even to hide their nakedness, where utter grinding
broken his back and reduced him to a state of helplessness and despa
no other employment is available to alleviate the rigour of his pover
have no choice but to accept any work that comes his way, even if t
tion offered to him is less than the minimum wage. He would be i
to bargain with the employer, he would have to accept what is off
The word "force" thus includes not only physical or legal force but
arising from the compulsion of economic circumstances which leav
of alternatives to a person in want and compels him to provide lab
even though the remuneration received for it is less than the min
This is a welcome judgment.
46. People's Union for Democratic Rights v. Union of Indią A.l.R. 1982 S.C.
of the People's Union for Democratic Rights (PUDR) carried out a survey of diff
ASIAD - 1982 from July 30 to August 10, 1982 and found that contractors em
government to build the stadia, flyovers, hotels, village complex, etc. were viol
the laws with impunity, the toiling workers were being denied the rights guaran
important laws as the Minimum Wages Act. Accordingly, PUDR filed a writ i
Court under art. 32 of the Constitution by way of public interest litigation to ensur
of the constitutional mandate under art. 23 and provisions of various labour laws.
47. Constitution of India, ait. 23 states that "Traffic in human beings and begg
similar forms of forced labour are prohibited and any contravention of this prov
offence punishable in accordance with law".
48. S. Shankar, "Life and Death in Indebtedness", The Statesman 16 Jan. 198

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
1 993] POOR VICTIM OF USES AND AB USES 1 95
VI The poor: victim of dowry

The poor women particularly brides, feature promin
49
mainly as unfortunate victims of dowry. Dowry mur
burnings are symptomatic of peculiar social malady
development of our social set up. Not only are many po
ill-treated, but a good number are often burnt to death
in-laws. This development is perhaps peculiarly Indian
To eradicate the practice of dowry in any shape
government in 1961 enacted the Dowry Prohibition A
the central legislation some State Governments hav
legislations on the subject so as to tackle the problem of d
jurisdictions more effectively.50 But despite the centra
the dowry system continues to grow unabated and it to
in recent years resulting in many dowry deaths, mu
victims of such casualities are mostly young newly mar
matter of common day occurrence that married women
tortured or murdered because of inability of their pare
demands of their in-laws or their husbands.51
It may be noted that most of the dowry deaths and b

even not brought to light and reported. It may in some
refusal of the police to register such cases. It is not unk
register the cases as accidents and not to look for evide
Even the press remains unaware of such incidents in m
reasons. The conviction in such cases is almost nil. Fo
deaths, of married women by burning recorded in Delh
12 cases have resulted in convictions.52
A Delhi based women organisation - "Saheli" carried o

of 109 cases of death of women by burning as reported
the months of June and July, 1982. The study revealed t
was carried out in 83 of the 109 cases the findings were
case record. In 24 cases post-mortem was skipped, in
the pressure and influence of the family of the de
49. S. 2 of the Dowry Prohibition Act 1961 states that "dowry" mean
security given or agreed to be given either directly or indirectly -
to the other party to the marriage, or (b) by the parents of either part
person, to either party to the marriage or to any other person at or b
consideration for the marriage of the said parties
50. The governments of Bihar, West Bengal, Orissa, Haryana, H
have under art. 247(2) read with art. 254(2) of the Constitution of In
Prohibition Act of 1961.
51. See, K.D. Gaur, Law and Society in Modern India 274- 82 (1989).
52. India Today, 15 April 1984, p. 39.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
196 JOURNAL OFTHE INDIAN LAW INSTITUTE [Vol. 35 : 4
53
husband. It is obvious that there is a conflict of interest in such matters.
Pressure from any quarter should not weigh in the matter and come in the process
of law and procedure. It is callous on the part of the administration to take into
account extraneous considerations in such grave matters.
Of late, the legislature, taking note of the seriousness and gravity of the
problem of dowry and its cancerous growth on an unprecedented scale, took
various legislative measures to plug the loopholes in the law so as to make the
provisions of law pragmatic and effective.
In 1984 in pursuant of the recommendations of the joint select committee
of the House,54 the Parliament drastically amended the Dowry Prohibition Act,
1961 vide the Dowry Prohibition (Amendment) Act, 1984. Offences under the
Act have now been made cognizable and a police officer can arrest the accused
of dowry without a warrant and initiate criminal proceedings against the culprit.
The penalty for demanding dowry has been made more stringent besides many
other significant changes, such as the establishment of family court, etc., have
been provided in the Act.55
Besides the above amendments in the Dowry Prohibition Act of 1961 , two
important amendments of significance have been made in the Indian Penal Code
in 1983 and 1986 respectively to deal effectively with the crimes relating to
dowry. These are stated below.
In 1983 a new chapter XX-A entitled "Of Cruelty by Husband or Relatives

of Husband" consisting of one section 498-A was added in the Penal Code vide
53. Ibid. Another study of burn cases based on information collected at the Loknayak Jay
Prakash Hospital, Delhi revealed that women are burnt 10 times more severely than men. More
women die of bums compared to men. Women who died formed 62 per cent of the sample as
opposed to 24 per cent who were men and giving the lie the belief that women wearing nylon
fabrics were more burn prone than others, 58 per cent of the women who were burnt were wearing
cotton, silk and other natural fibres.
54. Parliament appointed a joint select committee of the House in December 1 980 to examine
and suggest various measures to streamline the Dowry Prohibition Act 1961. The committee
submitted its report to Parliament in August 1982 and suggested inter alia a number of important
changes of consequential significance that were accepted and incorporated in the Act.
55. Some of the important amendments made in the Dowry Prohibition Act 1961 are as stated
below: ( i ) Punishment will be given only to the taker of dowry, whereas it was applicable in case
of both the giver and taker of dowry earlier (s.3); ( ii) complaints about dowry can be made within
10 years of marriage as against one year before (s. 6); (iii) the clause 'as consideration for the
marriage' is deleted from the definition of dowry under s. 2 of the Act of 1961 ; (iv) setting up of
family court and special court for trial of bride burning cases have been provided as against the
earlier provision of trial by the general criminal courts; (v) permissible wedding expenses is linked
to the income of the bride's parents; and (vi) penalty for demanding dowry has been made nïore
stringent. A minimum of 6 months of imprisonment with a maximum of 2 years of imprisonment
and fine of Rs. 10,000 has been provided as against 6 months of imprisonment and Rs. 5,000 fine
earlier (s. 4).

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
Criminal Law (Second Amendment) Act 198 3. 56 T

punish a husband and his relatives who torture and ha
to coerce her or any person related to her to meet an
drive her to commit suicide. Section 498-A provides a
of imprisonment and also a fine. A consequential
57
Evidence Act 1 879 was also made by inserting sectio
burden of proof from the prosecution to that of the
said provisions, if it is shown that a woman committ
of seven years of her marriage and her husband o
cruelty, the court may presume that such suicide has b
58
or in-laws. And it is for the husband and the in-laws to prove their innocence.
In 1986 vide Criminal Law (Amendment) Act 1986, a new section 304-5
was added in the Indian Penal Code for punishment in case of dowry death.
Section 304-5, IPC reads as follows:
Dowry Death: (1 ) Where the death of a woman is caused by any burns

or bodily injury or occurs otherwise than under normal circumstances
within seven years of her marriage, and it is shown that soon before
her death she was subjected to cruelty or harassment by her husband
or any relative of her husband for, or in connection with, any demand
for dowry, such death shall be called, "dowry death", and such
husband or relative shall be deemed to have caused her death.
Explanation: For the purpose of this sub-section, "dowry" shall have

the same meaning as in s.2 of the Dowry Prohibition Act, 1961.
(2) Whoever commits dowry death shall be punished with imprison-

ment for a term which shall not be less than seven years but which
may extend to imprisonment for life.
It is noteworthy that the judiciary in recent years have adopted a positive

and constructive approach in interpreting the provisions relating to dowry
offences and have departed from the colonial concept of legislative approach.
56. I. P.C. s. 498 -A reads: "Husband or relative of husband of a woman subjecting her to
cruelty: Whoever, being the husband or the relative of the husband of a woman, subjects such
woman to cruelty, shall be punished with imprisonment for a term which may extend to three
years, and shall also be liable to fine. Explanation: For the purposes of this section "cruelty"
means: (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health, (whether mental or physical) of
the woman; or (b) harassment of the woman where such harassment is with a view to coercing
her or any person related to her to meet any unlawful demand for any property or valuable security
is on account of failure by her or any person related to her to meet such demand".
57. See, K.D. Gaur, A Text Book on the Indian Penal Code 447-50 and 662-5 (1992).
58. Inder Raj Malik, v. S imita Malik, (1986) Cr. L.J. 1510; WazirChand v. State of H ary ana,
A.I.R. 1989 S.C. 378.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
198 JOURNAL OFTHE INDIAN LAW 1NSTĪTUTE [Vol. 35 : 4
This is a welcome step. Some of the recent cases relating to dowry

discussed below to show the judicial trend on the subject.
In L. V. Jadhav v. S.A . Pawar,59 the appeal is directed against th
of the Bombay High Court quashing the proceedings against
respondents in the court of Judicial Magistrate, Pune under sec
Dowry Prohibition Act 196160 for demanding dowry in marriage.
The facts are as follows. Anita, a science graduate was eng
engineer from USA. While the marriage ceremonies were in progr
and his father, demanded cash of Rs. 50,000/- from the bride's fat
presence of witnesses on the pretext that the money was required t
passage of Anita and her husband to USA. Her father was told, that
pay up, the ceremonies would not be completed. Relatives int
persuaded the boy's family to go through with the marriage. Anit
and she was not allowed to accompany her husband to USA.
The Supreme Court while allowing the appeal and rejecting the
of the High Court, that since the demand of Rs. 50,000.00 was
waived aside and the marriage was allowed to continue, the dem
"dowry" amounting to an offence under section 4 of the Dowry Pr
1961 , observed that the dominant object of the Act is to stamp out
of demanding dowry in any shape or form either before or after
The court held that the precise time when the demand for dowry is
the sole deciding factor. The offence is complete when the dem
Consent for meeting the demand is not necessary. This is a welcom
A widely publicised case of bride burning is State (Delhi Admin

v. Laxman Kumar and Indian Federation of Women Lawyers v. S
These two appeals one by the Delhi Administration and the other b
Federation of Women Lawyers came up before the Supreme Cou
leave against the judgment of the Delhi High Court acquitting the
of a charge of murder under section 302 read with section 34 IPC.
The three respondents are Shakuntala, the mother, husband of t

Laxman Kumar and brother-in-law, Subhash Chandra. Laxman
married to Sudha on February 16, 1980 and were living in a flat no
janta flats in Ashok Vihar area in Delhi along with his brother Sub
59. (1983) Cr. L.J. 1501.

60. S. 4 of the Act of 1961 states that: "If any person demands directly or indir
parents or guardian of a bride or bridegroom, as the case may be, any dowry he sha
with imprisonment which may extend to six months, or with fine which may
thousand rupees, or with both ..." The s. ha» been amended vide Dowry Prohibitio
Act 1984 and punishment enhanced upto two years and fine of Rs. 10,000.
61. A.I.R. 1986 S.C. 250; See, Ninnala Devi v. State of Punjab and Haryana, (
230 N.O.C. 230 (Punj. and Har.).

