If Bail Bonds Not Furnished Within One Month, Trial Courts May Consider Suo Motu Relaxing Conditions : Supreme Court

The Supreme Court, while hearing the issue of undertrial prisoners who continue to be in custody despite having been granted the benefit of bail, has said that the country's prisons are overburdened by 5000 people every month merely because of their inability to furnish a bail bond.

The top court bench comprising Justices Sanjay Kishan Kaul and Abhay S Oka was hearing a Suo Moto Writ Petition that was instituted for the purposes of issuing a comprehensive Policy Strategy for grant of bail.

During the hearing, Amicus Curiae Advocate Gaurav Agrawal, while referring to a report submitted by NALSA, stated that, "There are 5000 undertrial prisoners who have been in jail despite grant of bail, out of which 2357 have been provided legal assistance and now 1417 persons have since been released."

"This number is only for one and a half month. This number keeps adding on. More people languish," Agrawal further added.  

One of the main reasons that was flagged by Agrawal as to why accused are in jail despite the grant of bail is that they may be accused in multiple cases and apparently not willing to furnish bail bond until they are given bail in all the cases as undertrial custody will be counted in all the cases. 

The court after hearing the Amicus and the suggestions submitted, passed seven detailed directions on the issue. One notable guideline is this - "If the bail bonds are not furnished within one month from the date of grant bail, the concerned Court may suo moto take up the case and consider whether the conditions of bail require modification/ relaxation". Separate report on other directions can be read here.

The bench observed in the order that, "...to ensure that the remaining undertrial prisoners who are unable to furnish surety or bail bonds due to poverty, NALSA is in the process of creating a master data of all such undertrial prisoners in excel sheet with all relevant details, including, reasons for non-release and steps qua persons who are unable to furnish bail bonds or surety are being taken up with the respective SLSAs/DLSAs and result would be obtainable in about one or two months’ time." 

The order further stated, "...the NIC e-prison software, which is working in about 1,300 jails in the country, would now have a field where the date of grant of bail would have to be entered by the jail authorities. If the accused is not released within seven days of the date of grant of bail, the e-prison software would automatically generate a flag/reminder and simultaneously the e-mail would be sent to the office of the concerned DLSA so that the DLSA can find out the reason for non-release of the accused." 

After passing detailed orders, Justice Kaul orally remarked, "See 5000 people have been granted bail but are still in prison. That means the country’s prison are overburdened by 5000 people because of not furnishing of bail bond."

Justice Kaul then asked the Additional Solicitor General KM Nataraj, who was present in the court, to, "Keep emphasising to the government that a proactive approach is required in this."

"If we declutter the jails, declutter the criminal justice system from such cases so that the system can concentrate on more heinous cases. There are multiple ramifications. Trial takes time. Then government files appeals after appeals," Justice Kaul added. 

Justice Kaul made the above remarks after he had inquired from the ASG regarding the status of an order order that authorities should consider granting bail to prisoners who have completed 10 years in custody and prematurely releasing those who had completed 14 years in custody. Justice Kaul said, "Some matter I had mentioned to you the issue in one of the orders of 75th year of our Independence, what has happened in that? I am only concerned with the observation I had made in the context of the Azadi Ka Amrit Mahotsav. Has something moved or not moved?" 

ASG Natraj replied and said, "Yes, it has moved and instructions have bene given, circulars have been issued. However, power is vested with the State governments. It is they who have to implement. We deliberated o that particular issue."

Justice Kaul replied and said, "So, we can then next time issue some directions for the States. I wanted to know whether the role which was supposed to be played by you has been fulfilled. If that is then we will issue next stage of directions to the states." 

"I wanted to know if the Union government has formulated a policy. The we can request the states to follow. Policy in these terms that say upto 7 years or 10 years, whatever, we can be liberal on this issue, and some of them who have undergone a certain time in prison and if they agree to give a bond, finish off those cases. That was the objective. It was two-fold. Declutter the jails and Concentrate on more heinous offences," Justice Kaul added. 

Natraj replied and said, "We have been working on that and specially after the Hon’ble Court took up the issue the situation has changed. We are pushing for it. We can’t push the state otherwise they will say federalism issue." 

Justice Kaul then remarked, "On this issue I don’t think they will have any resistance especially if the court has been observing and the court gives a push whether to act. I am sure it’s not something they will not cooperate on. Afterall its a trouble for them also. They are prosecuting x number of cases. It goes on. We can give a little bit of nudge or push wherever required." 

Recently while hearing the Delhi riots larger conspiracy case, Justice Kaul had said, "We don't believe in unnecessary putting people behind bars."

On another occasion, while delivering a lecture in Varanasi, Justice Kaul had recently said that to dispose of the pending cases on bail and remission, some kind of a revolution, an out of the box thinking, was required or it it would take 500 or even 700 years for the judiciary to dispose them. He had further pointed out that, "33% of the cases to Supreme Court were bail applications. This needs some kind of an introspection."