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HUMAN RIGHTS OF PRISIONERS

(Project Report)

SUBMITTED TO

Mrs. Priyanka Dhar

(Faculty member of Criminal law)

(((((

SUBMITTED BY

Phakamas Shukla

Roll Number 104

Semester VII, Section-B

HIDAYATULLAH NATIONAL LAW UNIVERSITY

Uparwara Post, New Raipur, Chhattisgarh 492002

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ACKNOWLEDGEMENTS

For the completion of this project I would like to extend my heartfelt gratitude to my Criminal
Law teacher, Mr. Manoj Kumar, without his help and guidance at every step I would have been
unable to finish this project.

I would like to thank the university’s library for the vast collection of books which they have
and which helped me in the completion of this project.

I would also like to acknowledge the important role the vast online database accessible in the
university which also aided in the completion of this project.

Phakamas Shukla

Semester – VII

Roll No. -104

Section – B

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DECLARATION

I, Phakamas Shukla of Semester VII, Section B, declare that this project submitted to H.N.L.U.,
Raipur is an original work done by me under the able guidance of Mr Manoj Kumar Sir, Faculty
of Criminal Law. The work is a bona fide creation done by me. Due references in terms of
footnotes have been duly given wherever necessary.

Phakamas Shukla
Roll No. 104
Section B, Semester VII

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TABLE OF CONTENTS

Acknowledgments 2

Declaration 3

INTRODUCTION................................................................................................................................. 5
1.1 Inquisitorial Justice System ....................................................................................................... 5
1.2 Adversarial Justice System ........................................................................................................ 5
1.3 Criminal Procedure Code’s Constitutional Nature ................................................................. 6
Object and Scope Of This Project ................................................................................................... 7
Database and Research Methodology ............................................................................................. 7
TRIAL PROCEEDINGS WITH RESPECT TO THE CONSTITUTION OF INDIA .................. 8
Right To Just, Fair And Free Trial ................................................................................................. 8
Protection Against Double Jeopardy............................................................................................. 10
Commencement Of A Trial: When Charges Are Framed ...................................................... 13
Right To Speedy Trial .................................................................................................................... 13
CONCLUSION………………………………………………………………………………………16

REFERENCES .................................................................................................................................... 18

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INTRODUCTION
Constitution of India in its articles protects various rights of the citizens. This has been
extensively discussed in the upcoming chapters of the project. The basis to understanding the
criminal justice administration is that India follows an Adversarial system as practiced in the
Commonwealth nations.
The main objective of the courts is to punish the offender and protect the innocent. And to
achieve this there are two models in general and that both these models emphasizes on the
adjudication of the accused and protection of innocent. Like every other method of
development these models have aged through history and that these rules of procedure it has
its advantages as well as disadvantages.

1.1 Inquisitorial Justice System

The Inquisitorial Model basically relates to the Romano Germanic System of law, which is also
famous by the names of civil law or continental law system. It serves the purpose of justice
through its agents that being the prosecutors, police, the defence lawyer and the court. In this
system of law administration if the justice has been served then minor errors as to the procedure
they shall be ignored. In this form of Criminal Justice Administration the court has a
substantive role in the trial to secure justice. Primary goal is to serve justice with disregard to
the ignorance of the minor irregularities. Here, the conceiving ideas can be easily detected
hence leading to no wrong judgment and its true in itself.

1.2 Adversarial Justice System

On the other hand there is the adversarial mode of justice is close to the Anglo-American
system and its past colonies. It regards the court is in the neutral position as it advocates the
supremacy of law. Both sides shall have their legal representatives Our system of justice is
based on the adversarial model.
The adversarial system implies that two parties assume opposite positions in debating the guilt
or innocence of an individual. In this scenario, the judge is required to be neutral at the contest
unfolding before him or her. The role of the judge in this arrangement is to ensure the trial
proceeds according to the procedural rules of trial or due process of law and that evidence
entered is done so according to established rules and guidelines.
The basis of this approach in criminal matters in which two sides engage in debate and battle
about the guilt or innocence of an accused and since each side wants to win, then the debate
will foster a critical look at the issues and the calling of evidence to be examined by both
parties. By engaging in this discourse, the truth should emerge as the judge watches on. This
means that the roles played by the various court officers are very distinct. The defence counsel
as one adversarial party gather the arguments to defend the client and attacks the credibility
and worthiness of the evidence presented by the crown. The crown prosecutor puts forth the

