D M Bhalla vs State
2011 Latest Caselaw 596 Del

09
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 3465/2010


       D M BHALLA                                   ..... Petitioner
                             Through    Nemo.

                    versus


       STATE                                         ..... Respondent
                             Through    Mr. N. Waziri, Standing Counsel
                                        for GNCTD.
                                        Ms. Asha Menon, Member
                                        Secretary and Mr. Harish Dudani,
                                        Officer on Special Duty, Delhi
                                        Legal Service Authority.

       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE SANJIV KHANNA

                              ORDER

% 02.02.2011

The present Public Interest Litigation fundamentally pertains to

release of undertrials languishing in jail despite bail orders passed in their

favour on many a ground. In course of hearing, on earlier occasions this

Court had sought the assistance of Mrs. Asha Menon and Mr. Harish

Dudani, the Member Secretary and Officer on Special Duty, Delhi Legal

Services Authority, respectively for collection of data in respect of the

aforesaid aspects. This Court was also apprised of the decision rendered

by a two Judges Bench in R.D. Upadhyay Vs. State of A.P. and Others

(1996) 3 Supreme Court Cases 422 wherein the Apex Court had taken

note of the undertrials languishing in jail for non-furnishing of surety

despite bail orders granted in their favour and eventually directed that

barring certain categories of cases, the trial courts may consider the cases

of undertrials who are unable to furnish sureties to release on bail by

furnishing personal bonds.

2. On 8th September, 2010, this Court had passed a detailed order and

required Mr. N. Waziri, learned Standing Counsel for the GNCTD to

arrange a meeting between the Law Officers of all the jails in Delhi,

Member Secretary and Officer on Special Duty, Delhi Legal Service

Authority and the legal aid counsel and submit a proposal to this Court.

3. We have been apprised today that there has been a meeting and

accordingly a report and suggestions have been filed. In the said report, a

reference has been made to the decision of this Court rendered in Criminal

Writ Petition No.36 of 2002 titled Rotary Club District RI 3010 Vs.

National Capital Territory of Delhi & Another decided on February 21,

2003 wherein certain directions were given. In paragraph 3, the issues that

were debated upon in the meeting have been stated. In paragraph 4 of the

report certain suggestions have been enumerated. We think it appropriate

to reproduce paragraphs 3 and 4 of the report, which read as follows:-

"That a meeting was convened by the Standing Counsel (Civil), GNCTD the issues raised in the writ petition were discussed between Mrs. Asha Menon, Member Secretary, DLSA and Mr. Sunil Gupta, Law Officer of all jails in Delhi and the following issues were agreed upon:

a. That pursuant to directions of this Hon'ble Court in the abovenoted writ petition the bail orders granted by various courts are being regularly sent to the jail authorities.

b. A list of these orders is maintained. c. On the basis of the said information a weekly "List of Prisoners Granted Bail but Unable to Furnish Surety Bond" is prepared and sent to the District & Sessions Judge, Delhi by the jail authorities. This list includes the name of the petitioner along with his/her father's name, the FIR number along with the police station and the sections under which the prisoner has been charged, date of admission, court concerned, the amount of Bail Bond imposed, jail number and the presence status of the case i.e. whether the undertrial prisoner/convicted- prisoner has been released or not. A copy of the format of the said list is attached herewith as Annexure-1. d. The furnishing of this list to the District and Sessions Judge, Delhi is as per directions issued in para 7 (iii) in the aforesaid Rotary Club case.

e. It was hoped that thereafter the District and Sessions Judge/Chief Metropolitan Magistrate, as the case may be, would pass necessary directions within 15 days of the receipt of the above mentioned list, for release of the prisoner on relaxed surety conditions (if necessary)/personal bond with a copy to DG (Prisons) for informing the concerned persons about the action taken; and in cases where the prisoner was unable to produce any local surety and is not a resident of Delhi, Sureties from outside Delhi of the permanent place of

residence of the prisoner, attested by the District Magistrate of the place of residence of the surety would be considered.

f. It was also directed in the aforesaid Rotary Club case that:

"(vi) Special relaxation in the above time period of three months, could be given in deserving cases of females, adolescents, sick, old and infirm, first-time offenders by the District and Sessions Judge, Delhi."

