Shankara And Ors. vs State (Delhi Administration)
1995 Latest Caselaw 461 Del

JUDGMENT

Dalveer Bhandari, J.

(1) In our country, a large number of poormen, distressed women and unfortunate children are lodged behind prison bars awaiting trials in the courts of law for months and years.

(2) Most of the undertrial prisoners according to I. G. Prison's list-A are presently lodged in Tihar Jails have been charged with minor offences, which even if proved would not warrant punishment for more than a few months, perhaps for a year or two and yet these unfortunate forgotten specimen of humanity are in jail. deprived of their liberty, for years without even as much as their trial having commenced. It is a crying shame on the judicial system which permits incarceration of men and women for such long periods of time without trial, as aptly observed by the Hon'ble Supreme Court in Hussainara Khatoon's case, .

(3) The instant case is even more shocking and revolting to the conscience. It is clearly a slur on our administration of justice. Even out of those unfortunate poor men, and women who have been languishing in jail for years, some of them were ordered to be released on bail during the pendency of their trial by various courts on certain conditions. These undertrial prisoners could not be released despite release orders not only for days, or months but for years for not fulfillling the conditions which were attached to the bail orders, because of their extreme poverty and ignorance. In most cases, no one on their behalf has even bothered to move the courts for relaxing, reducing or waiving the conditions attached to the bail orders. As it is aptly said that the poor perhaps have no friends or relations. Consequently, they are languishing in jails for months and years.

(4) In Hussainara Khatoon's case (supra), the Supreme Court observed that our legal and judicial system continually denies justice to the poor by keeping them for long years in pretrial detention, is a highly unsatisfactory bail system. It suffers from a property oriented approach which seems to proceed on the erroneous assumption that risk of monetary loss is only deterrent against fleeing from justice.

(5) The Court also mentioned in the said case that the poor find our legal and judicial system oppressive and heavily weighed agains, them and a feeling of frustration and despair occurs upon them as they find that they are helplessly in a position of inequality with the non-poor. The court also observed that the bail system, as it operates today, is a source of great hardship to the poor and if we really want to eliminate the evil effects of poverty and assure a fair and just treatment to the poor in the administration of justice, it is imperative that the bail system should be thoroughly reformed so that it should be possible for the poor, as easily as the rich, to obtain pretrial release without jeopardizing the interest of justice.

(6) In such cases of undertrial prisoners, who could not be released despite bail orders, the State must adopt a more pragmatic and reasonable approach, not only in the interest of the undertrial prisoners but also in the interest of the State and all concerned.

(7) As indicated by their Lordships of the Supreme Court in Babu Singh vs. State of U.P. Air 1978 Sc 524(2) that a man on bail has a better chance to prepare and present his case than one remanded to custody. The apex court also observed that if public justice is to be promoted, mechanical detention should be demoted.

(8) Another factor which must be taken into consideration is the huge public expense involved in keeping these under trial prisoners in custody.

(9) Our jails are already over-crowded. The fact that hundreds of these undertrials who have been released on bail have also not been enlarged, places heavier burden on the available infrastructural facilities leading to the most deplorable and inhuman conditions in jails,

(10) Their Lordships of the Supreme Court in the State of Rajasthan vs. Balchand had observed that the basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses. The experience reveals that the extremely poor undertrial prisoners like these petitioners are not likely to abuse the discretion of the court in enlarging them on bail.

(11) The State must take into consideration all these factors and in such cases must move the courts for relaxing conditions attached to the bail orders and in appropriate cases should even request the courts to release the undertrial prisoners on their executing personal bonds. If the State undertakes this exercise promptly, large number of problems faced by all concerned would be solved to a large extent.

(12) We have two categories of undertrial prisoners-the poor and the non-poor. The experience has shown that a non-poor under trial prisoners perhaps do not stay in a jail even for a few hours after he[she is directed to be released on bail, irrespective of the conditions attached to the bail orders. Personal bonds of several lakhs and multiple sureties of several lakhs are furnished within hours of passing of the release orders whereas there are also very large number of undertrial prisoners who are compelled to languish in jail for months and years for not even able to furnish even one surety of Rs. 500. to Rs. 1000. These are clear instance of depriving the undertrials of their freedom and liberty solely on the ground of poverty.

(13) One such indigent and distressed prisoner Shankar who was charged with a minor offence of theft approached this court by sending a petition through jail. In that petition, he had mentioned and the same is set out as under :- "APPLICANT is a very poor person, he has ailing wife with minor children. He is the only earning member in his family and his family is on the verge of starvation due to his long detention in jail. He has been in judicial custody since 10-6-1992 because of non-availability of two sureties, he is still languishing in jail."

