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Page | 0 Assignmen t on Public Internati Position of Poor and Indigent person under Criminal Justice System GUIDED BY- PROF. GHULAM YAZDANI Submitted By- Mohd Abid Hussain Ansari

Position of Poor and Indigent person under Criminal Justice System

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Assignment on Public International Law

Position of Poor and Indigent person under Criminal Justice System

Guided By- Prof. Ghulam Yazdani

Submitted By- Mohd Abid Hussain Ansari

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Acknowledgement

Writing the Acknowledgement for the project in the subject of Law and Poverty is a fairly simple undertaking for anyone who has attended even a single class of Prof. GhulamYazdani. The clarity, the command and the humour he brings into every class is infectious, making any student believe that there can be no easier subject that the Public International Law and that anyone can master it, provided he gives the subject the respect and recognition that Sir himself gives the subject.

Furthermore I would like to thank all those people who gave the subject their time and wrote books which I eventually referred. In this matter, I would particularly like to thank UpendraBuxi, whose book was precise and the largest reference in this work.

My father, a professor with large access to books of value has been of great help to me.

Without the contribution of the above said people I could have never completed this project.

Mohd.AbidHussain Ansari1 | P a g e

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B.A.LL.B (Hons) 4th Semester2nd Year

Table of Contents1. Introduction to Poverty Law………………………………………………...32. Defining Poverty………………………………………………………...…..43. Introduction………………………………………………………………….84. Criminal Justice System……………………………………………………105. Components………………………………………………………………...146. Suggestions…………………………………………………………………177. Indigent person……………………………………………………………..208. Views of High Court……………………………………………………….259. Bibliography………………………………………………………………..28

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Introduction to Poverty LawPoverty law is the body of law which concerns the rights of low-income individuals and families to access government benefits.

The term poverty law describes the broad areas of law and legal needs which arise by virtue of an individual's or a group's poverty. Generally, poverty law deals with issued aimed at eliminating poverty in the population and addressing the needs of the poor. Issues include housing and homelessness, access to medical care, and educational opportunities, among others. The U.S. Census Bureau defines the level of poverty used by the federal government across all states through the official measure of poverty established by the Office of Management and Budget (OMB).

Due process rights require the poor to have access to the justice system, therefore, public lawyers are appointed for those who can't afford a lawyer and are possibly faced with incarceration. Many filing fees required by the justice system may be waived by submitting a poverty affidavit. There are also numerous state and federal government benefits available to those who have a maximum income level at or below a defined poverty line.

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Defining Poverty – A Historic Perspective

Historically, poverty has been related to income, which remains at the core of the concept today. However, “income” is itself no less problematic a concept than “poverty”; it too has to be carefully and precisely elaborated. Other resources such as assets, income in kind and subsidies to public services and employment should be imputed to arrive at a comprehensive but accurate measure of income.People can be said to be in poverty when they are deprived of income and other resources needed to obtain the conditions of life—the diets, material goods, amenities, standards and services— that enable them to play the roles, meet the obligations and participate in the relationships and customs of their society.

The determination of a poverty line cannot be based on an arbitrary selection of a low level of income. Only scientific criteria independent of income can justify where the poverty line should be drawn. The multiplicity and severity of different types of deprivation can constitute those criteria. The key is therefore to define a threshold of income below which people are found to be thus deprived.The measure of multiple deprivations must be decided on the basis of evidence about each and every sphere of the range of social and individual activities people perform in fulfillment of individual and family needs, and social obligations. The degree of material and social deprivation relative to income is the basis for ascertaining the threshold amount of income ordinarily required by households of different compositions to surmount poverty. The application of this methodpermits analysis of trends in poverty in and across different countries.

The understanding and relief of poverty has been a major human preoccupation for many centuries. Since the 1880s, three alternative conceptions of poverty have evolved as a basis for international andcomparative work. They depend principally on the ideas of subsistence, basic needs and relative deprivation.

The subsistence idea was a result of work prompted by nutritionists in Victorian England. Families were defined to be in poverty when their incomes were not “sufficient to obtain the minimum necessaries for the maintenance of merely

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physical efficiency”. A family was treated as being in poverty if its income minus rent fell short of the poverty line. Although allowance was made in calculating the income level for clothing, fuel and some other items, this allowance was very small, and food accounted for much the greatest share of subsistence.

These ideas have influenced scientificpractice and international and nationalpolicies for over 100 years. Examples arethe statistical measures adopted todescribe social conditions, at first within individual countries but later with wide application by international agencies such as the World Bank. The idea of subsistence was freely exported to member States of the former British Empire, e.g. for setting the wages of blacks in South Africa and framing development plans in India and Malaysia. In the United States, “subsistence” remains the basis of the official measure of poverty.

The use of “subsistence” to define poverty has been criticized because it implies that human needs are mainly physical rather than also social needs. People are not simply individual organisms requiring replacement of sources of physical energy; they are social beings expected to perform socially demanding roles as workers, citizens, parents, partners, neighboursand friends. Moreover, they are not simply consumers of physical goods but producers of those goods and are also expected to act out different roles in their various social associations. They are dependent on collectively providedutilities and facilities. These needs apply universally and not merely in the rich industrial societies. The lack of elaborate social institutions and services in low-income countries and their scant resources direct our attention to whether or not the most basic material subsistence needs can be met in those countries. Meeting such needs as the satisfaction of hunger is widely accepted as a priority. Such needs have been included in the categorization of “absolute” poverty, which however would better be labeled “extreme” or “severe.”

Physical needs are subject to rapid change because of shifts in social activity and demand patterns. The need for material goods, their relevance to the society of the day, and even the goods themselves, are not, after all, fixed or unvarying. And the amount and kind, and thus the cost, of food depend on work, climate and social customs. So material needs turn out to be socially determined in different ways.By the 1970s a second formulation—that of “basic needs”—began to exert wide influence, supported strongly by the ILO. Two elements were included. First, minimum consumption needs of a family: adequate food, shelter and clothing, as well as certain household furniture and equipment. And second, essential services provided by and for the community at large, such as safe water, sanitation, public

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transport and health care, education and cultural facilities. In rural areas, basic needs also include land, agricultural tools and access to farming.

