"Issues Of Undertrials Standing Stubborn Against Face Of Democracy": Rajasthan HC Grants Bail To NDPS Accused In Jail For 6 Yrs

Observing that despite Supreme Court guidelines, and legal and executive reforms, there is no significant improvement in the state of the under-trials, the Rajasthan High Court recently granted bail to an NDPS accused in view of his over 6 years incarceration as an under-trial.

"This Court is anxious over the fact that jails debilitate the under-trial prisoners and if after the long wait, the accused is ultimately acquitted, then how would the long years spent by the under-trial in custody be restored to him/her/them...The issue of a large number of under-trial prisoners and their poor living conditions has been standing stubborn against the otherwise incandescent face of our democracy," the bench of Justice Farjand Ali remarked.

Further, the bench specified the following factors while adjudicating a bail application against the backdrop of the right to a speedy trial:

i) The delay should not have been a defence tactic. Who has caused the delay is also to be seen. Every delay does not necessarily prejudice the accused.

ii) The aim is not to interpret the right to a speedy trial in a manner so as to disregard the nature of offence, the gravity of punishment, the number of accused and witnesses, prevailing local conditions and other systemic delays.

iii) If there is a strong reason to believe that the accused will surely flee from justice if released on bail and it will be a hard task for the investigating agency to re-apprehend him, then the benefit of bail should not be extended in his favour.

iv) If it is shown by placing compelling material on record that the release of the accused may create a ruckus in the society or that he will create such a situation wherein the prosecution witnesses will not come forward to depose against him or that he may otherwise hamper the evidence of prosecution in any other manner, then utmost caution needs to be exercised in such cases before granting bail to the accused.

The bench, however, added that the (iii) and (iv) points are to be considered only when strong and cogent evidence is placed on record or a compelling reason in support has come to light but surely not just on the basis of a simple, blanket submission made by the counsel appearing on behalf of the prosecution/complainant/victim.

The Court further observed that while hearing a bail plea, if there appears the slightest possibility of acquittal of the accused based on any of the submissions made by counsel for the parties, then there is no harm in inclining towards extending the benefit of bail in favor of the accused so far as it is limited to the justifiable disposal of the bail.

"...this Court is of the firm view that the accused should be released on bail if he has been incarcerated pending trial for more than a reasonable period of time unless extraordinary and overwhelming circumstances prevent the Court from doing so...It is the duty of the prosecutor as wells as of the Court to ensure that the prosecution evidence is produced within a reasonable period which must not be an unfair and unjust. In order to justify period of incarceration pending trial, the aid of provision for setting off period of incarceration suffered pending trial with the term of imprisonment decided by the convicting Court in the order of sentence cannot be taken in cases where the trial went on for a long period of time and ultimately resulted into acquittal," remarked the Court.

In a detailed judgment outlining the fundamental right of the accused to a speedy trial and discussing its evolution, the bench referred to an array of Apex Court judgments to observe that an under-trial prisoner cannot be made to wait for the conclusion of the trial for an indefinite period as pre-conviction detention is punitive in nature to a certain extent and goes against the settled principle of criminal jurisprudence that the accused is presumed to be innocent until proven guilty.

The Court also took into account the pitiable state of the prisons in the Country as it noted that prisoners in India sleep in turns as there is no space for all of them to sleep at the same time.

"They are packed like sardines in the cells and are deprived of basic needs like balanced diet, sanitation, sewage, hygiene etc. From food and ration to commodities like soap, detergent, toothpaste etc., everything is provided by the state in measured quantities for the number of prisoners that the prison is designated to hold and not for the number of prisoners that it actually holds in reality. In such cases, an under-trial prisoner cannot be subjected to such harsh and inhuman conditions for eons," the Court sternly observed.

Further, the Court also opined that it is high time that the judicial system works on the lacuna of implementation and ensures that a trial is concluded as expeditiously as possible.

The Court also said that the State should maintain a computerized record of all the prisoners and use tools that would indicate the names of the prisoners who have become eligible for release under Section 436A and the names of the prisoners who have otherwise spent a long duration awaiting trial from the database.

The Court also suggested that there should be a reservoir of police officials as well as legal-aid lawyers in the State to secure the presence of an undertrial prisoner before the lower court timely and to see that no prisoner awaiting trial is made to stay in the prisons longer than necessary.

Significantly, the Court also said that the lawyers should take up such cases pro bono every now and then as so many of the prisoners awaiting trial in the prisons are poor, illiterate, or lacking proper primary and secondary education and are unable to chart out their legal course of action.

Regarding the case of the petitioner, the Court, while considering the above observations, especially the right to the speedy trial being a fundamental right, the over-crowdedness, and a skewed prison-prisoner ratio, the rightful object of detaining an arrestee and being cognizant of the rigor of Section 37 of the NDPS Act, and in light of the guiding pronouncements of the Apex Court on this issue, though it just and proper to enlarge the petitioner on bail.

Appearances

For Petitioner(s) : Mr. Anil Kumar Upman, Mr. Devanshu Sharma

For Respondent(s) : Mr. Mahendra Meena, PP

Case title - Suraj v. State Of Rajasthan

Case Citation: 2022 LiveLaw (Raj) 254

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