ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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Jail, Bail and the Poor

Despite curative measures and judgments, undertrials who are poor continue to rot in jails.

The public debate over bail to the 2G spectrum accused and the controversy over the parole granted to murder convict Manu Sharma has unfortunately sidestepped a much more pressing concern – the plight of poor undertrial prisoners who have spent years inside jail without being convicted of any offence. A series of Supreme Court judgments over the past three decades have led to changes in provisions of the Criminal Procedure Code (CrPC) to enable the poorest among them to either get bail or be released on a personal bond. Going by the numbers however, these Court rulings have not been implemented effectively. According to the 2009 report of the National Crime Records Bureau (NCRB), of the 3,76,969 prisoners, 2,50,204 (66%) are undertrials and a little more than 2,000 of them have spent more than five years in prison. In addition, 1,196 women undertrials with their children (1,314) were in jail. Not only do these undertrials suffer the consequences of surviving for years in overcrowded, badly maintained and violence-prone prisons, the socio-economic devastation visited upon their families is no less horrific. Ironically, many undertrials spend more time in jail than the sentence their crime would have carried had they been convicted.

Under bailable offences, payment of bail releases the accused from legal custody pending trial or investigation and is premised on the guarantee that he or she will submit to legal authority in the course of an investigation. In non-bailable offences, it is left to the discretion of the court to allow or deny bail. Some of the reasons for the large number of undertrials in India include the inability of the accused who are poor to provide surety, their ignorance of their rights under the system and the excruciatingly slow police investigations and delay in trials. There have been efforts to deal with some of these factors. For instance, Section 167 of the CrPC lays down that the maximum time for investigating offences that attract the death penalty, life imprisonment or imprisonment of more than 10 years is 90 days. For all other offences it is 60 days. Should the investigation not be completed within the required time, the magistrate must release the accused on bail. In 2005, Section 436-A was inserted in the CrPC permitting an undertrial to apply for bail once he or she has served onehalf of the maximum term of the sentence that he/she would have received had he/she been convicted.

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