The “basic needs” concept is an extension of the subsistence concept. In addition to material needs for individual physicalsurvival and efficiency, there are the facilities and services—for health care, sanitation and education—required by local communities and populations as a whole.

The attractions to some of the “subsistence” concept included its limited scope and therefore limited implications for policy and political action. In the past and into the present, it seemed easier to restrict the meaning of poverty to material and physical needs than also to include the non-fulfillment of social roles, given the overriding emphasis of individualism.

The “basic needs” concept, on the other hand, aimed at establishing at least some of the preconditions for community development. It played a prominent part in national development plans fostered by the international community, especially UN agencies. In the late 20th century, a third social formulation of the meaning of poverty was developed: relative deprivation. “Relativity” as suggested above, applies to both income and other resources and also to material and social conditions. In the 21st century societies are passing through such rapid change that a poverty standard devised at some historical date in the past is difficult to justify under new conditions. People living in the present are not subject to the same laws, obligations and customs that applied to a previous era. Globalization is connecting peoples and their standards of living, while inequalities within and between countries are growing. There are, therefore, major objections to merely updating any historical benchmark of poverty on the basis of some index of prices. Over many years the “relativity” of meanings of poverty has come to be recognized, in part if not comprehensively. Adam Smith, for example, recognized the ways in which “necessities” were defined by custom in the early part of the 19th century, citing the laborer’s need to wear a shirt as an example. It is not enough to describe poverty as a condition applying to those whose disposable income is low relative to that of others. This is to fail to distinguish conceptually between inequality and poverty. Poor people are not just the victims of a misdistribution of resources but, more exactly, they lack, or are denied, the resources to fulfill social demands and observe the customs as well as the unfolding laws, of society. This criterion lends itself to scientific observation, measurement and analysis of multiple deprivations. However, as with any formulation, there are problems in defining poverty operationally. Under the “relative deprivation” approach, a threshold of income is

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envisaged, according to size and type of family, below which withdrawal or exclusion from active membership of society is common.

Establishing that threshold depends onaccumulating the available evidence, andwhether sociological and economic approaches may be reconciled. Such reconciliation is some distance away. Despite the influence of AmartyaSen’scontributions to development studies for two decades, his ideas on capabilities have not reached the mainstream of poverty analysis among economists, and have been said to leave important gaps. There are forms of impoverishment, for example through social exclusion, when individual capabilities to overcome poverty are not at issue. Those capabilities are also identified as originating within the individual rather than with groups or nations collectively or being determined externally by market conglomerates. Again, the capabilities approach does not seem to address the structural sources of the capabilities of the rich and powerful. Capabilities are different from perceptions. These sometimes offer a valuable correction to independent analysis of behaviour and living conditions. In an attempt to define poverty operationally, the World Bank in 1990 adopted a rule-of-thumb measure of US$ 370 per year per person at 1985 prices (the “dollar a day” poverty line) for poor countries. This crude indicator may have been a convenient interim measure for practical purposes, a short-term expedient, but has not turned out to be of continuing value. Eliminating poverty requires better definition and measurement. We need (i) an international poverty line that defines a threshold of income (including in kind) required in different countries to surmount material and social deprivation; (ii) regular reports on the extent of poverty in every country, based on measures ofboth “absolute” – i.e. “extreme” – and “overall” poverty, as agreed in 1995 at the World Summit for Social Development. Thus, antipoverty policies must be monitored and evaluated regularly and on a much larger scale by governments, by the United Nations, by the international financial institutions and by other relevant international agencies.

“ A Human condition characterized by sustained or chronic deprivation of the resources, capabilities, choices, security and power necessary for the enjoyment of an adequate standard of living and other civil, cultural, economic, political and social rights.” 

# UNDP - 2001

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IntroductionThe Indian Penal Code came into force in 1862; as amended, it continued in force in1993. Based on British criminal law, the code defines basic crimes and punishments, applies to resident foreigners and citizens alike, and recognizes offenses committed abroad by Indian nationals.The penal code classifies crimes under various categories: crimes against the state, the armed forces, public order, the human body, and property; and crimes relating to elections, religion, marriage, and health, safety, decency, and morals. Crimes are cognizable or non-cognizable, comparable to the distinction between felonies and misdemeanors in legal use in the United States. Six categories of punishment includefines, forfeiture of property, simple imprisonment, rigorous imprisonment with hardlabor, life imprisonment, and death. An individual can be imprisoned for failure to payfines, and up to three months' solitary confinement can occur during rare rigorousimprisonment sentences. Commutation is possible for death and life sentences.Executions are by hanging and are rare--there were only three in 1993 and two in 1994--and are usually reserved for crimes such as political assassination and multiple murders.Courts of law try cases under procedures that resemble the Anglo-American pattern. Themachinery for prevention and punishment through the criminal court system rests on theCode of Criminal Procedure of 1973, which came into force on April 1, 1974, replacing acode dating from 1898. The code includes provisions to expedite the judicial process,increase efficiency, prevent abuses, and provide legal relief to the poor. The basicframework of the criminal justice system, however, was left unchanged.Constitutional guarantees protect the accused, as do various provisions embodied in the1973 code. Treatment of those arrested under special security legislation can depart fromthese norms, however. In addition, for all practical purposes, the implementation of thesenorms varies widely based on the class and social background of the accused. In mostcases, police officers have to secure a warrant from a magistrate before institutingsearches and seizing

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evidence. Individuals taken into custody have to be advised of thecharges brought against them, have the right to seek counsel, and have to appear before amagistrate within twenty-four hours of arrest. The magistrate has the option to release theaccused on bail. During trial a defendant is protected against self-incrimination, and onlyconfessions given before a magistrate are legally valid. Criminal cases usually take placein all trail, although in limited circumstances closed trials occurs. Procedure exists for appeal to higher courts.

