Congestion Of Under Trial Prisoners In Jails

[Cites 45, Cited by 0]

Law Commission Report

Congestion Of Under Trial Prisoners In Jails

LVAW COMMISSION OF INDIA:

SVEVENTY-EIGHTH % REPO

CGNGESTION OF UNDER?-9

PRISONERS IN JAILSV

FEBRUARY. I979

D.O. No. F. 2'(19)/7&L.C.

New Delhi--1l0Q0l,
February 2, 1979.

My dear Minister,

lforward herewith the Seventy--eighth Report of the Law Commission of India
relating to congestion of undertrial prisoners in jails.

As mentioned in the first paragraph of the Report, the subject was taken up for
consideration by the Law Commission at the instance of the Government.

I must place on record my appreciation of the assistance rendered by Shri P. M. Bakshi,
Member--Secret.ary, in the preparation of this Report.

With kind regards,

Yours sincerely

(Sd-/--)
(H. R. KHANNA).

SHRI SHANTI BHUSHAN,
Minister of Law, Imticc and
Company Aﬁairs,

NEW DELI{I.

(i)

,__525 LAD Nl)[78

Chapter V

Cmmzn l
Cu/mnzn 2
CHAPTER 3
Qunan 4
CHAPTER 5
Qurren ' 6
CHAPrm1- 7
Cu/u*l1za 8

CHAPTER 9

Appendices

APPENDIX I

Ammmx 2

Arrsumx 3

Ammmx 4

Armmoix 5

CONTENTS
Topic

introductory .

Presentlaw, comparative position and questions for consideration
Expeditions disposal of cases .

Expansion of the category of bailable offences . . .
Amount of bond

Release on bond without sureties

Obligation to appear and surrenderw violation to be an offence
Arrangements for detention . . . . .. . .

Summary of conclusions and recommendations

List of offences punishable under the Indian Penal ('ode which, according to the recommen-

dation in this Report, should be made bailablc

Figures of under--trial prisoners in certain jails

laws

Extract of section 53, Criminal Justice Act, I972 (Eng.) '_

Sections providing for release on personal bond . . .

(iii)

Present position as to certain offences affecting national security or economy under special

Page

6
12
17
20
21
23
25
26

29
30

32
33

CHAPTER 1
lN'1'R()lJUC1'0RY I
1.

SCOPE AND GENESIS [.1 The Government of India,' concerned at the large number of undertrial prisoners in lndian jails, has brought to the notice of the Law Commission the need for undertaking suitable judicial reforms and changes in the law, in order to deal with the problem posed thereby. The material l'orwarde.l_to us inthis behalf gives certain statistics as to undertrial prisoners in lndia. A preliminary exami- nation has disclosed the appalling nature of the problem posed by the pressure' of a large number of undertrial prisoners in jails and the inordinately long time they have to spend before the conclusion of trial. Further detailed examination was accordingly undertaken, and certain statistics were also collected and scruti- nised.' This Report incorporates our recommendations on the subject.

1.2, There can be no doubt that a large percentage of the inmates of our jails today is constituted by undertrial prisoners. Jails should primarily be meant for lodging convicts and not for housing persons under trial. if he evils of contamination in jail are well known. This renders it desirable that the two classcss of prisoners should be housed sepearatcly----a matter to which we shall revert _later.3 However provision of separate arrangements for ';housing them may take some time. More- over, even after such arrangements are made, it will be necessary to ensure that deprivation of liberty of the undertrial prisoners for a long time is avoided, if it is avoidable without injury to public interest.

Actual realities impel us to tind solutions to the excessive number 01 under- trial prisoners in jails.

1.3. We shalllirst deal with certain matters of an introductory, historical and general character and the present law on the subject. Certain developments of comparative interest relating to detention pending trial will be brieﬂy noticed. We then proceed to a consideration of the issues that arise.

ion of prison administration in India has been the subject-matter of study more than once during the last seventy years or so.' Some though not ail, of these studies, discuss the question of overcrowding in prisons and the problem of the growing number of undertrial prisoners. When the Code of Criminal Procedure was last reviewed, the topic of bail, alongwith other topics l'o.'.niiig parlor" that Cone, received one attention in the Law L)0|11j1]l_;s10[1_5 nut the question now under consideration was not posed in the pointed form in which it has now presented itself.

lI.- MAG,NlTUl)E OF Tilli PROBLEM 1.5. Figures made available to us "revealnot only that the number of under- trial prisoners in Indian jails is large, but also that their percentage is high enough. Thus, on 1st January, 1975, the total population of prisoners in Indian Jails was 2,2U,l46 as against a total capacity of l,t$3,3_69. Out of these 11,20,146 the number or under trial prisoners was 1,z6,772. This represents a percentage of 57.58.

Figures as on 1-4'-1977 in the jails are as follows' :

1.4. The . general quest Undertrials . . . . . . . . l,0l,083 Convicted . . . . . . . . 83,086 Total . .' . . . . . l,84,l69 [Undertrials 'thus constitute 54.9 p April, 1977] * Papers forwarded by the Ministry of Home Atiairs tile No. V. 2001213118 GAP IV, under Home Ministry's note of 2nd November, 1978.

I For statistics, see para 1.5 and 1.6, Infra and Appendix 2.. ' Chapter 8, Infra.

' Para. 1.16 to 1.22, i'rJra.

' Law Commission of lndia, 4lst Report 39, pages 315 to 322.

' Figures contained in the papers forwarded by the Ministry of Home Affairs ﬁle No. 200_12/3l'i8-C_lAP-1V.

' lnlormntion obtained from the National institute of Social Defence, New Delhi, on 18-1-1979.

(Code of Criminal Procedure, 1898), Chapter ercent of the total jail population on lst' Genesis of the Report.

Possible remedi-

es to prevent in-

termixing.

Scheine of discus-

sion.

Previous studies.

High Percentage of undertrial pri-

soners.

Finance Com-

mission': Report Material worded senior officer.

for-

by a Police Interval between commencement of detention and ﬁniil termination of proceedings.

Principles prudence and penclogy.

oi' Confiicting cen-

slderatlons.

Problem not conﬁned to India.

We have also collected' figure; from certain selectedj central jails as on 1st Sep tember, 1978. T hose ﬁgures substantially conﬁrm' the position stated above, namely undertrial prisoners constitute; a large prcrcentage of the total jail population.

1.6. We would also like tc quote certain ﬁgures given by the Finance Commission in its_Report.' The following is the relevant paragraph :

"39. We turn now to the need for additional jail capacity. The information we have received on the jail population on dilferent dates, and the jail capa- cities is given in Appendixﬂ. ll (ii). It is clear that the jails in several States are overcrowded. We have also taken care to look into the proportions of undertrials to the total jail population in the states. We ﬁnd that this proportion is very high in several 'States, for instance," Assam, Bihar, Orissa, Uttar Pradesh, West Bengal, rising in some cases to 80 per cent of the totalinmates. While making provisions for additional jailcapacity for the long term, we can~ not obviously allow for such high proportions of undertrials. For additions to jail capacity, we have limited the proportion of undertrials to a norm of not more than 40 percent of the total jail population. The basis adopted for making the provisions for additional jail accommodation has been indicated in Appendix V. l3."

1.7. We may also mention that a:_study iiiade by a member of the National Police Coiniiiissioir' also bears out every aspect of jail conditions emphasised by us in this Chfiptcr---Atlie high percentage of undertrials, the overcrowding caused thereby, the long duration of detention and the unsatisfactory conditions.

111. INTERVAL AND BAIL 1.8. Some interval of time must always elapse, in the criminal process bet- ween the decision to hold a person for trial and the termination. of the trial. What is to be done with the person who is charged with a crime but not yet convicted of it 'I This question has engaged the serious attention of those who have had to formulate legislative policy in regard to the criminal process.

1.9. Two countervailing principles of jurisprudence, and one principle from penology, seem to underlie the special provisions made for unconvicted persons in custody". First, unconvicted prisoners must be presumed to be innocent.-5 As such, itisinappropriate that they should be subjected to greater harassment than 'is warranted by law, or that they should be detained with convicted persons, or that they should be deprived of any rights that pertain to non--accused persons other than those deprivations that are inherent in the very process of detention.

The presumption of innocence (on which these propositions are based) is, however, tempered by a second principle, namely, that the course of justice must proceed unhindered by the activities of those who would seek to subvert it.

These are the two countervailing principles of jiirisprudence. Then. there is the basic principle of _ peiiology that those not contaiiiiiiated should be protected from baneful contact with those who have been adjudged to be guilty of crime.

1.10. The question whether the detention of unconvicted persons _is 'justi- fied', is by its very nature, incapable of resolution in a simple manner. A judgment has to be made between several conflicting considerations, to some of which we-

have made a reference above.

IV. PROBLEM NOT CONFINED TO INDIA 1.11. The problem of a large number of undertrial prisoners does not seem to be confined to India. in regard to the U. S. /i., for example, it has been stated-'--~ "The negative by--products of judicial delay are many. The number of defendants incarcerated and awaiting trial is reaching alarming proportions in many large cities, and detention facilites are dangerously overcrowded. The law 1 Appendix 2.

' Eighth Finance Commission, Report (1978), page 103, Chapter 10, para 39.

' Letter addressed to Chairman of the Law Commission, received in Jaunuary, 1979.

' Compare King and Morgan, A Taste of Prison (1976), page; 31, 32, 33.

' Law Enforcement Assistance Administration, 1970 National Jail Census (1971), page 1, uoted by National Advisory Commission on Criminal Justice reproduced by Incairdi and Seigal éd.) Cnme-Emerging issues (1977) pages 66-67.

Enforcement Assistance Administration National Jail Census in 1970 revealed that 52 percent of the. jail iimzates were awaiting trial. Pre--trial incarceration is costly to the individual, for it denies him income and, in fact may cause him to lose his job. Extended incarceration resulting from judicial delay is also costly to the public, since pre--tr'ial detainees must be fed and supervised."

1.12. Some time ago, a:eonl'erence__onA detention _was_held in England under the auspices of the British Institute of lluiiiaii Rights (Human Rights Trust)! in his concluding address, the Chairman of the conference,_Lord_Kilbrandon made the following observations on the subject of delay, which are pertinent:---« "Delays Again something must be said about the appalling delay that goes on awaiting trial. At the beginning of the eighteenth century the Scottish Par- liament passed a law, which is strictly enforced to the present day, 'that once you have committed a man in custody for trial, his trial has to be completed within 110 days, otherwise he walks out a free man. Now if you made such a proposal in most jurisdictions today it would be said that it was impossible. But it is not impossible: it goes on in Scotland. It simply imposes a certain amount of discipline on prosecuting counsel to see they don't overload their indict- ments; and to see that they get on with the work. The delays that go on in England are not so bad as on the continent, but certainly they are had enough and really I think something of this sort is probably needed."

_ 1.13. In certain countries, the feeling has even been growing that the decision of the court on the merits may sometimes itself depend on the detention or release of the accused pending trial. "To continue to demand a substantial bond which the defendant is unable to secure, raises considerable problems for the equal ad- ministration of the law"! . 1.14. The question ot' persons in prison has received attention at length in the _United Nations. The United Nations held the First United Nations Congress on the Prevention of Crime and Treatment of Olfenders at Geneva in 1955, as a follow-up of the work of the earlier International Penal and Penitentiary Commission. The Congress on Prevention of Crime approved the United Nations Standard Mi- 'nium Rules for the Trcatiiieiit of Prisoners, oifering guidelines on the basis of which member nations could modify their national practices in the treatment of prisoners.

1.15. Thereafter, a number of developments have taken place in the inter- national sphere. While it is not intended to burden this Report with details of such studies, it is appropriate to lIlClll.'l0ll'tll.il[ increasing recognition of human rights in particular, civil liberties and liunun riglits in the criniiiizil pro;:ess---leiids in- terest to the subject-matter of this Report. 9 V. EARLIER STUDIES IN INDIA.

1.16. In India the first comprehensive study" of prison problems was made by "the Indian Jails Committee in l9l9-192.0. The Coniniittee made several recom- frnendations concerning prison administration, including a recoinmendationtliat fiseperalejails s/zoulcl be set apart for the various categories ofpriswiers, and a minimum gﬂoor area of 75 sq. yards should be provided per inmate in prison construction. 3: The Committee deprecated overcrowding,' and recommended strict limits for each 'gprison, the creation of Childrcifs Courts for hearing all cases of juvenile delin- gquents and their housing in Remand ilonies instead of adult prisons, and the in- gitroduction of probation of oiieiiders, in which voluntary individuals could also help. "It suggested that short--term imprisonment should be replaced by probation, 'j,§;ﬁne or warning or other substitutes such as work in lieu of imprisonment.

