Delhi HC Laments Undertrials Languishing In Jail Despite Being Granted Bail

Let me start rolling ink from my pen by first and foremost pointing out that 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 most shocking and reprehensible!

To put things in perspective, 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 dated March 8, 2018 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 non-compliance 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 languishing in jail despite being granted bail!

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-à-vis 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-by-case 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.

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.

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 trainings 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.

Besides, it 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 trainings 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'. The matter has now been listed on May 1.

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! This is the crying need of the hour also!