India is a Union of States and is governed by a written constitution which came into force on 26 November 1949. India consists of 25 states and 7 Union Territories. Due to its colonial heritage, India follows the Anglo-Saxon common law justice system. Article 246 of the Constitution provides for three lists which are enumerated in 7th Schedule of the Constitution. List-1 is the Union List which enumerates the subjects on which the Parliament of India has exclusive power to make the laws. List-2 is the State List which enumerates the subjects on which the legislature of a state has the power to make laws. The third list is the Concurrent List which enumerates subjects on which both the IndianParliament and the Legislatures of the state can enact laws, but if there is any conflict or inconsistency between the laws made by the Indian Parliament and the legislature of any state, the law enacted by the Union Parliament will have overriding effect. Importantly, the “Public Order” and the “Police” are enumerated in Entries 1 and 2 respectively of the State List, meaning thereby that all matters relating to the organisation, structure and regulation of the police force fall within the ambit of the states. However, the ‘Criminal Laws’and the ‘Criminal Procedure’ are enumerated in List-3, i.e., the Concurrent List. Both the Indian Parliament and state legislatures have the powers to make substantive and procedural laws incriminal matters. The states can also enact laws on local and special subjects. Thus, under the constitutional scheme, the basic criminal laws, i.e., the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act have been enacted by the Indian Parliament. The Indian Police Act has also been enacted by the IndianParliament. The states have also enacted laws on several local and special subjects. Some states in India have also enacted their own Police Acts. The Indian Police Act, 1861, however, is the basic statutory law governing the constitution and organisationof police forces in the states. Article 14 of the Constitution provides for equality before law. Article 21 guarantees protection of life and personal liberty. Article 20 provides protection against double jeopardy. No person can be prosecuted and punished for the same offence more than once. Article 39-A mandates the states to secure equal justice for all. It also provides for free legal aid in respect of indigent persons. Article 50 is important as it provides for the separation of the judiciary from the executive in the public services of states.

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DISTRICT—THE BASIC UNIT OF ADMINISTRATION

In each state, there are a number of districts. The District is governed by a triumvirate consisting of the District Magistrate, the District Superintendent of Police and the District and Sessions Judge. The District Magistrate is the chief executive officer of the district and he belongs to the Administrative Service. The police in the district functions under his general direction and control. The DistrictSuperintendent of Police is the head of the police force in a district. He is responsible for the prevention and detection of crime and the maintenance of law and order, subject to such directions as may be issued by the District Magistrate. In practical terms, the District Magistrate has no role in criminal investigations. The District and Sessions Judge is the head of the judiciary in a district. He belongs to the higher state judicial service. The entire magistracy in the district functions under his control and supervision.

CRIMINAL JUSTICE SYSTEM

The criminal justice system has four important components in India, namely, the Investigating Agency (Police), the Judiciary, the Prosecution Wing and the Prison and Correctional Services. A brief mention of their structure and their roles is made here below:

Investigating Agency

The police forces are raised by the state under the Indian Police Act, 1861. The basic duty of the police forces is to register cases, investigate them as per the procedure laid down in the Code of Criminal Procedure (to be referred to as the Code hereinafter) and to send them up for trial. In addition to the State Police Forces, the Government of India has constituted a central investigating agency called the Central Bureau of Investigation (CBI) under the special enactment called the Delhi Special Police Establishment Act, 1946. It has concurrent jurisdiction in the matters of investigation in the Union Territories. It can take up the investigation of cases falling within the jurisdiction of the states only with the prior consent of the state governments concerned. There are certain other specialised investigating agencies constituted by the central government, in various departments, namely, the Customs Department, the Income Tax Department, the EnforcementDirectorate, etc. They investigate cases falling within their jurisdictions and prosecute them in the courts of law. Thus, India has both the state police investigating agencies and central investigating agencies as mentioned

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above. CBI, however, is the primary investigating agency of the central government.

The Courts

The cases instituted by the state police and the Central Investigating Agency are adjudicated by the courts. We have a four tier structure of courts in India. At the bottom level is the Court of Judicial Magistrates. It is competent to try offences punishable with imprisonment of three years or less. Above it is the Court of Chief Judicial Magistrates, which tries offences punishable with less than 7 years. At the district level, there is the Court of District and Sessions Judge, which tries offences punishable with imprisonment of more than 7 years. In fact, the Code specificallyenumerates offences which are exclusively triable by the Court of Sessions. The highest court in a state is the High Court. It is an appellate court and hears appeals against the orders of conviction or acquittal passed by the lower courts, apart from having writ jurisdiction. It is also a court of record. The law laid down by the High Court is binding on all the courts subordinate to it in a state.

At the apex, there is the Supreme Court of India. It is the highest court in the country. All appeals against the orders of the High Courts in criminal, civil and other matters come to the Supreme Court. This Court, however, is selective in its approach in taking up cases. The law laid down by the Supreme Court is binding on all the courts in the country.

Prosecution Wing

It is the duty of the state to prosecute cases in the courts of law. The state governments have constituted cadres ofpublic prosecutors to prosecute cases at various levels in the subordinate courts and the High Court. I will revert to the subject later when I discuss the structure and functioning of the prosecution wings in the states and the central governments.

Prisons and Correctional Services

This is the fourth important element in the criminal justice system. The prisons in India are under the control of the state governments and so are the correctional services.

CONSTITUTION AND STRUCTURE OF PROSECUTION WING

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As stated above, the police is a state subject in our constitutional scheme. The primary investigative unit is the police station in India. After due investigation, charge-sheets are filed in the courts concerned as per the provisions of the Code. The cases are prosecuted by the public prosecutors appointed by the state governments. Prior to the enactment of the Criminal Procedure Code of 1973, public prosecutors were attached to the police department and they were responsible to the District Superintendent of Police. However, after the new Code of Criminal Procedure came into force in 1973, the prosecution wing has been totally detached from the police department. The prosecution wing in a state is now headed by an officer designate as the Director of Prosecutions. In some of the states, he is a senior police officer and in others, he is a judicial officer of the rank of District and Sessions Judge. He is assisted by a number of Additional Directors, Deputy Directors and AssistantDirectors, etc.At the district level, there are two levelsof public prosecutors, i.e., the AssistantPublic Prosecutor, Grade-I and the Assistant Public Prosecutor, Grade-II.