1.17. In I923, section 562 of the Criminal Procedure Code, 1898, was _EI.tli6l.'ttl.- f ed to facilitate the suspension of sentences in selected cases. The Presidei_icies j of Bombay, Calcutta and Madras enacted Children Acts in the early twenties!' I British Institute of Human Rights, Detention : Minimum Standards of Treatment (1975,) page xv.

' ' Bandy V. U.S. (1961) 7 L. Ed. 9, ll : 32 S. C. ll (opinion in Chambers ---Mr. Justic Douglas).

3 ' Material based on Working Group on Prisoiicr, Report (1972-1973), para l.2.1 and 1.2.2' 4 Worlring Group on Prisons, Report (1972-1975), para 1.2.} a;i.l l.2.4.

Bail-British Conference.

Decision on me-

ms of bail.

U. N. Studies.

Human Rights.

Earlier studies of prison problems.

Developments in 1923 and upto 1947.

Developments _ 1935 became a transferred subject under the autonomous provinces. Bombay, between and 1948.

,3 Post 1943 devc~ lopments .

Report by Dr. Reckless.

) , Jail Manual Committee.

Working Groups on Prisons.

Measures to deal with pri-

soners.

Relevant: ul law of ail.

1.18. With the promulgation of the Government of India Act, 1935, prison M. d United Provinces and C.P. and Berar passed probation of Olfenders Acts diiririi; 1936-1938, The United Provinces Jail lnquiry Committee, 1928-29, the Committee on Prison Reforms in Mysore, 1940-41, the U.P. Jail Reforms Committee, 1946, and the Bombay Jail Reforms Committee, 1946-48 were set up to devise measures to improve prison administration.

1.19. After independance, the Constitution of India included "Prisons, reforma. tories, Borstal Institutions and other institutions of a like nature, and persons de- tained therein; arrangements with other States for the use of prisons and other institutions" at entry 4 in the State list in the SeventhjSchedule. More Jail Reforms Committees were appointed during the last 25 years. These include the East Punjab Jail Reforms Committee, 1948-49, the Madras Jail Reforms Committee, 1950-51, the Jail Reforms Committee, Orissa, 1952-55, the Jail Reforms Committee, Tra- vancore Cochin State, 1953-55, the Uttar Pradesh Jail -Industries lnquiry Commit- tee, 1955-56, the Rajasthan Jail Reforms Commission, 1964, the Jail Manual Re- vision Committee, Delhi, 1969, the Bihar Jail Reforms Committee, 1972 and the Jail Code Revision Coininitteeuwest Bengal, 1972. .

1.20. In the ﬁfties, Government of India invited technical assistance from the United Nations, and Dr. W. G. Reckless spent some time' in India in 1951- 52 to suggest ways and means of prison reforms. He recommended, inter alia, the getting out ofjuvenile delinquents from adultjails, courts and police lock-ups; the development of whole-time probation and after--care services; the establishment of revising boards for the selection of prisoners for premature release; the establish- ment of new jails to perform specialised functions; revision of the jail manuals' training programmes for the warders and superior staff of prisons; introduction of legal substitutes for short sentences; expedition in police and court action to reduce the number of undertrial prisoners and the period of their remand to jail; esta- blishment of an Advisory Bureau for Correctional Administration at the centre; development of a professional conference a.nong the superior staff members con- cerned with the care and treatment of juvenile and adult ollenders; and establish- ment of integrated departments or correctional administration, including jails, Borstal, probation and after-care.

1.21. In 1957, the Government of India set up the All India Jail Manual Committee, which made a very detailed scrutiny of prison problems and drafted, along with their Report. a Model Prison Manual for the guidance of the State Governments in 1959.

1.2.2. In 1972-1973, the Working Group on Prisons gave a comprehensive Report on the subject of prison administration. The Working Group made the following comments in its Report? :

"The prison adiiiiiiistiatioii in the country is generally in a depressing state. Most prison buildings are old and ill-equipped and many prisons are heavily "overcrowded. Convicts and uidertririls are lodged in the some institutions throughout,' the adults, adolescents, juveniles, women and lunatics are also generally conlined in common institutions and there is a serious lack of separate institutions for these various categories of prisoners".

V1. POSSIBLE REM EDIES 1.23. This brief discussion shows the m1gnitude of the problem of over- crowded prisons as well as its importance in the international setting. The problem could be met, in part, by finding more elfcctive ways of dealing with convicted offenders. This, however, is a matter with which_we are not concerned in this Report. The Report is concerned with undertrial prisoners.

1.24. Detention in prison in the case of undertrial prisoners is generally the result of arrest for an alleged olfence not followed by the grant of bail. It becomes, therefore, material to consider at some length the law relating to grant of bail. Accordingly we propose to consider in this Report the present law as to bail, and the changes that may be needed therein.

' Working Group on Prisons, Report (1972-1973) , para 1.3.1 to 1.3.4. a working Group on Prisons, Report (1972-1973), para 1.1.1.

1.15. Under the present law, any answer to the question whether a person Ireslcd for an offence would be able to secure release on bail mainly depends' 31 the oﬁence with which he is_charged (bailable or non--bailable), the discretion ercised by the bliicer or court (in respect. of non-bailable ollences) and {assuming : t, in law. 'he can be released on bail), his capactity to lumish the security or per- \ rial recognrsance required by the 0iiiC€l' or court. it becomes therefore necessary fggsprcad the canvas wide and to go into the law relating to bail in some detail.

1.26. There are three types of uiidertrial prisoners who are inmates of jails ;

(1) Persons being tried for non-bailable oliences in respect of whom the courts have declined to pass an order for their release on bail.

(2) Persons being tried for non~bailable oliences, in respect of whom courts have passed order for bail but who, because of the difﬁculty of ﬁnding appropriate surety or because of some other reason, do not furnish the bail bond. -

(3) Persons who are being tried for bailablc oltences but who, because of the:

diﬂiculty of ﬁnding appropriate surety or because of some other reason do not furnish the bail bond.

,, It is plain that if we want to reduce the burden of undertrial prisoners on jails ﬁve shall have to deal with all the above three categories.

Vii. AVOJDANCE OF DELAY 1.27. We shall,in due course, make our recommendations as to the measures but could be adopted to reduce the number of undcrtrial prisoners in each of the 3 tcgories mentioned above? But we would, at this stage, like to emphasise the im-

rtance of one factor which is common to all these categories--the need to reduce , c delay in the disposal of cases. We have, in an earlier Report, already made our recommendations' for reducing arrears and delay in the disposal of cases in .trial courts. We shall later in this Report' mention a few important aspects of delay which have a vital bearing on the problem with which this Report is concerned. EA! this stage, we would like to reiterate the need for implementing our rec0mmen~ fdations already made in that Report, which should go a long way in reducing the ;duration of detention.

! Later in this Report', we shall deal in detail with a few important aspects of delay having a vital bearing on the problem dealt with in the present Report, At this stage, we would merely like to reiterate the need for implementing the recommen~ dations made by us in the earlier Report on delay and arrears in trial courts.

Vlll. MEANING OF UNDERTRJAL 1.28. - Before closing this introductory Chapter, we may make itclear that in this Report we are using the expression 'undertrial prisoners' in a wide sense even to include persons who are injudicial custody on remand during investigation. For statistical" purposes, it would not be possible to treat them distinctly from persons whose trial has actually commenced.

s rank 2.5, infra.

' Pam 1.26, supra.

' Law Commission of India, 77th Report (Delay and Arrears in Trial Courts). I Chapter 3, infra.

' Chapter 3, izgfra.

Factors deter-

mining right to bail.

Three types of undertrial pri-

soners.

lmporla nce of avoiding delay.

Meaning of un- dertrial in this Report.

C.ii.A PTER 2 PRESENT LAW, COMPARATI E POSITION AND QUESTIONS FOR C Sl,I)ERATI()N I. BAIL : THE CONCEPT AND HISTORY Iﬁrtlye 311- 2.]. Legislative autliority for the detention of persons in prison for a suspected 'mun: ':3 [:2 olience is provided by sections 167 and 309t2_) of the Code of Criminal Procedure in,' 1973. The Code, however, makes a clear distinction between detention in custody before taking cognizance and detention in coustody after taking cognizance. The former is covered by section 167, and the latter by section 309 of the Code. The two are mutually exclusive.

Legislative authority for the rolcasc of such persons is primarily to be sought in the provisions relating to bail-sectioiis 436 et seq, which deal with bail. We shall deal in due courses with the provisions relating to detention' and release?

mum, of bait 2.2. The concept ofbail has a long history. It would appear that historically, at least in England, the institution of bail arose because of necessity. When the administration of justice was in its infancy, imprisonment for the purposes of preliminary inquiry continued at least till the Sherilf held his 'tourn', and in more serious cases, till the arrival of the justices, which might be delayed for years, Trials were delayed by the infrequent visits of itinerantjustices and many accu. died because of insanitary conditions in the prisons. It was there. fore a matter of the utmost importance to be able to obtain a provisional release from custody." It was this necessity which led to the institution of bail-the need ,to free untried prisoners waiting for the delayed trials conducted by travelling justices. Certain ad hoc arrangements were made by the Sheriffs for release on personal ,5. cognizance with or without bond or on the promise of a third party to assume res-

-ponsibillty for the appearance of the accused. _ It_ was in 1275 that the practice of the Sherilfs to grant bail was standardised.' This power was later transferred to the justices in 1360-1361.-" The Statute of_Westminster (I275) speciﬁed the conditions under which pre--trial release was permissible and limited the power of the sherms to determine suft"icient_security in each case." The third party or surety had to assume a personal responsibility for the appearance of the accused, on penalty of forfeiture of his own property.

The Bill of Rights' guaranteed a right against "excessive bail".

The Habeas Corpus Act" made certain provisions for discharge on bail of persons for high treason or felony plainly expressed in warrant .who though "cominitterl . ' shall not on petition be indicted as herein mentioned".

the granting or denying of bail in England became almost function. of thejudiciary, and (subject to certain special limitations) this substantiaily remained the position until I976. In I976 was passed the Bail Act, which confers a right to bail SUb_]6Ct to certain exceptions. We shall ' mention its important provisions in due course." 2.3. Thus, the problem with which we are now faced is not a new one, though the nature and dimensions of the problem may vary from time to time and country I iiiéf-iiy. or to country. It is necessity that requires a second look at the law.

sed persons In course of time, completely a discretionary 1 Para 2.6, infra.

2 Para 2.5 and 2.8, at seq, infra. ' a siephcn, History of the Criininal"Law m England, Vol. I, page 233.

a The Statute of Westminster, I275.

5 Statute of l3----l36l, 34 Edward 3.

a Note "Bail : An Ancient Practice Re--examined" (I961 ) 70 Yale L. I 966.

-i The Bill of Rights (1689) 1 Williams & Mary 10.

5 Section 6, Habeas Corpus Act. 1579-

" Para 2.l8_and 2.19, infra.

v 6 R 7 1.4. The position as to bail under the Code of 1898 was, in broad terms, as allows :

(1) For bailable offences, bail was a matter of right. (2) For non-bailable offences, it was a matter of discretion.

(3) Bail shall not ordinarily be granted by the Magistrate if the offence punishable with death or imprisonment for life.

(4) The Court of Session and the High Court had 'a wider discretion in regard to bail.

The position has not been very materially altered by the Code of 1973, so' far II the above broad propositions are concerned. In particular, the basic dichotomy Ictween bailable and non--bailable offences has been maintained.

II. PRESENT POSITION 2,5. We do not propose to quote the text of the various sections of the pre' on! Code of Criminal Procedure, because the inanner in which the arrangement if mltteriappears in the Code, may not give a clear picture ofthe basic dichotomy Ietween bailtible and non_--bailable offences and salient features of the law applicable 0 offences in each category. For this reason, we prefer to analyse the contents Ltuhe relevant sections-~an analysis which involves a certain i'e-«ilrrangeineiit of the r.

The present position under the Co.de of Criminal Procedure, 1973, as to the grant fbail, may be thus stated, first generally, and secondly specially with reference to 10 High Court and Courts of Session. This dischotomy in treatment becomes scenery in view of the content of the legislative provisions on the subject.' is General position (1) For bailable offences, bail'is a matter of right,2 subject to certain qualifica- ﬁtlgbe stated in due course. The person arrested must be informed of his right 3 _, .

