Delhi HC laments un­der­tri­als lan­guish­ing in jail de­spite granted bail

In the jails of Delhi only, more than 300 un­der­tri­als are lan­guish­ing de­spite be­ing given bail by the court.

Alive - - Contents - ■ by San­jeev Sirohi

In a coun­try where un­der­trial pris­on­ers make up ma­jor­ity of the al­ready over­crowded jails, a re­cent land­mark de­ci­sion of the Delhi High Court which each and ev­ery In­dian must read as it has set in mo­tion a re­form that is pre­vent­ing many of the un­der­tri­als lan­guish­ing un­nec­es­sar­ily in jails. In De­cem­ber 2017, a PIL had brought up the is­sue of over 300 un­der­tri­als, who de­spite be­ing granted bail by courts were lan­guish­ing in cap­i­tal’s jails due to their in­abil­ity to fur­nish bail bonds and surety bonds. This is cer­tainly very shock­ing and rep­re­hen­si­ble!

A Bench of Act­ing Chief Jus­tice Gita Mit­tal and Jus­tice C Hari Shankar of Delhi High Court in a sig­nif­i­cant rul­ing ti­tled Ajay Verma v Govt of NCT of Delhi W.P.(C) 10689/2017 said that it was the re­spon­si­bil­ity of ev­ery

Judge is­su­ing an or­der of bail to mon­i­tor its ex­e­cu­tion and en­force­ment. It also noted that the de­tailed or­der was recorded by us on 15th De­cem­ber, 2017 not­ing the ju­di­cial prece­dents on the sub­ject and find­ing that the di­rec­tions of the Supreme Court as well as this court re­gard­ing re­lease of pris­on­ers, who were un­able to fur­nish bail bond on ac­count of fi­nan­cial penury or non-avail­abil­ity of per­sons who are will­ing to stand surety on their be­half were not be­ing com­plied with. The Delhi High Court while also un­der­scor­ing pris­on­ers rights very rightly held that, “The im­por­tance of the rights of pris­on­ers un­der Ar­ti­cle 21 of the Con­sti­tu­tion of In­dia, who have been ac­cused of even se­ri­ous crimes, can­not be over­looked un­der any cir­cum­stance.” All lower courts must al­ways take this into ac­count as pointed out by Delhi High Court while is­su­ing an or­der of bail if it wants to avoid get­ting a rap on its knuck­les.

To be sure, the Delhi High Court re­cently rapped Dis­tricts and Ses­sions Judges for their non­com­pli­ance with its ear­lier or­der whereby it had di­rected them to con­duct a “risk as­sess­ment” of cases where un­der­tri­als have been un­able to se­cure re­lease from jail de­spite be­ing granted bail. The Bench of Delhi High Court noted with re­gret that de­spite its ear­lier or­der, it hasn’t been in­formed whether any steps have been taken to re­lease pris­on­ers who have been un­able to com­ply with the bail con­di­tions im­posed on them. It had ob­served that fail­ure of a court in en­sur­ing that an or­der of bail was com­plied with could lead to de­part­men­tal ac­tion against the con­cerned ju­di­cial mag­is­trate.

As it turned out, the Delhi High Court then di­rected the Reg­istry to re­turn th­ese re­ports with strict di­rec­tion to the District & Ses­sions Judges to com­ply with its or­ders. It also de­manded con­sol­i­dated re­ports un­der the sig­na­tures of the

District Judge, Head­quar­ters for court re­lated mea­sures and the Direc­tor Gen­eral, Prison for mea­sures im­ple­mented at Ti­har jail. All this clearly im­ply how se­ri­ous Delhi High Court is on the rights of un­der­tri­als who keep

Shiv­nath, who is fac­ing trial in a rob­bery case was granted bail over four months ago, but has not been re­leased yet. The prime rea­son be­ing that his fam­ily lives in As­sam and there was no one in Delhi to give surety. An­other un­der­trial Sonu, fac­ing trial in a sep­a­rate rob­bery case, was granted bail as far back as June 2017 but con­tin­ues to be in jail as he has lost con­tact with his fam­ily in Bi­har and there is no one to fur­nish a bail bond of Rs 15,000.

lan­guish­ing in jail de­spite be­ing granted bail!

Many cases

It had the de­sired im­pact also. As the lower ju­di­ciary judges, jail au­thor­i­ties and State le­gal ser­vice au­thor­i­ties swung into ac­tion, around 200 un­der­trial pris­on­ers were re­leased. All credit for this goes to the Delhi High

Court who gave this land­mark judg­ment. No one can take away the credit from them as they set in mo­tion what was ear­lier go­ing on un­no­ticed!