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arguments on behalf of the crown or state and gathers and presents the evidence pointing that
the accused has committed an offence. The judge is the referee and arbitrator on issues related
to clarifying what the law is. The judges not intervene on any side except where procedural
fairness is jeopardized by either party.
The evidence and witnesses that are called are left up to the two arguing parties, the defence
counsel and the crown. The judge is not involved in what is presented to the court. If the crown
wishes not to call certain evidence or individuals as witnesses even though it may help shed
light on the case, the judge cannot intervene. This leaves the two parties in charge of the case
and the direction it takes.
India follows the adversarial system due to its inheriting character comes from the
commonwealth nations of which India was a part. It was believed giving powers to the judges
for examination of witnesses and all is fine but when it comes to the investigation and the
interference of the court would make it look a little bias and proper balance of justice wouldn’t
be upheld.
This forms the basic form of criminal justice system on which the criminal procedure code of
India is based upon. The rights given to the magistrate stay distant as to keep non-prejudice
when the cases are to be heard. Hence, for India the best form remains the adversarial mode
but it comes with some disadvantages as well out of which the irking flaw of this system that
being the lack of speedy trial and prolonged pending suits for half decades in the same court of
law where the lawyers try to delay the cases and very well are able to do so. Hence, there are
basically two modes of criminal justice administration in the world of which we follow the
adversarial.

1.3 Criminal Procedure Code’s Constitutional Nature

The criminal procedure code of India was enacted by the British empire when India was a
colony and it was said to be the most comprehensive compilation but after the independence in
1947 there was a hue and cry for the formulation of a Constitution of India and this came in
the year 1950. The questions regarding the procedural code started arising due to many harsh
rules as made by the British which needed to be amended and explained as to show that there
has been no violation of fundamental rights as prescribed in the constitution of India. The
constitutional validity of many functions and procedures has been raised from time to time and
that whether such a comprehensive code in ways denies fundamental rights of the people
related to the trials. The major question of laws was regarding the rights of accused, delay in
justice, rights regarding bail, arrest, search and seizure and many others. In a country like India
people find loopholes in the law and keep on filing appeals or special leave petition in the
Supreme Court just to question the validity of an entire process or section under the code. The
judiciary has time and again made judgments so as to clarify any such question. The code is an
ocean with a thousand fishes and many of them loose their path when it is tried to be restricted
and hence just like those restrictions we have the Constitution of India. The law is there to help
not to manipulate anybody but time and again it is used against the law of the country itself
and then clarifications regarding this has to be issued in various judgments so next time no such
query arises.

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In this project the main emphasis will be on the major question of laws in case of pre-trial, trial
and post-trial proceedings in the Criminal Courts according to the Criminal Procedure Code,
1973.

Object and Scope Of This Project

The main underlying purpose of this project is to outline the major constitutional and criminal
procdural provisons that tend to be overlapping or in some what manner contradictory to each
other beause of which the person related to the trial is some what in a jeopardy. In India, the
courts can entertain any set of substantial questions of law by which the validity of the entire
code or that very particular section is rendered unconstitutional then it shall be deleted as the
Constitution is the supreme law making source of india and if any fundamental right is breached
it would give the constitution under article 13 to quash that act or proviso to make necessary
arrangements for upholding the constitution infront of any other act, code or proviso
whichever is necceassary. This project shall discuss as to what all changes have been made in
the Criminal Procedural Code to bring it under the realm of the constitution without any
unjustice being provided.

