Delay In Release After The Bail Order

We, the students of Maharashtra National Law University Nagpur, have conducted a study in Delhi on this issue in the last two weeks as part of the internship programme with the Livelaw. Our study is confined to a few courts in Delhi. The major findings of the study is shared for the benefit of the authorities concerned.

The delay in release of persons who were granted bail caught the national attention when son of Mr. Shahrukh Kahn was arrested and released on bail. His son, Mr. Aryan Khan's bail order was signed on 28^th October 2021, but he was released only on 30^th October 2021. There was a delay of 2 days in his release. He had the best lawyers in India, his father, who is one of the most influential and richest actors, had all resources at his disposal, still he had to undergo this ordeal. If this happens to Aryan Khan, what would be the fate of an ordinary citizen ?

As per the reports, it was caused due to the paperwork at sessions court, when the release memo was typed the electricity at court went off for more than half an hour. Due to this, the bail order was not processed in time. Release of a person from custody cannot be delayed even for an hour after his release order is signed, but in practice it never happens.

There are host of issues which can be addressed with proper strategy and planning. To understand the system better, the authors have interviewed many trial court lawyers, Magistrates and secretary of Delhi State Legal Services Authority. Some of the reasons the authors have discovered are mentioned in this article.

Overburdening Of The Courts

The Delhi trial courts are overburdened with thousands of cases. A district judge informed us that he is assigned more than 150-200 cases a day. The workload is unimaginable and he can't even force his staff to support more because they are also equally exhausted. The trial courts are the contact points of justice delivery system and it is not the case that judges or court staff are not aware of the constitutional rights of the accused or undertrial prisoners. They have been conditioned to ignore the pathetic situations and learn to work and complete the process within the least possible time. In this process, there is no much of scope for human sentiments or other values which we normally expect.

Amount Of Bail Bond

The amount of bail bonds is a major issue. Sometimes the magistrates set bail amount so high that the poor accused are not able to arrange. Since, majority of the accused and undertrial prisoners are belonging to the lowest strata of the society, they are forgotten by the system itself. During our interview with the Chief Metropolitan Magistrate Dr. Pankaj Sharma, of Patiala House Courts, he said that "Higher amount of Bail Bond is another ground for further detention of accused because accused belonging to poor strata of society are unable to arrange security and the court must order bail bond considering the mandate of judgement entitled Moti Ram v. State of MP, 1978 AIR 1594." Unfortunately, this is not a fact with every Magistrate of the country.

Local Surety

Courts while granting bail prefer local sureties. During our interview with a one of the District judges, he said that the local sureties are preferred because it makes easier for the court to verify the records. Additionally, when the local sureties are most often friends and relatives, and if they are involved, there is less chance of the accused jumping the bail. But the preference of the court to accept local sureties makes it difficult for accused who are from outside the state where the court is situated. The accused from such places are unable to find a local surety. He would be compelled to arrange the local surety in Delhi by approaching someone who is arranging surety for a price. Since, most of the outside accused are strangers, they are exploited by some of the lawyers and undesirable elements in the police force.

This situation can be better explained with an illustration. If a person from Kerala is arrested in Delhi, he would be compelled to arrange a local surety in Delhi. In such a situation, he would be depending on someone who is arranging a local surety for a price. Such 'arranged' sureties will be charging a huge amount over and above bail amount fixed by the court.

Another district judge mentioned to us about an accused from Nigeria. The Nigerian citizen had to spend a further period of 8 months after the grant of bail, as he could not arrange the surety. Finally, the judge passed an order to accept cash surety instead of personal surety. The court may have best of intentions when they pass such orders to ensure the availability of the accused for the trial, but the system badly needs an overhauling.

Spelling Mistakes

Spelling mistake in the bail order is also a reason for the delay. These spelling mistakes are just a mistake or 'intentional mistakes'. The spelling mistakes while writing the name of the accused, father's name, address, etc. are enough to deny the release of the accused or undertrial prisoners from the jail. The jail authorities will have to send back the bail order to the court, which granted the bail, once again for correcting such mistakes. If the court staff is not 'happy', there can be intentional spelling mistakes too. A lawyer who has been practicing for 20 years in Delhi, explained that sometimes the reason of spelling error is the language barrier. A name can be written with different spellings in English. For example, both 'Sonipat' and 'Sonepat' are acceptable spellings in English, in the FIR the word 'Sonipat' might be written whereas in bail order, 'Sonepat' might have been typed. The jail authorities would take objection to this and delay the release.

Time Taken Due To Different Jail Blocks

A Metropolitan Magistrate of New Delhi conveyed that even if the bail order reaches Tihar Jail in time, delay can occur due to the faulty jail administration. In Tihar, there are different blocks manged by different Jail Superintendents. The bail order should reach concerned Superintendent from the main gate. Carrying the bail order to respective blocks from the main gate takes time. Most often, in the case of poor and marginalised people, bail orders are not communicated to the accused or concerned superintendents immediately.

Delay In Preparing The Bail Order

The Magistrates are overburdened. They have to dictate many bail orders on daily basis and after the dictation, the stenographers should type and take a print out of the same for correction. During our interviews, we found out that there is an acute shortage of stenographers. For some reason, the concerned stenographer is on leave, they have to struggle to find a replacement from existing pool.

Delay In Dispatching The Bail Order

As initiated by the Supreme Court, the trial courts in the country need to be technologically equipped. The time is taken for dictating the bail order, typing the same, correcting it, dispatching through the police, verification at the jail authorities etc. involve a large amount of physical work. Everything is dependent on the officers involved in the work. The courts cannot send orders after 5 pm and jail authorities cannot release a person after 6 pm

For habitual offenders, the delay in release after signing the bail order is not a major issue but when the innocent people are in custody, every second in custody is violation of their constitutional right. In some cases of political nature, the police, prosecution and jail authorities would be acting in tandem to delay the release

Verification Of Surety

Verification of documents of surety is another major issue faced by judicial officers. Sometimes people submit fake documents. Since, the verification happens only after the bail order, the time taken for such verification also contributes to the delay. While interacting with the advocates, we have come to know that Investigating Officer assigned to the case do not normally verify all the details about the accused such as father's name, address, etc during the investigation. Many times, names and addresses are written causally which causes mismatch and affect the verification process later.

A Few Suggestions To Improve The System And Reduce Delay In Release Of Prisoners

1. Advocates should be careful while filing bail bonds, to make sure that names, address, photo of sureties are all correct and free of errors.
2. The Investigating Officers should verify all the details such as name, father's name, address, etc. during the investigation itself, so that there is no mismatch during the period of verification.
3. The verification of surety is done by Investigating Officer personally and if he is busy, it causes delay in verifying the addresses.
4. There should not be time restriction on the bail courts for preparation of bail orders and release of prisoners from the jail.
5. Regarding the local surety, there should be a system of verification of sureties who are outside the state by a respective local authorities from the said state . In case a person from Kerala is standing as surety for an accused in Delhi, the verification and acceptance of the Kerala surety should be done by the Kerala authorities. The Magistrate in Delhi and the Magistrate in Kerala should be connected digitally.
6. Finally, and most importantly, there should be digitalisation and adoption of modern communication means.

The authors are students of Maharashtra National Law University, Nagpur. Views are personal.