They appear in the Courts of Magistrates. The Director of Prosecutions is responsible for the prosecution of cases in the Magisterial Courts. In Sessions Courts, the cases are prosecuted by Public Prosecutors. The District Magistrate prepares a panel of suitable lawyers in consultation with the Sessions Judge to be appointed as public prosecutors. The state government appoints public prosecutors out of the panel prepared by the District Magistrate and the Sessions Judge. It is important to mention that public prosecutors who prosecute cases in the Sessions Courts do not fall under the jurisdiction and control of the Director of Prosecutions. The state government also appoints public prosecutors in the High Court. The appointments are made in consultation with the High Court as per section 24 of the Code. The most senior law officer in a state is the Advocate General who is a constitutional authority. He is appointed by the governor of a state under Article 165. He has the authority to address any court in the state.

Under section 24 of the Cr.P.C., the central government may also appoint one or more public prosecutors in the High Court or in the district courts for the purpose of conducting any case or class of cases in any district or local area. The most senior law officer of the Government of India is the Attorney General for India, who is a presidential appointee under Article 76. He has the authority to address any court in the country. The Assistant Public Prosecutors, Grade-I and Grade-II, are appointed by a state government on the basis of a competitive examination conducted by the State Public Service Commission. They are law graduates falling within a specified age group. They join as Assistant Public Prosecutors Grade-II and appear in the Courts of Magistrates. They are promotedto Assistant Public

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Prosecutors, Grade-I, and generally appear in the Courts of Chief Judicial Magistrates. On further promotion, they become Assistant Directors of Prosecution and can go up to the level of Additional Director of Prosecution. They,however, do not appear in the Sessions Court. As mentioned above, the District Magistrate in consultation with the Sessions Judge prepares a panel of lawyers with a minimum of 7 years of experience to be appointed as public prosecutors. They are so appointed by the state government. They plead the cases on behalf of the state government in the Sessions Courts. They have tenure appointments and are not permanent employees of the state government. They are paid an honorarium (not salary) by the state government. There is now a move to integrate the aforesaid two cadres of public prosecutors with the object to improving the promotion prospects of law officers who join at the lowest level, i.e., Assistant Public Prosecutor, Grade-II. The idea is to promote the Assistant Public Prosecutors, Grade-I to Additional Public Prosecutor or Public Prosecutor, as the case may be, to plead cases in the Sessions Court. If it comes about, this will obliterate the need for appointing lawyers from the open market as public prosecutors to plead cases in the Sessions Courts.

What is Criminal Justice System?Criminal justice is the system of practices and institutions of governments directed at upholding social control, deterring and mitigating crime, or sanctioning those who violate laws withcriminal penalties and rehabilitation efforts. Those accused of crime have protections againstabuse of investigatory and prosecution powers.The criminal justice system descends from the British model. The judiciary and the bar are independent although efforts have been made by some politicians to undermine the autonomy of the judiciary. From about the time of Indira Gandhi's tenure as prime minister, the executive has treated judicial authorities in an arbitrary fashion. Judges who handed down decisions that challenged the regime in office have on occasion been passed over for promotion, for example. Furthermore, unpopular judges have been given less-than-desirable assignments. Because the pay and perquisites of the judiciary have not kept up with salaries and benefits in the private sector, fewer able members of the legal profession have entered the ranks of the senior judiciary.

Despite the decline in the caliber and probity of the judiciary, established procedures for the protection of defendants, except in the case of strife-torn areas, are routinely observed. The penal philosophy embraces the ideals of preventing crime and rehabilitating criminals.Criminal justice is the system of practices, and

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organizations, used by national and local governments, directed at maintaining social control, deter and controlling crime, and sanctioning those who violate laws with criminal penalties.

The criminal justice system consists of three main parts:

Legislative (create laws) Adjudication (courts); and Corrections (jails, prisons, probation and parole).

In the criminal justice system, these distinct agencies operate together both under the rule of lawand as the principal means of maintaining the rule of law within society.

Criminal Law and ProcedureUnder the constitution, criminal jurisdiction belongs concurrently to the centralgovernment and the states. The prevailing law on crime prevention and punishment is embodied in two principal statutes: the Indian Penal Code and the Code of CriminalProcedure of 1973. These laws take precedence over any state legislation, and the statescannot alter or amend them. Separate legislation enacted by both the states and the centralgovernment also has established criminal liability for acts such as smuggling, illegal useof arms and ammunition, and corruption. All legislation, however, remains subordinate tothe constitution.

Components of criminal justice system: Law enforcement: Law enforcement Law enforcement

officers are responsible for such legal duties as: Receiving and documenting reports of crime within the agency's jurisdiction; investigating the reported crimes; Gathering and holding evidence of the crime; Arresting the alleged offender; and Conducting follow-up investigations as needed.

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Prosecution: The role of the Prosecutor begins once the police has conducted the investigation and filed the charge sheet in the court. He/she has no role to play in the investigation. The Prosecutor must conduct the prosecution on behalf of the State. As an officer of the court, it is his/her duty to act impartially and present the full and material facts, witnesses and evidence before the court to enable thecourt to decide the case. Prosecution The offender's rights in the court proceedings include: The right to have legal representation; the right to a speedy trial; the right to be informed regarding the proceedings; and the right to be heard.