Truth be told, most of th­ese un­der­trial pris­on­ers were ei­ther un­able to fur­nish bond amount or give suf­fi­cient surety vis-àvis a per­son who takes re­spon­si­bil­ity for an­other’s per­for­mance of an un­der­tak­ing such as ap­pear­ing in court. Among those who stood to gain from this was Shahrukh who fac­ing trial in an as­sault case, was di­rected to be re­leased on bail in Oc­to­ber 2017. But, as his mother was un­well, he was not able to ful­fil the bail con­di­tion. He was sub­se­quently re­leased in Jan­uary.

Go­ing for­ward, an­other un­der­trial pris­oner in a theft case, Yo­ge­shan had se­cured a bail or­der in Septem­ber 2017. He had only an aged mother in the fam­ily who was un­able to stand as surety. He has since been re­leased on bail.

It must be ac­knowl­edged and ad­mired that the Delhi High Court passed this land­mark di­rec­tion on the PIL of ad­vo­cate Ajay Verma who took painstak­ing ef­forts to en­sure that this could hap­pen in re­al­ity by bril­liantly ar­gu­ing the ab­hor­rent man­ner in which the un­der­tri­als were lan­guish­ing in jail de­spite be­ing granted bail. He told jour­nal­ists that the case of each of the un­der­trial pris­on­ers who have se­cured bail has been taken up by the au­thor­i­ties on pri­or­ity af­ter the court or­der. He also said that though a large num­ber of un­der­trial pris­on­ers have been re­leased, many more re­main.

Very rightly, he also sin­gled out poverty and fi­nan­cial in­abil­ity of the rel­a­tives to fur­nish surety bonds or lo­cal sureties as the prime rea­son be­hind them lan­guish­ing in jail de­spite be­ing granted bail! This is what is most de­plorable! To sub­stan­ti­ate his valid point, he re­lied on sev­eral prece­dents such as the Apex Court judg­ment in the case of Moti Ram & Ors v State of Mad­hya Pradesh (1978) 4 SCC 47 in or­der to high­light the un­favourable com­ments ren­dered against im­po­si­tion of such con­di­tions.

To tell the truth, Shiv­nath, who is fac­ing trial in a rob­bery case was granted bail over four months ago, but has not been re­leased yet. The prime rea­son be­ing that his fam­ily lives in As­sam and there was no one in Delhi to give surety. An­other un­der­trial Sonu, fac­ing trial in a sep­a­rate rob­bery case, was granted bail as far back as June 2017 but con­tin­ues to be in jail as he has lost con­tact with his fam­ily in Bi­har and there is no one to fur­nish a bail bond of Rs 15,000.

Be it noted, ad­vo­cate Ajay Verma also said that a risk as­sess­ment of th­ese un­der­trial pris­on­ers will be con­ducted on a case-by­case ba­sis, re­ly­ing on which they will ei­ther be re­leased or de­nied bail. The Delhi gov­ern­ment in a sta­tus re­port to the High Court has said that a mech­a­nism is be­ing de­vel­oped by the com­puter team of the Delhi District Courts to share the bail or­ders and the re­lease war­rants with the Delhi po­lice and jail au­thor­i­ties.

It said cat­e­gor­i­cally that, “The jail au­thor­i­ties can­not state at this stage about re­ceiv­ing of all bail or­ders from the con­cerned courts un­less hav­ing knowl­edge of day-to-day courts case pro­ceed­ings in re­spect of pris­on­ers.” It also added that, “At present we are re­ceiv­ing true hard copies of bail or­ders in re­spect of pris­on­ers from the courts.” There is also work on de­vel­op­ing soft­ware which will fa­cil­i­tate shar­ing real time in­for­ma­tion amongst the po­lice, ju­di­ciary and the jail au­thor­i­ties. For this, the New Delhi District has been taken as a pi­lot area.

The Guide­lines

Sim­ply put, un­der the sys­tem, as and when any FIR is reg­is­tered and the date re­gard­ing com­plainant, ac­cused, of­fence and other de­tails are cap­tured, it will be shared with the court sys­tem as well as with the jail au­thor­i­ties. Sim­i­larly, as and when any ac­cused is sent to ju­di­cial cus­tody, in­for­ma­tion in this re­gard will be shared with the jail au­thor­i­ties and Delhi Po­lice on a real-time ba­sis. This is cer­tainly a laud­able step in

the right di­rec­tion!