The relevant provisions speak of a person other than one accused of a non-bail- bk offence, but, for brevity, we use the words "bailable offences"

_ As regards non-bailable offences a person accused of', or suspected of [ha nlrblilable offence, shall not be released on bail, if there appear to be reasonable follnde for beiievinglthat he has been guilty of any offence punishable with death- _|' lmprisoninent for life.' There is, however, an important exception to this. The loan may direct that even in such a case a person under the age of sixteen years I my woman or any sick or irifirm person accused of such an offence be released it bail.' ' (3) In other cases of accusation or suspected commission of a iiombaiiabfe I' the court has _a discretion to grant bail and the person may be released I bit but the discretion is regulated by certain express provisions many of which I eﬂect, lead in favour of the grant of bail, while some might opeiate in the cont.' iry direction. These provisions are suininarised below.

Provisions leaning in. favour of bail

- 4) The mere fact that an accused person may be required for being ii1dem_i_ Id witnesses during investigation shall not be sufficient ground for refusal to not bail' "if he is otherwiseentitled to be released on bail" and gives an'under. king that he shall comply with such directions as may be given by the court.' (5)_If it appears to the oﬂicer or court concerned at ttlon inquiry or trial (as the case may be), that there are no reasonable grounds it loving that the accused has committed a non-bailable offence but that there 'a mﬂcient grounds for further enquiry into his guilt, the accused shall pending any stage of the investi-

' Contrast section 337 with section 439, Cr. P.C. 1973. ' Section 436(1), main para, Cr.P.C. I973.

' Section 50(2), Cr.P.C. 1973.

' Section 437(1), main para, Cr.P.C. 1973.

' Section 437(1), first proviso, Cr. RC. 1973, ' Section 437(l), main para, Cr. RC, 1973_ ' Section 437(1), second proviso, Cr. P.C. 1973.

Position under Code of Crimi-

nal ' Procedure as to grant of bail.

Present position.

such enquiry, be released on ball (with sureties) or, at the discretion of such oliicer or court, on personal bond.' ' ~ (6) If, in any case' triable by a Magistrate, the trial of a person accused of any non--bailable offence is not concluded within a period of sixty days from the first date ﬁxed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail, to the satisfaction of the Magis- trate, unlcss, for reasons to he recorded in writing, the Magistrate otherwise directs.' (7) There is a special provision for the grant of bail at the stage between con- 'usion of trial and judgment," in certain cases.

Provision; restrictive of discretion (8) Certain conditions C_lll be iniposed while granting bail in respect of non- bailable offences."

(9) An oliicer or a Court releasing any person on bail fov a non-bailable olience shall record in writing his or its reasons for so doiiig".

(l0) Any Court which has released a person on bail for a iion--bailable oifence may, if it considers it necessary so to do, direct, that such person be arrested and commit him to custody".

(ll) The amount of the bond must not be excessive7.

High Court and Court of Session (12) The High Court and the Court of Session have a wider discretion in re- pect of bail. 'l'lit:se courts can giant bail even in respect of more serious oliences".

in some cases, notice is also required to be given to the Public Prosecutor". These courts can cancel bail granted to any person"'.

lll. S()Ll.ClTUDE OF THE LAW Pmmions ' m_ 2.6. Our law of_crii11iiial procedure is not totally blind to the problem of time posing iime s ent before or awaiting trial. l7ollowing provisions of the Code of Criminal Pro- lmlts in regard cedure, 1973 show its concern to keep that time within certain limits :

}:rc:a_:s"c();'trial (1) Remand oﬁthe accusel()l tobcusltodlyl during investigation is subject to an aggregate imit prescri er y aw 6. l (2) As regards the time taken in investigation, the Code", in the Chapter deal-

ing with investigation of offences, provides that every investigation 'under this Chcpter' shall be completed without unnecessary delay. (3) Remand of 'the accused to fcuistoccijy ilnlthe course of the trial is also regulat- ed by anot ier provision 0 tie o e -.

(4) If, in the case of an olfence triable by a Magistrate, the trial of a person accused of any non--bailable oifence is not concluded within 60 days, the Magistrate (unless the Magistrateé forbreasoiis to be recorded, otherwise directs),'a1 must release the accuse on ai. -

(5) Time spent by the accused in custody during investigation, inquiry or trial of the case is re-credited if the accused person is convicted and sentenced to imprisoninent.'5 1 Section 437(2), Cr. P.C. 1973.

' Section 437(6), Cr.P.C. 1973.

' Section 437(7), Cr.P.C. 1973.

' Section 437(3), Cr.P.C. 1973.

' Section 437(4), Cr.P.C. 1973.

" Section 437(5), Cr.P.C. 1973.

7 Section 440(1), Cr.P.C. 1973.

3 Section 439(1), Cr.P.C. 1973.

° Section 439(1), Cr.P.C. 1973.

1° Section 439(2), Cr.P.C. 1973.

11 Section 167(2), Proviso ,(a), Cr.P.C. 1973.

See para 3.13, infra.

" Section 173, Cr.P.C. 1973.

1' Section 309(2), first proviso, Cr.P.C. 1973.

" Section 437(6), Cr.P.C. 1973; para 2.4, supra. 1' Section 428, Cr. P.C. I973. ..

2.7. In regard to proceedings for security for keeping the peace or for n1ain- taining good behaviour,, the Code of (",r'iruinal l'roccdure directs that the proceed- ing shall stand terminated if not completed within six months unless the Magistrate, for reasons to be recorded, directs otherwise.

IV. MEANING OF 'BAH.' 2.8. At this state, we may refer to the meaning of the word 'bail'. 'Bail' is a generic expression used to describe judicial relczrse from (,'11,§'I()1//(I lcgrs. Normally when a person is released on bail, he has not only to execute a personal bond, but has also to furnish the bond. of a surety. The bond is for a certain sum of money which the surety undertakes to pay in case the person released on bail does not present himself during investigation or in court on the date of hearing in accordance with the terms of the bond. A question has, however, been raised whether 'bail' would cover the release ofa person on his own recognivance without his furnishing a surety's bond. The Supreme Court in a recent case? has held that 'bail' covers both release on one's own bond without surety and release on bond with surety.

V. l'RlN'(TlPLES FOR RELF./\Sl3 ()N BAIL IN ('A813 OF NON-' BAILABLF. ()FFl7.NCl'7.S 2.9. As already noted," in case ofnon--bailable ollcnces, bait is not a matter of right, under the Code of Criminal Procedure. it is a matter ofjudicial discretion regulated, in part, by the provisions of the Code4 and, in part, by certain principles that have been evolved in the case law.

2.10. '11re principles on which bail may be granted or cancelled irave been lard down in several pronouncements of the Supreme ('ourt and are conveniently collected in some Judgnrerrts of Ilrgh Courts also", and need not be discussed for the present purpose.

2.11. Whenever and application for llail is made to a court. it has ﬁrst to decide whether the offence is bailable or non-bailable. If the olfencc is bailable. there is no problem. lfthc offence is non--bailable. considerations such as the nature and seriousness of the offence, the character of the evidence, circumstances peculiar to the accused, a reasonable possibility of the presence of the accused not teing secured, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or the State and similar other considerations should be taken into account before granting bail".

2.12. The Code of 1898 made no express provision for cancellation of the bail granted under section 496. Nonetheless, it was held that if, at any subsequent stage, it is found that any person is intimidating, bribing or tampering with the evi- dcnoo or attempting to abscond, the lligh'('ourt. has inherent power to cause him to be arrested'. This power could be invoked in exceptional cases5 wlun the High Court is satisﬁed that the ends ofjustice would be defeated unless the accused is committed to custody. Such power was preserved by section 561/\ of the Cr. I'.(',, 1898. The person so committed could not (as a matter of right) ask for his release on bail, but the High Court may subsequently grant him bail. tn the present Code the matter is governed by an express provision".

VI.l'URl'(')Sl? ANI) /\l\1()UN'l"

2.13. The next question relates to the amount of bail bond. The purpose of bail and the question of amount are connected with each other.

2.14. The purposes of bail pending triall" in criminal cases are to avoid un- necessary hardship to accused persons sonre of wlmm may be ultimately found not guilty, and to permit the unhampered preparation of the defence and, at tho sarn time, to ensure his presence on the variorrs dates of hearing.

' Section 116(6), Cr.P.C. 1973.

' Mot! Ram v. State of Mrltrvz I'r'.r['s"r, /\.l.R. 1978 SC. 159-t (November Issue). ' Para 2.5, supra.

I Para 2.5, et seq.

' State v. Tukamm, (1975) 78 Dom. LR. 411 (reviews cases).

' State V. Crrptain Jagjit Singh, A.1.R. 1962 SC. 253.

" Talab Haj!' Hussein v. M. I'. Illorrdlmr, A.l.R, 1958. S.('. 376.

5 Rarilal Blrauji v. Asstt. Collector of ('u.r!onrs, Bombay, A.l.R. ' Section 439(2) P.C. 1973.

" Of. Para 1.9. supra 1967 S.(T. 1639.

Time limit for certain proceed-

ings relating to bonds for keeping the peace or good behaviour.

Meaning of'bailr',.

whether it rn-

eludes personal bond.

Bail for bailable non-

otlcr.c< s of bail------

judge-

Principles grant of other ments.

('anccllatiorr of burl Purpose of bail.

i Criminal Law {Amount of ball. I i Amendment .1 E i .lmpo is Act, 1932.

Section Criminal Amend meni Act, I932.

10, LEW Right to bail in England.

Bail Hostels in England.

mine: of ﬁnancial deter-

rents in present law.

Contlictlng con-

siderations and two approaches.

2.15. Tlieoretically. the amount of bail should be set in the light of' all the fac--

IOYS which bear upon the risk of the non--appearance of the accused for trial; the .

szrlollstness pftho offence, the prima facie nature of case against him, the accused's p. ara; or, history, reputation. antecedents and his capacity to secure bail.. In prac. 100, 0"/ever, the paramoum ccnsideration which generally prevails is the nature of the offence.

VII. THE CRIMINAL LAW AMENDMENT ACT, 1932 2.16. _We have so farconcerned ourselves with tl_io_Code of Criminal Procedure In connection with the subject-matter oftliis Report, it is also pertinent to deal with an important provision contained in a special Act, namely, the Criminal Law Amendment Act, I932.

2.17. 'Section l0(2) of the Act provides that the State Government may, in certain contingencies, declare that an offence punishable under section 188 or section 506 of the Penal Code shall be non--baiiable.

VIII. COMPARATIVE POSITION.

2.18. In England, there is now, by the Bail Act, 1976. a general right to bail which can be refused only for reasons to be recorded by the court} and only in cir- cumstances set out in the First Scliedulo to the Act." Leaving aside circumstances not very material for the present purpose, the defendant need not be granted bail if the court is satisfied that there are substantial grounds for lbelieving that the defendant, if released on bail (whether subject to conditions or not), would---

(a) fail to surrender to custody, or

(b) commit an offence while on bail, or

(c) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.

The system of personal recognizance is replaced by' a statutory duty to surrender to custody, violation thereof being an offence."

2.19. Further, the English law also provides for t.ho establishment of bail hostels by probation and after-care committees, with ﬁnancial assistance from'the Home OfIice.4 IX. QUESTIONS FOR CONSIDERATION 2.20. In the light of this brief survey of the position in India and England, let us now deal with the considerations that would be relevant in for mutating the ques- tions for determination. The p*incipal object of bail is to ensure that the person released on bail will attend the trial. This object, as~the law stands at present, is sought to be achieved by adopting a particular method. wherein the ﬁnancial deterrent is an essential ingredient. The present provisions as to bail take into account the following postulates :---

(a) need for a financial deterrent to ensure attendance of the person released on bond; 7

(b) need to prevent tampering with evidence;

(0) desirability of not releasing on bail persons accused of SGFIOUS 007811068- 2.21_ The crucial question that has arisen is how much importance is to be at gar-bed to each of these factors. There could be a stringent approach and _there could be a liberal approach. In support of a stringent approach, it.could, in the first ptace be said that a person is not arrested imlessthere is some reliable material to indicafe hiq guilt. Even after arrest, he is not prosecuted in the absence of a p,;m,, acgg cam 50 mar he can, with some justification, be regarded as one on whom restraint can be justly imposed in the interest of ensuring attendance and preventing tampering with the evidence, both being objectives vitally connected with the process of justice.

