The Plight of Undertrial Prisoners(UTPs)

The issue is a matter of grave concern from angles more than one. It is a blatant truth that the system only allows wheels of justice to move at a dead speed. The result is that a large number of arrestees are incarcarating in jails as Undertrial Prisoners. Some of them have been under detention even after crossing the maximum period of imprisonment for the offences against the charge of which she/he is undergoing trial. This is not only a matter of human rights violation but also a serious challenge to the prison administration to say the least.
Prisons in India are overcrowded. About 67 percent of this crowd is constituted by Undertrial Prisoners who are, generally speaking, invariably poor and indigent. This implies that two thirds of our Prisoners are Undertrial. This speaks volumes of the pace with which the justice(?) is meted out by our criminal administration system. It has been found that their social and economic status disable them to arrange for surety. As a logical outcome thereof they are condemned to languish in jail for even minor offences. Where they can avail bail as a matter of rights they fail themselves for want of proper awareness and disability explained above.
This goes without saying that it is not only the UTPs who stand to forbear this system's incapacity to deal fairly with them but it also keeps prison administration under pressure of sorts. Meeting requirements which the Prisoners can have as a matter of their rights have become increasingly difficult leading to prisonhouse chaos and mismanagement. This makes prison maintenance costwise exorbitant yet deficient to the point of it being frowned upon by the human rights organizations and authorities.
Aimed at redressing these concerns the Code Of Criminal Procedure, 1973 was amended by way of insertion of a new Section 436-A therein through the Criminal Procedure Code Amendment Act 2005.
The Code thus amended provides for the maximum period for which an Undertrial prisoner can be detained. It reads as follows:
Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law(not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties:
Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties :
Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.
Hence u/s 436-A an undertrial prisoner (UTP) has the right to seek bail on serving more than one half of the maximum possible sentence on their personal bond. No person can be detained in prison as an Undertrial for a period exceeding the maximum possible sentence. This provision is, however, not applicable for those who are charged with the death sentence.
It can be safely said that this provision even today remains largely unpublicized to the knowledge of one and all including the UTPs. A good deal of work is still needed to spread awareness about the rights of arrestees as well as to provide them adequate legal aid. This accounts for the major reason for the continued detention of individual accused of bailable offences where bail is a matter of rights and order of detention is supposed to be an aberration. Therefore, the role of District Legal Services Authority(DLSA) becomes critical to the effective implementation of the amended provision as we are aware that
despite this legislative exercise, the implementation on this count is casual.
We do not have proper data to satisfy ourselves as to how many UTPs have been released by taking recourse to this provision under the Code.
In order to facilitate the process of release of the UTPs the Ministry of Home Affairs issued guidelines to the Home Secretaries of all States and Union Territory in the matter. Some of these are written hereunder:
1.A Review Committee in every district be constituted with the District Judge as Chairman, and the District Magistrate and Senior Superintendent of Police(SSP) as members to meet every three months and review the cases.
2. Jail Superintendent be given the task of conducting a survey of all cases where the UTPs have completed more than one fourth of the maximum sentence. This survey list be made available to the DLSA and the Review Committee.
3.Prison authorities be given additional responsibility to educate undertrial prisoners on their rights to bail.
4. Services of DLSA empanelled lawyers be made available to the UTPs in so far their cases are required to be presented for release on bail.
5.An effective Management Information System(MIS) should be developed to ascertain the progress made jail-wise in this regard.
If these positive actions pursuant to the above guidelines are adopted in letter and spirit there is every reason to believe that it will go a long way in prison reform program as also the human rights concern of the State.
The implementation of the provisions of even plea bargaining introduced in the Cr.P.C with a view to curb the undertrial population is also largely unstudied to enable us with data to support its introduction.
The writer of these lines has had the opportunity to serve for many a year in the Legal Section as In Charge Deputy Collector of District Collectorates where this Office (Section) of Collectorate has to work closely with the DLSA on various occasions. On the basis of such association he feels prompted to conclude that if the Review Committee happens to sit regularly and scrupulously with proper facts and figures supported by survey a great change will ensue in the future of criminal justice administration in our country. But this is not happening to cope up with requirements of the task that is mammoth. Everything is done, yes done; but not in the way that creates visible/ measurable difference.
R.R.Prabhakar.
11.02.2019.