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WRITTEN BY – Vishad Srivastava
Reasons for the prolonged incarceration of undertrial prisoners.
The power of the police to arrest people is very wide and they arrest people even when they cooperate with the investigation and are not likely to evade trial. This results in unnecessary detentions. This problem has now been addressed in the CrPC (Amendment) Bill, 2006 which awaits Presidential assent. This Bill amends the existing provisions for arrest i.e Section 41 (and also inserts Section 41-A into CrPC). Section 41 limits the indiscriminate powers of arrest of police officers. A person cannot be arrested merely because there is a complaint against her/him. It must be a “credible” complaint/information and the police officer must “have reason to believe” that “such person has committed the said offence”. In cases involving an offence punishable with imprisonment up to a maximum of seven years, the police officer can arrest a person only under certain specified condition laid down in the law. The officer must record her/his reasons for arresting in writing. In cases, where the specified conditions are not met, the police officer may, instead of arresting a person, issue to her/him a notice ofappearance. This requires the accused to appear before the police officer when required and to cooperate with the police officer in the investigation of the offence.This provision, if properly implemented, will lead to a vast reduction in the number ofpersons—accused for offences punishable up to 7 years—who would have otherwise ended up being detained in prison during the period of investigation, inquiry or trial oftheir offence.
Inability to provide security
Many poor people are detained in prisons for alleged involvement in bailable offences primarily because they are unable to furnish surety. This is a serious concern because in such cases bail is a matter of right and people end up spending long periods in jail merely because they are poor. This situation led to the amendment of Section 436 in 2005. It mandates the police or court to release an indigent person on personal bond without asking for any surety. The amendment allows an indigent person to execute a bond that she shall appear before the court and stand trial. The section states that the court shall consider any person who is unable to furnish bail within 7 days from the date of her/his arrest as indigent. Therefore, now a person accused for a bailable offence can be detained in prison for a maximum period of 7 days only.
Many prisoners are constrained to languish in prisons because the police do not finish investigation and file the charge-sheet in time. This is a very serious matter because such people remain in prisons without any inkling of a police case against them. Proper and prompt enforcement of Section 167 CrPC can however obviate this difficulty. Section 167 CrPC lays down the maximum period within which the police investigation must be completed and a charge-sheet filed before the court. This period is 90 days for offences punishable with death, life imprisonment or imprisonment for a term of not less than ten years, and 60 days for all other offences. Where the investigation has not been completed within the stipulated time-frame, it is mandatory upon the Magistrate to release the accused on bail, provided he is ready to furnish bail. This provision shields the accused from suffering incarceration on account of the inability of the investigating agency to wind up its investigation.
It is also noticed that many prisoners are charged with a non-bailable offence which is not very serious and is triable by a Magistrate. They remain in prisons for long period because of the delay in trial. Section 437(6) was enacted to prevent this and makes it mandatory for a person to be released on bail where the trial has not concluded within 60 days from the first date fixed for taking evidence. The Magistrate may however refuse such release, but only after recording the reasons in writing.Many undertrial prisoners are detained in prisons for long periods, which in some cases extend beyond the maximum period of imprisonment prescribed for the offence with which they are charged. The system responded to this situation by enacting Section 436-A which spells out the right of an undertrial prisoner to apply for bail once she/he has served one half of the maximum term of sentence she/he would have served had she/he been convicted. On a bail application filed under this section, the court shall hear the public prosecutor and may order the:
(1) Release of such person on a personal bond with or without surety; or
(2) Release of such person on bail instead of personal bond; or
(3) Continued detention of such person.
This section further proscribes the detention of an undertrial prisoner beyond the maximum period of punishment prescribed for the offence that she/he is alleged to have committed. Therefore, in effect, this section prescribes the maximum period an undertrial can be detained in any case.