CHAPTER VII

EMPIRICAL STUDY OF THE PRE-TRIAL DETENITON:

7.1 Empirical Study:

An interview schedule was prepared and presented to judicial officers,

police officers, advocates, social workers and people interested in the field. They

have given their views and opinions and these are tabled in this chapter. The

interview schedule contains 20 simple questions. One hundred persons were

interviewed. The police personnels are reluctant and so is the judiciary. Sixty

seven persons have responded. This includes one police officer and one judicial

officer.

1. Section 167(2) of Criminal Procedure Code prescribes maximum remand

period as 90 days for offences punishable with death, imprisonment for life

imprisonment, imprisonment for a term not less than ten years and 60 days

for other offences even for the purpose of investigation. Even in special

offences, the period of detention is hundred and eighty days. The judiciary

remanding them for further period is not justified as per the provisions of

the Procedure Code.

Are the law courts justified in refusing bail after the 60 days or 90 days?

(a) Justified (b) not justified (c) None

Seventeen persons have mentioned as Justified and fifty persons have

mentioned as Not Justified

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 The remand of the accused is discussed under 167 of the Criminal

Procedure Code. Under sub-clause two this provision it is stated as follows:

Provided that–––

(a) The Magistrate may authorize the detention of the accused persons

otherwise than in the custody of the police, beyond the period of

fifteen days, if he is satisfied that adequate grounds exists for doing

so, but no magistrate shall authorize the detention of the accused

person in custody under this paragraphs for a total period

exceeding–

(i). Ninety days, where the investigation relates to an offence

punishable with death, imprisonment for life or imprisonment for

a term of not less than ten years;

(ii) Sixty days, where the investigation relates to any other offence, and

on the expiry of the said period of ninety, or sixty days, as the case

may be the, the accused person shall be released on bail if he is

prepared to and does furnish bail, and every person released on bail

under this sub-section shall be deemed to be released under the

provisions of chapter XXXIII for the purpose of that chapter

(b) No Magistrate shall authorize detention in any custody under this section

unless the accused is produced before him;

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(c) No magistrate of the second class, not specifically empowered in this

behalf by the High Court, shall authorize detention in the custody of the

police.

[ Explanation I–– For the avoidance of doubts, it is hereby declared that ,

notwithstanding the expiry of the period specified in paragraph (a), the

accused shall be detained in custody so long as he does not furnish bail.

Explanation II–– if any question arises whether an accused person was

produced before the Magistrate as required under paragraph(b), the

production of the accused person may be proved by his signature on the

order authorizing detention

The law is very simple and the maximum remand period is ninety days and

sixty days according to the offences. It is crystal clear that even for the purpose of

investigation the accused cannot be detained for the further periods. The accused

are detained beyond the prescribed period for reasons best known to the judiciary.

The accused is detained when he is not able to furnish bail. The law of arrest has

been considerably amended as to not to arrest the accused for offences carrying

less than seven years and they should not be automatically remanded. Section 41

A of the Criminal Procedure Code states that notice be served to the accused to

appear for investigation and only when he fails to do so he can be arrested on the

orders of the judges. We find under trial prisoners are languishing in jail for

months and years even when they are charged under minor offences.

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 2. Constitutional Courts often record “We have to strike a balance between

the liberty of a person and the safety of the society? Safety of the society

is not the concern of courts but of the executives.

Do you find legal sanctity, your views?

(a) Concern of the Courts (b) concern of the executives

(c) Both

Fourteen persons have mentioned as concern of the courts and ten

persons mentioned as concern of executive and forty three persons

mentioned as both.

The primary concern of the courts is to uphold the rights provided under

the Constitutional law, the human rights the Criminal Procedure Code. The law

favours the liberty of a person. In case the courts feel that the accused is a danger

to the society and that he may abscond the courts can impose stringent conditions.

In case the accused violates the conditions, the bail granted may be cancelled.

Stating that the courts have to consider the safety of the society and refusing bail

is not legally sustainable. The safety of the society is the concern of both the

judiciary and the executives. The judiciary can always direct the executives to act

in order to save the society instead of refusing bail on this ground.

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3. The Constitutional Courts have noted “A prima facie case made out” on

seeing the FIR and 161 statements and refuse bail. F.I.R and 161 statements

are not evidence but material facts. It is highly erroneous to come to the

conclusion that a prima facie case is made out based on mere material

facts

Are the law courts correct in recording so?

