Law, Bail & the

undertrial
A Presentation on :
Rights of Undertrial prisoners
Effective Implementation of Sections 436 & 436A of the CrPC
Latest Judicial Pronouncements
By Bharat Chugh & Harjeet Singh Jaspal
(DJS)

What is Capital Punishment ?

Its the punishment reserved for

people without capital
Bryan Stevenson - Just Mercy

Anti Poor Bias of the Criminal

Justice System is the most
manifest in the Law of Bail.

Prisoners are peculiarly and doubly handicapped.

For one thing, most prisoners belong to the weaker
segment, in poverty, literacy, social station and the
like. Secondly, the prison house is a walled-off world
which is incommunicado for the human world, with
the result that the bonded inmates are invisible,
their voices inaudible, their injustices unheeded. So
it is imperative, as implicit in Article 21, that life or
liberty, shall not be kept in suspended animation or
congealed into animal existence without the
freshening flow of fair procedure.

- Honble Supreme Court in In Re-Inhuman

Conditions in 138 prisons (2016 SC)

Jail, not bail !

Convicts & Others; 33%

Undertrials; 67%

67 % of jail inmates in India are undertrials. (as opposed to US

where pretrial detainees are a mere 21 %). In Tihar, the situation
is even worse where 78 % of inmates are undertrials.
Out of a total of 13,970 people, a shocking 10,853 of Tihars
inmates are undertrials.
This is disconcerting, since the overall conviction rate is a dismal
38.5%.
Thus, many people who serve extended periods of jail time
would ultimately be acquitted by the courts, in due course. The
question that arises is, how do we recoup them for prolonged
detention as an undertrial.
Therefore, undertrial detention or pre-guilt has substantial
punitive content and ought to be avoided, as far as maybe.

Bail in bailable offences

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*
*
*

In a bailable offence - the court/police shall

release the accused on bail, with or without
sureties. (S.436)
The court may order release on bail even
without sureties, if it thinks fit, or where the
accused is an indigent. (proviso to S.436)
the court shall order release of an indigent on
his executing a personal bond.
If a person is unable to give bail within a week
of his arrest, he shall be presumed to be an
indigent for the purposes of preceding benefit.
(Expln to Proviso to S.436)

436-A of the CrPC

Introduced in 2005 to mandatorily release on bail
all undertrials who have already served half the
maximum sentence prescribed for the offence for
which they have been charged with.
Mandates release on personal bond with or without
sureties.
Proviso : Court may order continued detention for
reasons to be recorded in writing, after hearing the
PP, if detention is necessary.
Exception : Offences punishable with death penalty.

Statement of Objects and Reasons

Behind Section 436-A of the CrPC

There had been instances, where undertrial prisoners

were detained in jail for periods beyond the maximum
period of imprisonment provided for the alleged
offence. As remedial measure Section 436-A has been
inserted to provide that where an undertrial prisoner
other than the one accused of an offence for which
death has been prescribed as one of the punishments,
has been under detention for a period extending to onehalf of the maximum period of imprisonment provided
for the alleged offence, he should be released on his
personal bond, with or without sureties.

It has also been provided that in no case will an

undertrial prisoner be detained beyond the maximum
period of imprisonment for which he can be convicted
for the alleged offence.

Bhim Singh versus UOI

(2015) 13 SCC 605
Honble Supreme Court has directed for effective
implementation of Section 436A of the Code of Criminal
Procedure by directing the jurisdictional Magistrate/Chief
Judicial Magistrate/Sessions Judge to hold one sitting in a
week in each jail/prison for two months commencing from
1st October, 2014 for the purposes of effective
implementation of section 436A of the Code of Criminal
Procedure. In its sittings in jail, the above judicial officers
shall identify the under-trial prisoners who have completed
half period of the maximum period or maximum period of
imprisonment provided for the said offence under the law
and after complying with the procedure prescribed under
Section 436A pass an appropriate order in jail itself for
release of such under-trial prisoners who fulfill the
requirement of section 436 A of Cr P. C.