Database and Research Methodology

The Data used in this project are secondary data from the books of renowned authors and Jurists
who have tried and well drafted the respective books in such a way that they are very systematic
and contains proper theoretical analysis. The authors of the projects have completely relied
upon the books and the interpretation of the law and have given a critical analysis of the same.
The online forums have been used as well to carve out the important theories needed for the
successful completion of the project. The authors with the help of different databases have
searched judgments to support their contentions and try and make it more original at every
point of time.

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TRIAL PROCEEDINGS WITH RESPECT TO THE CONSTITUTION OF INDIA

Right To Just, Fair And Free Trial

The Constitutional mandate under Articles 20 and 21 of the Constitution of India, 1950
provides a protective umbrella for the smooth administration of justice making adequate
provisions to ensure a fair and efficacious trial so that the accused does not get prejudiced after
the law has been put into motion to try him for the offence but at the same time also gives equal
protection to victims and to the society at large to ensure that the guilty does not get away from
the clutches of law. For the empowerment of the courts to ensure that the criminal
administration of justice works properly, the law was appropriately codified and modified by
the legislature under the Cr.P.C. indicating as to how the courts should proceed in order to
ultimately find out the truth so that an innocent does not get punished but at the same time, the
guilty are brought to book under the law. It is these ideals as enshrined under the Constitution
and our laws that have led to several decisions, whereby innovating methods and progressive
tools have been forged to find out the real truth and to ensure that the guilty does not go
unpunished. The presumption of innocence is the general law of the land as every man is
presumed to be innocent unless proven to be guilty.

The principles of rule of law and due process are closely linked with human rights protection.
Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has
to be unmistakably understood that a trial, which is primarily aimed at ascertaining truth, has
to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive
definition of the concept of a fair trial, and it may have to be determined in seemingly infinite
variety of actual situations with the ultimate object in mind viz. whether something that was
done or said either before or at the trial deprived the quality of fairness to a degree where a
miscarriage of justice has resulted. It will not be correct to say that it is only the accused who
must be fairly dealt with. That would be turning Nelson's eyes to the needs of the society at
large and the victims or their family members and relatives. Each one has an inbuilt right to be
dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as
is to the victim and the society. Fair trial obviously would mean a trial before an impartial
Judge, a fair prosecutor and an atmosphere of judicial calm. Fair trial means a trial in which
bias or prejudice for or against the accused, the witnesses, or the cause, which is being tried, is
eliminated. If the witnesses get threatened or are forced to give false evidence that also would
not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.
Fair, just and reasonable procedure implicit in Article 21 of the Constitution it creates a right
in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact
that a speedy trial is also in public interest or that it serves the societal interest also does not

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make it any the less the right of the accused. It is in the interest of all concerned that the guilt
or innocence of the accused is determined as quickly as possible in the circumstances. Right to
speedy trial flowing from Article 21 encompasses all stages, namely the state of investigation,
inquiry, trial, appeal, revision and re trial.
The principle of reasonableness, which legally as well as philosophically,
is an essential element of equality or non-arbitrariness, pervades Article 14 like a brooding
omnipresence and the procedure contemplated by Article 21 must answer the test of
reasonableness in order to be in conformity with Article 14. It must be "right and just and fair"
and not arbitrary, fanciful or oppressive otherwise it would be no procedure at all and the
requirement of Article 21 would not be satisfied.4 Any procedure which permits impairment of
the constitutional right to go abroad without giving reasonable opportunity to show cause
cannot but be condemned as unfair and unjust and hence, there is in the present case clear
infringement of the requirement of Article 21.
Maneka Gandhi v. Union Of India
In the judgment of this case, the Court laid down a number of propositions which sought to
widen the ambit of Article 21 and emphasize on procedure established by law. While giving
the judgment of the case, Justice Bhagwati referred to some of the previous judgments of
importance with regard to personal liberty.
The case of Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer,
Government of India, New Delhi and Ors. In this case, the court held that the right to passport
is included in personal liberty and so in the Article 21. It also laid down that as right to passport
was seen to be included in personal liberty of a person, so the concerned authorities must act
according to proper procedure established by law. Though, Justice Bhagwati did not find any
procedure for impounding of passport in the said Act, he held that even if a procedure is not
laid down specifically, the rules of natural justice should have been followed by the executive.
It violated the audi alteram partem rule of natural justice by not giving the petitioner the
opportunity to be heard before impounding her passport.
Justice Krishna Iyer in this case has given important contribution while concurring with the
judgment of Justice Bhagwati. He has used Maneka Gandhi’s case to enrich and enlarge Article
21 in post Maneka cases on personal liberty. In his opinion he said that no person can be
deprived of his right to travel abroad unless in accordance with the procedure established by
law. He said that “personal liberty makes for the worth of the human person and travel makes
liberty worthwhile”. He agreed with the dissenting opinion given by Justice Fazl Ali in the
A.K. Gopalan case who said that procedure in Art. 21 imply fair and reasonable procedure and
not just a formal procedure. It is the dissent of Fazl Ali which is vindicated in the law
subsequently developed by the Supreme Court culminating in Maneka Gandhi’s case.