(a) Correct (b) Not correct (c) Partly correct

Twenty one persons have mentioned as correct thirty nine persons have

mentioned as not correct and seven persons have mentioned as partly

correct

The courts of law have to understand that the papers presented by the

police are merely material facts and not evidence. Material facts become

evidence only at the time of trial. Recording that a prima facie case made out

and refusing bail is to be totally avoided since such observations are not legally

correct. It is not the trial of the offence but only request for bail and dealing it

as a full-fledged trial is not legally sensible.

4. Section 438 of Criminal Procedure Code states that anticipatory bail is to

be granted even to persons apprehending arrest, while so bail being

refused by the courts of law under Sec 437 and section 439 of Criminal

Procedure Code is highly arbitrary and not within the frame work of the

law of the land

What are your views?

(a) Arbitrary (b) Not arbitrary (c) None

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 Forty two persons have opted arbitrary twenty three persons have opted

not arbitrary and two persons have named none

With the arrival of anticipatory bail under section 438 of the Criminal

Procedure Code it is clear that bail is available even to persons apprehending

arrest. The legislators of have understood the stigma attached to the arrest and

the difficulties undergone by the accused and his family members. When the

accused is employed and he resides with his family members, bail is the rule.

Refusing bail under section 437 and under section 439 of Criminal Procedure

Code on flimsy reasons is not the intent of the legislators. Under section 437

and section 439 the courts are at liberty to impose conditions to get the accused

for investigation and trial. Refusing bail is not warranted, whatever may be the

offence.

5. We do not need an FIR to file an application for anticipatory bail but mere

apprehension of arrest is enough.

Your opinion please,

(a) No (b) yes (c) None

Five persons have opted for No, sixty one persons stated Yes and one

person has noted None

There is no need of an F.I.R to file an application for anticipatory

bail. The law clearly states that persons apprehending arrest can move the

court of law when the alleged charges are cognizable. This application can

be filed before the sessions court or the High Court. The courts dismissing

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 the application on being informed by the prosecution that no F.I.R is

pending is not as per the demand of the law.

6. Refusal of bail after months and years of Prolonged Pre-Trial Detention

amounts to violation of Human Rights.

Your views please.

a) Yes (b) No (c) None

Sixty four persons have said Yes and three persons have said No.

Refusal of bail after months and years of pre-trial detention do

violate the Human Rights which consider that the liberty of a person is

paramount. As stated above the maximum period of remand is fixed as 90

days and 60 days and detaining the accused beyond that period even after

the completion of the investigation is against the laws of the land and the

safeguards provided by the Universal Declaration of Human Rights. Under

what provision of law the courts are detaining the accused for months and

years. This happens because the accused is unable to engage a decent

lawyer. Even if the lawyer secures bail, the accused is unable to produce

surety and security as demanded by the courts. The law requires to be

amended as to treat accused as indigent persons for all the offences

considering his status of poverty.

7. When the golden rule “Presumption of innocence till proved guilty” is the

basic of Criminal Jurisprudence, is the judiciary right in imposing

Prolonged Pre-Trial Detention by refusing bail.

Your views please.

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 (a) Right (b) Not right (c) None

Eleven persons have noted Right, fifty four persons have noted Not Right

and two persons have noted none.

It is the basic principle of the Criminal Jurisprudence that the

accused is to be presumed as innocent till proved guilty. The Universal

Declaration of Human Rights clearly states that the accused has to be

presumed innocent till proved guilty. The courts of law refusing bail and

imposing pre-trial detention, is not legally correct. Recording prima facie

case made out on seeing material papers and refusing bail is not as per the

demand of law. The courts do find some reasons to refuse bail which is not

the intent of the law. Pre-trial detention is to be totally avoided considering

the above golden rule.

8. Almost all the jails in India are housing more prisoners than its capacity as

per the Central Criminal Bureau Records published in 2013

What are your views

a) Unavoidable (b) Avoidable (c) None

Twenty persons have stated Unavoidable, forty six persons Avoidable,

one person none.

It is true that most of the jails in India are housing more prisoners

than its capacity. The majority of the prisoners are under trials. This

happens because of the indiscriminate refusal of bail, demand of sureties

and security and the undue delay in the investigations and the delay in the

conduct of cases. If the number of under- trial prisoners is reduced, the

overcrowding of jails could be done with. The overcrowding of prisons

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 with under trial prisoners could be avoided if the law of the land is applied

in its letter and spirit.

9. Crime Bureau Records reveal that in most of the jails there is more number

of Under- Trial prisoners than the convicts.

Why this happens? Your views

(a) Refusal of bail or the accused unable to produce surety and security

(b) Unwanted arrest and automatic remand

(c) Both (a) and (b)

Eleven persons have stated refusal of bail or the accused is unable to

produce surety and security, twenty persons have stated unwanted arrest

and automatic remand, thirty six persons have stated both.