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
1993] POOR VICTIM OF USES AND ABUSES 19V
family. Sudha was in the family way and was exp

towards the end of the first week of December 1980.
A little about 9 p.m. on December 1, 1980 a shout was heard from flat no.
9-B of crying "bachao-bachao" (save-o-save). On hearing the cry neighbours
rushed to the flat and found Sudha in a standing position but aflame. The
neighbours extinguished the fire. She was taken to a hospital where she died in
the early hours of 2, December 1980. Sudha made a categorical statement, soon
after the neighbours gathered near the flat and while on her way to the hospital
in the taxi, pointing to her mother-in-law - Shakuntala as the killer and that she
had set her on fire after pouring kerosene on her body, Sudha also indicated
Laxman to have actually set fire and that Subhash assisted him in the act.
The trial judge on the basis of the evidence put forward by the prosecution
and the defence came to the conclusion that the relationship of Sudha with her
husband Laxman and members of his family had become strained on account of
demands for more dowry and on Sudha's refusal to oblige them, the accused had
decided to do away with her before the child was born. Accordingly, kerosene
had been sprinkled on Sudha's body with a view of killing her and fire was set
to her clothes at the time alleged. The trial court being convinced of the charge
of murder convicted all the three accused under section 302 read with section
34 IPC. Considering the murder of Sudha to be one of the atrocious dowry
deaths, the court sentenced each of them to death and referred the matter to the
Delhi High Court for confirmation of the sentence in accordance with section
366 of the CrPC.
The High Court of Delhi diferred from the trial judge and acquitted all the
accused of the murder charge accepting the defence plea that it was purely a case
of an accident. The defence pleaded that when the brother-in-law of the
deceased returned to the house a few minutes before 9 p.m. at night, the deceased
wanted to warm up the cooked food for being served to him. At that point of
time, the child of the brother-in-law cried for milk. The mother-in-law of the
deceased wanted the milk to be heated up for the child and asked the deceased
to give the milk first for the crying child and then attend to the brother-in-law.
It is at that point of time, it was alleged that the deceased lighted the kerosene
stove, which was in the open space that caught fire and the deceased succumbed
to injuries.
Rejecting the High Courts' theory of accident, the Supreme Court held that
the defence plea in the instant case that the brides' clothes caught fire due to
kerosene stove resulting in her death due to burn injuries was not maintainable.
The court held that since the deceased did not have any warm clothing on her
person and as the evidence shows, she had only a nylon saree, it was not likely
that she would have ventured going up in cold in the month of December to
operate the kerosene stove placed in an open space near the kitchen as she was
expected to keep properly robed to avert getting ill from exposure to cold in an

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
advanced stage of pregnancy. Further, she being in an advanced

pregnancy, would have found it very difficult to squat on the floor for
the kerosene stove which was on the floor itself. '
Accepting the findings of the trial court, the Supreme C

relationship of bride with the members of the husband
strained, she had been subjected to physical as well as men
time before the incident; the physical torture was the outc
her health and the mental torture was on account of dema
therefore clear that the bride had not lighted the kerosene
her wearing apparel had not caught fire accidentally bu
sprinkled on her clothes and she had been brought into the
was lit to her clothes. Thus the bride died not as an outcome of an accidental
fire but on account of a designed move on the part of the members of the family
of the accused persons to put an end to her life.
The court accordingly, held Shakuntala and Laxman responsible for killing
of Sudha by setting her on fire. To Subhash, the court gave a benefit of doubt
and he was acquitted. As regards sentence the court opined that normally in a
bride burning case death sentence would be an appropriate sentence but in view
of the acquittal of the accused by the High Court, life imprisonment to the mother
and son respectively was awarded for murder of Sudha.
I Cf)
In Lichham
scolded by th
dowry to sati
harassments
washing the u
and later th
"bachao"). Wh
outside with
immediately
serious. She
Ironically th
refused to ta
While in ho
mother-in-la
before two w
Jaipur acquit
state appeal r
in-law under
In appeal the
murder as a
62. Lichhamad

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
1993] POOR VICTIM OF USES AND A BUSES 201
in-law to arrange for blood in the hospital for Push

regards the sentence of death, the court expressed the v
normally the "person who perpetrates a crime without a
must be given the extreme penalty of death sentence". H
difference of opinion between the Session Court and the
the guilt of the accused, the Supreme Court thought it
accused for life imprisonment instead of death sentence
State of Punjab v. Amarjit Singh,63 is yet another
(greedy) husband who set her newly wedded wife Balwin
of money. The accused, who having returned from abro
demanded from his newly wedded wife money for
helplessness, within three months of the marriage, he t
her brother's visit, she told him of an attempt to kill he
her husband's demand. The accused insulted the brother of his wife and told
him that his sister would not be allowed to go with him to her natal home. On
20 March 1985, Balwinder Kaur when in the kitchen was found in flames. On
hearing her shrieks, neighbours collected and extinguished the fire. She was
taken to hospital where she succumbed to burn injuries on 23 March, 1985 at
8.30 p.m. The deceased, Balwinder, in her statement to the assistant sub-inspec-
tor (ASI) said that her husband had set her on fire. The trial court accepted the
statement of the deceased and held the husband guilty, but as often has happened,
the High Court reversed the judgment.
The Supreme Court, the case being an obvious case of "dowry death", did
not stick to the technicalities of rules. The fact that the ASI had not got the
statement of the deceased - Balwinder recorded by a magistrate, the court said,
did not mean that it could not be accepted. Convinced of the truth of what had
happened, the irregularity in the non-recording of the dying declaration by the
magistrate was dismissed as not being of importance. The court accordingly,
convicted the husband under section 302 IPC and sentenced him to life impris-
onment.
However, in earlier cases the court appears to be very particular of the

compliance of the technicalities of the procedure. For instance, in Baldev Raj
v. State of Himachal Pradesh, 64 allowing the appeal and setting aside the
conviction of the accused for murder of his wife under section 302 IPC and
sentence of life imprisonment, the Supreme Court held that reliance of the oral
dying declaration of the deceased to her mother-in-law that she was beaten to
death by her husband, Baldev Raj, is not warranted. Rejecting the prosecution
evidence, the court said, the facts mentioned in the first information report (FIR)
63. A.I.R. 1988 S.C. 2013.
64. A.I.R. 1980 S.C. 436.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
202 JO URNA L OF THE INDIA N LAW INSTITUTE [Vol. 35 : 4
clearly show that it was a case of accidental death as a result of th

attempting to lit fire in the house and while doing so her clothes caugh
The case of S ubedar T ewari ,65 is a tragic case in which a young an
educated woman was murdered by her husband and sister-in-law. The
revolting and pathetic. Veena, a M.Sc. (Botany) was married to Na
17th February 1984, who was working in Bañaras Hindu Universit
College, Varanasi. Within seven months of the marriage Veena died an
ral death by burning, òn 12th September 1984. it was alleged that the
of her husband - Dr. Narendra was licentious and that he had extra marital
relationship with his 22 years old niece, a medical student, whom he nominated
as beneficiary on the death of the insured in a life insurance policy of Rs.
50,000/-. It was also alleged that he had illicit incestuous relationship with his
sister Meera. The death of Veena occurred in the kitchen of the two bed room
flat occupied by the husband in the campus of Bañaras Hindu University ol
which he with his wife and sister Meera was the occupant. When Ram Prasad,
the milkman came to the house of the accused for supplying milk in the morning
of 12 September 1984 at about 7.00 a.m., he knocked the door. The door was
opened by the sister of the husband. Ram Prasad saw that smoke was coming
out from inside the house and when he peeped inside he noticed that the dead
body of Veena was burning in the kitchen. Surprisingly, the husband and the
co-accused sister-in-law did not try to extinguish the fire. The milkman shouted
for help and the neighbours rushed and extinguished the fire and took the
deceased to the hospital.
On the basis of the above facts, the husband and the sister- in-law (Narendra
and Meera) were convicted by the session judge, Varanasi for the murder ol
Veena under section 302 read with section 34 of IPC and sentenced to death
and life imprisonment respectively. The High Court of Allahabad acquitted both
the accused holding ita case of "suicide". Against the decision of the High Court
the father of the deceased and the State of Uttar-Pradesh went in appeal to the
Supreme Court.
The main issue in the case was as to whether Veena (deceased) committed
suicide because her matrimonial life was disturbed or whether she was physically
eliminated by her husband who was not happy with the matrimonial tie.
After examining the facts and the evidence, the Supreme Court came to the
conclusion that the short period the deceased had lived with her husband, she
had realised that the could not continue with the marriage. She was, accordingly,
planning to start a new life by pursuing an academic career and taking up a job
as a lecturer. She wrote to this effect to her father. Under these circumstances.
Thakkar J., speaking for the court said:
65. S ubedar Tewari v. Slate of U.P., A.I.R. 1 989 S.C. 733.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
1 993] POOR VICTIM OF USES ANDA BUSES 203
It is extremely unlikely that an educated woman o

distinction who was prepared to face her problems an
tically looking forward to the future ... would be inc
suicide by burning herself ... She was a woman who h
break herself from her husband and to start her life afresh. This
discloses a strong character and a strong will to live.66
The court underlined the callousness of both brother and sister who did
nothing to save the girl and did not even go any where near the kitchen where
Veena was brining; and pointed that the accused "did not show as much concern
as the milkman, a stranger who shouted for help and tried to extinguish the fire".
Having analysed every point raised, the judge rightly concluded that "accident
and suicide are excluded beyond a reasonable doubt and that the death of Veena
is established to be homicidal". Accordingly, the court allowed the appeal and
convicted the accused Narendra for murder and sentenced him to life imprison-
ment. However, the court did not interfere with Meera's acquittal.
On the other hand, the Supreme Court in Wazir Chand.,61 acquitted the
appellant and his son Kanwar Singh who were convicted under section 306 of
IPC68 by the session judge and the Punjab and Haryana High Court for abetting
the newly married woman to commit suicide.
The facts are of common day occurence in Indian set up nowadays. The
deceased, Veena was married to Kanwar Singh on 16 October, 1993. Within
less than a year of her marriage, Veena died after having sustained burn injuries
at the residence of her husband Kanwar Singh who was living with his father
Wazir Chand. She sustained burn injuries on June 10, 1984 in the morning al
about 6.30 a.m. and was taken to the Geeta Nursing Home where she died next
morning at about 1 1 .00 a.m.
Relying on the defence version that Veena did not commit suicide but her
clothes accidentally caught fire, when she was preparing tea for the family over
a stove, the Supreme Court reversed the judgment of the courts below and
acquitted the accused of the charge under section 306 IPC. The court held that
there was not sufficient evidence on the basis of which a conclusion could be
reached with any reasonable certainty that Veena committed suicide. For
instance, there was no suicide note left by the deceased. It was not clear from
the evidence whether she set herself on fire or her clothes accidentally caught
fire. It could not also be certainty said that there was a deliberate delay on the
66. Id. at 743-4.
67. W azir Chand, supra note 58.

68. I. P.C., s. 306 "Abetment of suicide: If any person commits suicide, whoever abets
commission of such suicide, shall be punished with imprisonment of either description for a t
which may extend to ten years, and shall also be liable to fine".

