The problem of undertrial prisoners has assumed new proportions in recent years. Thousands of undertrial prisoners are languishing in various jails in different States for periods much longer than the maximum term for which they could have been sentenced, if convicted. Many of them are innocent persons who are caught in the web of the law eagerly waiting for their trial date and several of them are even prepared to confess their crime and accept the sentence.
There are several reasons for this miserable plight of undertrials, some of them being, courts’ inability to take up the cases because of their busy schedule, the prolonged police investigation, unsatisfactory bail system and legal representation being beyond the meagre means of poor offenders.
The pre-trial detention essentially involves the question of liberty, justice, public safety and burden on public exchequer. The poor are generally subjected to pre-trial detention mostly because they cannot afford sureties and stand personal bonds. It not only affects the family life of the undertrial but also adversely affects his morale due to vicious impact of prison environment. Mr. Justice V.R. Krishna Iyer highlighted the agonies of pre-trial detenues in the following words:
“The consequences of pre-trial detention are grave. Defendants presumed innocent are subjected to psychological and physical depravation of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.”
Expressing grave concern at the distressing condition of undertrials in Bihar Jails, the Supreme Court in Hussainara Khatoon v. Home Secretary, State of Bihar observed that incarceration of undertrials who had virtually spent their period of sentence was clearly illegal and a blatant violation of their fundamental rights guaranteed under Article 21 of the Constitution of India.
The Court observed that “speedy trial” is a constitutional mandate and the State cannot avoid its constitutional obligation by pleading financial or administrative inability. Consequent to the directions issued by the Supreme Court in this case, the State of Bihar released as many as 18,000 under-trial prisoners in 1981 and other States followed the suit.
Despite the Supreme Court’s landmark decision in Hussainara, the condition of undertrials in prisons is no better and more than one lakh of undertrials prisoners are languishing in the prisons of India at present. The provision of Section 167 of the Code of Criminal Procedure, 1973 regarding time limit for completion of police investigation and that of free legal aid to indigent and poor undertrials or liberalisation of bail etc. have not helped in minimising the number of undertrial prisoners in Indian jails.
One of the reasons for multiplying number of undertrial prisons each day is the system of bail which operates very harshly against the poor because they find it difficult to furnish bail even without sureties. Being unable to obtain their release on bail they have to remain in jail until such time as the Court takes up their case for trial. Obviously, the pre-trial detention disrupts their family life and leads to disastrous economic consequences.
They are also prevented from taking necessary step to prepare for defence. Although the provisions contained in Articles 39-A and 22(1) enumerate the constitutional rights of the accused to be provided free legal-aid services and the services of the counsel of their choice to the indigent accused persons and this help is implicitly guaranteed under Article 21, but the fact remains that the functioning of judicial system still weighs heavily against the poor as compared with the non-poor.
Althougher the term ‘bail’ has not been defined in the Code of Criminal Procedure, 1973, but offences are classified as bailable and non-bailable. Section 436 Cr. PC. provides that a person is entitled to be released on bail as soon as he/she is willing to furnish bail.
However, in case of non-bailable offences, the accused can only be released on bail by the Court if it is satisfied that the person shall attend the court to stand trial; and will not temper with evidence or influence or pressurise the witnesses or obstruct the police investigation in any manner and will not commit any other offence or obstruct the cause of justice.
Despite the aforesaid legal provisions relating to bail under the Code of Criminal Procedure, the bail system causes discrimination against the poor as they are not able to furnish bail on account of their poverty even though their offence is bailable, whereas the such and wealthy can easily pay off the bail amount and secure a let off. There are cases where a large majority of those who are brought before the court in criminal cases are so poor that they find it difficult to furnish bail even when the bail amount is meager.
The Supreme Court in a number of cases has realised that pre- trial detention is avoidable if the bail provisions are liberally interpreted by the courts. Indiscriminate arrests by police, ignorance about legal rights, delay in criminal trial, reluctance of courts to grant bail and inability of accused persons to furnish bail or surety are some of the reasons for increasing the number of under trials.
The Supreme Court in Hussainara Khatoon v. State of Bihar, came out with a suggestion that where the court is satisfied after taking into account on the basis of information placed before it that the accused has his roots in the community and is not likely to abscond, it can safely release the accused on personal bond. In order to determine whether the accused has his roots in the community which would deter him from fleeing, the Court should take into consideration the following factors regarding the accused person:—
(1) Length of his residence in the community;
(2) His employment details and financial condition;
(3) His family relationship and background;
(4) His reputation, character and past antecedents;
(5) His prior criminal record, if any;
(6) The identity of responsible members of the community who would vouch for his reliability;
(7) The nature of offence and possibility of his conviction etc.;
(8) Any other factor indicating the ties of the accused with the community or bearing on the risk of wilful failure of the accused to appear before the Court when required.
The Court held that there are four major grounds when the accused may be denied bail. They are (1) where the offence is grave; (2) where the accused is likely to interfere with witnesses; (3) if he is likely to repeat the offence; and (4) he is likely to abscond.
The Supreme Court in Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav, observed that fundamental right of an undertrial prisoner under Article 21 is not absolute and therefore, it may be circumscribed by prison manual and other relevant statutes imposing reasonable restriction on such right. In this case, the jail authorities of Bihar were unable to control illegal activities of the accused who was holding regular ‘Darbars’ in jail.
The Supreme Court ordered his transfer to a prison outside Bihar and consequently he was transferred to a Maharashtra jail. The Court held that it had the power to order such transfer in exercise of its powers under Article 142 of the Constitution though the jail manual did not provide for such transfer.
With a view to bringing down the number of undertrial prisoners in different jails of the country, the Code of Criminal Procedure, 1973 as amended in 2005 provides that where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (except an offence which is punishable with death) undergone detention for a period extending upto one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties.
The section provides that after hearing the prosecution side and for reasons to be recorded in writing, the Court may order the continuation of detention of such person for a period longer than one-half of the said period or release him on bail on personal bond with or without sureties. But in no case any undertrial person can be detained for a period more than the maximum period of imprisonment provided for the said offence under the law.
The explanation appended to the new Section 436-A inserted by the Cr. P.C. (Amendment) Act, 2005 makes it clear that the period of detention under this section for granting bail or the period of detention passed due to delay in proceedings caused by the accused shall be excluded.
The Commonwealth Human Rights Initiative activist Mandeep Tiwana has raised a very pertinent question as regards the misfortune of those undertrial prisoners who after languishing in jail for years are acquitted for want of sufficient evidence against them or the prosecution witnesses turning hostile.
Can the State compensate for the agony, mental torture, deprivation of family life suffered by them during all these years which they spent in jail and can their lost honour or reputation be restored by law? This question still remains unaddressed despite the Cr. P.C. Amendment of 2005 though it has provided relief to undertrial prisoners only to a limited extent.
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