In the case of Olga Tellis v. Bombay Municipal Corporation, the Supreme Court again
emphasized the importance of procedure established by law and said that such procedure
should be fair, just and reasonable to apply it for depriving a person of the rights conferred
upon him by Article 21. Accordingly, right to fair investigation, fair trial, speedy trial etc. are
implicit in the ambit of Article 21 as the procedure followed should not be arbitrary and
oppressive. Fair trial would imply trial before an impartial judge with no bias in favour of or

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against the accused, and to ensure this certain irregularities like threatening of witnesses to give
false evidence or failure to hear material witnesses is violative of the right to free trial.
It has been observed finally that in the opinion in A.R. Antulay's case—
 fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a
right in the accused to be tried speedily;
 right to speedy trial flowing from Article 21 encompasses all the stages, namely, the
stage of investigation, inquiry, trial, appeal, revision and retrial;
 who is responsible for the delay and what factors have been contributed towards delay
are relevant factors. Attendant circumstances, including nature of the offence, number
of accused and witnesses, the work-load of the Court concerned, prevailing local
conditions and so on what is called systemic delays must be kept in view;
 each and every delay does not necessarily prejudice the accused as some delays indeed
work to his advantage."

Protection Against Double Jeopardy

When the trial Court conducted the trial and came to the conclusion that
the offence was not made out against the accused and the case was dismissed acquitting the
accused, it was not open to prosecute the accused for the same offence, as it would amount to
double jeopardy. The fundamental nature of the guarantee against double jeopardy can hardly
be doubted. It is enshrined in Article 20 (2) of the Constitution, which says that no person shall
be prosecuted and punished for the same offence more them once. Its origins can be traced to
Greek and Roman times and it became established in the common law of England. As with
may other elements of the common law, it was carried into the jurisprudence of the United
States through the medium of Blackstone, who codified the doctrine in his Commentaries:
"The plea of autrefois acquit, or a former acquittal/ he wrote, is grounded on this universal
maxim of the common law of England, that no man is to be brought into jeopardy of his life
more than once for the same offence."
When the trial Court conducted the trial and came to the conclusion that the offence was not
made out against the accused and the case was dismissed acquitting the accused, it was not
open to prosecute the accused for the same offence, as it would amount to double jeopardy.
The fundamental nature of the guarantee against double jeopardy can hardly be doubted. It is
enshrined in Article 20 (2) of the Constitution, which says that no person shall be prosecuted
and punished for the same offence more them once. Its origins can be traced to Greek and
Roman times and it became established in the common law of England. As with may other
elements of the common law, it was carried into the jurisprudence of the United States through
the medium of Blackstone, who codified the doctrine in his Commentaries:
"The plea of autrefois acquit, or a former acquittal/ he wrote, is grounded on this universal
maxim of the common law of England, that no man is to be brought into jeopardy of his life
more than once for the same offence."
As the American Supreme Court put it in Green v. United States, the underlying idea, one that
is deeply ingrained in at least the Anglo-American
system of jurisprudence is that the State with all its resources and powers should not be allowed
to make repeated attempts to convict an individual for an alleged offence, thereby subjecting