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
204 JOURNAL OFTHE INDIAN LAW INSTITUTE [Vol. 35 : 4
part of the husband and the father-in-law in taking her to the hospita
better treatment available to her.
It is respectfully submitted that perhaps the court did not app

adverse circumstances and mental tensions under which a newly m
had to undergo on account of harassment, humiliation, insult and t
husband and her in-law for not bringing sufficient dowry that u
pelled the bride to take the drastic step of killing herself. As reg
a suicide note is concerned, one wonders as to how and why an acc
produce it to the police, even if it were left by the deceased.69
An important feature of crimes that lead to dowry deaths are t

invariably committed within the safe precincts of home and th
mostly close relations - mother-in-law and sister-in-law living un
roof. The phenomenon is a by-product of the exploitation of the
women by husband and relatives in direct connivance of each othe
ties are so strong that the truth will never come out and there w
witnesses to testify the guilt in a court of law. The circumstances
an early, or easy discovery of the truth. Punitive measures may b
their formal content, but their successful enforcement is a m
difficulty. This is why guilty men go scot free and are seldom br
and punished.
To curb the practice of dowry deaths there is an urgent need
the punitive and appropriate preventive measures. At the same tim
made more effective by proper implementation. Police should be m
with respect to such offences as pointed out by the Supreme Court
v. State of Maharashtra?®
Wife burning tragedies are becoming too frequent for the coun
be compi acement. Police sensitization mechanisms which w
vent the commission of such crimes must be set up if these hor
crimes are to be avoided. Likewise, special provisions facili
easier proof of such special class of murders on establishing ce
basic facts must be provided for by appropriate legislation.
VII The poor: victim of sati
Sūti, (i.e., self immolation by a widow on the pyre of the dead

husband) is yet another phenomenon peculiar to an illiterate, cons
tradition bound society. It is nothing but a manifestation of the ba
of man towards a helpless woman who becomes widow on the
husband. The irony of fate is that instead of the poor woman
69. Lotika Sarkar, "Women and the Law", XXIV A.S.I.L. 372 at 373 (1988
70. A.I.R. 1980 S.C. 1271.
71. ¡bid. See also Kashi Prasad v. State of Bihar, (1980) BBCJ (HC) 612; Inder Sain v. The
State, (1981) Cr. L.J. 1 1 16 (Delhi); P.M. Bakshi, "The Dowry Deaths", The Statesmen 1 July
1983 p. 8; Vijai Rat na v. State of U.P., (1988) Cr. L.J. 1581 (All.).

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
sympathy and shelter to bear the tragic loss of her hu

become or encouraged to be sati. Not only that the wom
sati, but the practice of sati has been given social
Temples are constructed and sati is worshiped. The fam
proud and are respected in the community. It is amazin
approximately 140 sati temples in the country of whic
state of Rajasthan alone.
No doubt, abetment of sati is punishable under s
some stray instances could be found where the abe
72
punished. For instance, as long ago as 1 87 1 in Mohit P
followed the woman to the pyre and chanted "Ram
under section 306 IPC for abetment of suicide. In this c
lost her husband resolved to immolate herself in the p
who followed her to the pyre and stood by her, her st
of the accused told her to repeat "Ram " "Ram " and
These facts were held to be active connivance and unequ
their part justifying the inference that they had engage
for the commission of the suicide by becoming sati.
convicted of the offence under section 306 of the Penal C
Similarly, in Ram Day al™ the Allahabad High C

assisting a widow to become sali guilty for abetment of
306 IPC. A person cannot escape liability on the gro
miracle and did not expect that the pyre would be ignit
However, provisions of the abetment of suicide co
306 IPC, are not adequate to deal with the menace o
country. One of the most recent cases of sati is that of
place in the state of Rajasthan in 1987. The facts are ve
pathetic. Roop Kanwar, a young Rajput girl of 1 8 year
of Rajasthan's Sikar district, was forced to immolate her
of her husband to become sati on 4 September, 198
barbaric and cruel a society could be, that claims to be
illiterate girl, and sets her on fire alive in broad day li
thousands of men-folk with not even a single meek resi
against humanity. The law enforcement machinery of
the magistracy were unconcerned as if nothing happ
hiding probably presuming it to be a normal act. The law
and operated with absolute immunity. Perhaps no one w
heinous crime.
72. (1 871 ) 3 N.W.P. 316; see, supra note 68 for text, IPC, s. 306.
73. (1913) I.L.R. 36 All. 26; Tejsingh, AIR. (1958) Raj. 169.
74. In reV idyasagar Pande, (1928) l.L.R. Pat. 74.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
206 JOURNA L OF THE INDIA N LAW INSTITUTE [Vol. 35 : 4
This evoked an unprecedented anger and anguish in the masses th

the country against the cruel and barbaric crime and led to the pr
the Rajasthan Sati (Prevention Ordinance), 1987. And ultimate
legislation - the Commission of Sati (Prevention) Act 1987 pr
stringent punishment including death sentence for abetment of sa
having application throughout the country.
The Act, drawn up in the wake of the incident of sati at Deora

punishment not only for the practice of sali, but also for its glori
important component of the Act is the establishment of special co
of offences under the Act. Clause (c) to section I of the Act of
broad meaning to the term sati. It defines sati as "the practice of b
burying alive any widow along with the body of her husband,
relative or with any article, object or thing irrespective of whether
or burying is voluntary on the part of the widow". The Act al
glorification of sati, which includes the observance of ceremonies,
processions, collection of funds or construction of temples to p
memory of a widow who has become sati.
Section 4 of the Commission of Sati (Prevention) Act, has w

scope of the term "abetment of sati" so as to bring within its clut
persons who directly or indirectly abet, aid or help in the commis
The impugned section says abetment of sati means, inducing a
burnt, to persuade or to instigate a widow to believe that the act w
some spiritual benefit to her or her husband or her family. Abetme
obstructing the police from performing the legitimate duty of pr
commission of sati. Any person guilty of abetting the commission o
or indirectly, shall be punished with death sentence or life impriso
75
fine. Those guilty of glorifying sali may be punished with imprisonment up
If*
to seven years and fine.
The Act provides for first appeal against the order of the trial court within
30 days of the judgment. The onus of providing innocence on a charge under
the Act of 1987 lies on the accused. The district magistrate has been empowered
to prevent construction of sali temples and to seize funds collected for the
purpose of glorification of sati under sections 7 and 8 of the Act. The magistrate
can also issue a ban order as a prevention measure and get sati temples under
construction demolished.
75. The Commission of Sati (Prevention) Act 1987, s.4

76. Id., s. 5.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
It may not be out of place to mention that inspite o

against sati and passing of a federal law making abetm
sali an offence, a sizable section of the people are
becoming sali. Such people would still support the
In fact, proponents of sali publicly opposed the passi
organised demonstrations and meetings pressurisi
withdrawal. The Act has now been challanged in the
petition filed under article 32 as being violative of
freedom of conscience, right to profess and propagat
religious faith guaranteed under article 25 of the Con
To one's utter surprise and dismay the practice
sanction and approval of some of the great religious
of the four Sankaracharyas77 - the Sankaracharya of
act of sali. It is high time that cocerted effort be ma
the evil consequences of sati - a barbaric act of burning
alive. The religious leaders should come forward and
a criminal act, it has no religious sanction, and appro
to burn or bury a man alive. At the same time the la
effectively without fear or favour and persons inv
crime be brought to book and punished adequately.
However, the mere passing of the law will not solv
members of an unfortunate woman whose husband d
hand to the widow and give her solace, courage and str
instead of encouraging her to become sati. The wome
made economically independent so that they could be
family especially on the death of her husband and m
family and society. The people must be vigilant and o
across any incident of sati and bring to book the culp
long way in building confidence in the woman a
unscrupulous persons to abet her to become sati.
VIII The poor: victim of bail justice
Bail is a generic term used to mean judicial relea

The right to bail i.e., the right to be released from ja
77. Sankracharaya (8 A.D.), a great Hindu philosopher and sp

mutts or monasteries at the four extremities of India, viz., Jyotir
Sarda Mutt in Gujarat in the west, Stingati Mutt in the south an
east. Each one of these mutts are presided over by priests - kno
religious leaders within their respective jurisdictions. See, B.K
Religion and Charitable Trust 22-4 (Tagore Law Lecture, 4th e
78. See, Law Commission of India, 78th Report on Congregat
Jail 6-11 (1979) for concept and history of bail.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
208 JOURNAL OFTHE INDIAN LAW INSTITUTE [Vol. 35 : A
furnishing sufficient security and bond has been recognised in eve

79
society as a fundamental aspect of human right. This is based on t
that the object of a criminal proceeding is to secure the presence o
charged of a crime at the time of the inquiry, trial and investigatio
court and to ensure the availability of the accused to serve th
convicted. It would be unjust and unfair to deprive a person of his
liberty and keep him in confinement, if his presence in the co
80
whenever required for the trial unless his release is detrimental to
sion of justice or he may be a terror or menace to the community.
The Code of Criminal Procedure, 1 973 in sections 436 to 450 h

the norms for granting of bail and provisions relating to the secu
bonds in criminal cases. The provisions for release on bail is quite c
and beyond the reach of a poor man. For instance, a man charged
order to be released on bail from prison is required to execute a pe
and also to furnish the bond of a surety,81 for a certain sum of mo
the court.
82
It is found that even in case of a bailable offence, where th
entitled to secure bail as a matter of right, bail is not granted by th
the accused is able to secure a surety. As a result the poor man
possess sufficient means to furnish bail and who is not able to arr
83
has to suffer incarceration silently even in summons cases, till the
In certain cases one has to be in detention for even longer peri
maximum term of imprisonment provided for the offence charge
concerned penal provisions without the trial having commenced.84
79. Superintendent and Remembrancer of Legal A ffairs, W est Bengal v. A m

Choudhury, (1974) 78 Cal. W.N. 320 at 325: (1974) 1 I.L.R. Cal. 304.
80. In USA the court has power to release an individual accused of a crime eve
on his own recognition. See, American Jurisprudence, vol. 8, pt. 6, p. 785 (2nd
81. The surety undertakes to pay the amount fixed by the court in case the pe
bail does not present himself during investigation or in the court on the dat
accordance with the terms of the bond.
82. The offences under IPC have been classified into bailable and non- bailable offences
according to the nature and gravity of the offence. Cr. P.C., 1973, s. 2(2)(0) says: "Bailable
offence" means an offence which is shown as bailable in the first schedule or which is made
bailable by any other law for the time being in force, and non- bailable offence means any other
offence".
83. Cr. P.C., 1973, s. 2 (w) says "summons-case" means a case relating to an offence, and not
being a warrant-case.; s.2(x) "warrant-case" means a case relating to an offence punishable with
death, imprisonment for life or imprisonment for a term exceeding two years.
84. Hussainara Khatoon v. Home Secretary , State of Bihar, A.I.R. 1979 S.C. 1369.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
1 993] POOR VICTIM OF USES ANDA BUSES 209
The sorry state of affairs came to the notice of the Su

