Plea In Delhi High Court Against Detention Of Under Trial Prisoners Despite Completion Of Half Of Their Maximum Sentence

Section 436A of the Code prescribes the maximum period for which an under-trial prisoner can be detained.

It states that where a person has, during the period of investigation, inquiry or trial of an offence under any law, (except in cases where punishment of death is specified as one of the punishments) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence, he shall be released by the Court on his personal bond with or without sureties.

The plea filed by India Undertrial Prisoner Support Forum through Advocate Anubhav Taneja alleges that over 1200 under-trials lodged in Delhi prisons have completed half of their maximum sentence but only 416 such people have been released.

The petition therefore seeks forthwith release of such under-trials along with long term solution for decongestion of jails at Delhi, which are said to be exceeding its occupancy limit to twice its capacity.

"Even a single day delay in release of undertrial prisoners, who are entitled to that release as per Section 436A, will amount to serious violation of their right to life under Article 21 of the Constitution," the Petitioner-organization submitted.

The plea avers that there are two main reasons due to which undertrials continue to languish in jail despite the mandate of Section 436A.

Firstly, due to COVID-19 situation the UnderTrial Review Committee (UTRC) has not been able to meet its duties for release of the undertrial prisoners who have completed half of maximum sentence in minimum offence.

"The lack of such is due to non-implementation of the mandate as encapsulated by Hon'ble Supreme Court and Delhi High Court time to time in letter and spirit," it submitted.

Secondly, it is averred that these undertrials being in judicial custody lack sufficient means and are thus unable to raise their grievance before the Court.

"It is submitted that UTRC in Delhi has till September 2020 reviewed only 1024 cases for considering them under the mandate and guidelines of Hon'ble Supreme Court and Delhi High Court out which only 416 people have been released. Wherein the number of people who are eligible and have completed half of their maximum sentence is around 1205," the Petitioner submitted.

It added,

"The actual number of undertrial prisoner who fall under the ambit of Section 436ACrPC is much higher moreover such information is not correctly provided to the review committee by the prison authorities as they are still not adhering to the SOP of National Legal Services Authority which were adopted by the Hon'ble Supreme Court on 04.02.2018 for UTRC, which ensure detailed undertrial information in custody warrants."

It is significant to note that in terms of the directions passed by the Delhi High Court in Re-Inhuman Conditions in 1382 Prisons and as per the 'Standard Operating Procedure for Under-Trial Review Committees' that was adopted by the Apex Court in 2018,

Jail Authorities should inform the UTP and the concerned Court when the UTP becomes entitled to receive benefit of Section 436A CrPC.

However, this mandate is not being followed and as a result, it is submitted, the 16 Jails in Delhi that otherwise have a capacity of f 10,026 prisoners is maxed out with 17,440 inmates out which 14355 are UTPs.

The Petitioner has therefore urged the Court to:

• direct the Undertrial Review Committee and Jail Superintendent to verify the undertrial prisoners facing trial under multiple charges but have undergone sentence in lesser charge to be put in the category of prisoners to be released on bail;
• direct the Undertrial Review Committee, Jail authorities to provide fresh status of under trial prisoners on weekly basis who have undergone sentence in lesser charge to be put in the category of prisoners who can be considered to be released on bail within a week from time they are eligible in this category;
• direct the DLSA to provide statistical information of under trial prisoners in lesser charge on their website and where bail is applied through DLSA and its disposal rate
• direct the release of Undertrial who have undergone custody of 3 years or more where trial is conducted by a magistrate
• Allow undertrial prisoner who have completed half of lessor sentence in multiple offence to avail the benefits of S.436 A and approach concerned courts for bail directly

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