Law, Bail & the undertrial

A Presentation on :

Rights of Undertrial prisoners Effective Implementation of Sections 436 & 436A of the CrPC

Latest Judicial Pronouncements

By Bharat Chugh & Harjeet Singh Jaspal (DJS)

What is Capital Punishment ?

Bryan Stevenson - Just Mercy

Its the ‘punishment’ reserved for people without ‘capital’

Jail, not bail !

67 % of jail inmates in India are undertrials. (as opposed to US where pretrial detainees are a mere 21 %, or the global average, which is 32 %). In Tihar, 78 % of all inmates are undertrials.

Out of a total of 13,970 people, a shocking 10,853 of Tihar’s inmates are undertrials.

This is disconcerting, since the overall conviction rate is a dismal 38.5%.

Thus, many people who serve extended periods of jail time, who are entitled to presumption of innocence, would ultimately be acquitted by the courts. The question that arises is, how do we recoup them for prolonged detention as an undertrial.

Undertrials 67%

Convicts & Others 33%

Percentage overcrowding in prisons.

0

85

170

255

340

Dadar & Nagar Haveli Chattisgarh Delhi

221258

331

The answer lies in understanding that undertrial or pre-guilt detention has substantial punitive content and grave ramifications for the detinue and ought to be avoided, as far as maybe.

Bail being the rule and jail the exception is not just another cliched phrase, but ought to be the ruling mantra of responsive judges.

Bail in bailable offences

* In a bailable offence - the court/police shall release the accused on bail, with or without sureties. (S.436)

* The court may order release on bail even without sureties, if it thinks fit, or where the accused is an indigent. (proviso to S.436)

* the court shall order release of an indigent on his executing a personal bond.

* If a person is unable to give bail within a week of his arrest, he shall be presumed to be an indigent for the purposes of preceding benefit. (Expln to Proviso to S.436)

436-A of the CrPC

Introduced in 2005 to mandatorily release on bail all undertrials who have already served half the maximum sentence prescribed for the offence for which they have been charged with.

Mandates release on personal bond with or without sureties.

Proviso : Court may order continued detention for reasons to be recorded in writing, after hearing the PP, if detention is necessary.

Exception : Offences punishable with death penalty.

Other cases of mandatory bail

Non filing of police report within 60-90 days, as the case may be. (Section 167(2) proviso CrPC)

Mandatory Bail u/s 437(6) CrPC. Essentials -

Magistrate triable offence.

trial not concluded within 60 days from the date trial fixed for recording of evidence.

Personal remaining in custody throughout.

the magistrate SHALL grant bail, unless there are compelling reasons not to grant him bail (to be recorded in writing)

Pressing Issues concerning 436 & 436-A CrPC

What happens in case the delay is attributable to the accused ?

How to compute period in cases of offences punishable with life ?

How to compute the period of half detention for the purposes of S.436-A, especially in cases of multiple offences ?

What ought to be the bail amount ?

Demystifying personal bonds.

Arrest of PO in bailable offence.

S.436-A CrPC in relation to delay caused by accused

Explanation to S. 436-A - states that - In computing the period of detention under the section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.

In cases punishable with life imprisonment.

As per S.57 of the IPC, life sentence is construed to be a sentence of 20 years. Therefore, half period would be 10 years for the purposes of Section 436-A of the CrPC.

What is ‘half’ for the purposes of S.436-A?

In cases of an accused facing trial for different offences, the question that arises is, whether the period to be reckoned, for the purposes of Section 436-A, is the imprisonment for the gravest offence or any offence that the accused might be arraigned for ?

eg : A commits theft and in the process also causes hurt. He might be charged u/s 379, 323 & 392 of the IPC. S.392 attracts the maximum punishment of 10 years (or 14 years in case of aggravated robbery at highway between sunset and sunrise) whereas S. 379 is punishable with a maximum of 3 years.

THE ANSWER IS -

IT IS A

GREY AREA

A Home Ministry Advisory seems to suggest that in cases of various offences, the period is to be reckoned keeping in mind the gravest of the offences. However, the same has been somewhat diluted by the Hon’ble Supreme Court in -

In Re-Inhuman Conditions in 138 prisons (February, 2016) SC

The Hon’ble Supreme Court has held : “4. In the meeting to be held on or about 30th June, 2015, the Under Trial Review Committee should consider the cases of all under trial prisoners who are entitled to the benefit of Section 436A of the Code. The Ministry of Home Affairs has indicated that in case of multiple offences having different periods of incarceration, a prisoner should be released after half the period of incarceration is undergone for the offence with the greater punishment. In our opinion, while this may be the requirement of Section 436A of the Code, it will be appropriate if in a case of multiple offences, a review is conducted after half the sentence of the lesser offence is completed by the under trial prisoner. It is not necessary or compulsory that an under trial prisoner must remain in custody for at least half the period of his maximum sentence only because the trial has not been completed in time.”

The Bail Amount conundrum !

What should be the correct bail amount ?

No strait jacket formula can be laid down.

The legislative mandate is that the same should be reasonable and not excessive. (Section 440 of the CrPC)

To borrow the words of the Apex Court in Keshab Narayan Banerjee Vs. The State of Bihar - AIR 1985 SC 166,(2) the bail amount should not be excessively onerous, or virtually amounting to "denial of bail itself".

not getting personal over personal bonds !