The Crime Bureau records reveal that in all the jails the number of

under trials is twofold, three fold and at times six fold. This happens

because of the refusal of bail and the demand of sureties and security. The

Criminal Procedure Code has been considerably amended as not to arrest

and not to detain person automatically. The poor people are the worst

sufferers, unable to meet the unlawful demand of the courts. If the courts

understand the difficulties of under trials and if the law is amended as to

treat persons as indigent persons in all cases, the overcrowding of jails by

the under trial prisoners can be totally avoided. The overcrowding is due

to refusal of bail, the accused unable to produce surety and security and the

unwanted arrest and automatic remand are the cause for more under trial

prisoners languishing in prisons.

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10. Arrest and remand are not mandatory as per the provisions of Criminal

Procedure Code

Your opinion please.

(a) Mandatory (b) Not mandatory (c) None

Fifteen persons have stated mandatory, fifty two persons stated not

mandatory.

The law of arrest and the law of remand spelt under the Criminal

Procedure Code has used the words may arrest and may remand. Hence arrest

and remand are not mandatory. The recent amendment to the law of arrest and

the law of remand may be applied. The police and the courts should avoid the

automatic arrest and the automatic remand. The courts should check whether

the arrest is required and whether the prayer for remand is to be automatically

considered. If the courts of law are watchful, the provisions of the Criminal

Procedure Code could be applied in the proper sense.

11. The courts do not adhere to basic principles of Criminal Jurisprudence in

dealing with bail applications and apply their own views.

Your opinion please.

(a) Yes (b) No (c) None

Fifty seven persons stated yes, eight persons stated no two persons have

stated none.

The bail orders of a magistrate courts, sessions courts, and High Courts do

carry the personal views of the judges. The personal views are totally away

from the basic principles of Criminal Jurisprudence. In fact the courts invent

new principles as to deny bail. In most of the judgments where bail is refused,

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it is to be observed that views away from the basic principles are rampant. The

courts should stop expressing their personal views away from the law and the

procedure. The law demands the judges to be lenient in the grant of bail.

12. The Courts do not follow the intent and the spirit of the legislated laws but

strike a different note.

Your views please

(a) Follow (b) Different note

(c) sometime follow

Fifteen persons say follow, fourteen persons say different note, and thirty

eight persons have stated some time follow

The courts do not follow the intent of legislators in the grant of bail.

The legislators have declared that there should not be automatic arrest and

automatic remand. But in practice we see that the arrest and the remand are

automatic. The rich can afford great lawyers and get bail while the poor

are the worst affected persons by the refusal of bail. The courts are not

above law to strike a different note away from the intent and the spirit of

the legislated laws. In practice we find in most cases, the courts strike a

different note and sometimes follow the spirit of the laws. Justice demands

that the courts should strictly follow the intent and the spirit of the

legislated laws.

13. The use of word evidence in the definition of investigation, in Criminal

Procedure Code is erroneous.

Your views please

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 (a) erroneous (b) not erroneous (c) None

Forty four persons have opted for erroneous, twenty persons have spelt

not erroneous, and three persons have opted for none.

The Criminal Procedure Code has mentioned in the definition of

investigation as collection of evidence. This concept is highly misleading

and erroneous. Police only collect material facts and if they are presented

in the court of law either by oral or documentary facts, these facts become

evidence. This definition has to be corrected as collection of material facts.

This definition is highly misleading and the courts, the police believe that

whatever facts they have collected are evidence. The application of this

misleading concept is notable in the bail orders.

14. The use of word evidence in section 169 and section 170 of Criminal

Procedure Code is legally absurd.

Your views please

(a) Absurd (b) Not absurd (c) None

Forty five persons view it is Absurd, seventeen persons have viewed

not absurd, and five persons have viewed none.

Section 169 of Cr. P.C. Release of accused when evidence deficient.––

if, upon an investigation under this chapter, it appears to the officer in

charge of the police station that there is not sufficient evidence or

reasonable ground of suspicion to justify the forwarding of the accused to

a magistrate, such officer shall, if such person is in custody, release him on

his executing a bond, with or without sureties, as such officer may direct,

to appear, if and when so required, before a magistrate empowered to take

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 cognizance of the offence on a police report, and to try the accused or

commit him for trial.

Section 170 of Cr. P.C: cases to be sent to Magistrate when evidence

is Sufficient –– (1) if, upon an investigation under this chapter, it appears

to the officer in charge of the police station that there is sufficient evidence

or reasonable ground as aforesaid, such officer shall forward the accused

under custody to a magistrate empowered to take cognizance of the

offence upon a police report and to try the accused or commit him for trial,

or, if the offence is bailable and the accused is able to give security, shall

take security from him for his appearance before such magistrate on a day

fixed and for his attendance from day to day before such magistrate until

otherwise directed.