Judiciary: Judiciary The judge makes the final decision, or ruling, at each stage. The judge will: Decide the release status of an offender; decide whether or not to accept a guilty plea or a negotiated plea by an offender; oversee the trial where the indicted offender is determined to be guilty or not guilty; and determine the final sentence of the court for a convicted offender.The judge is like an umpire in a game and conducts the trial impartially and in an open court. The judge hears all the witnesses and any other evidence presented by the prosecution and the defence. The judge decides whether the accused person is guilty or innocent on the basis of the evidence presented and in accordance with the law. If the accused is convicted, then the judge pronounces the sentence. He may send the person to jail or impose a fine or both,depending on what the law prescribes.

Corrections: Corrections For the duration of the sentence, the corrections staff provides such legal duties as: Maintains the security of the facility; Provides internal supervision of inmates, which may include counseling or educational

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programs; Provides medical care for inmates; and Processes inmates for release from the institution, either on parole (conditional release) or when the inmate has served the maximum time he/she must serve before release (unconditional release).

Criminal justice process: Inquisitorial process and Adversary process. The investigative stage runs by the police the adjudicatory stage run by the judges and lawyers. Article 22 of the Constitution and criminal law guarantee to every arrested person the following Fundamental Rights: The Right to be informed at the time of arrest of the offence for which the person is being arrested The Right to be presented before a magistrate within 24 hours of arrest. The Right not to be ill-treated or tortured during arrest or in custody. Confessions made in police custody cannot be used as evidence against the accused. A boy under 15 years of age and women cannot be called to the police station only for questioning. ARTICLE 22 OF THE CONSTITUTION.

The Supreme Court of India has laid down specific requirements and procedures that the police and other agencies have to follow for the arrest, detention and interrogation of any person. These areknown as the D.K. Basu Guidelines and some of these include: The police officials who carry out the arrest or interrogation should wear clear, accurate and visible identification and name tags with their designations; A memo of arrest should be prepared at the time of arrest and should include the time and date of arrest. It should also be attested by at least one witness who could include a family member of the person arrested. The arrest memo should be counter-signed by the person arrested. The person arrested, detained or being interrogated has a right to inform a relative, friend or well-wisher. When a friend or relative lives outside the district, the time, place of arrest and venue of custody must be notified by police within 8 to 12 hours after arrest. GUIDELINES BY D.K. BASU

Objectives of criminal justice system:The main objectives of the criminal justice system can be categorized as follows:

To prevent the occurrence of crime.

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To punish the transgressors and the criminals. To rehabilitate the transgressors and the criminals. To compensate the victims as far as possible. To maintain law and order in

the society. To deter the offenders from committing any criminal act in the future.

Rights of victims: The U.N declaration recognized four major components of the rights of victims: - Access to justice and fair treatment Restitution Compensation assistance.

Steps to Provide Assistance to Crime Victims in India: The natural sequence of rendering meaningful justice, social and legal should proceed as follows: Fair, considerate and sympathetic treatment by the police, hospitals, welfare organizations, prosecution and courts; Prompt restitution/compensation to the victim for the injury or loss suffered by using the existing provisions; and Security to victims and potential victims against victimization in future.

Suggestions: Suggestions to fill the loopholes and improve criminal justice administration system in India:- Simplification of Rules and Procedures Repealing of Outdated Laws Criminal Law Amendment Police as Investigative Agency Judicial Accountability Appointment, Promotion and Transfer of Judges Average Judge-Population Ratio. Simplification of Rules and Procedures Repealing of Outdated Laws Criminal Law Amendment Police as Investigative Agency Judicial Accountability Appointment, Promotion and Transfer of Judges Average Judge-Population Ratio Perjury and Contempt Of Court Efficient Public Prosecutor Transparency of Court Proceedings Time Bound Filling of Vacant Post in the Judiciary.

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THE DUTIES AND FUNCTIONS OF A PUBLIC PROSECUTOR

Public prosecution is an important component of the public justice system. Prosecution of an offender is the duty of the executive which is carried out through the institution of the Public Prosecutor. The public prosecutor is appointed by the State, and he conducts prosecution on behalf of the State. While it is the responsibility of the public prosecutor to see that the trial results in conviction, he need not be overwhelmingly concerned with the outcome of the trial. He is an officer of the court and is required to present a truthful picture before the court. Even though he appears on behalf of the State, it is equally his duty to see that the accused does not suffer in an unfair and unethical manner. The public prosecutor,though an executive officer, is an officer of the court and is duty bound to render assistance to the court. The public prosecutor represents the State and the State is committed to the administration of justice as against advancing the interest of one party at the cost of the other. He has to be truthful and impartial so that even the accused persons receive justice. The public prosecutor plays a dominant role in the withdrawal of a case from prosecution. He should withdraw from prosecution in rare cases lest the confidence of public in the efficacy of the administration of justice be shaken. The Supreme Court of India has defined the role and functions of a public prosecutor in Shiv NandanPaswan vs. State of Bihar& Others (AIR 1983 SC 1994) as under:

a) The Prosecution of an offender is the duty of the executive which is carried out through the institution of the Public Prosecutor.

b) Withdrawal from prosecution is an executive function of the Public Prosecutor.

c) Discretion to withdraw fromprosecution is that of the PublicProsecutor and that of none else andhe cannot surrender this discretionto anyone.

d) The Government may suggest to the Public Prosecutor to withdraw a case, but it cannot compel him and ultimately the discretion and judgment of the Public Prosecutor would prevail.

e) The Public Prosecutor may withdraw from prosecution not only on the ground of paucity of evidence but also on other relevant grounds in order to further the broad ends of public justice, public order and peace.

f) The Public Prosecutor is an officer of the Court and is responsible to it.