1 Scctlon 4, Ball Act, 1971, reai with 'the 'F'irit S:'ieJule.

n For history of English law, see para 2.2, SNI'7'0« 3 secﬂans 3 and 6, Ball Act, 1975- . Section 53, criminai ]us'icc Act, 1972 (".nz-)- See"/\vP=m"X 4- 11 Secondly, it could be said that apart from the risk offuilure to appear, ther_e 'he risk that he will repeat the alleged offence or commit some other offence, if med to remain free, so that there will be danger to human life or property.

121. These arguments Support a stringent approach. On the other hand, ilvour of adopting a liberal approach, it could be stated that, in the first place, person accused of crime is entitled to remain free until adjudged guilty, so long his freedom does not threaten to subvert the orderlyprocess of criminal justice, tltlmt his freedom could have this adverse effect only ifhe deliberately fails to ap~ II' at the time and place appointed for the purpose.

Secondly, pending formal adjudication of guilt, his status ought not to be Iimllatcd to that of a convicted person.

Thirdly, if kept in custody, he is impeded in preparing his defence, since, in cus- ly, unrestricted consultation with counsel is tliflicult.

Fourthly, if he is kept in custody, his earning capacity is impaired, thereby Iling hardship and economic deprivation. ' Filthly. there is a large class of persons for whom any bait is "excessive bail", ey are the people loosely referred to as indigents. For such persons, provisions 7 ball prove more or less illusory.

These arg11ments_would show that the question has to be decided on a balance conflicting considerations.

1.13. In fact, the need for such balancing seems to {low from the nature of the ajoct-matter. Like many other rules of law, rules as to bail are designed to re- ucilc a conflict of interest ------conﬁict of interests between accused persons, who the to be at liberty before and during trial, and the State, which insists that they Druid be present for proceedings in court.' The adjustment ofthe conflict between erertln personalfreedom andinterestin the efﬁcient enforcement of criminal law I dclicatejone. ' No tendency should be encouraged to attach excessive weight to a second consideration to the detriment of the ﬁrst one.

Liberal approach.

Reconciliation between liberty of the individual and demands of enforcement.

' 2.24. On the other hand, cases have also not been unknown where persons being « . , , _ [Misuse of free-

od forserlous olfences have, on being released on bail, misused their freedom dom by persons llnllmidating the witnesses and thus defeated the ends of justice. In such cases, in remedy has been to deny them the beneﬁt of bail. The possibility of persons umod of serious olfenees absconding also cannot be avoided. This is especially I offoreigners and Eothers given to tra.ns~border olfences, as also of those looking r asylum in foreign countries.

released on bail.

2.25. We can now brieﬂy lhdicate the directions in which reform of the law POMS for comb uld be possibly considered. There are several matters which need to be discussed fdcrsrion.

we have already indicated' and the problem requires to be considered in several pects, mentioned below :

l. Expeditions disposal of cases."

2. Expansion of the category of baiiable offences.'

3. Amount of bond."

4. Release on bond without sure-ties.'

5. Penal provision for failure to appear and surrender."

6. Arrangements for detention."

* Sea para 1.9, supra.

' Para L3, supra.

' Chapter 3, Infra.

' Chapter 4. Infra.

' Chapter 5, lrrﬁra.

' Chapter 6, infra.

' Gupta! 7, win.

' 8, unﬁdu CHAPTER 3 EXPEDITIOUS DISPOSAL or CASES 1 3.]. Besides recommendations which pertain to the law relating to bail, there Earlier R6130"- qiarc certain measures which should be taken up For reforming the present system relating to linderlrial prisoners.

A matter of the greatest importance to which we would like the highest priority to be given is the reduction of delay and arrears in trial courts. In this context, we would like to draw attention to our Report on the subiect which we have already forwarded to Government.' Some of the recommendations made in that Report 'are concerned with criminal courts. If the problem of' undertrial prisoners is to 'be solved to any appreciable extent, iinplcinentation of those recommendations aliould be regarded as a measure of the first importance.

i 3.2. Broadly speaking, the recoimnendations made in that Report can be Groupoi'recom- gclassitied into the following groups :~~- mendations. i (a) recommendations _for strengthening the subordinate judiciary both in point t of number and in point of its elliciency:

(b) recommendations For improving the machinery and equipment of trial courts;

(c) recommendations stressing the uced to pay adequate attention to certain existing procedural provisions and administrative aspects, in order to avoid delay;

(d) recommendations for amending the procedural law in order to streamline the l'unctiomn_iz of criminal courts.

3.3. We may first mention the recommendations made for strengthening the Strengthening "subordinate judiciary. These are : l E"; _5"b0"l'"3'° ' , _ ' _ . _ _ _lU iciary.

(a) Long delays in filling up vacancies of _]U(llClEll ollicers should be avoided?

(b) Every recoinmendation of the High Court For increase in judicial strength should receive prompt consideration from the State Government and in the absence of some compelling reasons, should not be turned down.' (C) To clear the heavy bacldog. the services of retired judicial ofﬁcers known tortheirintcizritymfliciency and quick disposal should be utilised the appointment being made only on the recommendation of the High Court!

(d) In addition. some special recruitirent may have to be made from bright young members ofthe Bar who have practised for at least seven years, for the disposal of old cases. They should be given a higher start and, on satisfactory performance. he ultimately absorbed in service as District and Sessions Iudges or Additional District and Sessions Judges.'

(e) Some of the serving judicial olliccrs can also he asked to deal exclusively with old cases." \ (F) The number of additional courts should be such as to make it possible that all arrears are cleared within a period of' about three years':

We may state that these recommendations do not require elaborate changes in legislation and it should be possible to implement them by suitable administrative measures.

3.4. As regards improving the machinery and equipment of trial courts. We Im roving made certain recommendations in the earlier Report, the gist whereof may be thus maghinery and gtatcd---- equipment.

(a) Judicial Oflicers should be provided with stenographers for dictating judgements."

' L1» Cannisiion oi' triiii, 77th Report (Delay and Arrears in Trial Courts). ' 77th Ream, pin 9.l'.

' 71th Report. para 9.12.

I 'nth Report. para 9.13 to l9.l5.

"Tlth Report, para 9.16.

' 77th Report, para 9.' 7.

" 77th Report, para 9.18.

' 77th Report, para 1.7.8.

12 13

(b) Evidence in courts of District and Sessions Judges should normally be typed, gcirtliitlcarboii copies of depositions can be supplied immediately to the _ We may mention that these measures can also be implemented without legis-

lstltvehanlendment. They may, at the first sight, appear to be of a_minor character, ":1 d eir_iinplen1entation could make a substantial contribution in reducing a Uration of cases in subordinate courts, thereby reducing the arrears as well as the number of undcrtrial prisoners. * 3.5. Then, several of our recoininenda lions were intended to draw attention tbtlns provi'- _ _ In and ad- 'O existing provisions and certain administrative aspects relevant to the avoidance nlltritiirg "W of delay in courts. These were as follows:--- ¢¢;.y_ (a) In criminal cases, it is particularly necessary that delay be eliminated, since the decision depends upon oral rather than on documentary evidence, and with the passage of time, the memory of witnesses fades."

(b) Every criminal court should keep a register showing the number of witnesses summoned for a date the number examined, the number sent back and reasons for sending them back without examination. The tendency of some criminal courts of sending back witnesses without examining them must be deprecated."

(C) At least two_police officials at every police station should be set apart for getting service of summonses effected upon witnesses for cases relating to that police station and for ensuring their presence on the date of hearing.' ((1) The police quite often deliberately refrain from producing all material witnesses on one date, the object being to fill up the lacunae in the prose- cution evideiice after the defence case becomes manifest by cross-exami- nation. This practice is unfair and not warranted by the Criminal Procedure Code. and results in prolongation of the trial."

[We shall deal with this aspect in detail later also in this Chapter."] io are conceriicd with investigation should

(e) Officials at the police station wl possible, they should not be deputed concentrate on investigation. As far as for other purposes.' [We shall deal with this aspect in detail later in this Chapter also."]

(f) Desirability of separating the investigation agency of the police from that dealing with law and order may have to be considered. The question whether the investigating agency should be notsusceptible to executive interference and, for that purpose, be independent of executive control, may also need consideration."

[We shall deal with this aspect in detail later in this Chapter.'"]

(g) The Motor Vehicles Act, I939, section l30(l) provides for special procedure for certain trafiic offences whereunder the accused can plead guilty to the charge by post and remit the specified fine. In the case of persons other than professional drivers, for some specified offences of a minor nature, the ticket issued by the policeman should also contain separately the amount of ﬁne for various categories oftraffic offences in respect of different types of vehicles, so that if the person coiiiiiiittiiigtlie infraction of law is so inclined, he can plead guilty and also remit the amount of ﬁne to the court concerned before the date of hearing. .

[While this recommendation may not directly concern u_nd_ertrial prisoners, stion in criminal courts. It it is of great importance for reducing over--all eonge. _ . _ possesses, therefore, considerable relevance lor nndertrial prisoners,though Indirectly] 1 77th Report, para 13.9.

* 77th Report, para 12.].

' 77th Report, para 12.2 and 12.8.

4 77th Report, para 12.8.

' Tlth Report, para l2.8A.

° See infra.

7 77th Report, para 3 See infra.

' 71th Report, para l2.9A.

1° See para 3.12, infra.

1177112 Reporhpara 12.3 to I2. t2 2.9.

j,2--szs LADINDI73 Amendment of procedural law.

Target rordlspo-

nl and giving preference to uses involving imderirial pri-

toners.

Strlctness in disposal.

(ll) Disposal of cases in which there is a large number of accused gets delayed becaiise one of the accused absents himself on the date of 'hearin The trial court in such contingencies should consider the advisabilit of air t ing representation of the absent accused by counsel ' y be '

(i) Ilavin re a d t th ' ' the trgial mgzigristrgtes :11tillilgoriiilrlgzvgiiafohiﬁetorglggcllif 'intngf of the chargei

(j) in rccordin tqt t r U P ' 0 0 tame 3 charge' strate slioiizlrci 'e cine" :10 'll ace"-Seq [Inger 5".°"°" 313' .('r' P' C' the "mg"

-the 'l.CCmed 3 nture int :1 incriminating pieces of evidence are put to

(k) Complaints have been heard that there are not enough number of prose cgitors, particularly in_ cases under the prevention of Food _Ad.ulteration Shel: ictjndb thtoske investigated Ey this Central Bureau of Investigation. Steps argu _ e en tot epsure t at t ere are as many prosecutors as there crimina cour s.

(1) Where the same Judicial Qfiicer exercises both civil and criminal powers norlmally he should not hit both the types of cases on the same day. If suc_l1a c3ursc_Cai1nlot be 21;/oided, he should set apart separate time for civi an crimina cases.

(m) Cases iﬁ whigh there isopossibility of death sentence should receive priority over a at er cases.

we may refer to an important recommendation made in the endmept of the procedural law in order to streamline the func-

f Session. At present a Sessions Judge cannot act on evidence _ _ sor, and this causes considerable delay in the disposal of sessions cases.' To avoid this, we recommended in the earlier Report" that the law should be amended so as to enable a Sessions Judge to_act on evideiice partly or wholly rccorded.by his predecessor. This recoinmendatione pertaining as it does to Courts of St_3SSl()l'1', is of direct importance in connection with the problem of nuin- ber of undertrial pr.isone_rs and the duration of their detention, since a fairly large number of undertrial prisoners are persons charged with nun-bailable offences trlable by courts of Session-

3.7. An important measure f on jails is to give preference to the in custody. In our earlier Report,"

posal of criminal cases. As regards in our opinion, should be four months.

ed the gist of the recommendations made in our earlier Report, we would like to deal with some of the aspects_ in detail. We noted in' that Report that one of the main causes for delay in_thc disposal of criminal cases is that in the majority of them neither the prosecution nor the accused is in- terested in the early disposal of cases. The police take undulydoiigl time to produce the presence of witnesses in the court on the dates of hearing.

in that Report, that the police does Complaints had also been made, as noted ' not produce all prosecution witnesses on the first date of hearing. One reason for that is that the police ollicials want to know the defence case as revealed by the cross examination of the first witness and thus propose to make up any possible lacunae through the evidence of the remaining witnesses." The accused too are quite often interested in prolonging the cases because the longer the cases last, the greater are 3.6. Finally, carlicr Report for am tioning of the Court 0 recorded by his prcdeces or reducing the burden of undertrial prisoners disposal of those cases in which the accused are we have suggested a target of six months for dis cases in which the accused are injail, the target 3.8. Having mention 1 771}. Report, para 12.13.

9 77th Report, para 12.12/\.

3 77th Report, para l2.l2i\.

I 77th Report, para 12.13.

s 77th Report, para 12.15.

a 77m Report, para 12.l6.