Need­less to say, ef­forts are also be­ing made to cre­ate an alert in the Na­tional Pris­ons In­for­ma­tion Por­tal (NPIP) re­gard­ing the list of in­mates who was granted bail but has been in jail due to be­ing un­able to fur­nish the surety pro­vi­sion. As per Prison Statis­tics 2015, out of the to­tal 4,19,623 in­mates in var­i­ous jails across the coun­try, 2,82,076 or 67.2% were un­der­trial pris­on­ers. Delhi had 10,879 un­der­trial pris­on­ers which made up 76.7% of the to­tal prison in­mates strength that year.

It also can­not be lost on us that the pan-In­dia fig­ure also re­vealed that a to­tal of 11,451 un­der­trial pris­on­ers were lodged be­yond three years and upto five years and an­other 3,599 un­der­tri­als were de­tained in jails for five years or more in the coun­try. The Cap­i­tal’s jail had over 5,000 un­der­trial pris­on­ers with more than six months of pe­riod of de­ten­tion. Prompt and ef­fec­tive steps must be taken to en­sure that the strength of un­der­trial pris­on­ers lan­guish­ing in dif­fer­ent jails across the coun­try is con­sid­er­ably brought down.

Whoʼs re­spon­si­bil­ity?

With­out minc­ing any words, the Delhi High Court has noted that it will also be the re­spon­si­bil­ity of prison au­thor­i­ties to promptly bring any in­stance of a pris­oner be­ing un­able to se­cure re­lease from prison de­spite an or­der of bail hav­ing been passed in his favour to the no­tice of the trial courts as well as the con­cerned Sec­re­tary of the District Le­gal Ser­vices Authority. The Delhi High Court has ex­plic­itly stated that, “The trial courts should be not only sen­si­tive but ex­tremely vig­i­lant in cases where they are record­ing or­ders of bail to as­cer­tain the com­pli­ance thereof.” The Direc­tor (Aca­demics) of the Delhi Ju­di­cial Academy has been di­rected to de­sign a train­ing mo­d­ule and sched­ule of train­ing re­lat­ing to mat­ters of bail and re­lease of pris­on­ers for the trial court judges.

Of course, in its or­der dated 15 De­cem­ber 2017, the Delhi High Court had also ex­am­ined var­i­ous prece­dents wherein Courts have dep­re­cated such prac­tices and had opined that such pro­nounce­ments are not be­ing com­plied with. It had then high­lighted the need for a risk as­sess­ment of such cases as has also been men­tioned above. The

Court now opined that its duty does not end with such or­ders of as­sess­ment and that the mat­ter needs to be “con­tin­u­ously re­viewed”, ob­serv­ing that, “We are of the view that the solemn duty of ev­ery court does not come to an end with mere pass­ing of an or­der, more so, when it is re­lat­able to the rights un­der Ar­ti­cle 21 of the Con­sti­tu­tion of In­dia af­fect­ing the life and lib­erty of any per­son. This is more so when the court is con­cerned with any per­son lodged in prison. There­fore, the re­spon­si­bil­ity and duty of ev­ery court pass­ing an or­der of bail and to en­sure that the same is com­plied with has to be kept on the high­est pedestal and un­der­taken in right earnest­ness.”

Fi­nally and most im­por­tantly, the Delhi High Court in this land­mark judg­ment laid down the fol­low­ing guide­lines.

1. The trial courts should not only be sen­si­tive but ex­tremely vig­i­lant in cases where they are record­ing

or­ders of bail to as­cer­tain the com­pli­ance thereof.

2. When bail is granted, an en­dorse­ment shall be made on the cus­tody war­rant of the pris­oner, in­di­cat­ing that bail has been granted, along with the date of the or­der of bail.

3. In case of in­abil­ity of a pris­oner to seek re­lease de­spite an or­der of bail, it is the ju­di­cial duty of all trial courts to un­der­take a re­view for the rea­sons thereof.

4. Ev­ery bail or­der shall be marked on the file.

5. It shall be the re­spon­si­bil­ity of ev­ery judge is­su­ing an or­der of bail to mon­i­tor its ex­e­cu­tion and en­force­ment.

6. In case a judge stands trans­ferred be­fore the ex­e­cu­tion, it shall be the re­spon­si­bil­ity of the suc­ces­sor judge to en­sure ex­e­cu­tion.