ROLE OF A PUBLIC PROSECUTOR IN INVESTIGATIONS

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Investigations in India are conducted as per provisions of Chapter XII of the Code. Cases are registered under section 154 of the Code. A police officer is competent to investigate only cognizable offences. Non-cognizable offences cannot be investigated by the police without obtaining prior orders from the courts. A police officer can examine witnesses under section 161. However, the statements are not to be signed by the witnesses. Confessions of accused persons and statements of witnesses are recorded under section 164 of the Code. A police officer has the power to conduct searches in emergent situations without a warrant from the court under section 165. A police officer is competent to arrest an accused suspected to be involved in a cognizable offence without an order from the court in circumstances specified in section 41 of the Code. He is required to maintain a day to day account of the investigation conducted by him under section 172. After completion of investigation, a police officer is required to submit a final report to the court under section 173. If a prima facie case is made out, this final report is filed in the shape of a charge-sheet. The accused has, thereafter, to face trial. If no cogent evidence comes on record, a closure report is filed in the Court. The public prosecutor plays the following role at the investigation stage:

(1) He appears in the court and obtains arrest warrant against the accused;

(2) He obtains search warrants from the court for searching specific premises for collecting evidence;

(3) He obtains police custody remand for custodial interrogation of the accused (section 167);

(4) If an accused is not traceable, he initiates proceedings in the court for getting him declared a proclaimedoffender (section 82) and, thereafter,for the confiscation of his movableand immovable assets (section 83);and

(5) He records his advice in the police file regarding the viability/advisability of prosecution.

After the completion of investigation, if the investigating agency comes to the conclusion that there is a prima facie case against the accused, the charge-sheet is filed in the court through the public prosecutor. It is to be noted that the opinion of the public prosecutor is taken by the police before deciding whether a prima facie case is made out or not. The suggestions of the public prosecutor are also solicited to improve the quality of investigation and his suggestions are generally acted upon. However, the ultimate decision of whether to send up a case for trial or not lies with the police authorities. In case there is a difference of opinion between the

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investigating officer and the public prosecutor as to the viability of the prosecution, the decision of the District Superintendent of Police is final.

Indigent Person- MeaningIndigent persons are those people that do not have financial means and are below a certain income threshold (as defined by federal, state and local governments). Indigent persons are often thought of as poor and living in poverty. Many public services are offered to the indigent population to ensure that they receive basic services that are needed. Needy or impoverished. A defendant who can demonstrate his or her indigence to the court may be assigned a court-appointed attorney at public expense.

The concept is well explained by the Orissa high court in the case of MangluChattar v. MaheshwarBhoi as follows, the tools of artisans are exempted from the attachment. In the instant case according to the findings of the trial court, the appellant possessed of tools and weaving materials and they get daily wages. Both these items are covered under the Section 60(1) of CODE OF CIVIL PROCEDURE, 1908. There is no other evidence adduced from the side of the defendant to show that the petitioners are possessed of any other property. Therefore there is no dispute about the fact that the appellants are all weavers and their weaving materials consist of tools of artisans. These properties are not to be taken into consideration to find out whether they will be able to pay the court fee. So also the daily wages they get cannot be taken into consideration for the

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aforesaid purpose. On the aforesaid analysis, it should be held that the appellants are indigent persons and, therefore, they should be allowed to sue as indigent person.

The Supreme Court of India has settled the issue that, whether a public company can file a suit as an indigent person while holding the judgement of UOI v. Khader International Construction, held that, the word “person” has to be given its meaning in the context in which it is used. It refers to a person who is capable of filling a suit and this being a benevolent provision; it is to be given an extended meaning. Therefore, a public limited company, which is otherwise entitled to maintain suit as a legal person, can every well maintain application under Order XXXIII, Rule 1, CODE OF CIVIL PROCEDURE, 1908.

The word “person” mentioned in Order XXXIII includes not only a natural person but other judicial person also.

Court Costs and FeesIn federal and state judicial systems nationwide, indigent persons are often entitled to a waiver of court fees and costs if they petition the court and qualify for such a waiver. Each judicial system has its own rules for applying for a waiver of fees and costs as well as its own threshold for what constitutes being indigent. If you need a waiver of court filing fees and costs, contact the court clerk's office and ask where you can locate information on how to apply for a waiver.

Cost Where Indigent Person Succeeds

Where the plaintiff succeeds in the suit, the court shall calculate the amount of court fees which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person; such amount shall be recoverable by the state government from any party Ordered by the decree to pay the same and shall be a first charge on the subject matter of the suit.Such a decree is executed by the collector to institute new proceedings to pursue for the recovery of the amount of court fee from the person or property liable to pay the court fee, that too as arrears of land revenue hence, separate recovery proceedings cannot be pursued in execution proceedings.But the situation is different when we talk of Indigent person, in a situation where a suit is filled by the indigent person for realization of full contractual amount from government. Decree was passed in favour of plaintiff.

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Direction was issued to defendant State Government to pay cost of plaintiff as liability was imposed on defendant to pay court fee payable to Government, hence, proceedings initiated against plaintiff for recovery of court fee was not maintainable.

Legal RepresentationIndigent persons should not feel as though they have no options for securing legal representation. Indigent persons may not be able to afford pricey attorneys, but that does not mean that legal services are unavailable to this segment of the population. Not only do many attorneys provide pro bono services for cases they feel obliged for moral reasons without regard for payment of services, but many organizations exist whose purpose is to foster legal services for indigent persons. Finally, each state has an office devoted to ensuring that indigent people have access to legal representation; this office is informally known in many jurisdictions as the public defender's office.

The Supreme Court in Mathai M. PaikedayVs. C.K. Antony has discussed the concept of 'indigent person' as defined under Order 33 of the Code of Civil Procedure, 1908. While discussing the relevant judgments on the subject, the court held as under;9. Order 33 of the Code of Civil Procedure deals with suits by indigent persons whereas Order 44 thereof deals with appeals by indigent persons. 

Order 33 Rule 1 of the Code of Civil Procedure provides for instituting of suits by indigent person, stating: "1. Suits may be instituted by indigent person-- Subject to the following provisions, any suit may be instituted by an indigent person. 

Explanation I.--A person is an indigent person-

1. If he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit, or 

2. Where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit. 

Explanation II.--Any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person. 

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Explanation III.--Where the plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity." 

