Take effective steps to reduce cases, overcrowding in jails

Anil, Asif, Barun and Pal were arrested from a local diner as illegal immigrants even though they had documents proving their nationality. They were taken to the court but couldn’t be produced before the magistrate due to paucity of time and thus were sent to prison.

They had to stay for 14 more days till their next production, before they could be set free even as Asif’s seven-year old daughter awaited her father’s presence as she gave her final exam. Their story is not unique, nor is it unusual. Their story is routine, wrong and unjust.

The last decade has seen numerous attempts by the government and judiciary alike to reduce pendency in courts and bring down the undertrial population. From setting up of fast track courts, increased emphasis on lok adalats and more recently the establishment of undertrial review committees, much has been thought of and steps taken to remedy some of the plaguing issues. But these are more of curative steps that come much after the problems that beset the system at the very initial stages of arrest and production.

According to the latest National Crime Records Bureau statistics on Crimes in India, more than 36 lakh people are arrested every year, of which more than 90% are charge-sheeted and put on trial. While only a mere 6.7 % of these are released or freed at the investigation stage of trial, a startling 56% are eventually acquitted after the completion of trial.

With more than 34% cases taking anywhere between 3-10 years to conclude, one can reasonably argue that a large number of people are unnecessarily being sent into the system in the first place. Stricter scrutiny at the time of arrest and initial stages of production and remand – that is, prior to the filing of the charge sheet – would most certainly reduce both the pile of cases as well as overcrowding in jails.

Even though our constitutional and statutory frameworks demand strict scrutiny of arrests and remand proceedings, compliance at the ground level seems far from being effective.

In 2008, the legislature, by way of amendment of the criminal procedure code (CrPC) laid down further restrictions on the power of the police to arrest. It permitted police officers to ensure the presence of persons on the basis of a ‘notice of appearance’ and required arrests only to be made where absolutely necessary (Section 41A of the CrPC).

It also made it imperative for the arresting officers to prepare arrest memos (CrPC Section 41B) which were to be then subject to judicial scrutiny at production as a means to act as a powerful check on the police and prevent arbitrary arrests and detentions.

Arrests must be made only where there is reasonable belief that the person is the wrongdoer and there is enough evidence at hand to convince a judge that the likelihood of that very person having committed the offence is high.

When placed before him in person, within the mandatory period of 24 hours, the judge is supposed to examine the papers and only where a reasonable case is made out, give orders for his detention.

An arrest memo is one such important document whose scrutiny is vital as it contains information regarding the date, place and time of arrest. This has to be countersigned by the arrested person and must be signed by at least one independent witness.

Arrest memos

While the police are mandated to diligently prepare the arrest memos, it is the duty of the magistrate to verify the arrest memo along with other documents at the time of first production. The magistrate’s role at the time of production is key not only to the ultimate enforcement and protection of fair trial rights of an accused, but also in ensuring compliance by law enforcement agencies. It is what can make a difference between freedom and detention in jail for years on end and prevent cases like Asif from occurring.

However, in practice, the process seems be have become mundane with things happening more mechanically than meticulously. The Commonwealth Human Rights Initiative’s recent study on arrest memos further affirms the unfortunate fact that proper scrutiny of arrest memos as envisaged are not carried out in practice.

The study brings forth numerous gaps that exist within the system which make adherence to the constitutional and statutory safeguards not only difficult, but sometimes ineffective.

The study highlights that cross-checking of arrest memos with each arrested person is not a matter of routine. Evidence also points out that often, magistrates do not have sufficient time to examine each case, thus they either don’t check the papers at all, or they do only where a discrepancy is reported.

Strengthening pre-trial scrutiny of cases would lead to lesser cases going to trial and thus in the process not only reduce the burden on the judiciary, but also prisons. It would also act as an effective check on arbitrary arrests and unnecessary prolonged pre-trial detention, both of which are issues plaguing criminal justice systems not only in India but in numerous countries worldwide.

Accountability must not begin at the end, but it must be embedded within the system from the very beginning. With a plethora of constitutional and statutory safeguards already in place, the focus too should be on keeping strict oversight on people being sent into the system in addition to keeping a check once they have already spent numerous years behind the bar awaiting freedom. As the proverb goes, an ounce of prevention is better than a pound of cure!

(The writer is associated as Consultant, Prison Reforms Programme, Commonwealth Human Rights Initiative in India)