Moti Ram versus State - 1979 SCR (1) 335 - Sureties(Local or otherwise) can be dispensed with, in appropriate cases. These things depend on many variables. The bail system should not have an anti-poor tilt and judicial discretion should be exercised with a

D.M.Bhalla v. State (2011 DHC) - Jail authorities to make a weekly list of "List of Prisoners Granted Bail but Unable to Furnish Surety Bond" and send it to Court, wherein the court may relax surety conditions and pass orders for release. Eg: Alternatives like own recognizance, certificate from Sarpanch in local Panchayat etc.

Demystifying personal bonds

No defined anywhere in CrPC

Form 45 : Generic Language.

Merely a statement before the Court.

It is a social agreement and humane arrangement between the stake holders of justice and the subject of justice.

To be construed liberally, with a view to advance substantial justice and not pedantically.

Arrest of PO in bailable offence

Whether the accused is entitled to bail as a matter of right, or bail the discretion of the court ?

The Hon’ble Delhi High Court in Court on it’s own motion versus CBI (2004, Delhi) has held that in cases of bailable offences, the accused shall be released on bail on first appearance, even if that be after issuance of NBWs or even proclamation proceedings.

More pro-active use of Section 59 of the CrPC

Section 59 of the CrPC provides for Release by special order.

If the arrest seems unwarranted in the facts of the case, the magistrate can always disallow both judicial and police custody and release the person on bail (on surety or personal bonds) or even by way of a special order u/s 59 of the CrPC. A more active use of this provision is the need of the hour.

Judicial pronouncements on implementation of

Section 436-A of the CrPC

Other directions Re-Inhuman Conditions in 138 prisons..

The Undertrial Review Committee is an oversight mechanism formed in pursuance of orders of the Hon’ble Supreme Court and Home Ministry advisories. The composition of the Under Trial Review Committee is the Ld. District Judge - as Chairperson, the District Magistrate and the District Superintendent of Police as members.

The committee has the mandate of periodically reviewing (every three months) undertrial cases and passing necessary orders.

The Under Trial Review Committee will also look into issue of implementation of the Probation of Offenders Act, 1958 particularly with regard to first time offenders so that they have a chance of being restored and rehabilitated in society.

Directions vis-a-vis other Stakeholders

The Jail Superintendent to conduct surveys for those UTPs who have undergone more than 1/4th of total punishment and send a report to the DLSA and to the review committee.

DLSA to educate UTPS about their right to bail.

Bhim Singh versus UOI (2015) 13 SCC 605

Hon’ble Supreme Court has directed for effective implementation of Section 436A of the Code of Criminal Procedure by directing the jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge to hold one sitting in a week in each jail/prison for two months commencing from 1st October, 2014 for the purposes of effective implementation of section 436A of the Code of Criminal Procedure. In its sittings in jail, the above judicial officers shall identify the under-trial prisoners who have completed half period of the maximum period or maximum period of imprisonment provided for the said offence under the law and after complying with the procedure prescribed under Section 436A pass an appropriate order in jail itself for release of such under-trial prisoners who fulfill the requirement of section 436 A of Cr P. C.

IN THE COURT OF BHARAT CHUGH,METROPOLITAN MAGISTRATE, DELHI

TIHAR JAIL COMPLEXSpecial Jail Sitting at Central Jail (Tihar) on 01.10.2014

State VERSUS XXX

ORDER

The accused mentioned above is facing trial in the aforesaid Criminal case in the Court of Sh.XXXX, MM, Central – THC, Delhi. Pursuant to directions of the Hon’ble Supreme Court of India in Writ Petition (Crl.) No. 310/2005, titled as Bhim Singh versus Union of India &Ors, received from the Ld.Registrar General, High Court of Delhi, New Delhi – the undersigned was deputed to preside over a special sitting here at Tihar Jail. For this an order was issued by the Ld.CMM vide order XXX - for suitable action to the Jail Administration & Prosecution. In light of this order, the file of the case pending against the applicant was called from the Concerned Court, for consideration of his application for bail in light of the provisions of Section 436-A of the Cr.PC.

Record Perused. The accused is facing trial in the aforementioned case and is in custody since 10.12.2013. Section 417 of the IPC, for which the accused faces trial, provides for a maximum punishment of one year. The accused having been in custody in this case since 10.12.2013, has already undergone more than half of the maximum sentence permissible under the law. . Therefore, in exercise of power u/s 436-A of the Cr.P.C – the accused Phool Hasan is released on bail on furnishing of personal bond of Rs.10,000/-.

Personal Bond Furnished & Accepted. Let the accused be released forthwith, if not required in any other case.

ANNOUNCED IN THE OPEN COURT BHARAT CHUGH

SAMPLE ORDER FOR BAIL (U/S 436A CrPC)

PASSED IN A SPECIAL

SITTING AT TIHAR

–Bryan Stevenson in his book ‘Just Mercy’

“The opposite of poverty is not wealth. In too many places, the opposite of poverty is justice.”

We can change things by a more responsive, pro-active, pro-liberty re-reading of bail provisions and

their zealous application.

Thank you for patient listening, despite a day full of trials and

tribulations !

Happy Judging !