UNDERTRIALS UNBOUND

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By TT Bureau
  • Published 17.09.14
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In one of the women’s jails in western India, there’s excitement over the birth of Amar. The scrawny five-day-old, bundled in swaddling cloth, is taken from his teenage mother’s arms and gingerly laid in a crude blue plastic cradle gifted by social workers. A group of women from the neighbouring cells look on fondly and clap, revelling briefly in one of the few pleasant moments behind the heavy blue and yellow iron gates of the jail.

Many of them have been here for years, stuck for want of bail money and a lawyer to argue their case. Their offences range from crimes of passion to petty theft.

Earlier this month, the Supreme Court held out hope for them and thousands of other undertrials by ruling that those who have spent half or more of the maximum jail sentence they may have been handed out had they been proven guilty should be set free.

The judgment, which is backed by Section 436(a) of the Criminal Procedure Code (CrPC), will see sessions court judges visiting jails in their jurisdiction for the next two months, to decide on the fate of long-term prisoners.

But, while this section stops only those undertrials who could face a death penalty from walking free if they have been in jail for up to half of the maximum sentence specified for their offence, Gujarat plans a major deviation.

Here, those facing terrorism, murder, rape or drug charges would remain in jail, while those held for less serious offences such as cheating and money laundering could go home, says a senior prison official in the state, speaking on condition of anonymity. So far, Gujarat has identified 37 jail inmates who could benefit from the Supreme Court’s recent ruling, he says.

In 2012, India’s 1,394 jails housed 1,12,789 convicts and twice the number of undertrials, according to the National Crime Research Bureau. And if government statistics are to be believed, 0.8 per cent of them (up from 0.6 per cent the previous year) had spent over five years behind bars as undertrials.

This is not the first time the courts have ruled to free undertrials who have been languishing in jail for years.

ln 1994, a PIL filed by former media person, Shabnam Minwalla, in the Bombay High Court, seeking the release of prisoners who had been kept imprisoned way past their maximum term of incarceration in the jails of Maharashtra, led the court to direct the authorities to check the status of every undertrial.

“It was found that 30 undertrials had already been in prison for periods longer than the maximum sentence for their crime. They were released immediately,” says Minwalla. “The trials of 300 other undertrials were expedited, and the legal aid system was re-examined and made more effective — at least on paper.”

Again, in September 2011, a two-judge bench of the Allahabad High Court directed the principal secretary (home) and IG Prisons to provide a list of prisoners who would benefit from Section 326(a) of the CrPC. This section lays down that a prisoner who has been detained for an offence (except one punishable by death) for up to half of the maximum period of imprisonment specified for the offence shall be released on a personal bond, with or without sureties if the prosecutor and the court think fit.

But there’s a catch here. In computing the period of detention for granting bail under this section, the period of detention passed owing to a delay in proceedings caused by the accused will be excluded, says the law.

“But how can a person delay a trial when he’s in custody,” asks Y.P. Singh, a former Mumbai cop-turned-lawyer.

Apparently, one can. In the T.J. Stephen and others vs Parle Bottling Co. case in 1988, the Supreme Court, though annoyed with an accused for delaying the trial, decided to look the other way. “We do not think it would be in the interest of justice to allow prosecution to start 20 years after the offence was committed,” it declared.

Around the same time, in the Srinivasa Gopal vs Union Territory of Arunachal case the apex court acquitted the accused and said, “Keeping a person in suspended animation for nine-and-a-half years without any cause at all — and none was indicated before the learned magistrate or the high court or before us — cannot be with the spirit of the procedure established by law.”

“You can’t let people languish in jail for 10-15 years because you don’t have the infrastructure to conduct a trial,” asserts Singh. “It’s in complete contravention of Section 21 of the Constitution.”

Some say that setting the limit at half the period of maximum punishment for the crime committed is also unfair. As Singh points out, “Even though a sentence specifies a maximum quantum of time, the accused could be given a shorter sentence if the judge finds the gravity of the offence to be less serious.”

For instance, a person charged with attempt to murder under Section 307 of the IPC could be punished with anything from a life sentence to 10 years in jail. Or the accused could have been proven innocent, as is often the case. “People are often arrested on mere suspicion — many on false charges,” says Singh.

Even the Supreme Court took note of indiscriminate arrests by the police. In the Joginder Kumar vs State of UP case in 1994, it noted, “Of late, this court has been receiving complaints about the violation of human rights because of indiscriminate arrests.”

Moreover, Singh points out, “The police often make hyper technical arguments to try and deny the accused bail, and the courts go along with these arguments, at least in the initial months of the trial.”

Indeed, thousands of petty offenders are stuck inside jails merely for want of bail money. Bhanu Patel, who holds a record for having secured 31 degrees during his eight-year sentence at Sabarmati Central Jail in Ahmedabad, says he’s seen men thrown into jail for getting drunk in a prohibition-ridden state, and being forced to remain there for several months when a few weeks of imprisonment would have sufficed for the offence.

In this context, Section 436 itself is not heeded in letter and spirit. The law specifies that an indigent person arrested for a bailable offence and unable to furnish sureties shall be released on bond without sureties. And more importantly, anybody unable to furnish a surety within a week of being arrested will be presumed to be indigent.

Clearly, the latest directive of the Supreme Court to set long suffering undertrials free needs to be complemented with every other relief available to them under the law.