Expert's take: Release of Undertrial Prisoners: Recommendations v. Reality

Illustrative

While NALSA (National Legal Services Authority) is working hard to identify and recommend to the courts of competent jurisdiction, for release of undertrial prisoners who have completed half of the maximum prescribed sentences, a sizeable number of such prisoners still remain outside the beneficial net. What are the reasons for this situation?

Apart from reasons pertaining to paucity of resources, logistical problems, and coordination between different agencies in getting a larger number of such undertrial prisoners released, I wish to identify a significant reason that escapes the attention of policy makers, which is, ‘judicial mindset’.

What is this judicial mindset that is stopping many deserved releases?

Before addressing the question, we must understand the mindset of the police in India. The Supreme Court was called upon to judge the legality of arrest of an accused named Arnesh Kumar. He was arrested by the police in Bihar on accusations of dowry harassment. He preferred an application for anticipatory bail before the Sessions Court and then the High Court but in vain.

The case travelled to the Supreme Court.

The Supreme Court observed that arrest brings humiliation, curtails freedom, and casts scars forever. The lawmakers and the police are locked in a battle. The police have refused to learn the lesson regarding the principle of necessity of arrest that is embodied and implicit in the Code of Criminal Procedure. The police haven’t come out of its colonial image despite six decades of independence, the Court observed. The police are largely considered as a tool of harassment, oppression, and surely not considered a friend of the public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by courts but has not yielded the desired results.

The Supreme Court went on to castigate the Magistracy too, by saying that it has failed to check the abuse of power by the police. After the accused is arrested, he has to be produced before the Magistrate within 24 hours, who has to be satisfied that the arrest made is legal and if so then authorize further detention, but this exercise is not done with the seriousness it deserves. The Court observed that in many cases, detention is authorized by the Magistrate in a routine, casual, and cavalier manner.

With my experience of over three decades, I have observed a colonial mindset in the judiciary as well, especially at the district level. I have seen innumerable judges who preside over the lower courts, as bail deniers. Even in the most trivial cases, they deny the grant of bail to the accused. Apart from the other factors, this judicial mindset prevents recommendations of Undertrial Review Committees to release undertrial prisoners, from being considered positively by the courts in many more cases than they actually do.

Unfortunately, the work of the judiciary never gets audited. The number of recommendations for release made by the Undertrial Review Committees and those that are rejected by the courts, must be scrutinized for improvisation.

In Arnesh Kumar, the Supreme Court went on to say that failure of the Magistracy to follow the guidelines to check the legality of arrest, must invite departmental action by the concerned High Courts.

Even though, the situation at ground zero in so far as release of undertrial prisoners is considered has improved over time, much more needs to be done. Unless accountability is fixed on the District level judges who are called upon to decide upon the recommendations of the Undertrial Review Committees, the situation isn’t likely to change substantially. However, the discretion of the courts to release/deny release on bail the undertrial prisoners who are recommended for release, must remain in place. Section 436A Cr. P. C and now section 479 lays down a Proviso to the release of prisoners who have undergone one-half or more of the sentence, which grants discretion to the concerned court based upon reasons. However, this Proviso must be read as an exception and not made a rule, as many judges do so in the district courts. When judges don’t have the heart to release undertrial prisoners even after they have undergone over one-half of the sentence, isn’t this a gross breach of the principle of ‘bail, not jail’!

(Note: the views expressed herein are those of the author and do not reflect the position of ET Legal World)