11. Order 44 of Code of Civil Procedure provides for instituting an appeal as an indigent person. The provision reads:- 

1. Who may appeal as an indigent person - Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as an indigent person, subject, in all matters, including the presentation of such application, to the provisions relating to suits by indigent person, in so far as those provisions are applicable." 

2. The object and purpose of Order 33 and Order 44 of the Code of Civil Procedure are to enable a person, who is ridden by poverty, or not possessed of sufficient means to pay court fee, to seek justice. Order 33 and Order 44 of the Code of Civil Procedure exempts such indigent person from paying requisite court fee at the first instance and allows him to institute suit or prosecute appeal in forma pauperis. 

In A.A. HajaMuniuddin v. Indian Railways, (1992) 4 SCC 736, this Court has observed: 5” Access to justice cannot be denied to an individual merely because he does not have the means to pay the prescribed fee." 

In Union Bank of India v. Khader International Construction, (2001) 5 SCC 22, this Court has held: 

"20. Order 33 CPC is an enabling provision which allows filing of a suit by an indigent person without paying the court fee at the initial stage. If the plaintiff ultimately succeeds in the suit, the court would calculate the amount of court fee which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person and that amount would be recoverable by the State from any party ordered by the decree to pay the same. It is further provided that when the suit is dismissed, then also the State would take steps to recover the court fee payable by the plaintiff and this court fee shall be a first charge on the subject- matter of the suit. So there is only a provision for the deferred payment of the court fees and this benevolent provision is intended to help the poor litigants who are unable to pay the requisite court fee to file a suit because of their poverty. Explanation I to Rule 1 Order 33 states that an indigent person is one who is not

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possessed of sufficient amount (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit. It is further provided that where no such fee is prescribed, if such person is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree and the subject-matter of the suit he would be an indigent person." 

In R.V. Dev v. Chief Secretary, Govt. of Kerala, (2007) 5 SCC 698, this Court has held: 

"8. Order 33 of the Code of Civil Procedure deals with suits by indigent persons whereas Order 44 thereof deals with appeals by indigent persons. When an application is filed by a person said to be indigent, certain factors for considering as to whether he is so within the meaning of the said provision are required to be taken into consideration therefor. A person who is permitted to sue as an indigent person is liable to pay the court fee which would have been paid by him if he was not permitted to sue in that capacity, if he fails in the suit at the trial or even without trial. Payment of court fee as the scheme suggests is merely deferred. It is not altogether wiped off." 

The concept of indigent person has been discussed in Corpus JurisSecundum (20 C.J.S. Costs ' 93) as following: 

What constitutes indigency: The right to sue in forma pauperis is restricted to indigent persons. A person may proceed as poor person only after a court is satisfied that he or she is unable to prosecute the suit and pay the costs and expenses. A person is indigent if the payment of fees would deprive one of basic living expenses, or if the person is in a state of impoverishment that substantially and effectively impairs or prevents the pursuit of a court remedy. However, a person need not be destitute. Factors considered when determining if a litigant is indigent are similar to those considered in criminal cases, and include the party's employment status and income, including income from government sources such as Social Security and unemployment benefits, the ownership of unencumbered assets, including real or personal property and money on deposit, the party's total indebtedness, and any financial assistance received from family or close friends. Not only personal liquid assets, but also alternative sources of money should be considered." 

The eligibility of person to sue in forma pauperis has been considered in American Jurisprudence (20 Am. Jur. 2d Costs ' 100) as thus: 

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"100. Eligibility to sue in forma pauperis; generally: The burden of establishing indigency is on the defendant claiming indigent status, who must demonstrate not that he or she is entirely destitute and without funds, but that payments for counsel would place an undue hardship on his or her ability to provide the basic necessities of life for himself or herself and his or her family. Factors particularly relevant to the determination of whether a party to a civil proceeding is indigent are: 

1. the party's employment status and income, including income from government sources such as social security and unemployment benefits; 

2. the ownership of any unencumbered assets, including real or personal property and monies on deposit; and finally

3. the party's total indebtedness and any financial assistance received from family or close friends. Where two people are living together and functioning as a single economic unit, whether married, related, or otherwise, consideration of their combined financial assets may be warranted for the purposes of determining a party's indigency status in a civil proceeding." 

To sum up, the indigent person, in terms of explanation I to Rule 1 of Order 33 of the Code of Civil Procedure, is one who is either not possessed of sufficient means to pay court fee when such fee is prescribed by law, or is not entitled to property worth one thousand rupees when such court fee is not prescribed. In both the cases, the property exempted from the attachment in execution of a decree and the subject-matter of the suit shall not be taken into account to calculate financial worth or ability of such indigent person. Moreover, the factors such as person's employment status and total income including retirement benefits in the form of pension, ownership of realizable unencumbered assets, and person's total indebtness and financial assistance received from the family member or close friends can be taken into account in order to determine whether a person is possessed of sufficient means or indigent to pay requisite court fee. Therefore, the expression "sufficient means" in Order 33 Rule 1 of the Code of Civil Procedure contemplates the ability or capacity of a person in the ordinary course to raise money by available lawful means to pay court fee.

View of High Courts

This issue was also there for consideration before the Madras High court in Chandrareka v. Secretary of State of India, a division bench held that the plaintiff

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in that particular suit who obtained a decree for Rs. 100 being a moiety of the property claimed is liable to pay court fee with regard to the sum of Rs. 100 and the first defendant who contested the suit is liable to pay court fee for the balance amount under section 411 of CODE OF CIVIL PROCEDURE, 1908 of 1881.