Ram.% 5 The accused, Moti Ram had obtained an order fo
but the magistrate concerned insisted him to produce a s
10,000 before issuing the bail order, which the accused c
result of his poverty.
Allowing the petition, the Supreme Court held that t

surety of Rs. 10,000 fixed by the magistrate for the gran
denial of bail right of the accused and remarked that, if m
were treated alike, egregious inequality was an inevitabil
bail covers both release on one's own bond without suret
with surety.
In Hussainara ,86 Bhagwati J., speaking on behalf of the Supreme Court,

rightly observed that bail provision as provided in our criminal justice admini-
stration is anti-poor and denies justice to the poor by keeping them away from
their houses for long years in pre-trial detention. Justice Bhagwati aptly re-
marked when he said:
It [bail] suffers from a property oriented approach which seems to

proceed on the erroneous assumption that risk of monetary loss is the
only deterrent against fleeing from justice. The Code of Criminal
Procedure [1973] even after its re-enactment, continues to adopt the
same antiquated approach, as the earlier Code enacted towards the
end of the last century [Cr. P.C., 1 898], and where an accused is to be
released on his personal bond, it insists that the bond should contain
a monetary obligation requiring the accused to pay a sum of money
in case he fails to appear at the trial .... This system of bails operates
very harshly against the poor .... The poor find it difficult to furnish
bail even without sureties because very often the amount of the bail
fixed by the courts is so unrealistically excessive that in a majority of
cases the poor are unable to satisfy the police or the Magistrate about
their solvency for the amount of the bail and where the bail is with
sureties, as is usually the case, it becomes an almost impossible task
for the poor to find persons sufficiently solvent to stand as sureties.
The result is that either they are fleeced by the police and revenue
officials or by touts and professional sureties and sometimes they have
even to incur debts for securing their release....87
85. Supra note 20. The Haryana High Court in Gursewak Singh v. State of Punjab, (1988)
Cr. L.J. 1605 (P & H), and Gauhati High Court in A. Loso v. State of Manipur, (1988) Cr. L.J.
1458 (Gau.) have adopted a positive approach in granting of bail.
86. Hussainara Khatoon, v. Home Secretary, State of Bihar , A.I.R. 1979 s.c. 1360; see also,
Gursewak Singh, ibid.
87. Id. at 1362.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
210 JOURNAL OFTHE INDIAN LA W INSTITUTE [Vol. 35 : 4
Thus it is evident as pointed by the court it is not possible for a p

to furnish bail because of poverty. In other words, the accused with m
afford to buy his freedom, but the poor accused who cannot pay
languishes in jail for weeks, months and perhaps even for years as und
prisoner. He does not stay in jail because he is guilty, or because he
convicted, or because he may cross the prison walls before trial. He st
because he is poor and not able to purchase the heavy cost of freedom
Poverty prices them out of the freedom and is a crime in itself.
It is therefore high time that the courts must abandon the antiquated
under which pretrial release is ordered - only against bail with suretie
concept is outdated and perhaps it has done more harm than good. If t
is satisfied, after taking into consideration all the facts available befo
the accused has his roots in the community and is not likely to abscond,
should release the accused on personal bond.
IX The poor: victim of prison justice

Justice delayed is justice denied. This is more so in criminal cases
the personal liberty of an individual is at stake and in jeopardy. The iro
fate is that in all such cases it is the poor, who can not afford legal repr
are the victims of the criminal judicial system. The rich may be able t
of the net because they can afford expenses of legal representation. So
men who become victim of exigencies of judicial process and sente
nominal term of imprisonment for violations of grave offence, like s
boarding, black marketing, tax-evasion, etc., are reported to have oper
business from prison.88 Thus the poor, the weak, the pavement dw
palace hovers have different yardsticks in the courts,89 in prison and e
release.
88. See, Sunil Batra, supra note 22. Some of the instances reported in Sunil Batra case are
given below: "Dharma Teja, the Shipping magnate who served his sentence in Tihar Jail, Delhi
had thousands of rupees in Jail and all the comforts. He had an air cooler in his cell, a radio cum
record player set and even the phone; Haridas Mundhara, a businessman, not only did he had all
• the facilities in jail but he could also go out of jail whenever he liked. At times he could be out
for several days and travel beyond Delhi; Ram Kishnan Dalmia, a business magnate spent most
of his jail term in hospital. Smugglers imprisoned in Tihar Jail get their food from posh hotels
and whisky from Connaught Place in Delhi..."
89. An interesting example of different attitude of courts applying different yardsticks in
sentencing a rich and a poor man is found in two Malaysian cases, Le ., Wickrasooriya v. Public
Prosecutor , (1964) 30 M.L.J. 281 and Public Prosecutor v. Mohammad Abdullah A ng Swee Kang,
(1987) 2 M.L.J. 368. In the former case the accused- an accountant was convicted under s. 408
Malaysian Penal Code for misappropriating two sums of money - $39.70 and $12.00 Malaysian
dollars for three years* of imprisonment on each count: whereas in the latter case the accused -
managing director of a big company - charged for misapproriating sterling pounds 338,808.00
was sentenced to only four years' of imprisonment under s. 408 of the Penal Code. (Note: one
Sterling pound is almost five times more in value than one Malaysian dollar).

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
The plight of under-trial prisoners for the first ti

the Supreme Court in Hussainam Khatoon,90 wher
thousands of under-trial prisoners were languishing
of Bihar for periods longer than the maximum term
been sentenced, if convicted. While granting a charter
als who had virtually spent their period of sentence, th
was clearly illegal and was in violation of their funda
under article 21 of the Constitution of India. The court further said that the
speedy trial is a constitutional mandate and State cannot avoid its constitutional
obligation by pleading financial or administrative inability. Justice Bhagwati
speaking through the court observed that:
This discloses [plight of under-trials] a shocking state of affairs and

betrays complete lack of concern for human values. It exposes the
callousness of our legal and judicial system which can remain un-
moved by such enormous misery and suffering resulting from totally
unjustified deprivation of personal liberty. It is indeed difficult for us
to understand how the State Government could possibly remain
oblivious to the continued incarceration of these under-trial prisoners
for years without even their trial having commenced. The judiciary
in the State of Bihar also cannot escape its share of blame because it
would not have been unaware of the fact that thousands of under-trial
prisoners are languishing in jail awaiting trial which never seems to
commence.91
It is reported that as a consequence of the Supreme Court's direction the

State of Bihar reieased 18,000 undertrial prisoners in 1981 and other states also
followed suit.
It is distressing that the percentage of under-trial prisoners in Indian jails

is not only large enough but even more than the number of convicted prisoners.
Out of 1,84,189 prisoners locked up in 1,219 jails, 1,01,083 were undertrial
prisoners as on 1st April 1977 as against 83,046 convicted prisoners. Thus
under-trials constitute 54.9 percent of the total jail population. 2
Perhaps the Supreme Court's mandate in Hussainarc i93 for release and
speedy trial of prisoners has not changed the position. This is evident from the
fact that 92,993 under-trial prisoners were reported to be languishing in jails in
Q4
different states in 1982. The situation is no better today. Perhaps it has gone
90. Hussainara Khatoon , supra note 2.

91. Id. at 1372.
92. See, supra note 78. Undertrial prisoners include all those persons who are in judic
custody on remand during investigation.
93. Supra note 2.
94. Surendra Yadav, "Under Trials Need Bail Reforms", (1982) Cr. L.J. 25-6 (1982).

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
212 JOURNAL OFTHE INDIAN LAW INSTrrUTE [Vol. 35 : 4
even worse. It speaks about the tragic state of administration of c

in jails. The problem of under-trial prisoners is a serious and acute
immediate attention of the authorities for a lasting and proper solu
In 1978 the Supreme Court was seized with the question of pri
the conceptualisation of freedom behind bars and the role of judic
constitutional sentinel in a prison in the case of Sunil Beam?6 The
ers, Batra, an Indian and Sobhraj, a French national, the forme
sentence and the latter under-trial facing grave charges challenged
treatment in jail as illegal. The former questioned solitary confine
legal sanction pending his appeal against the sentence of death
Delhi High Court, and the latter questioned the distressing disable
fetters of under-trials for unlimited duration of time in the prison
Allowing the writ petition, the court said basic prison decency
of criminal justice. By isolating criminals and confining them
place in jail from the rest of the society mainly two objectives are
criminals as well as other people are deterred from committing cr
it serves protective function by quarantining criminal offenders f
period of time. Also it is hoped that after their release from jail t
rehabilitated properly. The latter objective is the central theme of a
facilities.
The brutal act of blinding of prisoners brought to the notice of

Court in Khatri ,98 is yet another case from the State of Bihar whi
humanity and shattered the concept of basic human values. In
case the police had cruelly blinded 80 suspected criminals by punct
eyes with needles and dousing them with acid.
While allowing the writ petition, Justice Bhagwati and Justice
maiah of the Supreme Court condemned the acts of blinding and d
barbaric act and a crime against the mankind". The court deplored
tion for not producing the Bhagalpur blinded prisoners before the
and session Judges subsequent to their first production and they
remain in jail without any remand order. This was contrary to law
was also critical of the indifferent attitude of the magistrates and
towards prisoners and held that they were under an obligation un
inform an accused of his right to free legal services at the cost of t
was unable to engage a lawyer on account of poverty or indigence.
95. "S.C. Concern at Delay in Trials in Bihar", The Times of India, 5 Feb
also, Prisoners, Human Rights, Directive Principles of Jurisprudence, vol. II,
96. A.I.R. 1978 S.C. 1675.
97. MohammadGiasuddin v. Stale of A .P. A.I.R. 1977 S.C. 1926.

98. Khatri v. State of Bihar. A.I.R. 1981 S.C. 928; see, Sunday, 25 Dec. 1980, p. 21 for
names of the prisoners who were blinded by the police.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
Khatri reminds that perhaps the black hole of Calcutt

but a present reality. If such instances of barbaric hostil
the poor are not checked the very basic human valu
people will loose faith in law and justice and will ultima
establishment. For e.g., in 1981 in Samastipur jail in
prisoners revolted against the misbehaviour of jail offi
facilities, which ultimately resulted in firing and killin
police are to observe the law and not to break it. Bu
under-trials shows, that they have behaved in a most la
1 00
deserves the strongest condemnation by all sections of the community.
In another case of S unii Batra ,101 the Supreme Court was faced with an
important question of issuing a habeas corpus writ on the basis of a letter
addressed to one of the judges of the Court by one of the fellow convicts - Sunil
Batra complaining of a brutal assault by a head warder on another prisoner, Prem
Chand.
Forms were forsaken since freedom was at stake and the letter was
metamorphosed into a habeas corpus proceeding and was judicially charged
with eclectic creativity. Being convinced of the allegations, the court issued the
writ directing the authorities that "the prisoner Prem Chand shall not be subjected
to physical manhandling by any jail official, that the shameful and painful
torture to which he had been subjected, a blot on Government's claim to protect
human rights, shall be ended and that he shall be given proper medical care and
treatment". Justice Krishna Iyer speaking through the court said:
Where justice, verging on inhumanity, emerges from hacking human

rights guaranteed in Part III and the victim beseeches the Court to
intervene and relieve, the Court will be functional futility as a consti-
tutional instrumentality, if its guns do not go into action until the
wrong is righted. The Court is not a distant abstraction omnipotent
in the books but an activist institution which is the cynosure of public
hope.102
It is gratifying to note that the Supreme Court has shown concern for
prisoners' right to fair treatment in jail in earlier cases as well and given relief
99. The Statesmatt, 15 Jan. 1981.