7. It shall be the re­spon­si­bil­ity of prison au­thor­i­ties to promptly bring any in­stance of a pris­oner be­ing un­able to se­cure re­lease from prison de­spite an or­der of bail hav­ing been passed in his favour to the no­tice of the trial courts as well as the con­cerned Sec­re­tary of the District Le­gal Ser­vices Authority.

8. All trial courts pass­ing an or­der of bail shall main­tain a record of the fol­low­ing: a) date of the or­der and con­di­tions im­posed therein. b) date on which the

con­di­tions were sat­is­fied. c) date of re­lease of the

pris­oner from the jail. d) if con­di­tions not sat­is­fied, the date on which the re­view and risk as­sess­ment were taken upon an in­ter­view of the pris­oner con­cerned. e) date and terms of the or­der passed upon the re­view. f) date of ul­ti­mate re­lease of the pris­oner.

9. A monthly state­ment on th­ese as­pects shall be sent to the con­cerned District Judges, who would un­der­take an ex­er­cise of ver­i­fi­ca­tion of the in­for­ma­tion fur­nished by the court con­cerned.

10. This in­for­ma­tion shall also be sent to the District Judge as well as Direc­tor Gen­eral (Pris­ons) who would un­der­take an ex­er­cise of ver­i­fi­ca­tion on a quar­terly ba­sis.

11. A re­port re­gard­ing the or­ders of bail and the re­lease of pris­on­ers shall be sent on quar­terly ba­sis by the District Judge as well as Direc­tor Gen­eral (Pris­ons) to the Reg­is­trar Gen­eral of this Court.

12. The panel ad­vo­cates de­puted by the Le­gal Ser­vices Authority in the re­spec­tive crim­i­nal courts would be re­spon­si­ble to keep them­selves up­dated, in­ter alia, on the ba­sis of above-men­tioned record and re­port and move ap­pro­pri­ate ap­pli­ca­tion in con­cerned Case qua con­cerned ac­cused re­spect­ing whose fur­ther or­ders are re­quired to be passed to se­cure re­lease from cus­tody pur­suant to the bail or­der.

13. The train­ing and sen­si­ti­za­tion of judges on th­ese as­pects shall be taken ex­pe­di­tiously by the

District Judges in con­junc­tion with the Delhi ju­di­cial Academy.

It shall be the re­spon­si­bil­ity of prison au­thor­i­ties to promptly bring any in­stance of a pris­oner be­ing un­able to se­cure re­lease from prison de­spite an or­der of bail hav­ing been passed in his favour to the no­tice of the trial courts as well as the con­cerned Sec­re­tary of the District Le­gal Ser­vices Authority.

The rul­ing

The Court also di­rected the Direc­tor (Aca­demics) of the Delhi Ju­di­cial Academy to de­sign a train­ing mo­d­ule on bail and re­lease of un­der­tri­als by lower Court Judges and a sched­ule for the same. District Judges have been made re­spon­si­ble to en­sure that such train­ing are in fact car­ried out. A com­pli­ance re­port has been di­rected to be filed by all District Judges; the Direc­tor (Aca­demics), Delhi Ju­di­cial Academy; Mem­ber Sec­re­tary, DSLS and the Direc­tor Gen­eral, Pris­ons, Delhi. Also, the Delhi High Court made it clear that the above di­rec­tions as well as the di­rec­tions made by us on 15th De­cem­ber, 2017 shall be strictly com­plied with. In ad­di­tion, it also di­rected that, “The con­cerned District Judge shall place be­fore this court a sta­tus re­port re­gard­ing the steps which were re­quired to be taken in terms of the min­utes dated 10th Jan­uary, 2018, as noted above, within two weeks from today”.

In hind­sight, it is the poor un­der­trial pris­on­ers who keep rot­ting and suf­fer­ing in jail de­spite get­ting bail who will stand to ben­e­fit most from this land­mark or­der as they are un­able to fur­nish sureties. All High Courts in In­dia must fol­low this ex­tremely laud­able judg­ment of the Delhi High Court to en­sure that the un­der­trial pris­on­ers get what is their le­gal right and they don’t just keep rot­ting in jail even af­ter get­ting bail!

The queues of such kind of un­der­tri­als are very long in ev­ery states of In­dia.

Delhi High Court Judges or­der District & Ses­sions Court Judges to

con­duct risk as­sess­ment on un­der­tri­als lan­guish­ing in jail.

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