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him to embarrassment, expense and ordeal and compelling him to live in a continuing state of
anxiety and insecurity, as well as enhancing the possibility that even though innocent he may
be found guilty. The Double Jeopardy Clause (Article 22) in the American Constitution
protects a person in a criminal proceeding against multiple punishments or repeated
prosecutions for the same offence.
Broadly speaking, a protection against a second or multiple punishment for
the same offence, technical complexities aside, includes a protection against re- prosecution
after acquittal, a protection against re-prosecution after conviction and a protection against
double or multiple punishment for the same offence. These protections have since received
constitutional guarantee under Article 20 (2). But difficulties arise in the application of the
principle in the context of what is meant by "same offence".

Distinction between Article 20 (2) of the Constitution from Section 300 of the Cr.P.C. is based
upon the principle of the "double jeopardy" clause and lays down that no person should be put
in jeopardy of his life or liberty more than once. This principle is so sell established in the
system of law that is administered in India that it is not surprising that it should have been
elevated to the level of a fundamental right. The intention of the founding fathers appears to
have been not to disturb the existing law, which is to be found in Section 403 of the Code of
Criminal Procedure relating to the extent of protection against "double jeopardy" in the
criminal law of this country. Article 20 (2) does nothing more than reproduces in effect the
provisions of Section 300 (403 old) of the Code of Criminal Procedure. It is clear that under
the Code a discharged person can be put for retrial.
Article 20 (2) clearly uses the word "and" in a conjunctive sense and it is only where the
accused has been both prosecuted and punished for the same offence that a second trial is
barred. The principle that a man may not be put twice in jeopardy for the same offence' has
now been incorporated in Article 20 of the Constitution. The defence of autrefois acquit under
Article 20 however, has no application where the accused person was not liable lawfully to be
convicted at the first trial because the Court lacked jurisdiction. The person in order to get
benefit must have been prosecuted and punished for the same offence.
If a person is found in possession of different sets of counterfeit labels on different occasions
at different places, he will be deemed to have committed a distinct and separate offence in
respect of each set of counterfeit labels found with him at different places and it cannot be said
that a second prosecution in respect of another set of counterfeit labels found with a person
would amount to a prosecution for the same offence twice. Section 403 (1) is more
comprehensive in its scope than Article 20 (2). Article 20 (2) bars retrial of a person for the
same offence when he has been convicted and sentenced for the same offence whereas Section
403 (1) specially incorporates the principle that gives effect to the pleas (autrefois acquit as
well as autrefois convict). It embodies the board ancient maxim "nemo debet bis vexari pro
eadem causa/'
The well-known maxim "nemo debet bis vexari pro eadem causa" (no person
should be twice vexed for the same offence) embodies the well established
Common Law rule that no one should be put to peril twice for the same offence. The principle,
which sought to incorporate into Section 300 of the Criminal Procedure Code, is that no man
should be vexed with more than one trial for offences arising out of identical acts committed