100. K.D. Gaur. Human Rights of Detenues and frisone res and Prison Reforms , Directive
Principles Jurisprudence, vol. II, pp. 23-46 (1982); The Times of India, 3 Dec. 198,1.
101. See, Sunil Batra, supra note 22. Sunil Batra came to know of a crime of torture practised
upon another prisoner, Prem Chand, who sustained serious injury on or about 26 Aug. 1980
because he was driven into that sore aperture (anus) to inflict inhuman torture by a jail warden,
Magger Singh as a means to extract money from the victim through his near visiting relations.
102. Id. at 1589.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
from time to time. Justice Chandrachud as he then was, in Bhuv

Patnaik ,103 said:
Convicts are not, by mere reason of the conviction, denuded of all

fundamental rights which they otherwise possess. A compuls
under the authority of law, following upon a conviction, to live i
prison-house entails by its own force the deprivation of fundame
freedoms, like the right to move freely throughout the territory of I
or the right to "practice" a profession. A man of profession w
thus stand stripped of his right to hold consultations while serving
his sentence. But the Constitution guarantees other freedoms, like
right to acquire, hoid and dispose of property for the exercise of w
incarceration can be impediment. Likewise, even a convict is entit
to the precious right guaranteed by Art. 21 of the Constitution tha
shall not be deprived of his life or personal liberty except accord
to procedure established by law.10
In SheelaBarse ,105 the Supreme Court on a complaint of custodial

to women prisoners whilst confined in police lock-up laid down certa
lines for ensuring protection against torture and maltreatment of wom
lock-up and jails. The court further directed for providing legal assista
state cost not only to under-trials and convicted criminals (which is a
tional mandate vide articles 39 A , 14 and 21 of the Constitution) but
indigent under police custody.
Perhaps the most shocking and revealing state is that of slav
operating in Indian jails. The slaves are the poor boys mostly un
prisoners, between ten and eighteen years of age employed as hel
cook, wash utensils, clean rooms, fetch water and do back breaking la
help the men, who are employed to do those chores. They would
get up early in the morning to prepare tea and would be allowed to g
late at night after scrubbing the pots and pans. They are kept confin
ward, which had no fan and no proper sanitary facilities. The boys ar
jail as long as possible because without them the persons employed
menial duties would have no time to relax. They are taken from one
another to be tried under one charge or another and kept in jail all the
103. Bhuvan Mohan Patnaik v. State of A. P., A.I.R. 1974 S.C. 2092.
104. Id. at 2094.
105. Sheela Barse v. State of Maharashtra supra note 23. Sheela Barse, a journalist from
Bombay wrote aletter to the Supreme Court complaining of custodial violence to women prisoners
whilst confined in the police lock-up in the city of Bombay. The petitioner stated in her letter that
she interviewed 15 women prisoners in Bombay Central jail between 11th and 17th May, 1982
and 5 out of them told her that they had been assaulted by police in the police lock up. She
particularly mentioned the case of Devamma and Pushpa Baeen.
106. Supra note 22 at 1587.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
1 993] POOR VICTIM OF USES AND AB USES 2 1 5
A touching account of crime of punishment, which in

tears is, of children being lapped up and locked up for u
tramp charges in the punitive house of justice. Whe
prisoners goes up, the police are asked to bring the boys
such instance has been narrated in S unii Batra ,107 whe
from Defence Colony in New Delhi kept in police lock
brought to jail in the morning. In this way young perso
and sufferings of a jail life, rub shoulders with hardene
tragic existence.
1 08
In Sanjay Sun, a trainee newspaper reporter initiated a public interest
litigation by moving a writ petition in the Supreme Court to gather information
about seven juvenile prisoners locked up in Tihar jail, Delhi, whose conditions
were reported miserable. The court after getting a thorough investigation
conducted of the matter came to know that the prisoners were living in pathetic
conditions in prison and there was overcrowding in jail. Hie court accordingly
issued a number of directions to the jail administration under the provisions of
the Indian Prison Act 1 894 to undertake corrective measures so that the prisoners
could be provided with facilities available under the law and are not put to
harassment and inhuman torture.
This is a welcome step. The administration should change the colonial

109
concept of justice of torture, degradation and inhuman treatment. They
should uphold the dignity of man and protect individual's human right instead
of violating it.
X The poor: victim of criminal assault

Criminal law, which reflects the social ambitions and norms of the society
is designed to punish as well as to reform the criminals, but it hardly takes note
of victims of crime. The history of crime and punishment reveals a steadily
increasing concern for the treatment of the criminal, and a virtual blackout of
attention to the plight of its poor victim. When a crime is reported to the police,
search is made for the criminal and prosecution is set, in motion for getting the
accused convicted. During the course of trial, the accused is treated as a
privileged person, accorded constitutional protection against illegal arrest and
detention and is provided with all possible help including a defence counsel, át
the cost of the state.110 Even after conviction emphasis is laid on reformation
107. Ibid.
108. Sanjay Suri v. Delhi Administration, (1988) Cr. L.J. 705 (S.C.).
1 10. A number of constitutional protections are available to an accused under arts. 20, 21 and
22 of the Constitution, viz., protection in respect of conviction for offences, protection of life and
personal liberty and protection against arrest and detention in certain cases and art. 39 A provides
for legal aid to the indigent.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
216 JOURNAL OFTHE INDIAN LAW 1NSTĪTUTE [Vol. 35:4
and rehabilitation of criminals and the stress is laid on humanisatio

and a more humane treatment of offenders.
On the other hand, there are victims of assault of crime who e

suffering mental and physical torture, bodily injury and loss of prop
not even breathe a word about it. There is an internal resistance to s
or relief. For instance, the poor, the young, the old, the mentally d
intoxicated, the persons belonging to scheduled castes, scheduled tr
ward classes, and the women, etc. prefer to suffer the agony silently
fate. 1 1 1 In fact, how many people suffer irreparable harm as a resu
assault each year and what is the extent and magnitrade of that harm
to assess. There is no proper machinery to record even the extent o
harm caused to the victims, of damage to the property, stolen, destr
as a result of carnage, riots and caste struggles, etc. Indisputably suc
enormous and irreparable. By harm is meant, "damage to lhe person
liberty, honour, etc., not caused by the victim's, own action but by t
accused and their associates as well as apathy on the part of the pro
take appropriate action in time". No one thinks of the misery and
the victims of crime and the authorities are indifferent towards t
they do not exist and matter to the establishment.
The case for compensation to victims of crime rests primar

grounds. First, the criminal who inflicted the injury against t
property must compensate for the loss, and second, the state which
protect the life and property of the victim must pay the victim for t
to him. But under the present criminal judicial system, the state tak
payment by way of fine to itself and leaves the victim at its
Unfortunately in India, unlike in European countries, such as Franc
and Commonwealth of Independent States (former USSR) there is n
provision for reparation to the victims of crime by the state.112
111. An important aspect of victimology is reluctance of victims to report case

Some of the known reasons for a non-reporting of crime are, (i) ignorance or indiff
loss is petty; (iii) the victim may not wish the offence to be discovered; (iv) the fear
or publicity - blackmail, indecent sex assaults, rape, abortion, etc.; (v) the ineffective
as well as police callous attitude; (vi) the fear of reprisal and harassment; (vii) the
and expense of getting involved with the police and possibly testifying in court b
is justice in its ways that going to law in these expensive days is much the same a
(viii) a sizable proportion of reports about crimes are not registered by the police.
1 12. See, Law Commission of India, Forty-second Report on the Indian Pen
(1971).

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
1 993] POOR VICTIM OF USES A ND ABUSES 217
ļļO
The Code of Criminal Procedure 1973 in a few cases under sections
357 to 359 have empowered the criminal courts to order for the payment of
compensation to the victims of crime out of the fine imposed by the court in a
case. The amount of compensation is limited to the amount of fine imposed and
can be ordered only, if the accused is convicted.114 The provisions are hardly
satisfactory.
Perhaps, it would be appropriate and practicable to do away with short term
sentences ranging upto six months of imprisonment or atleast reduce it to limited
cases. This is because punishment through incarceration especially short term
sentences serves none. The offender is hardly rehabilitated. In fact, the chances
of his rehabilitation are reduced, after release. The tax payer is burdened with
increased prison costs and the victim is forced to bear the cost alone. The total
cost of prison to the public exchequer in India accounts to Rs. 21 million. A
minimum of Rs. 300 to Rs. 400 per month is spent over one prisoner.1 15 It is
estimated that approximately 85 per cent of the male convicts and 95 per cent
of the female convicts, mostly poor undergo prison sentences for periods less
than six months. In such cases fine may be imposed and the accused may be
released either on admonition, or on probation with or without supervision, or
sentence may be suspended. This will reduce the high cost of prison as well as
reduce congestion and overcrowding in jails. The amount so saved may be
utilised for compensating the victims of crime.
1 13. Criminal Procedure Code 1973, s. 357 lays down that when a court imposes a sentence of
fine or a sentence of which fine forms a paît, the court may, when passing judgment, order the
whole or any part of the fine recovered to be used (a) for defraying expenses property incurred in
the prosecution, (b) in the payment to any person of compensation for any loss or injury caused
by the offence when substantial compensation is recoverable by such person in a civil court, (c)
when any person is convicted for an offence of murder or for abetment of murder in paying
compensation to the person who are, under the Fatal Accidents Act, entitled to recover
compensation; s. 358 provides for compensation to the persons groundlessly arrested; s. 359
empowers the court in case of non cognizable offences to order the accused of conviction to pay
to the complainant in whole or in part the cost incurred by him in the prosecution in addition to
the penalty imposed upon him. See, Haň Singh v. Sukhbir Singh, (1988) 4 S.C.C. 551. The
Supreme Court awarded Rs. 50,000 as compensation to the victim.
114. The Indian Penal Code (Amendment) Bill 1971 had suggested for a comprehensive
provision for compensation to victims of crime as a specific measure in certain offences, but it
was not approved by the legislature. Some of the special statutes have provided for the award of
compensation to the victims of crime. For instance, s. 5 of the Probation of Offenders Act 1958
provides for compensation in case of release of the accused on probation and s. 1 10-Z? of the Motor
Vehicles Act 1939 for the award of compensation to the injured and to the deceased's legal heir.
The Workmen's Compensation Act 1 923 prescribes a scale of compensation for injury by accident.
The Law Commission of India has recommended to the government for awarding compensation
to the victims in hit and run category and automobile accidents.
115. See, Mahmood bin Mohammad, The Victim of Criminal Justice, Social Defence, 5-15
(1982). The figures relate to 1980- 1981. It must have gone up substantially during 1991-92 due
to rise in prices and high cost of living.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
218 JOURNAL OFTHE INDIAN LA W INSTITUTE [Vol. 35 : 4
The contradictions that exist at present between the state's respon

to compensate the poor victims of crime and its inability to do so
meagre state resources can perhaps be resolved, if personal reparation
accused to the victim of crime is restored as one of the basic tenets of
judicial system. For instance, as a correctional measure or as a reha
objective a convict may be engaged in vocational or other jobs and
rated at the market value and a part of the wages so received be trans
the victim of the crime as compensation for the harm suffered by him
of civil wrongs (i.e., in torts) and rest of it may be given to the accused
defined classes of cases, such as mass murders, caste carnage, riots, bli
illegal detention, etc., the state may take upon itself the responsi
compensating the victims of crime. Ubi jus ibi remedium, no wrong w
remedy is a deep rooted principle of law and the genus of the law must
challenge by awarding compensation to the victim against the master
wrong done by the servant. If the master be the state and the act of th
is in excess of legal sanction, or the servant has failed to discharge th
■ protect the life and property, etc., of the victim the state must be held r
and liable to compensate the victim for the loss suffered by him.
In recent years the Supreme Court by invoking article 21 of the Con
(which guarantees life and liberty of persons) has tried to give some c
tory relief to the poor victims of illegal detention at the hands of the exec
But such cases are numbered and are not going to solve the malad
Sah, 117 is an admirable example of exploitation of criminal judicial pr
recent history which came before the Supreme Court for repar
petitioner, Rudal Sah was detained illegally in Ranchi Jail in the State
for 14 years after his acquittal in a full dressed trial. While directing
government to pay a sum of Rs. 30,000 as compensation, the court said,
be doing mere lip service of Rudal Sah's fundamental right", if it did
the state government to pay the compensation because it had vi
fundamental rights. The compensation was, the court said, some pallia
the unlawful act of the authorities who do an act in the name of publ
118
and use the state as a shield for their unlawful activities.
In another case Oraon v. State of Bihar, 1 19 the Supreme Court d

the state government of Bihar to pay a sum of Rs. 15,000 to Bham
1 16. See, Popular Jurist, vol. 1, p.26 (1984).

