A recent judgment of the Supreme Court on September 5 for release of all under trial prisoners (UTPs) of the country who have served at least half of the term or more of the maximum sentence provided for the offence with which they have been charged is path-breaking.
This has brought a new hope for such UTPs who would now walk out of the jail within a short period. According to the direction of the court, the process would start from October 1. Needless to say, for the UTPs finally there is light at the end of the tunnel.
It is gratifying to note that earlier the apex court had also given direction for speedy trial in the case of Kadra Pahadiya versus State of Bihar twice in its judgment of December 17, 1980 and March 19, 1997 respectively. Similarly, in the case of “common cause”, a registered society versus Union of India, the court in a PIl on May 1, 1996 not only gave direction for speedy trial of pending criminal cases but gave bundle of directions for release of the accused on bail on personal bond in lesser offences or with surety in different categories of cases keeping in mind the gravity of the offence extending up to period of seven years of sentence. The Supreme Court in its judgment in Houssanira Khatoon versus State of Bihar, which is a landmark decision, decided on February 12, 1979 held that people languish in jails not because they are all guilty but because many are too poor to afford bail and the courts have no time to try them. The court has held in several cases that right to speedy and expeditious criminal trial and right to legal aid are enforceable rights under Article 21 of the Constitution. The sixth amendment of the Constitution of United States says, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial”. Article 3 of the European Convention of Human Rights also provides that every one arrested or detained shall be entitled to trial within a reasonable time.
There is no denial of the fact that there is staggering backlog of criminal cases all over the country. It is estimated that out of the 3.81 lakh prisoners across the country, about 2.54 lakh or two-thirds are UTPs. Many of them have spent more time in jail than what their actual sentence could be. The release of the UTPs on executing personal bond is an important step towards judicial reforms which would also help decongestion of our prisons in a big way. In the Houssanira Khatoon case in 1979, the court had directed for release of UTPs on easy monetary condition and without surety. In this backdrop it is worthy of mention that Section – 436 (A) of CrPC has provided for speedy trial and there is similar such beneficial provision under Section 428 of CrPC which mandates that the pre-trial detention in custody of the UTP shall be set off against the term of sentence imposed on him.
The pathetic condition of those ill-starred persons in custody is seldom heard of not only by the administration but by the judiciary as well by whose order the UTPs are kept in custody for a longer period as no trial takes place for years together. Needless to say that speedy trial is a part of fundamental right and more particularly in case of a person in jail custody as pronounced by the Supreme Court in a plethora of judgments, and the significant case of AR Antuley versus State of Maharashtra where guidelines have been laid down for expeditious hearing. Another aspect which is worthy of mention is that our criminal justice system is largely built on the edifice of West Minister model based on Anglo-Saxon Jurisprudence. In our adversary system of trial, the accused is presumed to be innocent until the contrary is proved. Therefore, in view of this position of law unless the offence is very serious and grave in nature, the UTP who is charged of an offence where he is detained in jail custody for a period which is half of the sentence prescribed or even more than that, is entitled to be released either on bail or otherwise. Therefore, the apex court has recently handed down a judgment of far-reaching consequence for the release of such under trial prisoners throughout the country. The direction of the court has awakened the sub-ordinate judiciary and the administration to complete the work within the time frame of a period of two months which would start from October 1. The High Courts have been instructed to monitor the programme.
According to the direction of the apex court, a committee has to be formed in every district headed by the District Judge and other two members being the District Magistrate and the Superintendent of Police whose responsibility is to review and closely monitor the programme regarding release of the UTPs from their respective jails within the parameters of law envisaged U/S -436 (A) CrPC.
It is mandatory for the committee to meet every three months and review cases relating to the UTPs and take necessary steps to reduce overcrowding of jails and release those who have been in custody for petty offences due to delay in the trial. Chief Justices of the High Courts, along with the State Administrations have been requested to ensure that the directive is implemented in all districts. The Magistrates and the Sessions Judges would at least fix up their jail visit twice or thrice in a week and inside the jail pass appropriate orders regarding release of the UTPs. It may be noted here that never before was such a direction issued by the apex court.
The Supreme Court has clearly mentioned that on the subject regarding pre-trial detention and release of the UTPs although there was a provision U/S – 436 (A) of the CrPC which was inserted by the Criminal Amendment Act-2005 which came into force from June 23, 2006 for the release of the offenders who have been detained in jail for a period of half of the sentence prescribed for such offence, neither the judiciary nor the executive adopted such law for the benefit of the UTP so as to restore their liberty which is a clear violation of Article-21 of the Constitution. Now the apex court has only directed the criminal courts to follow the provisions of law both in letter and spirit which would go a long way for release of a huge number of UTPs who are incarcerated for years together without trial.
On the face of the statutory provisions of law and the judgment of Supreme Court and earlier decisions on the subject, now there is no legal impediment for the release of UTPs and no amendment is required in the CrPC for the purpose as pointed out by the law Ministry. It is made abundantly clear that the Supreme Court has only directed for implementation of the existing statutory provision of law keeping in mind the loss of liberty of large number of UTPs. The bench headed by CJI Justice RM lodha said that prisons must comply with the law and ordered local judges and magistrates to oversee the process. Prisoners who are charged with life sentence or death penalty do not come within the ambit of the new law. The court said “Judicial officers shall identify prisoners who have completed half of the maximum period of imprisonment provided for the offences they are charged with”.
(The writer is a former CBI Special Judge, Bhubaneswar and a former Prof of law at lal Bahadur Shastri National Academy of Administration, Mussoorie)