'1 section 326, Cr. P.C. W73.

3 71th Report, para 12.3 to l2.7.

o 77", Report, Para 1.10.

1o 71;}, Report, para 12.8/L :1 77th Report, para l2.8i'\.* s 15 the chances of prosecution witnesses being won over. It is plain that a certain amount of strictness would have to be enforced if cases are to be disposed of promptly-

We would like to re--emphasise this aspect of the matter.

3.9. We are also of the view that the trial magistrates should furnish periodical statements of cases in which the accused are in custody and which are not con- cluded within four months of the ﬁling of the charge sheet. Such statements should give thereasons for the non-disposal of those cases. These statements should be scrutinised by the superior courts for such action as may be deemed necessary.

3.10; On occasions as a result of some agitation, hundreds and even thou- Iands of persons defy the law and court arrest. At times like these, there is a sudden spurt in the number of undertrial prisoners. Many of such persons who deliberately defy the law and court arrest do so as a symbolic measure. It is plain that most of them would not offer bail and thus ask to be released pending their trial. Sometimes these persons are, as a result of Government decision, released without being put on triai.In case of trial, the sentence which is ultimately imposed upon them is generally of a nominal nature. It is desirable that they should be put up for trial soon after their arrest, so that the jail: do not remain congested with these under trial prisoners.

3.1!. Quite a substantial number of persons who are being proceeded against ll! security proceedings for keeping the peace or for good behaviour under Chapter VIII of the Code of Criminal Procedure are detained in jail as undertria] prisoners because of their inability to furnish the requisite bond under section 116 (3) of the Code. It is essential that the cases against these persons should be heard with due promptness and despatch and should not be allowed to linger on. Although in outside limit of_ six months has been prescribed by law for the completion of these proceedings} efforts in our opinion, should be made to conclude these pro-

seeding: within three months.

3.12. Another reason for the large number of undertrial prisoners is the in- Ufdinate delay which sometimes takes place in the investigation of cases, with the result that the arrested persons who are remitted to judicial custody have to be tinjail as undertrial prisoners. The delay in the investigation of cases takes lace because quite often the police ollicials concerned with the investigation have be deputed on other duties relating to problems of law and order. We have in our earlier Report', stressed the need for not diverting the investigating official to other duties. Such diversion, in our opinion, not only results in delay in the in. vestlgation but also entails in its turn failure ofjustice. It was observed by us in this connection :

''It is commonly said that the investigating agency now-a--days is not abie to devote as much time as it should do to criminal cases pending in courts because the olice which constitute the investigating agency is ovehburdened with manifold other duties, including those relating to maintenance of law and order We are of the view that those oliicials of the police who are concerned with the investigation of cases should, as far as possible, concentra tc upon investigation and looking after the progress of the cases even after they are ﬁled in court They should not, as far as possible, be deputed for other purposes. Pjecemeai recording of evidence and delay in the disposal of cases undoubtedly causes hardship to the accused, but niorc than that, it i.,;_~mll;s quite often in wrongfui uittals. Wrongful acquittals are as undesirable as wrongful convictions Both shake the conﬁdence of the public in the administration ofjustice Thé beneﬁciaries of wrongful acquittals are undoubtedly the anti-social eleinents It is plain that wrongful acquittals would glV6 incentive and provide encoura eh meat to criminals and the enemies of society. g It may have to be considered in the above context as to whether it is not desi- table to separate the investigating agency of the police from that dealing with I Secti _n='ll6(5). Cr.P.C. 1973.

' 77th Report, para 12.9 and I2.9A.

Periodical statements.

Arrests ' ziurini agitation.

Security proceedings.

'Daley in Investigation Need for speedy hvutlgatlon.

Adioumments.

general problem relating to maintenance of law and order. An investigating agency not burdened with other duties would not only ensure prompt and eflicientinvestigationof crime, it would also help in the quick disposal of court case and prevent miscarriage of justice. It may be mentioned that the Law Commission presided over by shri Setalvad in the Fourteenth Report supported the idea of separation of the investigating agency. The question as to whetherthe investigating agency should be not susceptible to executive interference and for that purpose, be independent of the executive control may also need consideration".

3.13. It is, therefore, essential that the investigation of cases should be com- pleted as soon as possible. We may also refer to section 167(2) of the Code of Criminal Procedure, 1973, which provides that if an investigation is not completed within the speciﬁed period, the accused should be released on bail} All this high- lights the need for quick and prompt investigation.

Of course, despite the above provision, there would be quite a number of arrested persons who are not able to furnish the requisite bail bond. While most of the rich criminals generally manage to furnish bail because of their resources, it is the poor persons who, being without suﬂicient resources, l1ave generally to spend time as undertrials in jail. This aspect of the problem is possible of solution if the other measures" recommended in this Report are effectively implemented.

3.14. We would also like to draw attention to the recommendation made by us in the earlier Report in regard to the adjournments of cases3. We would like to emphasise that adjournment of Cases should not be granted where the accused is in jail, unless such adjournment is absolutely necessary.

' See also para 2.6, supra, for section 167(2), Cr.P.C. ' Chapters 4 to 8, infra.

' 77th Report, paras l2.l and 12.2.

CllAPI't£l{ 4 EXPANSION OF THE CATEGORY OF BAILABLE OFFENCES 4.1. We are now in a position to deal with the various categories of Enlargement _of

-Ilﬂlettrial prisoners? "umber 0' 53"'

5. , , _ able offences.

The first category' consists of those who are being teied for non-bailable and in respect of whom the court has declined to release them on bail. iOﬂ"poIsible suggestion to relieve congestion of' undertrial prisoners in jails in such fﬂﬂi can, be to enlarge the number of bailable offences. However, while resorting 'tothls course, we have also to bear in mind that for certain types of serious offences Itilnot normally desirable to release the accused on bail. Many offences have already been made bailable under the existing Code of Criminal Procedure. The 'Increase in the number of bailable offences would, in the very nature of things, he of' a marginal nature. Nevertheless, the matter does require attention.

Non-bailable I. , 4.2. Whether an offence is bailable or not has to be ascertained with reference to the First Schedule to the Code of Criminal Procedure, 1973. The first part deals ﬁgefﬁfﬁan ggﬁgf with offences under the Indian Penal Code while the second Part deals with offences code, ﬁnder other laws.

"I. OFFENCES UNDER THE 1. P. C. PUNISHABLE WITH IMPRISONMENT

- UPTO 3 YEARS 4.3. On an examination of the Schedule referred to above, we have come to Genmﬂ Cb conclusion that many of the offences which are non-bailable could be made approach. "L lltllble without causing any serious adverse impact on the public interest. Our :_[; up roach in making the recoinmendation relating to expansion of the catego- trim of bailable offences Iias been that where the maximum punishment prescribed D' for the offence does not exceed three years' imprisonment, then, the offence should ordinarily be bailable, unless there are any special features present in the nature N the offence or in its concrete manifestations in actual practice that justify fl different approach. On the other hand, if the prescribed maximum punishment "exceed: three years' imprisonment, the offence may not be made non-bailable unless 'thre are compelling considerations why it snould be made bailable.

4.4. In deciding the question whether any particular offence should or should various 'not be included in the list of bailable offences under this head, we have had due regard considerations. to the gravity or otherwise of the offence, the range and ambit of the offence being to wide as to include within itself situations of aggravation, the probability of re-

iztition of the offence if the alleged offende; remains at large, the effect, if any, of 'K ' remaining at large on public order and on even flow of" the life of the community,3 and other relevant considerations.

4.5. In the light of the above discussion, we would recommend that the offences Recommenda-. under the Indian Penal Code listed by us separately' may be made bailable. "O" 35 'O °°"a'"

offences under the I.P.C. puni-

shable with im-

prisonment up-

to three years.

Counterfeiting of coins.

4.6. The list which we have given5 includes some offences relating to counter- felting of coins. We may state that these offences would not affect the national economy, as most of them would, in practice, be concerned with non--lndian coins. «Moreover, as mentioned above," the matter has to be considered on an over-all eonsidoration of several factors and their cumulative effect, iiainely,--ls the release iofthe alleged offender likely to result in serious risks to society '.7 These offences, either in the abstract or in their concrete manifestations, do not, in our view, pose such a serious danger to society as to require that they should be non-bailable.

4.7. We now proceed to a consideration of the more serious offences.

H. OFFENCES UNDER THE INDIAN PENAL CODE PUNISHABLE I WITH IMPRISONMENT FOR MORE THAN THREE YEARS 4.8. As regards offences under the Indian Penal Code which are punishable Offences punisha- with more than three years' imprisonment we do not consider it necessary to make able W'"' 'm' prisonment for gbeilable any of these offences which are at present more than three ' " ' " " ' ' years.

' Para V1.26, supra.

' Para 1.26, supra. _ ' For _example offences under sections 153A and 295A, Indian Penal Code.

' Apprridix l. ' 'Appendix I read with para 4.5.

° Pam 4.4, supra.

.'"*''.;'.7;

under it Mtsifiix wt.

.>:.. r .

for amend.

tbe Flrst uh. Put Iii Ilium im-

lnw and Secrets 18 4.9. We may incidentally mention here that there are certain sections of the Indian Penal Code prescribing punishment of imprisonment for more than 3 years and less than 7 years.' --

III. OFFENCES UNDER OTHER LAWS 4.10. In regard to offences under laws other than the Indian Penal Code, the position as to bail (in the absence of a provision on the subject in the particular aw) is governed? by the First Schedule to the Code of Criminal Procedure, 1973, Part II, "rI.--CL\Ss{FICA'rI0N OF OFFENCES AGAINST OTHER LAWS which reads as under :

Offence Cognizable or Bailable or By what Court Non-Cognizable Non--Bailabl¢ Triable If punishable with death, imprisonment Cognizable Non-bailable Court of Session. for life, or imprisonment for more than 7 years. , If punishable with imprisonment for 3 Cognizable Non-bailable Magistrate of the years and upwards but not more than first class 7 years.

If punishable with imprisonment for less Non-cognizable Bailable Any Magistrate"

than 3 years or with line only.

4.11. We are of the opinion that the second paragraph of Part [1 of the First Schedule to the Code of Criminal Procedure-3 should be made more liberal so as to make bailable offences under the other laws which are punishable with 3 years' imprisonment'; instead of 'for less than 3 years.

4.12. The offences that are punishable with imprisonment upto 3 years do not, so far as we can see, seriously affect the maintenance of law and order. They have become non-bailable merely by reason of the automatic application of the general rule5 laid down in Part II of the First Schedule to the Code of Criminal Proce- dure, I973, governing offences punishable with imprisonment upto a certain term 4.13. On a careful consideration of the matter, we have come to the conclusion that offences under special laws that are punishable with imprisonment for three years should be bailable.

rule is ralating to offences under the Official Secrets Act, 1923. In the case of offences under other special laws, the legislature can, when it considers it necessary to do so, make an offence non--bailable even though the punishment prescribed for it is imprisonment for three years or less.

4.14. So tar as offences under the Official Secrets Act, 1923 are concerned".

the reasons which have weighed with us in keeping them non--bailable, even though the punishment prescribed for some of them is three years, are the same that weighed when the Official Secrets (Amendment) Act, 1967 was passed. In the Statement of Objects and Reasons for the Bill' which subsequently took the form of the Act", while making the offences under the Act non-bailable, it was stated as under:-----

"The protection of official secrets is regulated by the Indian Official Secrets Act, 1923. Except for a few minor amendments made in 1951, the Act has remained unmodiﬁed since it was enacted more than forty years ago. In view of the changed circumstances after the attainment of independence and the wide variety of unscrupulous methods which anti-national elements have of late been adopting to secure their ends, it has become necessary to amend the Act suitably to remove certain shortcomings and to make it more effective.

it * * =l< vk * * >1: * *'"Sectioris' 133' A, 1535,7212,' ﬁrs: para, 239, 250, 253, 292 457, 497 and 505.

' First Schedule, Part II, Code of Criminal Procedure, I973. " Para 4.10, Supra.

Para 4.15, infra.

I

5 Para 4.10, supra.

° For other offences affecting national security, see Appendix 3.

I 429, 431, 432, 44;).

Bill No. 9 of 1967 introduced in Rajya Sabha on 23rd June, 1967. Statements of Objects and Reasons dated 8th June, 1967.

The one exception that we have carved to this general 19 1; ll the context of problems of internal and external security which the f country {Ices at present, it is necessary to make ollences under the Act cogni-

Qiﬂhlﬁ non-ballablr and to enhance the I1'8XlI1lUI1l penalties prescribed for E:/'ﬂtlill offences. It is, therefore, proposed to enhance the punishments for oﬂcncu suitably while ensuring, at the same time, that all offences under become cognizable and non-bailable."