117. Rudal Sah v . State of Bihar, A.I.R. 1983 S.C. 1086.
1 1 8. Supm note 1 1 6 at 57.
1 19. The Hindustan Times, 13 August 1983. Oraon was arrested on the charge of a
murder in March 1976. He was sent to a mental hospital in Ranchi. A few months l
cured and certified by the superintendent of the hospital sane and fit and that he should
from the hospital. The jail authorities paid no heed. Oraon remained in mental hospit
when he was acquitted of all charges. See, S.N. Jain, "Money Compensation for Adm
Wrongs through Article 32", 25 J.I.L.I. 318-19(1983). See, Jiven M al M ochar v. Uni
A.I.R. 1983 S.C. 1107.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
Oraon, who was illegally detained for six years and

when he was not insane. The money so given, howeve
compensate, the court said, for six years of "living d
further the scope of article 21 , Justice Bhagwati and
a person who had been illegally detained could under
sation and obtain injunction against such illegal deten
detention by the state suffers not only mental comfo
of monetary income, but also public humiliation. The
face humiliation. If the man has children, his childre
love, affection and protection and economic suppo
husband's protection may have to struggle hard to su
ering all these factors the state must be penalized sev
away the liberty of a citizen. Such unfortunate v
rehabilitated.
It is noticed that many a time the government (ex

to comply with the directives of the courts. Surprisin
with respect to the orders and directions of the lowe
of highest courts as well, viz., High Courts and S
example is that of Deváki Nandan Prasad, v. Stat
Constitution Bench of the Supreme Court presided ov
had issued in 1971 the writ of mandamus directing th
of Bihar to pay the petitioner his withheld pension.
failed to comply with the mandamus for a long perio
it as a scrap of paper.
Being disappointed, the petitioner moved the Supr

had to issue the mandamus second time with a warni
that the failure or deviation in time schedule in carr
would be a contempt of court and awarded exemplary
be paid to the petitioner since the officers of the sta
was intentional and deliberate. Such a callous and indif
of the executive is highly diplorable. Perhaps it need
entire administrative set up to bring it in tune w
enshrined in the preamble and directive principles of
XI The poor: victim of abuse of criminal
The object of criminal process is to provide a mach

accordance with the princples of natural justice. The
dure 1973 has accordingly provided a detail and comp
the investigation, inquiry and trial of an accused
120. A.I.R. 1983 S.C. 1134.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
220 JOURNA L OFTHE INDIAN LA W INSTĪTUTE [Vol. 35 : 4
punishment to be accorded after conviction in accordance with law. In

it has also provided for certain preventive measures for the safety and p
of the society from undesirable and suspected elements. The preventive
121
ures have been provided in chapters VIII, X and XI of the Code and are aimed
at persons who are dangerous to the society as they might commit offences. The
preventive measures incorporate the principle that prevention is better than cure,
i.e., if the undesirable elements are apprehended in time, the crime can be
checked and potential danger to the society be averted.
Chapter VIII of CrPC in sections 106 to 124 provides for security proceed-
ings and empower the magistrate to obtain security from a person whose conduct
causes or is likely to cause a reasonable apprehension of breach of the peace or
disturbances of public tranquility. This is an instance of preventive justice which
1 11
the courts are intended to administer. For this purpose magistrates are vested
with wide judicial discretionary powers to nip in the bud conduct subversive of
the peace and public tranquillity.
But it is found that many a time the law is abused by the police in the name
of security and maintenance of public peace and order on flimsy grounds. On
times the poor and innocent persons are picked up by the police, not because
they have committed any crime, but because they are poorly dressed, illiterate
unemployed and are victim of extrme poverty. They are brought before the
magistrate, and before they could know of it, they are remanded to the police
custody where they remain indefinitely as the investigations are never com-
pleted.123
The case of Jagannathan, 1 24 from the State of Tamil Nadu is a classic
example of hardship and humiliation suffered by a poor villager. Jagannathan
aged 40, a small farmer of Perambur village in Tamil Nadu, entered that
nightmare world in March 1981 when his involvement in a village quarrel
entangled him in a police case. For Naidu, life before that was an endless
struggle for survival. The two acres of land he owned was barely enough to
support his wife and three children. To make ends meet, he was forced to sell
121. Ch. VIII provides for security measures for keeping the peace and for good behaviour (ss.
1 06 to 124); ch. X deals with maintenance of public order and tranquility (ss. 1 29 - 148) and ch.Xl
deals with preventive action of the police (ss. 1 49 - 1 53).
122. Madhii Limaya v. S.D.M. Munghey, A.I.R. 1971 S.C. 2486 at 2501. Held, since the ■
object of the chapter is prevention of crime, maintenance of public order and disturbance of public
transquility and breaches of the peace, the provisions are saved vide ci. (2), (3), (4) and (5) of art.
19 of the Constitution of India and are not ultra vires.
123. Jagannathon v. State, (1983) Cr. L.J. 1748; see, India Today, 30 Sept., 1983 p. 140. It is
reported that in the State of Tamil Nadu police often use Tamil Nadu Prevention of Begging Act
1945 in order to put innocent persons in beggar rehabilitation homes indiscriminately.
124. Ibid. See also, S.H. Venkataraman, India Today 31 Oct. 1983, p. 147.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
milk in Madras to suplement his income. But with th

into a living hell. It took the police over a year to fr
which Jagannathan, his two brothers and nephew - c
to make frequent trips to the magistrate's court at h
well as the income lost in their time-consuming battle
procedure. Accordingly, Jagannathan's brothers m
class magistrate of Punneri taluk for annuling the pro
which was turned down by the court.
Thereupon a criminal revision petition was filed b
Madras which upheld the petition and reversed the M
estingly, Justice S . Ratanval Pandian who heard the pe
of the pending first information report (FIR) from al
Madras city as well as 57 judicial and 143 second c
the State of Tamil Nadu. The exercise was revealing
heart-rending. The statistics made grim reading. The
HRs in the State of Tamil Nadu as on April 1, 1983, m
prohibition and other minor crimes. Some cases had b
as 17 years.
Moved by the plight of the little Indians languishing in jails, the High Court
directed the magistrates in the State of Tamil Nadu to quash investigations in all
criminal cases where the police had kept the HRs pending unduly and not
bothered to frame charge sheets beyond six months of an arrest as contemplated
by section 167(5) of the Code of Criminal Procedure 1973 in a summons case. 125
The judgment had a far reaching impact on human right of the detainees.
As a result of the court's verdict, it is reported that approximately three hundred
thousand detainess in the State of Tamil Nadu, many of them booked on minor
charges and involving people neither with money nor the time to get entangled
in long drawn out legal proceedings and vulnerable to excessive harassment by
the police had been benefited.126 It is a welcome judgment and will go a long
way in granting relief to the innocent victims of abuse of criminal process at the
hands of police and prosecuting agencies.
1 27
In a fairly recent case of Srinivasa Pal , where the trial in a case of rash
and negligent act went on upto nine years and six months, the Supreme Court
ordered to closs down the case. The Court was disturbed by the time involved
in completing trial and held that the court should be quick in disposal of cases
125. Cr.P.C., 1973, s. 167(5) reads: "If in any case triable by a Magistrate as a summons case,
the investigation is not concluded within a period of six months from the date on which the accused
was arrested, the Magistrate shall make an order stopping further investigation into the offence...."
126. Supra note 123.
127. (1988) Cr. L.J. 1803 (S.C.).

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
222 JO URNA L OFTHE INDIAN LA W INSTITUTE [Vol. 35 : 4
because speedy trial is part of the constitutional mandate which can

ignored.
1 2ft
In Free Legal A id Committee, Jamshedpur, it was brought to the notice
of the Supreme Court that in many of the magistrate's courts in the State of Bihar
(it is equally true in other states) that the accused are harassed by the police and
made to appeal before the court on every fourteen day, during the course of trial,
even if the accused is no bail. This causes considerable hardships to the victim.
The court felt disturbed by such a procedure and ordered for its stoppage. The
court observed that such a practice was diplorable and was against the norms of
free and fair trial.
Similarly, in cases triable by the court of session, the practice followed by

the court is that when an accused is released on bail, the bail is granted to him
only during the pendency of the inquiry before the magistrate. With the result
when the case is committed to the court of session, the accused is rearrested and
brought before the court of session where he has to apply once again for fresh
bail. This causes considerable hardship to the accused without any correspond-
ing suffering to the police and the court. The Supreme Court rightly observed,
that the courts should avoid causing hardships to the accused as far as possible.
The magistrate, while releasing the accused on bail, should get a bond executed
binding the accused not only to appear as and when required before him, but
also to appear when called upon in the court of session.
1 29
In Veena Sethi v. State of Bihar, the Supreme Court was seized with
the question of the atrociously illegal detention of about sixteen prisoners in the
Hazaribagh Central Jail, Bihar for the period ranging from nineteen to thirty-
seven years without any justification whatever.
The Free Legal Aid Committee, Hazaribagh, wrote a letter on 15.1 .1982 to
Justice P.N. Bhagwati of the Supreme Court alleging the facts of illegal detention
of a few prisoners in Hazaribadh Central Jail in the State of Bihar. The facts are
as follows. The accused were arrested in connection with certain offences and
were declared insane at the time of their trial and put in central jail with directions
to submit half-yearly medical reports. Some were convicted, some acquitted
and trials were pending against some of them. While they were declared sane
no action for their release was taken by the authorities for years to come. In
some cases half-yearly reports were not available.
Reacting to the callous and indiferrent attitude of the authorities, the court
ordered for the release of the prisoners and said that they remained in jail for no
fault of theirs and even if they were proved guilty, the period they had undergone
128. A.l.R. 1982 S.C. 1463, State of Kemla v. Kuttan Mohanan, (1988) Cr. L.J. 453 (Kerala);
Hiralal Gopilal Ralnare v. State of M. P., (1988) Cr. L.J. 457 (M.P.).
129. A.l.R. 1983 S.C. 339.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
would exceed the maximum imprisonment that they mig

Bhagwati speaking through the court said:
[T]hese forgotten specimens of humanity languishing i

behind stone walls and iron bars, deprived of freed
which are the inalienable rights of a human being
continued to remain in jail without any hope of ever
its forbidding environment and breathing the fresh a
These prisoners were lost in the oblivion of time a
merely ticket numbers in the Hazaribagh Central Jail
could do was to cry in despair.130
The understaffing of the police force is generally plead

for all the evils and the delay in filing of charge sheets,
and trial, etc. Similarly, chronic understaffing in the cou
major cause for the court's failure to serve summons
adjournments. No doubt, the number of criminal cases ha
tionately over the years, while the strength of the police
has remained more or less static. All the same, neith
magistracy can be absolved for their complicity in creati
rich and influential make full use of legal loopholes, w
ignorant languish in prisons or immersed in eternal debt
XII The poor: victim of abuse of authority to sanc