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by him. When an offence has already been the subject of judicial adjudication, whether it ended
in acquittal or conviction, it is negation of criminal justice to allow repetition of the adjudication
in a separate trial on the same set of facts.
It was held by the Supreme Court in Maqbool Hussain's case that the language of Article 20
and the words actually used in it affords a clear indication that the proceedings in connection
with the prosecution and punishment of a person must be in the nature of a criminal proceeding,
before a Court of law or judicial tribunal, and not before a tribunal which entertains a
departmental or an administrative enquiry even though set up by a statute, but which is not
required by law to try a matter judicially and on legal evidence. In that case the proceedings
were taken under the Sea Customs Act before a Customs authority who ordered confiscation
of goods. It was held that such proceedings were not "prosecution", nor the order of
confiscation a "punishment" within the meaning of Article 20 (2) inasmuch as the Customs
authority was not a Court or a judicial tribunal an merely exercised administrative powers
vested in him for revenue purposes.
Section 300 (2), Cr.P.C. allows a subsequent trial of a person on the same facts for a distinct
offence for which a separate charge might have been made against him at the former trial under
Section 220 (1), Cr.P.C. Reading the sections together the conclusion would be that if a person
commits two distinct offences in the same transaction he can be charged with them (though
separately) and tried at the same trial; but if he is tried, at one trial for one of the distinct
offences and acquitted or convicted the subsequent trial for a distinct offence committed in the
same transaction is not barred.
In Mukhtiar Ahmed Ansari v. State (N.C.T. of Delhi), the accused was charged under TADA
and also under the Indian Penal Code for kidnapping. He was acquitted for the offence of
kidnapping by the competent Court. In such a case, the doctrine of 'autrefois acquit' gets
attracted. The Designated Court cannot reconsider the matter by doubting the decision or
commenting upon it observing that the acquittal was undeserved or unwarranted and the
accused had committed the offence for which he was charged.
The Supreme Court is not debarred from re-opening a question and giving
proper directions and correcting the error in appeal, when the earlier directions
given by it were violative of the limits of jurisdiction and the directions have
resulted in deprivation of the fundamental rights of the appellant guaranteed
by Articles 14 and 21 of the Constitution.[53]
In the matter of Union of India v. P.D. Yadav, it has been explained as follows: -
This principle is embodied in the well-known maxim nemo debet bis vexari, (si constat curiae
quod sit) pro una et eadem causa meaning no one ought to be vexed twice if it appears to the
court that it is for one and the same cause. Doctrine of double jeopardy is
a protection against prosecution twice for the same offence. Under Articles 20-22 of the Indian
Constitution, provisions are made relating to personal liberty of citizens and others.
Article 20(2) expressly provides that:
'No one shall be prosecuted and punished for the same offence more than once. Offences such
as criminal breach of trust, misappropriation, cheating, defamation etc., may give rise to
prosecution on criminal side and also for action in civil court/other forum for recovery of
money by way of damages etc., unless there is a bar created by law.’

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Commencement Of A Trial: When Charges Are Framed

In Ratilal Bhanji Mithani v. State of Maharashtra & Ors., this Court held:
Once a charge is framed, the Magistrate has no power under Section 227 or any other provision
of the Code to cancel the charge, and reverse the proceedings to the stage of Section 253 and
discharge the accused. The trial in a warrant case starts with the framing of charge; prior to it
the proceedings are only an inquiry. After the framing of charge if the accused pleads not guilty,
the Magistrate is required to proceed with the trial in the manner provided in Sections 254 to
258 to a logical end.
It is said that there has been an issue regarding the greater question of law as regards to when
do an actual trial starts? And to answer this the Court said as held in the above judgment that
the court that trial starts only when the charges are framed. And there is a presumption as to
innocence of the accused and shall not be regarded as being guilty.

Right To Speedy Trial

The principal of openness of judicial proceedings acts as a check against caprice or vagaries
and builds up confidence of the public in judicial administration. The right to speedy trial is
implicit in Articles 14, 19 (1) (a) and 21 of the Constitution as well as the Criminal Procedure
Code. Fundamental right for speedy trial conferred by Article 21 of the Constitution. Article
21 of the Constitution of India mandates thus, —
"No person shall be deprived of his life or personal liberty except
according to the procedure established by law."
The Supreme Court in a catena of decisions has held that the expression "procedure established
by law" envisages of an expeditious procedure. In the instant case, it is per se clear that there
has been an infraction of the fundamental right of the petitioner conferred by Article 21 of the
Constitution of India. A procedure in which the trial of the petitioner could not be disposed of
for no fault of his, for a period of nearly nine years is the very anti-thesis of an expeditious
procedure. It is a blatantly dilatory procedure, shocks judicial conscience and casts a very sad
reflection on the judicial system.
While determining whether undue delay has occurred (resulting in violation of Right to Speedy
Trial) one must have regard to all the attendant circumstances, including nature of offence,
number of accused and witnesses, the workload of the Court concerned, prevailing local
conditions and so on—what is called, the systemic delays. It is true that it is the obligation of
the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical
approach should be adopted in such matters instead of a pedantic one. In Abdul Rehman
Antulay v. R.S. Nayak, the Supreme Court observed:

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"Ultimately, the Court has to balance and weigh the several relevant factors—'balancing test'
or 'balancing process' and determine in each case whether the right to speedy trial has been
denied in a given case.”
Ordinarily speaking, where the Court comes to the conclusion that
right to speedy trial of an accused has been infringed, the charges or the
conviction, as the case may be, shall be quashed. But this is not the only
course open. The nature of the offence and other circumstances in a given
case may be such that quashing of proceedings may not be in the interest of
justice. In such a case, it is open to the Court to make such other appropriate
order—including an order to conclude the trial within a fixed time where
the trial is not concluded or reducing the sentence where the trial has
concluded as may be deemed just and equitable in the circumstances of the
case.
It is neither advisable nor practicable to fix any time limit for trial of
offences. Any such rule is bound to be a qualified one. Such rule cannot also
be evolved merely to shift the burden of proving justification on to the
shoulders of the prosecution. In every case of complaint of denial of right to
speedy trial, it is primarily for the prosecution to justify and explain the
delay. At the same time, it is the duty of the Court to weigh all the
circumstances of a given case before pronouncing upon the complaint.
The Supreme Court in Hussainara Khatoon v. Home Secretary, State of Bihar,
"There can, therefore, be no doubt that speedy trial and by speedy tried we mean reasonably
expeditious trial, is an integral and essential part of the fundamental right of life and liberty
enshrined in Article 21."
In this case it was also held that, where under-trial prisoners have been in jail for periods longer
than the maximum term for which they would have been sentenced, if convicted, their detention
in jail is totally unjustified and in violation of the fundamental right to personal liberty under
Article 21 of the Constitution. Their detention in jail being illegal they should be released
forthwith." Delay by itself could not be the ground for quashing the proceedings especially
when there was no material to indicate as to who was responsible for such delay. The delay not
attributable to the prosecution and could not give advantage to the accused.
To have speedy justice is a fundamental right, which flows from Article 21 of the Constitution.
Prolonged delay in disposal of the trials and thereafter appeals in criminal cases, for no fault of
the accused, confers a right upon him to apply for bail. In the instant case, keeping in view the
allegations made against the accused coupled with the fact that she was old and infirm, the
Supreme Court directed her to be
released on bail keeping the sentence awarded to her in suspension.
After taking into consideration the decisions of the Hon'ble Supreme Court
and the facts and circumstances of the instant case and the submission of the
Public Prosecutor that if six months' time is given to the prosecution, the trial
may be concluded, it appeared to be just and proper that direction be issued
under Section 482 read with Section 483, Cr.P.C. that every possible effort

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shall be taken by the prosecution as well as the concerned Court to conclude the
trial within the period of six months from today. It was further necessary to
emphasise that during the trial, the accused was required to be present unless
his attendance was exempted from the expeditious trial of the case; co-
operation on the part of the accused is equally necessary. The hearing of the
case was directed to be conducted on day-to-day basis. No adjournment shall be
granted on the request of any party unless the adjournment of the case becomes
inevitable on account of the circumstances beyond the control of the Court. If the
trial is not concluded within a period of six months, the petitioner shall be at
liberty to move another petition, if he is so advised.