This question also came before the Allahabad High Court in the case of Ganga Dahal v. M.T. Gaura, a division bench of the Allahabad High court has held that under Rule 10 of Order 33 of the CODE OF CIVIL PROCEDURE, 1908, the legislature deals with the case of a pauper plaintiff who succeeds in the suit and under Rule 11 with the case of a pauper plaintiff who fails in the suit. There is no separate provision for a case like the present, in which a pauper plaintiff has partly succeed and partly failed. Presumably the court is intended to deal with such a case by combining the provision of the two Rules. It is clear that, if plaintiff who is permitted to institute the suit as an indigent person succeeded in the part in a suit, the court fee payable by him for the suit, the court fee payable by him on the plaint or memorandum of appeal has to be apportioned between the plaintiff and the defendant in the proportion to the success of the each party. Therefore the liability of the plaintiff who sued as indigent person or in the “forma pauperis” to pay the court fee if he succeeds entirely in the suit and to pay the court fee in proportion to the success if he succeeds partly in the suit under the provision of Rule 10 and to pay the entire court fee if he fails in the suit under Rule 11 of the Order 33 of the present code and under the analogous provisions for the previous code is well established.

Victims – the poor relation

At various points the criminal justice system articulates its fairness to offenders. A reasonable amount of money is put into the processing, the management, the rehabilitation and the punishment of offenders. There is an aspiration that offenders should have an ‘end-to-end service’, a paid and professionalized workforce, and a legal system and legal aid budget that provides legal representation and rightly attempts to prevent innocent people being wrongly found guilty or unjustly punished. It is, of course, not a perfect system, but its aspirations are right and correctly founded upon the principles of justice. Without seeking to undermine these fundamental principles, there are, in contrast, inequities in the way the criminal justice system treats victims.

After a trial

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Being a victim in an unbalanced system does not end on conviction or after an acquittal; the wheels of justice continue to turn and again victims are often an afterthought. There are around 2,000 appeals per year against sentence, of which 75% are successful and around 500 appeals against conviction, of which 43% are successfuly. Yet there is no requirement for even the prosecution, let alone victims or their families, to be informed about an application for leave to appeal. I have met victims’ families who read about an offender’s appeal in a newspaper.

Where a defendant is acquitted following a trial, there remains a victim or a bereaved family who should be able, at the very least, to discuss with the CPS lawyers and the police why, in their view, the acquittal may have occurred and what if any legal or investigative avenues remain available. I met one bereaved mother who was refused a meeting with the CPS prosecutor after the defendant in her daughter’s murder trial was acquitted. The Criminal Cases Review Commission rightly exists to ensure that we mitigate against miscarriages of justice for defendants. It is worth noting that if hundreds of cases are found to have got it wrong first time in theprosecution’s favour then there are likely to be at least similar numbers where it was adjudged wrongly in favour of the defence. It is arguable that the Criminal Cases Review Commission could consider whether it has a role in possible miscarriage of justice cases on behalf of victims or their families. And once a defendant is convicted, it appears that despite the fact victims and their families are in some cases left carrying an unimaginable burden for the rest of their lives, the support to them, which has been patchy to this point,then drops off almost completely. Parole hearings consider whether or not to release offenders back into the community. They do this based on assessments of a prisoner’s level of risk – a decision reached through an inquisitorial process weighing up the pros and cons. For victims, the early release of the person convicted of serious harm against them, and the conditions that might be imposed upon his/her liberty, can be issues of great concern. And yet the system does not make it easy for them or their families to have their voice heard in the weighing of the evidence. The parole hearing will be held in a prison, often miles away from the victim’s home, yet they are not guaranteed any practical help to get there, or emotional support to deal with such an intimidating or frightening experience. Indeed they are not even necessarily allowed to take who they want into the hearing (one woman whose daughter was murdered and whose body was never recovered was initially not allowed to have her husband with her) or to have their statement read out unchallenged.

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ROLE OF PUBLICPROSECUTORS IN NATIONALCRIMINAL JUSTICE POLICY

The laws are enacted by the legislature,enforced by the police, and interpreted bythe courts. Neither the police nor theprosecution agency has any say in theformulation of laws. The number ofcriminal laws is increasing by the day, butthe quality of drafting shows definitedeterioration and bristles with avoidablevagueness in construction. It is felt that arepresentative each of the policedepartment and the prosecution agencyshould be associated with the formulation/drafting of laws. Their field experiencewould go a long way in improving thequality of laws enacted. Further, unlikethe police, the prosecution agency does nothave a national level body to watch itsprofessional and service interests. This isdue to the fact that prosecution agenciesare organized at the state level and not atthe national level. Such an apex should beconstituted by the government.

SPEEDY TRIAL

The concept of speedy trial is enshrinedin Article 21 of the Constitution of India.

Article 21 reads as under:

No person shall be deprived of his lifeor personal liberty except according toprocedure established by law.The Supreme Court in 1997 CrLJ, page195 has interpreted this Article to meanthat right of speedy trial is also afundamental right. Undeniably, the trialsin India drag on for years together. Thereare several agencies responsible for delays,namely, the police, the lawyers, the accusedand the courts. All of them play acontributory role in the delays. While thepolice agency may be responsible for 25 percent of delays, non-police agencies areresponsible for the rest of it. The publicprosecutor, being an officer of the court, canplay an important role in ensuring speedytrial. It is his duty to see that the adequatenumbers of witnesses are called at eachhearing and none of them goes backunexamined. Similarly, he is to ensure thatthe documents are put up to the court intime. He has also to ensure that policeofficers, who generally prevaricate inappearing in the courts, do appear as perthe schedule fixed by the court. A goodworking relationship with the court mayhelp in achieving this end. Not muchcooperation can be expected from thedefence counsel as experience shows thathe is more interested in the delays than

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inspeedy trial because delay means morehearings which, in turn, means more feesfor him. This behaviour may be unethicalon his part, but this is the ground reality.In this scenario, the role of publicprosecutor assumes special significance.

Justice begotten at a cost is justice lost. Justice is a natural right. It is the sine quanon and the raison d\u2019etre of the social grouping. Justice in a social environment has to beas natural as sleep or oxygen to a living being. Free and fair

Bibliography

Upendrabuxi- law and poverty Development in India- Raja. Chelliah. J.S. Gandhi- Law and Social Change V.k.Gupta- prospective of human rights.

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