(14) When the case of Shankar came to the notice of this Court, the court of course issued notice to the State counsel and thereafter reduced and relaxed the conditions attached to the bail order and consequently Shankar was released.

(15) SHANKAR'S case was really an eye opener. This Court visualized that because of the poverty, ignorance and illiteracy in our country, there may be many more such unfortunate undertrial prisoners who may be languishing in jails despite bail orders. In this background, this court thought it appropriate and consequently directed the Inspector General (Prisons), Delhi to submit a complete list of all undertrial prisoners lodged in jails of Delhi State who could not be released on bail despite bail orders having been passed in their favor.

(16) In pursuance of the directions of this Court, the then Inspector General (Prisons) M/s. Kiran Bedi filed a detailed and comprehensive affidavit and submitted that 368 prisoners as on 11-11-1994 are.languishing in jail despite release orders of bail in their favor because they could not fulfill the conditions attached to the bail orders. Thereafter, this court appointed several practicing lawyers of this court as court commissioners to scrutinise the cases of such undertrial prisoners and collect more information regarding their family background, their roots in the community and financial background. The Court Commissioners after visiting jails submitted applications of their release. After verifications, the Court released about 107 undertrial prisoners.

(17) Thereafter, the Inspector General (Prisons) was asked to up-date the list and submit the list of the undertrial prisoners who are presently lodged in various jails of Tihar.

(18) The Inspector General of Prisons has submitted two lists covering all undertrial prisoners as on 1st June, 1995 who could not be released despite bail orders. A large number of undertrial prisoners have already been released and all other remaining 155 such undertrial prisoners are being released by separate 155 bail orders today.

(19) It may be pertinent to observe that despite various general directions by their Lordships of the Supreme Court, the administration had neither comprehended the directions in its correct perspective nor had made efforts to implement them. Otherwise, it would not have been necessary for this court to pass these orders. Therefore, in the matter of these undertrial prisoners; this court in the larger interest of justice, deems it appropriate to depart from the practice of only giving general directions but would like to pass fresh bail orders in all such cases after relaxing the conditions attached to the bail orders so that hundreds of these languishing undertrial prisoners can be released forthwith who despite the bail orders they could not be released.

(20) I have heard Mr. R. D. Jolly and M/S, Mukta Gupta, the learned counsel for the State. In the interest of justice, I deem it appropriate to relax and reduce the conditions attached to the bail orders. The office of the Inspector General (Prisons) has provided two lists. The undertrial prisoners in category, 'A' are facing trial for relatively minor offences. All the undertrial prisoners in this category are released on furnishing personal bonds.

(21) The category 'B' reflects the ca.ses of those undertrial prisoners who have been charged with major offences. This court deems it appropriate even to vary the terms and conditions of undertrial prisoners in that category. Therefore, all undertrial prisoners in this category are released on furnishing a personal bond as well as one surety in the amount of Rs. 1000 to the satisfaction of the concerned court.

(22) In case even after relaxing and reducing the conditions of bail bond, still in case any undertrial prisoner is finding it difficult to furnish any surety, then he will be at liberty to move this court. I also deem it appropriate to direct the Inspector General (Prisons), to file a comprehensive affidavit within 4 weeks from today indicating the names of those undertrial prisoners who could not be released despite orders of this court. The affidavit must indicate the reasons for not securing their release from jails. List this matter for further directions at 2 P.M. on 3rd July, 1995.

(23) I have carefully considered all facts and circumstances, in order to eliminate or in any event minimise the possibility in future of such undertrial prisoners languishing in jail despite bail orders. I deem it appropriate, in the interest of justice, to direct the office of the Inspector General (Prisons) to submit a report in all cases to the concerned courts for obtaining appropriate directions, where undertrial prisoners have not been released despite release orders after four weeks from the date of the bail orders.

(24) A comprehensive list of the undertrial prisoners reveals that there are large number of undertrial prisoners facing trial in the Mdps cases. Since 10 Additional Sessions Judges are now dealing with the Ndps Cases in Delhi, therefore, I deem it appropriate to direct that the cases of undertrial prisoners who have already remained in jail for more then 5 years shall be taken on day to day basis. The learned Additional Sessions Judges dealing with the Ndps cases are further directed to hear arguments and proceed to pronounce judgments as expeditiously as possible. The learned Additional Sessions Judges need not wait for directions in individual cases.

(25) I would like to place on record this courts deep sense of appreciation to Mr. R. D. Jolly and the Inspector General of Prisons and his colleagues for providing valuable assistance to this court in this case.