for criminal courts & remand advocates

244 Pages·2016·2.97 MB·English

HANDBOOK
FOR CRIMINAL COURTS & REMAND ADVOCATES
Prepared by
Jharkhand State Legal Services Authority
NYAYA SADAN, Near A.G. Office, Doranda, Ranchi
Phone : [phone], Fax : [phone]
Email : [email protected], Website : www.jhalsa.org
This Handbook is also available on official website of JHALSA “www.jhalsa.org”
For Private Circulation : Educational Purpose Only
Handbook
for
criminal courts
&
remand advocates
Year of Publication : 2016
Compiled By
Jharkhand State Legal Services Authority
Nyaya Sadan, Near AG Office, Doranda, Ranchi – 834002
Ph No. 0651-2482392, 2481520, 2482397 (F“)www.jhalsa.org”
E-mail :[email protected], Website : www.jhalsa.org
This is booklet is also available on Official Website of JHALSA

Justice Virender Singh

Chief Justice, High Court of Jharkhand cum
Patron-in-Chief, JHALSA
MESSAGE
It is a matter of great contentment that Jharkhand State Legal Services Authority is
publishing a Handbook for Remand Advocates and Criminal Courts. Crime and punishment
are very sensitive issues and every civilised society aspires of crime-free environment and suitable
punishment for the offender. At the same time a civilized society craves for protection of basic
human rights of prisoners. Article 39-A of the Constitution of India mandates legal aid to all eligible
persons including the prisoners and it is, thus, the duty of the legal services Institution to protect
and promote their legal and constitutional rights.
I am very optimistic that this work of JHALSA will be used by the Bench and Bar alike. It
will not only be a useful book for the DLSAs and Remand Advocates of the State, but, would also
be useful for the human rights activists who keep vigilant eye on the persons under vulnerable
circumstances including prisoners.
(Virender Singh)
Dated : 29th September, 2016

Justice Navin Sinha

Chief Justice, Rajasthan High Court cum
Patron-in-Chief, Rajasthan SLSA
MESSAGE
I am happy to learn that JHALSA is organising a One day Training Programme for Remand
Advocates on 4th of October, 2016, at Ranchi. A Handbook for Remand Advocates and Criminal
Courts is also to be released that day. The Society owes a duty, moral and legal to ensure protection
of human rights of those who have erred in conduct. It is an essential attribute of a civilised society.
It is the duty-moral as well as legal - of a civilised society to ensure protection of legal as well as
human rights of persons in custody.
In Ramamurthy v. State of Karnataka, (1997) S.C.C. (Cri) 386, nine major problems
afflicting the prison system were identified as overcrowding, delay in trial, torture, ill treatment,
neglect of health and hygiene, inadequate food, inadequate clothing, prison vices, deficiency in
communication, streamlining of jail visits and management of open air prisons. Unhealthy living
conditions inside the jail was identified as a severe problem. It is the duty of the Legal fraternity
in general and Legal services Authority in particular to uphold the Constitutional law and protect
the rights of prisoners right from the stage of remand.
The Judicial System of our country guarantees to all the prisoners the Right to Life of with
human dignity. Justice D.N. Patel has laboured hard for this outstanding compilation. It will be
very useful for Members of Legal Fraternity in general and Remand Advocates in particular.
With best wishes.
(Navin Sinha)

Justice D.N. Patel

Judge, High Court of Jharkhand &
Executive Chairman, JHALSA
A Society is known by how it treats its women, children, differently abled persons,
prisoners and marginalized sections of the society. It is constitutional mandate to
provide legal aid to the persons in custody, right from the time of his arrest.
The concept of Remand Advocate is to fulfil the aforesaid constitutional mandate and
provide legal aid to unrepresented accused produced in custody and oppose his remand,
move bail applications, miscellaneous applications etc and undertake such action as may
be necessary to effectively represent the accused. Soon after the arrest, the arrested person
comes under difficult circumstances. His personal liberty is restricted. Hon’ble Supreme
Court of India in catena of judgements has upheld the position that Article- 21, which
guarantees Right to life with dignity is applicable to prisoners also with full force. Therefore,
the duty of Remand Advocate is not only onerous but also pious one. They have not only to
discharge it whole heartedly but diligently. There is urgent need to keep Remand Advocates
updated through continuous training programmes. There is further need for Reading
Material comprising of letters and circulars as well as judgements on the subject for the
Remand Advocates and Legal Fraternity.
Legal Aid to poor does not, cannot and should not mean poor legal aid. A competent
lawyers well versed in law with up to date knowledge is able to protect the interests of
arrested persons. There should be good knowledge of Code of Criminal Procedure and more
particularly the requirements of Sec. 41 Cr.PC. The Legal position is that whoever doesn’t
have a private lawyer to represent him at the time of remand, needs to be represented by
the Remand Advocate deputed by Legal Services Authority.
This work of JHALSA is not only for Remand Advocates and Criminal Courts but also
for the entire legal fraternity and common man.
It goes without saying that to include the latest case-laws, updated version will be
published at regular intervals so that all the stakeholders may continue to be benefited
from this work of JHALSA.
(Justice D.N. Patel)
indeX
imPortant letters
1. National Legal Services Authority ........................................................................................3
D.O.No.L/43/2015/Nalsa, Dated 5th July, 2016
2. National Legal Services Authority ........................................................................................4
F.No. L/43/2015/Nalsa, Dated: 20th January, 2016
3. National Legal Services Authority ........................................................................................5
F.No.L/12/2016/Nalsa, Dated: 5th July, 2016
4. National Legal Services Authority ........................................................................................9
F.No.L/17/2016/Nalsa, Dated: 19th July, 2016
5. Jharkhand State Legal Services Authority ..........................................................................12
Jhalsa/1864, Dated 26th July, 2016
imPortant JudGments
6. Md. Ajmal Md. Amir Kasab @Abu ... vs State Of Maharashtra .........................................15
Criminal Appeal Nos.1899-1900 Of 2011
7. State Of Madhya Pradesh vs Shobharam And Ors .............................................................66
8. Sunil Batra Etc vs Delhi Administration And Ors. Etc ......................................................79
Equivalent citations: 1978 AIR 1675, 1979 SCR (1) 392
9. Sunil Batra vs Delhi Administration ..................................................................................94
Equivalent citations: 1980 AIR 1579, 1980 SCR (2) 557
10. Hussainara Khantoon & Ors vs Home Secretary, State Of Bihar ......................................99
Equivalent citations: 1979 AIR 1377, 1979 SCR (3) 760
11. Prem Shankar Shukla vs Delhi Administration ...............................................................105
Equivalent citations: 1980 AIR 1535, 1980 SCR (3) 855
12. Rudul Sah vs State Of Bihar And Another .......................................................................111
Equivalent citations: 1983 AIR 1086, 1983 SCR (3) 508