Section 436-A of CRPC and Home Ministry Guidelines on Undertrials

What are the provisions of section 436A of the CrPC and home ministry’s guidelines regarding undertrials? Why these fail to alleviate the plight of undertrials?

Section 436A was introduced in the Criminal Procedure Code, 1973 vide an amendment in 2005. It provides for the maximum period for which an undertrial prisoner can be detained. As per the provision if a person has undergone detention for a period of almost one half of the maximum period of imprisonment specified for the offence for which he is being tried, he shall be released by the Court on a personal bond with or without sureties. This detention must be during investigation, inquiry or trial of the case and not during serving of sentence after conviction. The Court can also order detention for a longer period than one half of the said period or release on bail instead of the personal bond if it deems this appropriate with reasons after hearing the Public Prosecutor. A person can however not be detained even through a court order beyond the maximum span of imprisonment provided for the offence during investigation, inquiry or trial even if release is not permitted. This does not apply to persons charged of offences involving death sentence.

Witnessing the continuous overcrowding of prisons with persons under trial even for minor offences due to their inability to have access to legal aid, financial inability to give bonds and lack of awareness about arrestees, the Home Ministry came out with certain guidelines in 2013. Some of the major guidelines were:

• Every state and Union Territory must constitute a Review Committee in every district. The District Judge must be the Chairman and the District Magistrate and District SP must be members. The Committee must meet after every three months to review the cases.
• The Jail Superintendent must conduct a survey to identify the undertrial prisoners who have completed more than one-fourth of the maximum sentence provided for the offence they are being tried for. The report of the survey list must be sent to the District Legal Service Authority and the Review Committee.
• The prison authorities must take the responsibility of educating the undertrial prisoners about their right to bail.
• Legal aid must be provided through the empanelled lawyers of the District Legal Service Authority especially in cases on release on bail and reduction of bail amount.
• The survey list must be made available to the non-official visitors and the District Magistrates or judges who conduct periodic inspection of the jails.
• Home Department must develop a management information system to determine the jail-wise progress being made in this regard.

These actions taken in the jail must be intimated to the Department within one month of the notification of guidelines.

But these measures have greatly failed to alleviate position of the undertrial prisoners. With respect to the Home Ministry Guidelines, they have mostly remained on pen and paper. Minimum efforts have been taken to implement them. As per the Amensty International Report, only 85% of the India’s prisons are aware of the existence of Review Committee. Only 59% prisons sent the survey list to DLSA and Review Committee, only 78 prisons in total claim to have educated the undertrials on the right to bail. Most importantly, only 20 prisons are aware of the Prison Information System.  This figure seems even more ineffective on viewing the statistics  of undertrial prisoners still in jail. Haryana tops the list with almost 478 undertrial prisoners. This data comes in contradiction to the data that the highest number of legal aid lawyers work in Haryana. The states following its footsteps are Delhi, Jharkhand, Maharashtra and West Bengal. Almost 67% of the undertrial prisoners are still in jail as per a 2015 data.

The Supreme Court’s recent stance to reduce the number of undertrials invoking Section 436A of CrPC also has its own drawbacks. The problem lies with identification as to what amounts to the increased detention of undertrials. If the answer lies in delay in the judicial process it can be best done through reforming the criminal justice system to dispose the cases expediently. The solution lies in reforming the investigation and trial process and there is a need to set a time period for mandatory release after filing of chargesheet. However, merely releasing through the Section 436A route can lead to a sudden fall in the genuine convictions and it can make the whole Indian criminal justice system based on fair punishment futile and tilted towards the accused.