In cases of an accused facing trial for

different offences, the question that
arises is, whether the period to be
reckoned for the purposes of Section
436-A is the imprisonment for the
gravest offence or any offence that the
accused might be arraigned for ?
eg : A commits theft and in the process
also causes hurt. He might be charged
u/s 379, 392 of the IPC. S.392 attracts
the maximum punishment of 7 years,
whereas S. 379 is punishable with a
maximum of 3 years.

There is no authoritative ruling on this point,

as yet. However, the Honble Supreme Court
of India in

In Re-Inhuman Conditions in
138. (February, 2016)
has held :
4. In the meeting to be held on or about 30th June, 2015, the Under Trial
Review Committee should consider the cases of all under trial prisoners
who are entitled to the benefit of Section 436A of the Code. The Ministry
of Home Affairs has indicated that in case of multiple offences having
different periods of incarceration, a prisoner should be released after
half the period of incarceration is undergone for the offence with the
greater punishment. In our opinion, while this may be the requirement
of Section 436A of the Code, it will be appropriate if in a case of
multiple offences, a review is conducted after half the sentence of the
lesser offence is completed by the under trial prisoner. It is not
necessary or compulsory that an under trial prisoner must remain in
custody for at least half the period of his maximum sentence only
because the trial has not been completed in time.

Bail Amount ?
What should be the correct bail amount ?
No strait jacket formula can be laid down.
The legislative mandate is that the same
should be reasonable and not excessive.
(Section 440 of the CrPC)
To borrow the words of the Apex Court in
Keshab Narayan Banerjee Vs. The State of
Bihar - AIR 1985 SC 166,(2) the bail amount
should not be excessively onerous, or virtually
amounting to "denial of bail itself".

Taking personal bonds

personally !
Moti Ram versus State - 1979 SCR (1) 335 Sureties(Local
or
otherwise)
can
be
dispensed with, in appropriate cases. These
things depend on variables. The bail system
should not have an anti-poor bias.
D.M.Bhalla v. State (2011 DHC) - Jail
authorities to make a weekly list of "List of
Prisoners Granted Bail but Unable to Furnish
Surety Bond" and send it to Court, wherein
the court may relax surety conditions and
pass orders for release.

IN THE COURT OF BHARAT CHUGH,

METROPOLITAN MAGISTRATE, DELHI
TIHAR JAIL COMPLEX
Special Jail Sitting at Central Jail (Tihar) on 01.10.2014

tate

VERSUS XXX

SAMPLE ORDER
PASSED AT JAIL FOR
BAIL U/S 436A CrPC

ORDER
The accused mentioned above is facing trial in the aforesaid Criminal case in the Court of Sh.XXXX,
MM, Central THC, Delhi. Pursuant to directions of the Honble Supreme Court of India in Writ
Petition (Crl.) No. 310/2005, titled as Bhim Singh versus Union of India &Ors, received from the
Ld.Registrar General, High Court of Delhi, New Delhi the undersigned was deputed to preside
over a special sitting here at Tihar Jail. For this an order was issued by the Ld.CMM vide order XXX
- for suitable action to the Jail Administration & Prosecution. In light of this order, the file of the case
pending against the applicant was called from the Concerned Court, for consideration of his
application for bail in light of the provisions of Section 436-A of the Cr.PC.
Record Perused. The accused is facing trial in the aforementioned case and is in custody since
10.12.2013. Section 417 of the IPC, for which the accused faces trial, provides for a maximum
punishment of one year. The accused having been in custody in this case since 10.12.2013, has
already undergone more than half of the maximum sentence permissible under the law. . Therefore,
in exercise of power u/s 436-A of the Cr.P.C the accused Phool Hasan is released on bail on
furnishing of personal bond of Rs.10,000/-.
Personal Bond Furnished & Accepted. Let the accused be released forthwith, if not required in any
other case.
ANNOUNCED IN THE OPEN COURT

BHARAT CHUGH

The opposite of poverty is not

wealth. In too many places, the
opposite of poverty is justice.
Bryan Stevenson in his book Just Mercy

It falls on us to ensure that justice

and poverty happily co-incide.
And, we would !

Adios !