C15.' It is, accordingly, our recommendation that Part II of the First Schedule 1}~'-C0mmcDda-

of Criminal Procedure, 1973, should be amended so as to provide that g'r'"P'°C '""°"d under other laws should be bailable, where they fall within the ambit of pills' yhdlcntod above'. and with the exception already mentioned." part 11.

': "II is 3 suggested formulation of the legislative provision that could be:in- A on the subject.

.-:3':-3'! Ill Flirt Scheduled to the Code of Criminal Procedure, 1973, Part II, entitled _ on of otfences against other laws", the various paragraphs should 13 under. (This Part will consist now of four paragraphs, sina'. it is not W to disturb the present position as to cognizabilty of offences) :--

<:

hp .

i with death, imprisonment Cognizable -N0n--bailable Court of Session' [Eximn ﬁr" F or imprisonment for more than mag"? '7°P°3' *_ teld without c ange .

jblcwlth imprisonment for more Cognizable] Non-bailnlyle Magistrate of the [Existing second, Q 3 yen but not more than 7 years. ﬁrst class. paragraph in _ part, modiﬁed].

Flu with imprisonment for Cogmzable Bailable ' Magistrate of the [Existing second F1: ﬁrst class. paragraph in ' ' part, modiﬁed].

lhmﬂad that ofenées under the Ofﬁcial Secrets Act, I923, shall be non-bm'Iab!e. [Existing third ilk with Imprisonment for less Non-cognizable Bailable Any Magistrate." g:?ggg§:gr]'ih' I 3 yum. ' if' I'll'! 4.13 , supra.

' Flt'! 4.13 and 4.14,Isupra.

Dﬂeultiucuuscd by demand for bill for excessive T amount.

- Cout.' Foreigners or pawns having,' propensity to Iblcondlng. I Legal maximum ' 'not favoured,-

Snggeutlon for statutory limit on amount or 9-1" blllwnot favour-

ed.

No change recommended .

CHAPTER 5.

AMOUNT OF BOND 5.1. The recommendation made in the preceding chapter,' if implemented would reduce the number of undertrial prisoners falling within the first of the three categories mentioned by us.'~' They would then become entitled to bail and would ' fall within the third category. .

But this would not, in itself, be an adequate solution to the problem under consideration. It is common knowledge that even persons accused ofbailable .oll'ences~that is to say, those in the third category ---- are often unable to secure bail for the requisite amount because of poverty or other circumstance.

This difficulty is common also to the second category of persons, since, even where the order of the court releasing them on bait is passed, sometimes they cannot furnish the bail bond because of their inability to ﬁnd appropriate surety for the requisite amount. This could happen if the amount of the bond for which they have to find surety is so excessive that it is dillicult for them to get competent surety for the requisite amount.

5.2. The Code of Criminal Procedure does provide that the amount of bail bond shall not be excessive." llut, notwithstanding this speciﬁc directive in the Code of Criminal Procedure, there have arisen cases where a disproportionately high amount of bail was demanded. One such case even went upto the Supreme 5.3. Of course, there are cases of those persons who are either foreigners or who have a propensity for absconding and because of that fact, the sureties are re- luctant to furiiisli bail bonds on their behalf. Nothing much can be done for persons- of this category. However, we may note that regarding the third category of under- trial persons (persons being tried for bailable offences), the policy of the law is that they be released on bail. This policy should not be defeated by demand of bail bonds of such excessive amount from those persons as might make it difficult for -

them to furnish the requisite bond. At the same time, it has to be borne in mind that the amount of bail bonds be not so low as might tempt them to jump the bail.

5.4. It was siiggcstcil to us that one possible device of ensuring that the legal provision prohibiting demand of excessive bait is properly enforced is to impose a i limit~not as an iinalterable maximum but as a guideline for minor cases.

5.5. The suggestion was that some limit be imposed on amount of bail in minor cases, so as to ensure that the rule that bail should not be excessive is adhered -

to in practice, and with a certain amount of precision, at_ least in offences triable by Magistrates punishable with imprisonment not exceeding three years.

5.6. We are, however, of the view that any such change might, in practice, favour rich persons rather than poor persons. The object would thereby be defeat- ' ed. It is better, therefore, not to impose any limit on the discretion of the Magi» strate. ' 1 Chapter 4, supra.

9 Para 1.26, supra.

" Section 440(1), Cr. RC. 1973 T .

4 MatiRam v. Stair arl\«t.P.A.l.R.1978S.C. 1:94 (hovcntfl me)» 20 CHAPTER 6 ' RELEASE ON BOND WITHOUT SURETIES 6.1. Apart from the question of excessive amount of the bond,' another B0nd_ without ion which requires to be considered in regard to persons who are entitled to 5"'°"°3- shit (the offence being bailable) or who are considered fit for release on bail (though TOO offence is non-bailable),----that is to say, the second and third categories of per- Ions mentioned by us"----is the question of sureties. Although an order for release an be. or has been, passed, difficulties sometimes arise because the persons con- ﬁned cannot afford sureties. To meet such dilliculty, the Code of Criminal Pro- pdttm even now contains certain provisions wliereunder the oflicer or court can a person on bond without stireties---sometimes cailed "personal recogni-

V Thofollowing is an illustrative list of provisions in the Code which empower oﬂicer or court concerned----or, in one case, even require" the court concerned,'

-40 release a person accused of an offence on a bond without sureties.5:---

sections 42(2), 88, 169, 389, 436(l), proviso, 437(2), 437(7).

'.1. But the scope of t.hese provisions is limited. it appears to us that there- Need to libera- i need to widen the scope of the power to release on personal bond in certain res' "5° Pf°V"Si°n8 mil. Experience shows that quite a large number of undertarial prisoners are bfndrclease '"3 habit: to secure release because of their inability to find sureties. Such inability ' my nice because of their poverty, social conditions, want of contacts in the loca- h in which they are arrested or similar other factors over which they have no Prinia facie, there is a case for liberalising the present provisions for re- 3 on hand without sureties. We propose to consider the matter ﬁrst with reference ,hlllb|e iblfences" and next with reference to non-bailable offences.' First, ._as to bailable offences, section 436(1), proviso of the Code of Outline of the Procedure, 1973, gives a discretion to the oliicer or court to "discharge" '""°"d'"'*"""

_ concerned on a personal bond. As to these offences, we are of the view WI personcannot furnish sureties within one month of arrest, that circumst- illhe absence of reasons to be recorded, should constitute a fit case for re- onnpmonal bond. If after one month a person cannot furnish sureties, it .b cl presumed that the failure was due to geneuine inability to ﬁnd appro- sure . We may, however, add that the release of a person on own bond 7? i =- surcties involves the risk of that person absconding. To obviate this risk ' _jo.,provide a deterrent, we are making a separate recommendation," so as to '' ﬂoneappcarance and failure to surrender to custody a non-bailable offence.

CA As to non--bailable offences, we recommend that section 437(1) of the N011-bﬂilable 3 should be amended, and the otlicer or court should have a discretion to re-- 0 °"°'5- ' y IN person concerned on bond without sureties, but in this case, our proposal the effect of expiry of one month after arrest" should not be made applica- H enough to confer a discretion to release on bond, without rendering its mandatory in any form'/'. i The following is our concrete recommendation for amending the Code fgecontrmenda-d ' ~ - - _.__ ion o amen V out the points made in the preceding parapgraphs mm" 436") and section 437, Cr. P. c, 1913.

' "U0 437 (7). Cr. P. C. 1973.

' Pa of these sectionsfsce Appendix 5.

'.130 ls illustrative only.

Bailable oﬂiences.

:1 Recommends-I (don to amend auction ' 436(1),

- proviso. Cr.P.C.

Ddnltlon oi ""hlI" to be 'blurted In tlctlon 2, 'Ct.P.C. llI.ilnommenda-

In to E! )Iectlon 22 "Section 436(1) Explanation to be added E.rplanatinn.----If such person is unable to ﬁirnish bail within one month of the date of arrest, that circumstance shall, in the absence of reasons to be record- ed by such officer or court, be aﬁt ground for the release of such person on his executing a hand without sureties."

Section 437(1) Third proviso, to be added "l'rovia'ed also that such officer or court, if he or it thinks fit, may instead of taking bail from such person, release him on his executing a bond without suretiesfor his appearance as hereinafter provided."

6.(. in the F.Xpli1l1('l1,l0."_1 recommended by us to be added to section 436(1), proviso, we have deliberately used the word 'release' instead of the word 'discharge' which at present occurs in the proviso, since, in our opinion, the word 'discharge' as used in the Code has a particular connotation. The appropriate word, in our opinion, is 'release'. We also recommend that in the existing proviso, the woud 'discharge' should be replaced by the word 'release'.

6.7. Our recommendation above" to enlarge the scope of the power to re-O lease on a bond without sureties has been made as a matter of policy. It is now necessary to deal with a question of language, connected with this very subject. Our recommendation for inserting provisions for the release of a person on his bond without sureties in certain eontingencies,3 will add to the existing provision' in the Code of Criminal Procedure which permits such release.

In this position, it is necessary to introduce in the Code a clarification appli-

cable to other provisions of the Code which make a reference to 'bail'. We have,' in mind, provisions which do not themselves give a power of release, but refer to other provisions under which bail is granted. A clariﬁcation to the effect that references (in such provisions) to "bail" include release on a bond without sureties, when such release is permitted by the Code is, in our view, needed to give full effect to the scope of such provisions.

Accordingly, we recommend that the following clause should be.inserted as clause (aa) in section 2 of the Code of Criminal Procedure, 1973 which contains the deﬁnitions :

"(aa) references to 'bail' include release on a bond without sureties, where such release is permitted by this Code."

6.8. There are certain sections of the Code in which it is necessary to confer ' expressly a power to release the person concerned on bond without surety." We have already recommended the necessary changes in section 436(1) and section 437(1)." Apart from this, section 395(3) and section 439(l)(a), Cr. P. C. 1973 also should be amended so as to give such a power.

Section 395(3) needs no comments. It deals with a reference made by a sub' ordinate court to the High Court and with release on bail pending the decision of such reference. V As to section 439(l)(a), it provides that the High Court or a Court of Session may direct that "any person accused of an offence and in custody be released on bail. . . .".

We are of the opinion that this provision should be wide enough to cover re- lease on personal bond, having regard to the fact that this is the principal section under which release by the High Court or the Court of Session would be_ ordered, both in regard to cases of persons'undcr trial before those courts and in regard to cases of persons under trial in courts subordinate thereto.

We, therefore, recommend that in both these sections, after the word 'bail'- the words 'or on bond without sureties' should be inserted.

"Para 6.5,"supra.

' Para 6.5, supra. I ' «Em L14t1n5r'ti)l"mi'a' C' l l' C' ' in 1 Procedure 1973 4 ' , _ '. , pi e o ,rim 1 . _-

5 Sggtggtions 56 58, RI, lst and 2nd provisos, 167(2), proviso (a_). 1337(1), 209(b), 306(4)(b). 330(1). 437(4)'and (5). 4W(|)('>). 4W(?.). MHZ). 411(3) and 442(1). Tne list is illustra-

tlve only.

' Para 6-3 and 6-4, 'supra.

' CIlAI'1'ER 7 J OBLIGATION T0 APPEAR AND SURRE-Nl)ER--~--Vl0LA'l'lJN TO BE AN DEFENCE

7.1. Conscquential on the recommendations made in this Report to liberalise Insertion of new hvtrclating to bail', it will be necessary to create an olfence of l'ailure, on the part sectionin the Cr. 4] I: released on ball or on bond without sureties, to appear in compliance 1'-C recommen- ll * terms of the bond and surrender to custody. ded-

Il. that lim place, in order to make it mandatory tor the personso released to Ind surrender, we recommcntl that it new sectton should be ll1SCl'lCtl in the __of Criminal Procedure,-1973, us lollows :~--

"MIA. A person released on bail2 or on bond without sureties in criminal V V 3 shall be bound to comply with the terms oftlze bond executed for the more in the matter of appearance in court or bcyore the police ojﬁcer and l_ under to custody."

, , , . . , _ _ _ Amendment of pmvmon. 'lhe penal pl'OVlSt01l could be appropriately inserted tn the Indian I.P.C. recom- Oda, somewhat on these l1nes:---- mended.