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CONCLUSION

Different societies, through ages evolved and applied various forms of punishment of which
fines, forfeiture and confiscation of property, death, imprisonment for life, banishment,
mutilation, branding, flogging and pillory have been well recognized. With the rise of
humanitarianism in penal philosophy, fines, forfeiture and confiscation of property,
imprisonment for life and imprisonment have remained the common forms of punishment
inflicted for almost all offences in many parts of the world. Capital punishment is inflicted only
for a very limited number of offences and that too in the rarest of rare cases. Thus,
imprisonment as a form of punishment gained prominence. In India, almost all the offences
under Indian Penal Code and most of the offences under special and local laws are punished
with imprisonment.
Imprisonment as we understand it now is less than 200 years old. The main purposes of
imprisonment are those of:
1. disabling offender from being a danger to society by locking him up;
2. preventing prospective offenders by the threat of long-term lock-up; and
3. reforming the offender under healthy and transforming conditions. Among Sir
Alexander Paterson’s famous aphorisms, none is widely quoted than his insistence that
'men do not go to prison for punishment but as a punishment'.
The purpose and justification of a sentence of imprisonment or a similar measure, depriving
the liberty is ultimately to protect the society against crime. This can be achieved only if the
period of imprisonment is used to ensure that upon his return to society, the offender is not
only willing but is also able to lead a law-abiding and self-supporting life. Criminal punishment
has never been effective in eliminating or
reducing crime, yet society believes; it has no other means to substitute for
payment.

Aims and objects of punishment

To take the physical power of offending and to take away the desire for offending, and to make
him afraid of offending are the aims and objectives of punishment as viewed by Bentham. "A
society which felt neither anger nor indignation at outrageous conduct would hardly enjoy an
effective system of law” (Salmond). People are interested in human conduct. The more
extraordinary the conduct the greater, the interest. The theories of punishments are attempts to
rationalize society's procedure with preference to the criminal. Aristotle tried to rationalize the
system of retaliation according to the social status of the injured or the offender or whether
injury was intentional or not. The Jewdo-Christian theory of punishment grew out of religious
root. War, famine, outbreak of epidemics, etc., were considered as a course of God by way of
punishing a society for its errors.

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Hence, it is an important part of the Indian statutes to be in consonance with the Constitution
of India as it otherwise causes a lot of misunderstandings regarding the law and comes out to
look as it’s a hypocrite society which the law isn’t. the value of the codes are upheld and so is
of the Constitution of India. To conclude we can say that the constitution provides rights to the
accused in all three stages of the Trial i.e., pre-trial, trial and post-trial. The Criminal Procedural
Code has in its specific sections tried to uphold the Constitution by adding subsequent
amendments to the Cr.P.C. the Courts have been quite successful till any further questions are
raised as everyone finds it to be an easy way out of legal complications by accessing their rights
under the Constitution of which the higher ranking courts have to take cognizance. Sometimes
such questions are to delay the trials while sometimes its for the right cause leading to
amendments in the statutory provisions.
Eventually, would like to state that the Court has to take cognizance of every issue raised in
front of them and give a judgment in its regard. Constitution is the ‘Grund Norm’ of a country
and on its basis all the other laws are based. There are so interwoven that one cannot simply
follow one of them without cross-referencing it with the other. The criminal procedural law’s
constitutional perspective is hence very extensive as there is no limit to the number of case
laws and hence this is a comprehensive project with the important sections and articles therein.

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REFERENCES

A.N. CHATURVEDI, RIGHTS OF ACCUSED UNDER INDIANCONSTITUTION 61 (1st

ed. 1984).

J. N. PANDEY, CONSTITUTION LAW OF INDIA 158 (27th ed. 1994).

K. D. GAUR, A TEXTBOOK ON THE INDIAN PENAL CODE 368 (3rd ed. 2004).

THE OXFORD ENGLISH DICTIONARY (1997).

VIVEK JAIN, RIGHT OF THE ACCUSED,

HTTP://WWW.MIGHTYLAWS.IN/511/RIGHTS-ACCUSED, (LAST UPDATED
AUGUST 1, 2012).

YASH VIJAY, THE ADVERSARIAL SYSTEM IN INDIA: ASSESSING CHALLENGES

AND ALTERNATIVES, SOCIAL SCIENCE RESEARCH NETWORK, (OCTOBER 29,
2013)

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