4. However, the purported beneficiary of the bail order is often unable to enjoy the benefit of the same as he/she is unable to meet the terms set out in the bail order and/or is also often unaware of the procedure for relaxation/modification of the bail terms. This inability and some reasons therefore have been mentioned in the Rotary Club case. Therefore, it was proposed that: i. The Jail Paralegal Workers would gather instances and ascertain the reasons for the inability to meet the bail conditions and furnish it to the jail authorities and/or to the visiting lawyers of DLSA who, in turn, would prepare an appropriate application for modification/relaxation of the bail conditions. In cases where the undertrial-prisoner/convicted-prisoner have their own private counsel similar/appropriate suggestions would be offered to them by the visiting lawyers; and if so instructed the latter would draft and file requisite applications on behalf of such prisoners also;

ii. The bail order would be communicated by the Jail Authorities to the family of the undertrial- prisoner/convicted prisoner, with the latter's consent, so that the family could take steps to meet the bail conditions;

iii. To facilitate the release on relaxed bail terms or personal bond or acceptance of surety of land, the Gram Pradhan's/SDM's certificate that the prisoner is a permanent resident of the village/subdivision or is the owner of such and such parcel of land would suffice; iv. The Bail Granted Register, in which the list of the bails granted by the court concerned is maintained,

would be examined by the judge concerned to ascertain which undertrial-prisoner/convicted-prisoner has not been released from jail. Reasons for the same would be ascertained through video-conferencing and appropriate orders regarding relaxation/modification of the bail terms would be passed within ten days;

v. the bail application would be expedited and disposed off as soon as possible regard being had to the objective of release of the prisoner expeditiously and reasons for the delay as may be ascertained through video conferencing with the undertrial- prisoner/convicted-prisoner;

vi. In case of non-disposal of the cases within the above proposed timeframe the reasons for the same would be incorporated in the "Monthly Workdone Statement/Report" sent to the Supervising Judge/ High Court.

vii. In cases of conviction where an appeal is pending before the High Court and the sentence has been suspended the prisoner may be released on personal bond, if no local surety or cash surety is available (in view of the judgement in Moti Lal vs State of MP (1978) 4 SCC 47, Keshub Narayan Banerjee vs State of Assam AIR 1985 SC 1666."

5. On a perusal of the report, we are inclined to accept the suggestions

given in paragraphs 1 to 6. As far as paragraph 7 is concerned, we are

only inclined to state that if in an appeal a convict is released on bail and

is not in a position to avail the benefit of bail because of non-furnishing of

the requisite surety, he may file an application for modification of the

conditions imposed before by High Court, which shall be dealt with in

accordance with law. That apart, we may proceed to add once a bail order

is passed by this Court either under Sections 439 or 389(1) of the Code of

Criminal Procedure, 1973 or any other statutory provision relating to a

special enactment, the Registry shall intimate the same to the concerned

trial court within 24 hours. Similarly, if a bail application or appeal is

disposed of by the concerned Session Judge, the same shall be

communicated to the concerned trial court within 24 hours so that

appropriate steps can be taken. A copy of the bail order shall be sent to the

Jail Superintendent by e-mail, the details of which shall be furnished by

Mr. Waziri, learned Standing Counsel to the Registrar General of this

Court. Be it noted, all endeavours are being made so that the persons who

have been enlarged on bail do not suffer from loss of liberty because of

non-furnishing of surety.

6. The writ petition is accordingly disposed of.

7. A copy of the order passed today be supplied dasti under signature

of the Court Master to Mr. Waziri, learned Standing Counsel for the State

and be sent to the District and Sessions Judge, Delhi for due circulation

among the concerned Judges/Magistrates, who deal with trial of criminal

cases. A copy of the order be handed over to the Member Secretary, Delhi

Legal Services Authority so that it can carry out its pro-active role in a

matter of the present nature. The Member Secretary, Delhi Legal Service

Authority shall also sensitize the full time Secretaries of District Legal

Services Authority so that they can also do the needful in the matter.

CHIEF JUSTICE

SANJIV KHANNA, J.

FEBRUARY 02, 2011 NA