To protect public servants (judges and magistrate
vexatious, false or mala fide prosecution for offences
committed by them, while acting or purporting to act in
official duty, section 6 of the Prevention of Corruptio
for a prior sanction and approval of the competent autho
dent for initiating prosecution against the public serv
allegations and charges levelled against the public serv
tained by the superior officer, i.e., the appointing author
sanction for prosecution. However, the privilege of immu
is not absolute. It extends only to acts that are lawful
exercise of an official duty.
The object of such a statutory provision, as stated abo
public servants etc., against the possible harassment an
chievous and unscrupulous elements so that they could di
130. Ibid..
131. Prevention of Corruption Act 1947, s. 6 says: (i) No Court shall take cognizance of an
offence punishable under s. 1 51 or s. 165 of the Indian Penal Code or under sub- section (2) of s.5
of this Act, alleged to have been committed by a public servant except with the previous sanction.
(a) ... (b) ... (c) ... of the authority competent to remove him from his office. Criminal Procedure
Code 1973, s. 197 also provides for a prior sanction of superior authority as a pre requisite for
prosecution of judges, magistrates, and public servants.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
224 JOURNAL OFTHE INDIAN LAW INSTITUTE [Vol.35:4
132
tions fearlessly, efficiently and effectively without any fear
Instances are not unknown in India (this is equally true in other c
as Malaysia, Pakistan, Bangladesh, Sri Lanka, Phillipines, etc. ) whe
and bureaucrates have used the sanction clause to delay and
i il
justice. Perhaps, a befitting case on the p

Antulay ,134 the former Chief Minister of the
cution in the case of Antulay, who was charg
office on various counts and for collection of funds for the Indira Gandhi
Pratibha Pratishthan Trust, floated by him, by releasing cement quotas to the
donors, was continuously delayed by interminable judicial proceedings on one
pretext or the other.
The complainant R. S. Nayak moved the Governor of the State of Ma-

harashtra by his application dated September 1, 1980 requesting him to grant
sanction to prosecute A.R. Antulay, under the Prevention of Corruption Act
1947. It was alleged that the accused in his capacity as chief minister and thereby
a public servant within the meaning of section 21 of the Indian Penal Code had
committed the offence under sections 161-165135 and section 5 of the Preven-
tion of Corruption Act , 1947, 136 In the meantime, to defeat the process of law
a number of cases were filed in various courts and political pulls and pressures
1 37
were used to block the prosecution. However, after a prolonged judicial
tangle, the Governor of Maharashtra ultimately granted the sanction on 28 July
1982 to prosecute Antulay in respect of specific charges set out in the order
according sanction.
132. Lákshmi Shankar Srivastava v. State ( Delhi A dtn inist raion), (1979) Cr. L.J. 207. See, D
D Basu, Criminal Procedure Code, 1973 (Prentice Hall of India, Delhi 1979) p. 524; see, Law
Commission of India, Forty-first Report, p. 1 16, paras 15-115 (1969).
133. Shah Commission, (headed by Justice Shah of the Supreme Court of India) which was
appointed by the Government of India during 1 977-78 to investigate into the various allegations
of abuse of power by the politicians and bureaucrates during the Emergency decleared by the then
Prime Minister Indira Gandhi, have gone at length on this issue and pointed out a number of
instances of excesses committed and abuse of authority by politicians and bureaucrates. Inquiry
commissions appointed by the Federal as well as the state governments from time to time to
investigate into the charges of corruption, favouratism, nepotism, etc. of politicians, bureaucrates
have also indicated about various instances of misuse and abuse of authority by the persons in
power against the poor and the weak.
134. R.S. Nayak v. A.R. Antulay, A.I.R. 1984 S.C. 684.
135. Indian Penal Code 1860, s. 161 deals with the offence of taking gratification other than
legal remuneration in respect of an official act by public servant, and s. 1 65 deals with the offence
of obtaining valuable thing, without consideration from persons concerned in proceeding or
business transacted by such public servant.
136. S. 5 of the Prevention of Corruption Act 1947 deals with offence of criminal misconduct
by a public servant.
137. State of Maharashtra v. Ramdas Shrinivas Nayak, A.I.R. 1982 S.C. 1249.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
Thereafter the trial of Antulay began in the cour

Bombay. After a protracted hearing the special judge d
grounds, that since at the time of the commission of th
was both Chief Minister and a member of the legislativ
of Maharashtra (M.L.A.) he cannot be prosecuted unless
sanction from the Governor, who has the competence t
Minister and also from the Maharashtra state legis
remove him as a member of the legislative assembly
According to the learned judge, an accused must not

servant at the time of the commission of the offence, b
taking of cognizance by the court. The implies that all
other public servant need to do is to make his file and re
the Prevention of Corruption Act, nor the Indian Pena
and since a corrupt chief minister can be brought before
the sanction of the Governor and the state legislature,
majority in the house can see to it that the house do
sanction. In effect he can never be prosecuted. This has
of law. Such an interpretation of law is unwarranted an
However, the Supreme Court in the special leave
Nayak, overruled the decision of the special judge, Bom
trial in the Bombay High Court. The court rightly h
holds more than one public office, sanction of the autho
him from the office allegedly misused or abused alo
sanction by all the authorities separately for initiating
officer concerned.
The Bombay,139 Orissa,140 and Madhya Pradesh1

confronted with a common question as to whether sanc
the prosecution of police officers who were charged fo
unlawfully. The courts are unanimous on the issue
beating was no part of the duty of a police officer, ther
under section 197 of the Code of Criminal Procedure 1973. The courts have
taken a right approach in the above cases and is a healthy trend. It will go a long
138. Supra note 134. Held, that a member of legislative assembly (M.L.A.) is not a public
servant within the meaning of clause (3) or clause (7) of s. 21 IPC, since M.L.A. is not in the pay
role of the state government. An M.L.A. discharges the constitutional junctions.
139. A shok v. Pralhad and Sons, (1988) Cr. L.J. 78 (Bom.). The police officers were found
guilty of beating and were convicted accordingly.
140. A bani Ch. Biswal v. State of Orissa, (1988) Cr. L.J. 1038 (Orissa).
141. Dadanchand v. R.S. Rathode, (1988) Cr. L.J. 1506 (M.P.); Shrilal v. Manmath Kumar,
A.I.R. 1960 Raj. 173.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
226 JOUR NA L OF THE INDIA N LAW INSTITUTE [Vol. 35:4
way in discouraging the police from using third degree methods in inve
of crimes by physically and mentally torturing persons.
In Sub Committee on Judicial Accountability v. Union of India

Birbal v. Rabi Ray, 142 the Supreme Court was confronted with the qu
construction of articles 121 143 and 124144 of the Constitution of
sections 3 and 6 of the Judges (Inquiry) Act 1968. 145
Notice was given by 108 members of the Ninth Lok Sabha, of a m

presenting an address to the President of India for the removal of Ju
Ramaswami of the Supreme Corut. On 12 March 1991, the motion was
by the then Speaker of the Lok. Sabha who also proceeded to con
Committee consisting of Justice P.B. sawant, a sitting Judge of the Su
Court, Justice P.D. Desai, Chief Justice of the Bombay High Court and
Chinnappa Reddy, a distinguished jurist in terms of section 3(2) of th
(Inquiry) Act 1968.
In the meantime the Ninth Lok Sabha was dissolved and the Union
took the stand that the notice of the motion as well as the decision of th
of the Ninth Lok Sabha to admit the motion and to constitute the com
investigation and proof of grounds had lapsed with the dissolution of
Lok Sabha On that basis the Union of India refused to act in aid of the d
of the Speaker and declined to take any action in the matter.
142. (1991) 4 S.C.C. 699.

143. Art. 121 provides that, "No dicussion shall take place in Parliament with resp
conduct of any judge of the Supreme Court or of a High Court in the discharge of his d
upon a motion for presenting an address to the President [of India] praying for the rem
Judge as hereinafter provided".
144. Arts. 124(4) and 124(5) afford protection against premature determination of
of a judge. Art. 124(4) says: "a judge of the Supreme Court shall not be removed from
except by an order of the President passed after an address by each House of the
supported by a majority of the total membership of that House ... on the ground
misbehaviour or incapacity". Art. 124(5) says, Parliament may by law regulate the pr
the presentation of an address and for the investigation and proof of the misbehaviour or
of a judge under clause (4).
145. The Judges (Inquiry) Act 1968, s. 3(1): "If notice is given of a motion for pres
address to the President praying for the removal of a Judge signed , - (a) in the case
given in the House of the People, by not less than one hundred members of that House .
Speaker ... either admit the motion or refuse to admit the same. (2) If the motion ..
the Speaker ... shall constitute ... for the purpose of making an investigation into the
which the removal of a Judge is prayed for, a Committee ..." S. 6(2) further provides th
report of the Committee contains a finding that the Judge is guilty of any misbehaviour
from any incapacity, then, the motion referred to in sub-section (1) of s. 3 shall, togeth
report of the Committee, be taken up for consideration by the House ... in which it is p

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
The stand of the government was challenged and

filed146 in the Supreme Court to direct the Union o
matter. Allowing the writ petition, the Supreme Court
one held that the motion for presenting an address to
removal as well as decision of the Speaker to admit the
a committee under Judges (Inquiry) Act 1968 for in
grounds of removal would not lapse on dissolution
further held that the Judges (Inquiry) Act, being a law
article 124(5) would exclude the operation of doctri
framed under article 1 1 8 of the Constitution and secti
Inquiry Act 1968. This is a welcome decision and o
constitutional supremacy over Parliament.
XIII The poor: victim of abuse of authority of
Section 321 of IPC empowers the public prosecutor o

prosecutor in charge of a case to withdraw with the con
time before the judgment is pronounced, from the pro
either generally or in respect of any one or more of the
tried. Withdrawal from prosecution is an executive
prosecutor for which statutory discretion is vested in h
tion is neither absolute nor unreviewable but subjec
function. The court has to satisfy itself that the execut
prosecutor has not been improperly exercised and he h
free agent uninfluenced by irrelevant and extraneous c
is not an attempt to interfere with the normal course
reasons or purposes.147
The scope and ambit of the powers granted by secti