The Criminal Procedure Code has wrongly used the word evidence

in both section 169 and 179 of Cr. P.C. The investigation only prepares

material facts and not evidence. Material facts become evidence when they

are presented before the courts of law during trial. The word evidence in

both the sections have to be removed and substituted with the word facts.

15. The word non-bailable in section 437 of Criminal Procedure Code should

be replaced as conditionally bailable.

Your opinion please

(a) Yes (b) No (c) none

Forty six persons say yes, twenty persons say no, one person say none

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 The use of the words non-bailable in section 437 of the Criminal

Procedure Code is misleading. In section 437 bail is to be granted imposing

certain condition if necessary. The section has to be renamed as

conditionally bailable. The police and the courts do believe that non-

bailable means not bailable and use stringent methods to deny bail.

16. Law is not an abstract thing, it is a living organism since it is applied on

living human beings. The police and judiciary should bear this in mind and

change their existing mind set

Your opinion please

(a) Yes (b) No (c) None

Fifty eight persons have opted for yes, eight persons have opted for no,

and one person have declared none.

Law is not an abstract thing it is a living organism that is applied

on living beings. The police and the judiciary do not comprehend these

basics and apply their own views as to deny bail. Human consideration is

the primary demand of law.

17. The state Governments should order the release of pre- trial prisoners who

are detained in prison for more than the maximum punishment given under

the offence they are charged with.

(a) Yes (b) No (c) None

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 Fifty six persons have viewed yes, eight persons say no, three persons

have declared None.

The state government should order the release of the under-trial prisoners

who are in jail even after completing the maximum punishment. Section 436

A though insensible has been brought in to release the under- trial prisoners

who have suffered the half of the maximum punishment. The government has

not taken any steps towards this. If this section is applied many under trial

prisoners would get released.

18. Investigation by the police can be done even without arresting the accused

when the accused submits to the investigation

(a) Yes (b) No (c) None

Fifty eight persons say yes, eight persons say no, and one person none

With the amendment of section 40 of Criminal Procedure Code not to

arrest person charged with offences carrying less than 7 years and with the

incorporation of section 41 A of Cr. P.C to serve notice to the accused to

be present for investigation, it is to be understood that police can

investigate the case without arresting the accused, when the accused

submits for investigation. Even in major offences the person who will not

flee justice and who is not a danger to the society can be let on bail with

the direction that he submits to investigation. Stringent conditions may be

imposed to stop the accused from fleeing justice and of being danger to the

society.

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19. Pre-Trial prisoner having a residence and a family may be released on own

bond, and bond from one of the family members.

(a) Yes (b) No (c) None

Fifty nine persons have declared yes, seven persons have declared no, and

two persons say none

As stated in the answers to question number 18, the accused having

proper residence and living with his family, may be released on own bond

and bond from the family members with the direction to be available for

investigation. If this direction of the court is not followed, the police have

the liberty to approach the court for the arrest of the person so released.

20. Pre-Trial Detention can be narrowed if (a) Laws should be amended (b)

Judiciary should mend their ways.

(a) Laws should be amended (b) Judiciary should

mend their ways (c) both a and b

Twenty eight persons say law should be amended, two persons say

judiciary should amend, and thirty seven persons have opted for both.

Pre – trial detention can be narrowed if the mindset of the judiciary

should change. Let them visit jails to speak with the under trial prisoners

and learn their difficulties. Bail should be liberal. Application of amended

provisions of Cr. P. C in the law of arrest and the incorporation section 41

A of Cr. P. C. should facilitate the judiciary to be more lenient. The law

needs to be amended as to make bail liberal more particularly to the poor

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 people of the society. What purpose is served in detaining the under-trials

for longer periods? Heavy expenditure is incurred in feeding them.

7.2 REMARKS:

It is to be observed that many persons have opted for the liberal grant of

bail. They have also brought to limelight the bad functioning of the police

and the judiciary. It is to be stated that the criminal law is dying at higher

levels. Hate sin and not the sinners is the demand of the bible. It is to be

understood that the accused and convicts too enjoy the safeguards of our

laws. It is high time that mindset of police and the judiciary has to change in

tune with the current changes and the demands of the Universal Declaration

of Human Rights judicial officers need to be taught of the basics of the

Criminal Jurisprudence and the intent of the legislators in the criminal law.

The law is not applied on savages but on human beings which requires

human consideration the law has to be applied in its letter and spirit.

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