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WRITTEN BY – Vishad Srivastava
Legislative and judicial response critically examined
Even though the provisions to avoid unnecessary detention of undertrial prisonershave been in existence for years, they are not implemented, resulting in a largenumber of undertrial population within prisons. The reasons for non-implementation are obvious. Most prisoners who are unable to use the provisions under Section 167 or 437(6) are not only unaware of their right to seek release but are also too poor to furnish surety.The law does not mandate the State Legal Services Authority, Jail Superintendent or the trial court to inform the accused about these provisions. For example, almost three years have passed since Section 436-A was introduced, but it is yet to have the impact that it sought to achieve. At the time of enactment, news reports stated that the introduction of this provision would impact as many as 50,000 undertrial prisonersacross India. However, so far there has been no substantial change in the number of undertrial prisoners.Although some High Courts have issued directions for the release of undertrialprisoners under these provisions, results are yet to be seen. A decision of the Patna High Court is worth mentioning in this regard. In that case the Court suo motu initiated a PIL for the efficient and effective implementation of Section 436-A CrPC. The Court explained that the Jail Superintendent, the Inspector General (Prisons) and the Legal Services Authorities should take interest for the implementation of this section. In its directives, the Court entrusted the Jail Superintendent with the primary duty to inform the undertrial prisoners of the benefits of Section 436-A CrPC. The Inspector General (Prisons) was assigned the role of a “Monitor” for the whole process. In a disposition regarding Section 436 CrPC, the Bombay High Court in October 2008 took up the issue of undertrial prisoners in bailable cases who could not furnish bail. During the proceedings, it was submitted that in one of the prisons within Bombay itself, 1660 out of 2296 inmates were booked in for bailable offences. The Court decided to undertake the task of monitoring the situation for a year and directed all Sessions Judges of the State to call for periodical records from the Magistrates and Jail Superintendents. With regard to the implementation of Section 436, the Court stated that the State Government and jail authorities should not ignore the law and allow such persons to stay inside jails.
The response of prison administration
Though in India it is the subordinate judiciary that is assigned the primary task ofensuring the enforcement of the provisions under CrPC, prison authorities and prison monitors also have a significant role to play to ensure justice to undertrial prisoners as has been made clear in the abovementioned judicial pronouncements.
The custody and security of prisons and prisoners within it are the fundamental duties and responsibilities of every member of the prison staff. The executive personnel in prison i.e the Superintendents, Additional Superintendents, Deputy Superintendents, Assistant Superintendents and the guards staff are entrusted with the primary responsibility to ensure that the human rights which the prisoners are entitled to are not impinged upon and restricted beyond the limit inherent in the process ofincarceration itself.
Under the Prisons Act, 1894, the Superintendent must maintain a register of all prisoners admitted and a book showing when each prisoner is to be released. The Superintendent has easy access to information relating to the period of detention ofeach undertrial prisoner under his custody, and hence it should be his duty to inform the prisoner when she/he might become eligible to apply for bail under the various provisions of CrPC. Indeed, the Patna High Court seems to agree with this contention and has directed the Superintendent to inform the prisoners of the benefits of Section 436-A.Arguably, the prison staff are the primary custodians of prisoners, and have the advantage of being in direct contact with them. They should undertake the responsibility of making prisoners aware of the benefits that might accrue to them under these provisions. They should impart legal information in all forms, written or oral among undertrial prisoners to make them aware of their right of release under the relevant provisions of CrPC. The prison authorities should also encourage and assist the dispatching of applications for free legal aid to the competent authorities in cases where the prisoner cannot afford expenses.