NALSA's Scheme For Undertrial Prisoners Cannot Take Away Court's Discretion To Grant Or Refuse Bail: Bombay High Court

The Bombay High Court held that the NALSA’s scheme for release of undertrial prisoners is meant to bring the attention of the stakeholders i.e., courts, to the undertrial persons languishing in jail, but it cannot override the court’s discretion to grant or refuse bail to such prisoners on merits.Justice S. M. Modak, while denying bail to a murder accused, observed that nothing can take away the discretion of the court in grant of bail.“It is true that it is the discretion of the concerned Court ; whether to grant bail or not. Such discretion cannot be taken away by any act. So, we gather is that by framing of such scheme, the attention of the concerned stake holders is brought to the effect that in your district, there are certain prisoners who are languishing in jail for so many years.”Under the scheme titled Release_UTRC@75 framed by the national legal services authority (NALSA), the Under-Trial Review Committee (UTRC) is supposed to identify prisoners under the categories provided in the scheme and recommend release for fit cases. NALSA, along with State and District Legal Services Authorities aims to urgently file bail applications for all prisoners recommended for release by the UTRC.The accused, booked under section 302 (punishment for murder) of IPC sought bail under Category 16 of the UTRC@75 scheme - under trials above 65 years of age. In this category, there is no mention of the nature of offence or the period of detention of the accused as an under-trial prisoner.The accused was of 71 years of age and fit the category. His bail application was rejected by the Sessions Court. Advocate Hrishikesh R. Chavan argued that if merits of the matters are considered then it will defeat the purpose of the scheme. APP N. B. Patil for the State contended that the merits of the matter need to be considered otherwise many undertrial prisoners will be released on bail irrespective of merits.The court noted that there was also an attempt to kill four witnesses by the accused and hence the Sessions Court rejected his bail application.The court noted that the scheme was framed considering the high proportional of undertrial prisoners. Under the scheme the authorities were supposed to take steps for release of the undertrial prisoners.However, when the trial court as well as HC has considered the merits, the accused cannot secure bail, the court held.“One can say that the Authorities of DLSA and MSLSA were successful in bringing into the notice of this Court about the case of the Applicant. However, when the trial Court as well as this Court has considered the merits, the Applicant cannot secure bail considering the merits of the matter”, the court held. The court noted that the trial has already started. Hence, it directed the trial court to consider the fact that the accused is more than 65 years of age and the scheme was framed for the release of undertrial prisoners above 65 years of age.Case no. – Criminal Bail Application No. 2777 of 2022Case title – Mahipati Antu Jadhav v. State of MaharashtraCitation: 2023 LiveLaw (Bom) 110Click Here To Read/Download Order

NALSA's Scheme For Undertrial Prisoners Cannot Take Away Court's Discretion To Grant Or Refuse Bail: Bombay High Court

Amisha Shrivastava

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