On November 28, the Supreme Court raised serious concerns over underseals who have been granted bail but are unable to fill in the bail bonds or provide surety in court, preventing them from being released from prison.
The Supreme Court was hearing a plea where a misinterpretation of its order by a trial court judge in Andhra Pradesh resulted in the accused languishing in custody even after interim bail was granted by the top court. The accused was granted bail after being in custody for 9 years but the accused had to undergo custody for two additional years.
A bench comprising of Justices A. S. Bopanna and S. Ravindra Bhat observed that, “This is a regular phenomenon where accused are given bail but they are not able to give bail bonds or local surety. It will be appropriate that the district legal service authority (DLSA) should devise some method,” as provided by LiveLaw.
The order of November 28, 2022 may be read here.
“This case depicts very sorry condition of affairs,” the Supreme Court had previously said in reference to the circumstance. The Supreme Court had also made the observation that corrective measures needed to be taken, particularly when legal services authorities were used to start the proceedings.
The counsel representing the petitioner, senior advocate Mahalakshmi Pavani, informed the court that only a small number of High Courts had submitted their reports in response to the order dated May 9, 2022, which required all High Courts to do so in relation to bail orders that had not been followed. The counsel for the Rajasthan High Court informed the Court that a report had been submitted.
The order of May 9, 2022 may be read here.
The Court listed the matter after three weeks and has directed the other High Courts to file the status report in the meanwhile.
Background to the Plea
The accused was granted interim bail by the Apex Court on September 28, 2020, and he was ordered to appear before the Trial Court within three days of the date of the order. The Order further instructed the Trial Court to grant him temporary bail with whatever terms and restrictions it saw fit. The Trial Court heard the bail request on October 29, 2020. Despite this, he was not released on bail, with the court ruling that the application was not viable because the three-day time limit established by the Apex Court had passed.
The fact that it was the Trial Court misinterpreted the provision of “three days,” which was added to the aforementioned order to speed up the procedure, resulted in a two-year delay in the accused’s release on bail, disturbed the Bench.
On May 9, 2022, The Supreme Court bench of comprising Justices U.U. Lalit, S. Ravindra Bhat, P.S. Narasimha and Sudhanshu Dhulia had expressed their concern over the misinterpretation of its order by a trial court judge in Andhra Pradesh, which resulted in the accused languishing in custody even after securing interim bail from the Apex Court.
The four-judge bench referred to the cases of that Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar [1979 SCR (3) 532] and Moti Ram & Ors vs State Of M.P [1979 SCR (1) 335] and expressed dismay over the current case, as while detention for 9 years was judged to be adequate to release the accused on bail, the accused had suffered custody for two more years.
Directions passed in the order passed on May 9, 2022:
1) “Every High Court shall give us details of all such orders which remain to be complied with and about the persons concerned who are still languishing in jail. One of the ways to address the problem would be to have a register and maintain the figures as to in how many matters orders directing release of the persons on bail were issued and if out of such total number of matters, any person stood deprived of the opportunity of being released on bail for some reason or the other. The Register must indicate the reason including whether proper security etc. could be arranged by the concerned person or not. Such matters should then be listed before the concerned court in the succeeding month and the fact that the person has not yet been released on bail, be brought to the notice of the concerned Court under whose orders the relief of bail was afforded to the person(s).
2) Let the details be given by each High Court within six weeks from today. Before parting, we must record that the petitioner has now been released on bail. In effect, where the custody of a person for 9 years was found to be sufficient to entitle him to be released on bail, is now turned into custody for 11 years. This is nothing but 5 reincarnation of Hussainara Khatoon1 & Moti Ram.”
It is pertinent to note that Section 436A of the Criminal Procedure Code prescribes release of prisoners by a court on a personal bond with or without surety if he or she has spent half the maximum period of sentence. The issue of under trials languishing in jail has been brought up by the Supreme Code many a times, but there has not been much reforms.
In December 2017, a public interest litigation (PIL) had brought up the issue of over 300 under trials, who despite being granted bail by courts were languishing in capital’s jails due to their inability to furnish bail bonds and surety bonds.
A Bench of Acting Chief Justice Gita Mittal and Justice C. Hari Shankar, in a significant ruling titled Ajay Verma v Govt of NCT of Delhi W.P.(C) 10689/2017, said it was the responsibility of every judge issuing an order of bail to monitor its execution and enforcement.
“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,” the High Court had remarked.
The High Court 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.
In April 2022, yet another case of struggling in production of bail bonds, Arshad Yusuf, Inayat Altaf Sheikh and Showkat Ahmad Ganai, three Kashmiri students in an engineering college in Agra, were charged with sedition in October, 2021 for allegedly celebrating Pakistan beating India in a World Cup match. The Allahabad High Court granted them bail, but they are yet to leave prison as their families have no money to furnish their bail bonds.
Role of DLSA
It is the function of the District Legal Services Authority to provide free and competent legal aid in the nature of counselling and legal advice, as well as free legal services in the conduct of cases before Courts and Tribunals. It is their duty to make special endeavours for rendering free legal aid to under trial prisoners whose cases are pending in courts. Thus, the assistance of prison officers and panel lawyers of District Legal Services Authority can be taken for drafting bail applications, to be moved by under trial prisoners.
Article 39A of the Constitution of India provides that State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disability.
Under the Legal Services Authorities Act, persons eligible to receive legal aid include members of Scheduled castes/scheduled tribes, victims of human trafficking, women, children, mentally ill persons, victims of mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster or persons with low income. Legal Services Authorities after examining the eligibility criteria of an applicant and the existence of a prima facie case in his favour provide him counsel at State expense, pay the required Court Fee in the matter and bear all incidental expenses in connection with the case. The person to whom legal aid is provided is not called upon to spend anything on the litigation once it is supported by a Legal Services Authority.
The issue of under trials languishing in jail due to lack of ability to supply bail bonds and surety has been under the consideration of the court since a long time. On February 5, 2016, in Re – Inhuman Conditions in 1382 Prisons [WP (C) No.406 of 2013], it was held that prisoners, like all human beings, deserve to be treated with dignity and to give effect to this, following directions were issued by the Supreme Court:
i. “The Under Trial Review Committee in every district should meet every quarter and the first such meeting should take place on or before March 31, 2016. The Secretary of the District Legal Services Committee should attend each meeting of the Under Trial Review Committee and follow up the discussions with appropriate steps for the release of undertrial prisoners and convicts who have undergone their sentence or are entitled to release because of remission granted to them;
ii. The Under Trial Review Committee should specifically look into aspects pertaining to effective implementation of Section 436 of the Cr.P.C. and Section 436A of the Cr.P.C. so that under trial prisoners are released at the earliest and those who cannot furnish bail bonds due to their poverty are not subjected to incarceration only for that reason. 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;
iii. The Member Secretary of the State Legal Services Authority of every State will ensure, in coordination with the Secretary of the District Legal Services Committee in every district, that an adequate number of competent lawyers are empaneled to assist under trial prisoners and convicts, particularly the poor and indigent, and that legal aid for the poor does not become poor legal aid;
iv. The Secretary of the District Legal Services Committee will also look into the issue of the release of under trial prisoners in compoundable offences, the effort being to effectively explore the possibility of compounding offences rather than requiring a trial to take place.”