SUPREME COURT OF INDIA
SANJAY KISHAN KAUL, ABHAY S. OKA, JJ.
In Re Policy Strategy For Grant Of Bail - Petitioner
SMWP(Criminal) No. 4 of 2021
Decided on : 31-01-2023
Fact of the Case:
The court discussed the issue of undertrial prisoners remaining in custody despite being granted bail due to their inability to fulfill the conditions.Finding of the Court:
The court examined various measures, including the use of e-prison software and involvement of NALSA and TISS, to address the problem. It also issued directions for timely release and assistance to undertrial prisoners.Issues:
The main issue was the delayed release of undertrial prisoners despite being granted bail.Ratio Decidendi:
The court emphasized the importance of timely execution of bail orders and directed specific actions to ensure prompt release, including involving DLSA, modifying bail conditions based on economic status, and considering temporary bail for furnishing sureties.Final Decision:
The court ordered compliance with the directions provided regarding the execution of bail orders.ORDER :
1. It is pointed out that there is bereavement in the family of Mr. Devansh A. Mohta, learned Amicus Curiae and the matter may be deferred for consideration.
2. Mr. Gaurav Agrawal, learned Amicus Curiae however, submits that some aspects with which Mr. Mohta is not concerned at present can be dealt with.
SMWP(CRIMINAL) NO. 4/2021 :
EXECUTION OF BAIL ORDERS
3. Mr. Gaurav Agrawal, learned Amicus Curiae has drawn our attention to order dated 29.11.2022 qua the issue of undertrial prisoners who continue to be in custody despite having been granted the benefit of bail on account of their inability to fulfill the conditions. In this behalf the report by the NALSA has been placed before us filed on 30.01.2023. After recording the discussions which have been held, it has been stated in para 5 of the report that there are 5,000 undertrial prisoners who were in jail, despite grant of bail, out of which, 2,357 persons were provided legal assistance and now 1,417 persons have since been released.
4. One of the main reasons flagged why the accused are in jail despite the grant of bail is that he may be an accused in multiple cases and is apparently not willing to furnish bail bonds until he is given bail in all the cases as undertrial custody will be counted in all the cases.
5. De hors this, it is pointed out that to ensure that the remaining undertrial prisoners who are unable to furnish surety or bail bonds due to poverty, NALSA is in the process of creating a master data of all such undertrial prisoners in excel sheet with all relevant details, including, reasons for non-release and steps qua persons who are unable to furnish bail bonds or surety are being taken up with the respective SLSAs/DLSAs and result would be obtainable in about one or two months’ time.
6. Learned Amicus Curiae has also drawn our attention to the discussions with Shri Shashikant Sharma, HOD and Sr. Technical Director of NIC recording that five meetings were held along with the participation of Shri K.M. Nataraj, learned ASG and Home Ministry officials. A Standard Operating Procedure (SOP) has been prepared by NIC which also deals with this aspect. A relevant aspect is that the NIC e-prison software, which is working in about 1,300 jails in the country, would now have a field where the date of grant of bail would have to be entered by the jail authorities. If the accused is not released within seven days of the date of grant of bail, the e-prison software would automatically generate a flag/reminder and simultaneously the e-mail would be sent to the office of the concerned DLSA so that the DLSA can find out the reason for non-release of the accused. The SOP has para 2.4 under the heading “Bailed out but not Released” which facility enables prison user to access the data of inmates, to assist in identifying inmates who are bailed out but not released due to some reasons like sureties or pending cases.
7. Insofar as the discussion with TISS is concerned, some suggestions are stated to be made but learned Amicus Curiae submits that a more detailed work out of that is necessary.
8. Another issue which has crept up during discussion is whether the Government would give access to this portal on a protected basis to the Secretaries of the SLSAs and DLSAs which would facilitate better follow up.
9. We call upon the Government of India to discuss this issue with NALSA so that necessary directions, if any, can be passed. Learned ASG would obtain instructions in that behalf by the next date.
10. With a view to ameliorate the problems a number of directions are sought. We have examined the directions which we reproduce hereinafter with certain modifications:
“1) The Court which grants bail to an undertrial prisoner/convict would be required to send a soft copy of the bail order by e-mail to the prisoner through the Jail Superintendent on the same day or the next day. The Jail Superintendent would be required to enter the date of grant of bail in the e-prisons software [or any ot
Timely execution of bail orders is crucial, and courts have a duty to ensure that undertrial prisoners are promptly released upon being granted bail.
The court mandated proactive identification and release of undertrial prisoners under Section 479 of the BNSS, emphasizing justice for all, especially first-time offenders.
Inordinate delay in trial of minor offences due to prosecution lapses violates speedy trial right under Article 21 warranting quashing of proceedings by constitutional courts.
Prolonged pre-trial detention infringes on the right to personal liberty under Article 21, necessitating bail when an accused has languished in custody beyond half the maximum sentence duration.
Prolonged pre-trial detention violates the right to a speedy trial, necessitating bail when delays are not caused by the accused.
Bail – Section 436-A of Cr.P.C. does not exclude offences under NDPS Act – Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21.
The right to fair and speedy trial is recognized under Article 21 of the Constitution of India. The High Court's decision reaffirms the principle that undertrials cannot be allowed to languish for ye....
The right to a speedy trial is a fundamental right under Article 21, and prolonged detention without trial violates this right.
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