Section to be inserted in the Indian Penal Code I ':."2.29A. (1) If a person who has been released on boil or on bond2 without Failure to com_ jﬂdhl In criminal proceedings fails without reasonable cause to appear or sur- ply with 'exms I: ﬂLﬂ0(iy, in tllotttpjllltlttce wltlz the terms of the bond executed for the pur- of bond.

' shall e gut ty 0 an o_(/ence.

Q) U' a person who----

(I) has been released on boil or bond without sureties in criminal pro- ceedings, and \ (I!) having reasonable cause therefor, has failed to appear or surrender to custody in compliance with the terms of the bond executed for the WW'?-

« - » -- and surrender to custody at the appointed place as soon after the ' Mm as is reasonably practicable, he shall be guilty of an offence.

It shall be for the accused to prove that he had reasonable cause for his to appear 'or surrender to custody.

An qfence under sub-section (1) or (2) shall be punishable with impri- _ for ti term not exceeding two years or with ﬁne or both.

l.lwloiatlon.---The punishment under this section is---- ll addition to the punishment to which the offender would be liable on a amvlctlon for the o_[]'ence which is the subject-matter of the criminal ' gs, and 'r, Q) 01111101: to the power ofthe court to order forfeiture of the bonr." Amendment of First Schedule, Part I, CY. P.C. 1973.

and by my Magistrate.

V _ to 6. nom-

d "ball" is inserteJ, than L'.-fsrencs to band is not necessary.

23 24

The punisluneut which we have proposed is imprisonment upto two ",§years.' Although the general approach adopted by us in this Report' would suggest that the offence should be bailablc, that principle cannot, for obvious reasons, be applied to this olTence. ' Accordingly, we recommend that the Code of Criminal Procedure, 1973, first Schedule, Part I, should be amended for this purpose, by adding, after the entry in ' that Séhedule pertaining to section 229, I.P.C., the following entry:------

"229/\. Failure to Imprisorzmcnf C'og-- Non-- Any comply with upto two years m'za-- baiI- M agr's- Ilie terms orﬁue or bath. blc able traie."

of bond. ' ' Para 7,2 Suﬂrrz.

'Para 4.] to 4.5 Supra.

ClIAl'l'l:'R 8 ARRANGEMENTS F()R I)E'1'EN'l'l()N 8.1. We would also like to make a few observations as to the place of detention of undertrial prisoners. Undertrial prisoners are, at present, housed in the same building as convicts. In our opinion, undertrial prisoners should not be sent to jails with convicts. The evils of contamination are too well known to require emphasis.' The induction of a large population of undertrial prisoners in a building essen- tially meant for convicts, is, in the very nature of things, undesirable. Despite all the precautions that may be taken, the contact between, and the intermingling of, undertrial prisoners and convicts cannot be avoided if both are inmates of the same building. Such contact has the most deleterious ellect on the undertrial prisoners. Even if some of them are ultimately acquitted, their association with the convicts some of whom are hardened criminals, leaves a bad trail on their mind.

8.2. There should therefore be separate institutions for their detention. We may also note that a recommendation for separate place of detention was made long ago in India.' ' ~ Under the Code of Criminal Procedure", the place of detention is thus speciﬂed:---

"4l7(l). Except when otherwise provided by any law for the time being in force, the State Government may direct in what place any person liable to be imprisoned or committed to custody under this Code shall be conﬁned."

This provision thus leaves the place of confinement to be speciﬁed by the State Government, subject to the provisions of any law for the time being in force.

There should he therefore no 'legal dilliculty.

Creating such institutions would, however, require a policy decision and involve ﬁnancial commitments and long--term planning. Till such time as this is done, actual realities impel us to find solution of the problem created by the excessive number of undertrial prisoners in jails, as already mentioned.4 8.3. The question' whether bail hostels should be established, as in England", for persons who have been ordered to be released on bail but who are not actually released because of their inability to furnish a bond with sureties, is another matter which also involves ﬁnancial implications and long-term planning and the prospects of which are, at present, rather remote. Consequentially, we have not considered it appropriate to deal with that matter in this Report.

8.4. We are also of the view that a lot needs to be done to improve the condi- tions of detention in prisons, apart from relieving congestion of undertrial prisoners. We have, however, refrained from going into this matter, as that aspect was outside the scope of the matter referred to us.

1 Para 1-2, supra.

' Para 1-16, supra. Also see para 1-22, supra.

' Section 417 (1), Code of Criminal Procedure, 1973.

° Chapter 1, supra.

5 See Para 2-19, supra.

' Section 53, Criminal Justice Act, 1972 (Eng.) See Appendix 4.

Separate ar-

rangements for detention of undertrial prisoners.

Separate laces of detent on.

Bail Hostels.

Conditions detention.

of CHAPTER 9 SUMl'vlAR1' 'PF C(}NCLUSl()NS AND .REC()Ml\-1ENDA'I'l()NS We give below a summary of the conclusions reached and recommendations made in this Report.

1. Introductory (I) The problem of- undcrtrial prisoners in jails has assumed magnitude, as is evident from ﬁgures collected from various sources. The problem is not conﬁned to India; nor is it new. Several recommendations made in the past in various stu- dies and reports have placed emphasis on various aspects of the problem. A high percentage of jail population comprises persons under trial. This is not a-- satis-

factory situation'.

In dealing with the problem, three types of prisoners have to be consideredw

(a) Persons being tried f or non-bailahle offences, in respect of whomthe courts have declined to pass an order for their release on bail.

(b) Persons being tried For nou~bailable offences, in res eel: of whom courts have passed order for ball but who, because of the difficulty of ﬁnding ap- propriate surety or because of some other reason, do not furnish the bail bond.

(C) Persons who are being tried for bailable offences but who, because of the dilliculty of finding appropriate surety or some other reasons, do not fur~ nish the bail bond.

For reducing the burden of undertrial prisoners on jail, all the above three categories should be dealt with'.

(2) The various measures recommended in the 77th Report of the Law Com- mission to reduce delay and arrears in trial courts should be implemented in order to deal effectively with the problem of large number of uudertriai prisoners3. Other remedies suggested in this Report should also be adopted-

2. Present law, comparative position and questions for consideration (3) An exainination of the concept of hail', the present law as to ball', the various statutory time limits connected with the investigation or trial of offences" and the .

issues llist fall to be considered', shows that in formulating legislative policy in re- lation to release on bail, several conllictmg considerations have to be balanced. It also shows that the problem of unciertrial prisoners has to be dealt with on several fronts?

(4) In England, there is now a presumption in favour of the right to bail for all offences. Further, a discretion is given to the Court to release a person without surety. Tliere is no personal recognizance. A duty to surrender to custody is created, and its violation is made an offence. On release on bail.' certain conditions can be imposed".

3. Disposal of cases (5) For dealing with the problem of large number of undertrial prisoners implementation of recomrneudatioiis made in the 77th Report of the Law Commis. sion (delay and arrears in trial courts) IS a measure of the first irnportancel".

1 Para 1-1 to 1-22.

I Para 1-25.

" Para 1-27.

4 Para 2-1 to 2-4.

' Pam 2.5 to 2-17.

' Para 2-6.

V Para 2-20 to 2-25.

I Pam 2-25.

' Para 2-18 and 2-19.

1' Para 3-! to 3-6.

26 27

(6) Cases in which the accused persons are in jail should be given prefe-

rance and the target for] their disposal should be four months----instead of six months recommended in the _77th Report'. ' (7) In order to prevent interested parties from prolonging pendency of cases, a certain amount of strictness is necessary to ensure prompt disposal".

(8) Trial Magistrates should furnish periodical statements of cases in which the accused are in custody and which are not concluded within the prescribed time."

(9) In times of some agitation, numerous persons defy law and court arrest. causing a sudden spurt in the number of undertrial prisoners. Most of them would not offer bail. Such persons should be put up for trial soon after their arrest in order to avoid congestion ir1 jails'.

(10) Quite a substantial number of persons who are being proceeded against in security proceedings for {keeping peace and for good behaviour are detained in jail as undertrial prisoners because of their inability to furnish the requisite bond. The cases against those persons should be heard with due promptness and despatch. Elforts should be made to conclude these proceedings within 3 months5.

(ll) inordinate delay in the investigation of cases should be avoided. The diversion of police officials concerned with investigation to other duties relating to law and order should be avoided". It causes delay in investigation, as pointed out in 77th Report.

(12) Investigation of cases should be completed as soon as possible. The law provides that if an investigation is not completed within the speciﬁed period, the accused should be released on bail, thus highlighting the need for prompt inves- tigation.7 (13) Where the accused is in jail, adjournments of cases should not be granted unless absolutely necessary."

4. Expansion of the category of bailable offences (14) Certain olfences under the Indian Penal Code, as listed in the Report, which are at present non-bailable, should be made bailable. The Code of Criminal Procedure, First Schedule, Part I, should be amended accordingly."

(15) Offences under laws other than the Indian Penel Code punishable with 3 years' imprisonment should be made bailable, with the exception of oliiences under the Olﬁcial Secrets Act, 1923. The Code of Criminal Procedure, 1973, First Sche- dule, Part II, should be amended accordingly 10.

5_ Amount of bond (16) The statutory requirement that the amount of bond shall not be excessive,"

should be observed.

(17) There is, however, no need to impose a statutory ceiling on the amount of bail."

6. Release on bond without sureties (18) In regard to bailable offences, section 436(1), Code of Criminal Procedure, 1973, which empowers the oliicer or court to "discharge" a person on bond with- out sureties, should be amended by adding an Explanation to the etfect that where a period of one month expires after arrest without the accused furnishing sureties, that shall (in the absence of reasons to the contrary as recorded) be a ﬁt ground for release on bond without sureties." The word 'discharge' should be replaced by the word 'release'. 14 1 Para 3-7.

' Para 3-8.

' Para 3-9 ' Para 3-10.

" Para 3.11.

° Pam 3.12.

" Para 3.13. See section 167(2), Cr.P.C. 1973. 5 Para 3.14.

' Para 4.5 read with Appendix 1.

W Para 4.11 to 4.15.

" Para 5.1 and 5.2.

" Para 5.3 to 5.5.

1' Para 6.3 to 6.5.

'i Para 6.6.

(I9) in regard to non--bz1ilable olfences, a discretion should be given to the olﬁcer or court to release a person on bond without sureties. Section 437(1), Code of Criminal Procedure, 1973 should be amended for the purpose.' A (20) A definition of "bail" should be inserted? as section 2(aa) in the Code of Criminal Procedure, 1973 to make_it clear that references to "bail" include references to a person released on bond without sureties, where such release is permitted by the Code. .

(21) Further, in sections 395(3) and 439(l)(a) of the Code, power to release on bond without suretics should be experessly provided for.~'*

7. Obligation to appear and surrender----violation to be an offence (22) A provision should be inserted in the Code of Criminal Procedure, 1973 to the effect that a person released on bail shall be bound to appear and to surrender to custody.' .-

(23) Fherc should be inserted in the Indian Penal Code :1 Provision' creating a new offence punishing violation of the obligation so undertaken with imprison_ ment upto 2 years or line or both.

(24) The new ollence to be created as above should be----

(a) cognizable;

(b) non-bailable;

(c) triable by any Magistrate.

The Code of Criminal Procedure, 1973, First Schedule, Part I, should be ap- propriately amended for the purpose."

8. Arrangements for detention (25) There should be separate institutions for the detention of undertrial pri- soners, the induction of a large population of undertrial prisonersin a building essentially meant for convicts being undesirable. However, the creation of such insti- tution is a matter of long--term planning and of ﬁnancial implications. Other steps to reduce the number of under trial prisoners may therefore have to be taken.' (26) The question of providing for bail hostels for persons who, though order- ed to be realeased on bail, cannot oller bail, has not been considered in the Report as a part from its ﬁnancial implications and need for long--term planning, its pros- pects in the present conditions are rather remote."

(27) A lot needs to be done to improve the conditions of detention in prisons. The Report, however, refrains from going into this matter, being outside the scope of the reference."

II. R. KHANNA, Chairman -

S. N. SHANKAR, Member.

T. S. KRISHNAMOORTHY IYER.

Member.

P. M. BAKSHI.

Member-Secretary New Dawn, Dated, the 2nd February, 1979.

1 Para 6.5. , ' Para 6.6 and 6.7.

" Para 6.8.

0 Para 7.1.

' Para 7.2.

0 Para 7.3.

' Para 8.1 and 8.2.

! Phm 8.3.

! Para 8.4.

