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WRITTEN BY – Vishad Srivastava
Undertrial prisoners constitute a significant majority of the prison population (65.7%). All the 2,45,222 persons who are within prisons as undertrials are presumed to be innocent in the eye of the law. How can a system that calls itself just and fair, justify depriving 2,45,244 “innocent” people of their liberty? NCRB Prison states: The consequences of pre-trial detention are grave. Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family. An effective criminal justice system inevitably needs to ensure that the accused stand trial for the crimes they are alleged to have committed. It is therefore necessary for the system to hold them till the trial is over. Depending on the gravity of the offence, the police are empowered to keep a person in their custody for 24 hours, after which any further detention must be authorised by the judiciary. The concern for individual freedom made the system, save a few exceptions, to opt for bail rather than jail. The Code of Criminal Procedure, 1973 (CrPC) does not define the term “bail” although offences are classified as bailable and non-bailable. The former are less serious offences and any person accused of committing these is entitled to be released on bail as soon as she/he is willing to furnish bail.7 When accused of committing non-bailable offences, a person can only be released on bail by the court if it is satisfied that the person shall attend the court to stand trial; will not tamper with evidence or influence witnesses or obstruct police investigation in any manner; will not commit any other offence or hinder the interest of justice. Despite sounding fair, the bail provisions and their implementation are highly discriminatory. As far back as 1971, the Legal Aid Committee appointed by the Government of Gujarat noted:
The bail system causes discrimination against the poor since the poor would not be able to furnish bail on account of their poverty while the wealthier persons otherwise similarly situated would be able to secure their freedom because they can afford to furnish bail. This discrimination arises even if the amount of the bail fixed by the Magistrate is not high, for a large majority of those who are brought before the courts in criminal cases are so poor that they would find it difficult to furnish bail even in a small amount. The evil of the bail system is that either the poor accused has to fall back on touts and professional sureties for providing bail or suffer pre-trial detention. Both these consequences are fraught with great hardship to the poor. In one case the poor accused is fleeced of his moneys by touts and professional sureties and sometimes has even to incur debts to make payment to them for securing his release; in the other he is deprived of his liberty without trial and conviction and this leads to grave consequences.The Supreme Court has held that the unwarranted “cruelty and expensive custody” inherent in the case of “avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible”. In fact in a large number of cases, pre-trial detention is avoidable and unnecessary. Indiscriminate arrests by police, ignorance oflegal rights, delay in trial, reluctance of the courts to grant bail and inability to provide surety are some reasons that have led to the unnecessary detention of large number ofpeople. The Supreme Court has recognised this for years and has been devising ways and means to secure the release of undertrial prisoners on bail. The Union Government has also realised the gravity of the situation and amended CrPC to incorporate liberal provisions of bail. Arguing that the non-implementation of the existing legal provisions is a major reason for the large undertrial population lodged in prisons, this article explores the dispensation of bail under CrPC. It further urges the prison authorities and the prison visitors to pay attention to as well as play a positive role in ameliorating the plight of undertrial prisoners.