Procedure Code 1971 seeking permission to withdra
been subject of interpretation in a number of cases. 148
cases, in which the power of withdrawal has been ex
would reveal that the said provision of the Code has of
executive and politicians for political considerations
sooner does one government goes out of power and ano
, spate of withdrawals of criminal cases pending in the
cians. Unfortunately, the judiciary has also approved of
146. The majority view was taken by Justices B.C. Ray, M.N. Ve
S.C. Agarwal and minority view by Justice L.M. Sharma, who
government.
147. State of Bihar v. Ran Naresh Pandey , A.I.R. 1957 S.C. 389.
148. Balwatit Singh v. State of Bihar, A.I.R. 1977 S.C. 2265; State of Punjab v. Surjit Singh ,
A.I.R. 1967 S.C. '2'4; Gokaraju v. State of A. P., A.I.R. 1981 S.C. 1473.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
149
In R.K. Jain, the petitioner, challenged the withdrawal of t
Dynamite case against George Fernandes, a minister and of others b
Janata Party Government and of four cases against former defence
Bansi Lai by the Cogress I Government after it returned to power i
Supreme Court had upheld the withdrawal of the Dynamite cases on
that the offences allegedly committed by Fernandes and others were
character. The court held that since during the emergency proclaim
country by the Congress I Government (1975 to 1977) democratic ri
unavailable, the opponents of the regime resisted to unconstitutiona
to change the government. Hence prosecution could not continu
government changed. In Bansi Lai, the argument of paucity of e
justified and in one of the four cases, the complainant had been
profitably compensated.
Sheo N andan Paswan}^ is perhaps one of the recent cases in
power of withdrawal has been grossly abused by the executive in fa
then Chief Minister of the State of Bihar, Jagannath Mishra. The o
took place in 1970. The accused no. 2, J agannath Mishra, former Ch
of the State of Bihar was charged along with other three accused pe
sections 420, 466, 471, 109, 120-.8,. Indian Penal Code and under
5(1 )(a), 5(1 )(b) of the Prevention of Corruption Act 1947 for using
his official position as a minister or chief minister of the State of Bi
servant in conspiracy with other accused and to protect Naval K
(accused no. 3) in particular. After obtaining necessary sanction by
nor of the State of Bihar, trial began in the court of the Special Jud
After a protracted hearing on 20 June 1981 the learned judge al
withdrawal of the case after the special public prosecutor argue
withdrawal was necessary on four counts viz., lack of prospect o
prosecution in the light of the evidence, implication of the accused a
political and personal vendetta, inexpediency of the prosecution for
of state and public policy and adverse effects that the continu
prosecution would bring on public interest in the light of the change
In appeal Patna High Court approved of the withdrawal and rejected
filed against the order of withdrawal.
The matter came up before the Supreme Court on a petition file

Nandan Paswan challenging the order of withdrawal by the special J
its approval by the High Court, Patna. The question at issue was wh
the government could use the power vested in it by virtue of se
Cr PC 1973 to withdraw a case against the accused in the impugned
149. R.K.Jain v. State, A.l.R. 1980 S.C. 1 5 10 (George Fernandes case).

150. Sheo N andan Paswan v. State of Bihar, A.l.R. 1983 S.C. 194.

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
The Supreme Court held by a majority of two to

by the then chief minister of the State of Bihar
government of vigilance case no. 9 (2)78 against
Sinha, ex-chairman of the urban bank, was valid an
appeal, said Justice Islam and Justice Mishra, tha
merely an exercise in futility at the cost of the pub
held that it was during the then Janata governmen
been filed against Mishra out of political vendetta s
Chief Minister nursed a grudge against him. The co
cution would be futile and an abuse of the process o
against Mishra would not be forthcoming because of
the state.
A careful examination of the facts and document

ineness of which cannot be doubted, as stated by Ju
makes out a prima facie case against Jagannath Mish
trial for the offence of criminal misconduct und
section 55(2) of the Prevention of Corruption Act 1
forgery under section 466, Indian Penal Code.
It is respectfully submitted that the reasoning of t
since evidence against Mishra, because of his bein
be forthcoming if the case were sent back for tr
sounds strange. It means that no minister or chief
cuted on criminal charges so long he remains in off
man cyniçal about law, and about the administration
Justice Tulzapurkar, disagreeing with Islam and M
served, that the offences, Jagannath Mishra and hi
with, were not political in nature. On the contrary,
had been endangered by the prosecution and the ord
which the accused were alleged to have committe
mass agitation, or communal frenzy or religious dis
or student unrest that could have justified withd
interest. Hence there was no justification in wit
perhaps right when he said, "no results of any elect
be construed as the peoples mandate to condone or c
crimes allegedly committed by those who have been
at the hustings is no licence to sweep all dirt under t
nonchalantly".
151. ¡bid. The majority view was taken by Justice Behnil Isla
the minority view by Justice V.D. Tulzapurkar, who held with
152. See, Chaitany Kalbag, India Today, 15 Jan. 1983, pp. 1

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
230 JOUR NA L OF THE INDIA N LAW INSTITUTE [Vol 35:4
In a society governed by the rule of law, moral turpitude

condoned. It is respectfully submitted that the majority judgm
1 5^
N andan Pasw an is unfortunate and it needs review by the Supreme Court.
The case is an admirable example of abuse of authority in favour of those who
are strong and powerful and those who are supposed to administer and uphold
justice and are keeper of the public conscience.
It may be noted that both the courts and the public prosecutor have a solemn
duty to protect and preserve the administration of criminal justice against the
possible misuse and abuse of authority by the executive by resorting to the
withdrawal clause to achieve the ulterior motive of circumventing the process
of law.154 In other words, the ultimate guiding principle for withdrawal of any
criminal proceeding must always be to uphold justice and not to subvert the
process of law.155 It must be exercised with great care and caution to avoid
possible abuse of authority.
XIV Conclusion
The study made in the foregoing pages reveals that the criminal judicial
system is indifferent and perhaps unconcerned and little hostile to the poor and
the weak, such as women, children, physically, economically and mentall
handicapped groups, prisoners and the like. It may be because even after four
and half decades of independence no serious efforts have been made to redraft
penal norms, radicalise punitive processes, humanise prison houses and ma
anti-social and anti-national elements, such as hoarders, smugglers, tax-evader
black marketeers incapable of escaping the legal coils. On the other han
whatever legislations, piecemeal amendments, substitutions and deletions have
taken place to ameliorate the conditions of downtrodden masses do not appear
to have achieved their purposes.156
The study further discloses as stated earlier that the criminal judicia
system, being drafted by the British is pro- establishment oriented and operate
to the disadvantage of the poor and the weak. The disadvantaged and the weak
do not feel adequately protected. Very often the weak, the deprived and
underprivileged groups in the society are over-represented in the prison popu
lation, whereas rich and powerful manage to escape the process of law, because
of the money and muscle power.

154. M.N.S. Nair v. P.V. Balkrishnan, (1972) S.C. (Cr.) 551: (1972) 1 S.C.C. 318.
155. State of Orissa v. ChandrikaMohapatra, A.I.R. 1977 S.C. 903; Sk.AbdurKarim v. State
(1981) Cr. LJ. 219 (Cal.). Held, the public prosecutor may withdraw a case in the interest o
administration of justice.
156. O. Chinappa Reddy, "Judicial Process and Social Change", 25 J.I.L.I. 149-57 (1983).

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
It is high time that the concept of equal justice as

21 and 39 A of the Constitution be made a reality, by
and cheap justice. Free legal aid be given to the po
denied of justice because of indigence. Of late, the hi
the Supreme Court and the High Courts) as discussed
for the poor and encouraged class action, public inter
by public organisations and the like on behalf of the
issued appropriate directives to the executive to take
measures to redress the grievance of the poor and upl
This is a welcome step. But such cases are not going t
are enormous.
Perhaps there is an urgent need for restructuring the judici

re-orienting the social perspective of justices and re-vitalising the p
machinery to make it friendly to the poverty sector. At the same t
should be made more humane, it should exhibit concern for the wel
poor and the weak.
The presiding officers and judges have an important role to p

dispensation of justice. They must exhibit concern for the poor so a
basic human rights meaningful to the deprived and vulnerable secti
society and to ensure them social and economic justice which is the
1 57
tune to the modern welfare state. " It is a well known principle of law that form
should not defeat substance. Procedure must not hamper justice. A pathetic
concern for the letter of the law by adopting a course of literal interpretation of
the statutes to the extent of defeating justice is a colonial legacy which better be
discarded in the social interest. The words should not put a stumbling block in
the process of law and misuse its power to harass a citizen who is trying hard to
seek justice. If such a situation will come people will lose faith in the very
process of seeking justice and perhaps that will be the darkest day for the
country.158
The persons in authority and responsible for the enforcement of law and
setting legal machinery in motion to safeguard the interest and well being of the
people should not use and misuse the law for their personal gain and advantage
157. V.R. Krishna Iyer, Perspectives in Criminology , Law and Social Change 2-3 (1989) and
Judicial Justice 5-48 (1985).
158. A.K. Das, "Judiciary's New Role" The Statesman, 22 June 1983, Santosh Hegde, "Public
Interest Litigation and Control of Government", Ind. B. Rev. vol. 15, pp. 1-7 (1988).

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00
as depicted in a number of cases discussed earlier. Being the custodia

they have special responsibility and solemn duty to protect and preser
and the interest of the poor, the weak and the neglected in the societ

52.66.103.4 on Sat, 21 Oct 2023 16:18:52 +00:00

Gaur POORVICTIMUSES 1993

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Gaur POORVICTIMUSES 1993

Uploaded by

Copyright:

Available Formats

POOR VICTIM OF USES AND ABUSES OF CRIMINAL LAW AND PROCESS IN INDIA

Author(s): K.D. Gaur

Stable URL: https://www.jstor.org/stable/43953211

This content downloaded from

The objective differences in social values and social behaviour of various

* B.Sc., LL.M. (Alld.) Ph.D.(Lond.), F.R.A.S.(Lond.). Visiting Professor, Law Faculty,

This content downloaded from

II The poor: victim of criminal law and penology

A careful perusal of the provisions of the code would reveal that it is

7. See, I.P.C., ss. 378-462.

This content downloaded from

sections to the offences relating to the documents

In Sreerangyee, 14 the accused was a hard working but unfortunate woman.

8. Id., ss. 463-484E.

14. See, supra note 12.

This content downloaded from

The accused were convicted of attempt to murder of their female

Situations like Sreerangyee and Maragatham raise serious doubts about

No doubt, occasionally the tenor of judicial pronouncement shows deeper

16. (1982) Cr. L.J. 213 (Gau.).

This content downloaded from

Indials The court said a public prosecutor must have t

Ill The poor: victim of exploitation of ju

This content downloaded from

In Hoskot ,26 the accused was convicted and sentenced to thre

In Hussainara?1 the Supreme Court found that in the State of Bih

This discloses a shocking state of affairs and betrays complete lac

This content downloaded from

judicial system which can remain unmoved by such e

In the impugned case it was further disclosed that a n

Today, unfortunately, in our country the poor are p

This content downloaded from

Perhaps taking note of the courts' verdict and constitutional manda

The Act besides providing a comprehensive plan for legal aid an

This content downloaded from

power of disposal of cases by compromise through t

IV The poor: victim of indebtedness

Poverty is writ large amongst the rural as well

38. Fatehchand v. State of Maharashtra, (1977

This content downloaded from

However, the High Court of Bombay in revision acquitted the accused on

V The poor: victim of bondage

The bonded labour system which is vestige of feudal exploitative society

This content downloaded from

It is a pity that inspite of the enactment of th

They [bonded labourers] are non-beings, exiles of

The Supreme Court moved by the pathetic conditi

43. Bonded Labour System (Abolition) Act 1976 has repla

This content downloaded from

In People's Union for Democratic Rights 46 the Supreme Court,

The court rightly said that where a person is suffering from h

This content downloaded from

VI The poor: victim of dowry

It may be noted that most of the dowry deaths and b

A Delhi based women organisation - "Saheli" carried o

This content downloaded from

In 1983 a new chapter XX-A entitled "Of Cruelty by Husband or Relatives

This content downloaded from

Criminal Law (Second Amendment) Act 198 3. 56 T

Dowry Death: (1 ) Where the death of a woman is caused by any burns

Explanation: For the purpose of this sub-section, "dowry" shall have

(2) Whoever commits dowry death shall be punished with imprison-