Al'I'I3N1.)IX i LIS 1' OF OIVFENCICS UNDER THIS INDIAN PENAL CODE V\Hl(,H ALENON-BAlLABLl£ ' AT PRESENT AND WHICH SHOULD BE MADE BAILABLE ACCORDIIVG TO THE t{EC()MMENDA'I'l0NS IN THE REPORT Section Ollcnce Punishment 161 Being or expecting' to a publlcsei'vt1iit and taking a gratilication other than Imprisonment for three legal reinunerzition in respect ()1 an oilicial act. years or line or both.

16?. Taking a gratiliczition in order by Corrupt or illegal means, to intluence a public Imprisonment for three years servant. or ﬁne or both.

163 Taking a gratiﬁcation for the exercise of personal inlluence with a public servant 'Simple imprisonment for

-- ' i one year or fine or both.

104 Abetment by public servant ol' the oilieiices delinetl in sections 162 and 163 Imprisonment. for three with reference to himself. years or line or both.

165 Public servant obtaining any valuable thing, without consideration, from a person Imprisonment for three concerned in any proceeding or transaction by such public servant. years 0|' 11116 01' b0111- 65A Abetinent of otfences punishable under section 161 or 165 Imprisonment for three years or fine or both.' 170 Personating a public servant Imprisonment for two years or ﬁne or both.

' 233 Making, buying or selling instruinentfor the purpose of counterfeiting coins Imprisonment _for three years and line.

235 Possession of instrument or material for the purpose of using the same for couii- Imprisonment for three years first terfeiting coin (not being Indian coin) and ﬁne. para 237 Import or export of counterfeit coin, knowing the same to be counterfeit Imprisonment for three years and tine.

241 Knowingly delivering to another any counterfeit coin as genuine which when Imprisonment for two years lirst possessed the deliverer did not know to be counterfeit or line or 10 times the value of the coins coun- terfeited or both.

242 Possession of counterfeit coin by it person who knew it to be counterfeit Imprisonment Vfor three when he becomes possessed thereof years and line.

246 Fraudulently diminishing the weight or altering the composition of any coin Imprisonment for three years and ﬁne.

248 Altering L1t),)i,lt:.liI..'3 of .my cam with inteiit till! it slull piss as coin of a [.n,.>i'i;ol1in.°.i1t for three ditferent description years and ﬁne.

252 Possession of altered coin by a person who knew it to be altered when he became linprisonment for three years ' possessed thereof and line.

254 Delivery to another of coin as genuine which, when lirst possessed the deli- Imprisonment for two years verer did not know to be aitered or fine or ten times the value of the coin.

267 Making or selling false weights or measures for fradulent use Imprisonment for one year or ﬁne or both.

303 Atte.npt to co n nit culpable ho nicide (where no hurt caused) imprisonment for three years lst .. or ﬁne or both.

para 406 Criminal breach of trust Imprisonment for _ thee ' years or ﬁne or both.

411 Dishonestly receiving stolen property knowing it to be stolen '' Imprisonment for three years or ﬁne or both.

414 Assisting in concealment or disposal of stolen property, knowing it to be. Imprisonmenttorthreeycan Stoleﬂ or ﬁne or both.

461 Dishonestly breaking open or unfastening any closed receptacle containing or Imprisonment for two years supposed to contain property or line or both, 29 530 APPENDIX 2 FIGURES OF UNDERTRIAL PRISONERS IN CERTAIN JAILS Central Jnll. Ambaln Information about prisomfrs and mzdcrtrial prisoners' :

(u) 254 [Total number of prisoners in the Central Jail, Ambala on the lst September, I978].

(b) 23 [Out of (a) above, total number of persons who are convicted persons undergoing any sentence of imprisonment]. , -.

(c) 231 [Out of (a) above, total number of persons who are undertrial and no under going any sentence of imprisonment].

(d) 22 [Out of (c) above, total number of persons who are under trial for bailable olfences], and

(e) Either the prisoners did not apply for bail, or could not furnish surety.

[This gives as regards persons at (d) above, the main reason why the persons could not furnish bail].

Nora :--The ﬁgures at (c) above,4i.e., undcrtrial pris0ncrs----Conslitule 90.944 per cent of ﬁgures at (a) above,----i.e. total prisoners.

Central Jail, New Delhi

(a) Total number of prisoners in the Central Jail, New Delhi, as on 1-9-1978 is 2,373.

(b) Out of these 2,373[(a) above], the number of persons who were convicted persons undergoing sentence of im- prisonment was 267.

(c) Out of (a) above, the total number of persons who were undertrial and not undergoing any sentence of im- prisonment was 2,106.

(d) Out 01' 2,106 [(c) above], the number of persons who were under trial for bailable offence was 1,156.

(e) As regards persons at ((1) above, the main reasons why they could not furnish bail are given as below :

(i) Want of sureties,

(ii) Absence of family members as being not the residents of Delhi,

(iii) Delay in contacting the family members,

(iv) Poverty, not being able to get legal assistance.

1. As per letter No. 43/75/78-JJ(2), dated 29th November, 1978, from the secretary, Jails Department, Government of Haryana to Member-Secretary, Law Commission of India.

APPENDIX 3 PRESENT POSITION AS RFGAFDS (FRTAIN OFFFNCFS AFFECTING NATIONAL SECURITY OR ECONOMY UNDER SPECIAL LAWS Act and Section Offence Punishment-

Imprisonment upto :

7. The) Unlawful Activi-

8. Sactioa 113(1)-

The Foreign Recruit- Violation of the prohibition or condition for permis- ing Act, 1874, Section sion to recruit persons for service of any foreign State.

(i) If any person for any purpose prejudicial to the safety or interests of the State--«--

(8)' approaches, inspects, passes over, or is in the vicinity of, or enters, any prohibited place; or (1)) makes any sketch, plan, model or note which is calculated to be or might be or is intended to be, directly or indirectly useful to an enemy; or

(c) approaching prohibited place, making sketch, obtaining, collecting, recording or publishing or communicating to any other person any secret official code or password, or any sketch, plan, model article or note or other document or in-

formation which is calculated to be or might be or is intended to be, directly or indirectly,'useful to an enemy or which relates to a matter the dis- closure ofw'ii<~.h is li'(r*,iy to affect the =ovr'reignty and integrity of India, the security of the State or friendly relations with foreign States.

The Official Secrets Act, 1923, Section 3.

Section 5 Wrongful communication, etc. of information Section 6 Unauthorised use of uniforms, classiﬁcation of reports, forgery, personiﬁcation and false documents.

Section 7 Interfering with officers of the Police or members of the Armed forces of the Union.

Section 8" Violation of duty of giving information as to the com- mission of offence.

Section 9 Attempts, incitement etc. Section 10 Penalty for harbouring spies Dissuading the public from enlistment to the Military, Criminal Law Amend-

Navy or Air Forces or instigating to Mutiny or insubor-

merit Act, I938 Section 2 dination after enlistment.

The Foreigners: Act, Contravention of provisions of this'Act.

Section 14 The Criminal Law Questioning the territorial integrity or frontiers of Amendment Act 1961. India in a manner projudical to the interests of safety Section 2 and security of India Section 3] Statements etc. in a notiﬁed area prejudicial to main-

tenance of .public order or safety, security of India etc. The Atomic Energy Contravention of any--

(a) order made under S. 14,

(b) rules under S.l7, as to safety,

(d) contravation of S. 18(2) regarding disclosure of restricted information.

Act, 1962 Section 240).! Unlawful activity ties Prevention Act, 1967.] clared unlawful.

7 years.

Imprisonment for a term which may extend, where the offence is committed in relation to any work of defence, arsenal, naval, military or air force esta-

blishment or station, mine, mineﬁeld, factory, dockyard camp. ship or aircraft or otherwise in relation to the naval, military or air force affairs of Government, or in relation to any secret offi-

cial code, to fourteen years, and in other cases to three years.

3 years.

the Sameas that for offence.

3 years.

1 year 5_'years.

3 years.

1 year. ;

5fyears.' 7 years.

Assisting in 'unlawful llactivity of any association d_e- 5 years.

APPENDIX 4 SECFIOV 53. CRIMINAL JUSTICE ACT. I972 (Eng.):~--PROVISION OF DAY TRAINING CENTRES, BAIL.

H03I'I'1IS. PROBATION IIOSTELS ETC}! (1) A probation and after-'care committee may, with the approval of tire Secretary of State, provide and Cﬂffy on day training centres, bail hostels, probation hostels, probation homes and other establishments for use in Cmmection with the rehabilitation of offenders.

(2) The §::retary of State may approve bail hostels; and in relation to hostels approved by him under this]}sub- section : ~ l -

(a) Section 46(2) of the Criminal Justice Act, I948 (Secretary of State's power to make rules as to management etc.) shall apply as it applies in relation to approved probation hostels and approved probation homes; and

(b) section 47 of that Act (certain residential institutions to be subject to inspection by Secretary of State) shall apply as it applies in relation to the institutions mentioned in that section.

(3) The Secretary of state. tiny, with the approval of tlie_Treasury and subject to such conditions as he may with the like approval dete_rmine_, make payments _to a probation and after--care committee towards any expenditure of the com nittee i 1 ex :rcising their powers under this section in respect of bail hostels, probation hostels and probation homes.

(4) The conditions 'subject to which any payments are made to a probation and alter-care committee under sub- s::tion (3) of this section miy include conditions for securing the repayment in whole or in part of the sums raseived by the committee if the hostel or home in question ceases to be used as such.

ction (3) (b) of section 77 of the said .'\(:l of I948 (contribution out of moneys provided by Parliament to.vards expenditure of any society or person in respect of approved probation hostels or homes) shall have ellcct as it" refcreiices to approved probation hostels or homes included reference to bail hostels; and suh--scction (5) of that sec- tion (provisions as to conditions imposed in relation to grants under the said sub--section (3) (b) shall, in relation to any grant made by virtue ofthis sub-section, have elTect as if the reference to an approved probation hostel or home ceasing to be approved were a reference to a bail hostel ceasing to be used as such.

(5) Sub-se (6) In this section :-- \ "day training centres",ineatis premises at which persons may be required to attend by .a probation order containing a requirement under section 20 of this Act 5 .

-"bail hostels", means premises for the accommodation of persons remanded on bail;

means premises for the accommodation of persons who may be required to reside (here by "probation homes" _ _ _ . _ er, not being such persons as are mentioned below in the definition of"probation hostels";

a probation ord mises for the accommodation of persons who may be required to reside there by a "Probation hostels", means pre _ _ . _ ho are employed outside the premises or are awaiting such employment, probation order, being persons W 33 APPENDIX 5 SECTIONS PROVIDING FOR RELEASE ON PERSONAL BOND' At present, there are certain provisions in the Code of Criminal Procedure, 1973, which empower the officer or court concerned or, in one case, even require' the court concerned, to release a person accused of an offence on a bond without sureties.

Section 42(2). (Non--cogni-

zable oflenees).

Section 88. (All offences).

Section 169. (All offences) Section 436(1), proviso.

:jf(Bailable offences)"

Section 437(2). (Non-bail-

8 ble offences) I Section 437(7). (Non-bail-

able offences) The following is an illustrative list :

Person who commits in the presence of a public officer a non-cognizable oflence refusing on demand to give his true name and residence may be arrested for ascertaining the name etc. When the true name etc. has been ascertained, he will be released "on his executing a bond, with or without sureties, to appear before a Magistrate ifso required."

Officer presiding in any Court rnay, inrespect of a person present in Court, require such person to execute"a bond, with or without siireties, for his appearance in such Court"

Release where evidence deficient---"bond with or without sureties".

In the case of a person accused of a bailable offence, the officer or court may, instead of taking bail, discharge such person on his executing a bond wit/iou! surcties for appear-

ance etc. If at any stage, it appears there are not reasonafile grounds for believing that the accused committed a non--bailable offence, but that there are sufficient grounds for further enquiry into his guilt, the accused shall be released on bail or, at the discretion of the officer or court, on the execution of :2 bond wit/iout sureties for appearance etc. (This provision applies to person accused of non--bailable offences).

If at any time after the conclusion of the trial of a person accused ofa non--bailable offence and beforejudgnient is delivered, the court is of opinion that there are reasonable grounds for believing that the accused is not guilty, it shall release the accused if in custody on tdhel_ex«:c(;ition by him of a born! wit/zaut sureties for his appearance to hear judgement e ivere .

1. See para 6.! of body of the Report.

3. Section 437(7), Cr.

P.C. 1973.

3. This proviso applies also to persons ordered to give security for peace or good behaviour, subject to section 1 16(3) GIPN----S I--525 LAD/Ni)/18-14--5--79--2,oo0

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Congestion Of Under Trial Prisoners In Jails