The Delhi High Court recently rapped District and Sessions Judges for their non-compliance with its earlier order whereby it had directed them to conduct a "risk assessment" of cases where undertrials have been unable to secure release from jail despite grant of bail.
The Bench comprising Acting Chief Justice Gita Mittal and Justice C. Hari Shankar noted that despite its earlier order, it hasn't been informed whether any steps have been taken to release prisoners who have been unable to comply with the bail conditions imposed on them.
It then directed the Registry to return these reports with strict direction to the District & Sessions Judges to comply with its orders. It also demanded consolidated reports under the signatures of the District Judge, Headquarters for Court related measures and the Director General, Prison for measures implemented at Tihar Jail. The matter has now been listed on 8 March.
Court deprecates practice of unachievable bail conditions
The Court is hearing a Petition filed by Advocate Ajay Verma, who has alleged that several under-trial prisoners are languishing in jail despite bail orders having been passed in their favour. He has attributed this to reasons such as poverty, and financial inability of the relatives to furnish surety bonds or local sureties.
To this end, Mr. Verma has relied on several precedents such as the Apex Court judgment in the case of Moti Ram & Ors. v. State of Madhya Pradesh in order to highlight the unfavorable comments rendered against imposition of such conditions.
In its order dated 15 December, the Court had examined various other precedents wherein the Courts have deprecated such practices and took note of a district-wise list of under-trials who have not been released on bail despite orders of bail passed in their favour. This list had been submitted by the Standing Counsel (Criminal) for the Government of NCT of Delhi, Mr. Rahul Mehra.
Thereafter, the Court had opined that the judicial pronouncements of various Courts on the rights of under-trial prisoners were not being complied with, observing, "It is truly unfortunate that despite an elaborate system including jail visits by Judges; legal aid lawyers of DSLSA and DHCLSC as well as para legal volunteers interacting with prisoners and jail authorities as also extensive guidelines on the issue of bail conditions, not much has changed. The present intervention is still called for. Clearly, the directions of the Supreme court and this court are not being complied with.
We are extremely pained to note that despite the clear law having been laid on the subject, not only the authoritative directions of the Supreme Court of India as well as the repeated judicial pronouncements of this court and the clear statutory provisions, 253 prisoners are still languishing in jail which has necessitated recording of the present order reiterating the well settled principles."
The Court had then highlighted the need for a risk assessment of such cases, observing, "Inasmuch as we are concerned with inability of an undertrial prisoner to comply with the conditions of the bail, we see no reason as to why the trial courts do not suo motu examine the cases of such persons and to conduct an inquiry into the reasons thereof. The trial courts should be not only sensitive but extremely vigilant in cases where they are recording orders of bail to ascertain the compliance thereof. In case of inability of a prisoner to seek release despite an order of bail, in our view it is the judicial duty of all trial courts to undertake a review for the reasons thereof."
It had specifically directed that every bail order should be marked on the file and that it shall be the "responsibility" of every Judge to monitor its execution and enforcement. In case a Judge stands transferred before the execution, it shall be the responsibility of the successor Judge to ensure such execution, it had said.
The Court had further directed the Trial Court to conduct a "risk assessment", after which it must examine modification of the conditions of bail.
The Court had then issued the following directions:
"(i) The Registry is directed to forward a copy of the list submitted by Mr. Rahul Mehra, ld. Standing Counsel to the District Judges concerned as well as copy of this order to all the District Judges who shall ensure that the cases detailed in the list are immediately brought to the notice of the trial courts concerned.
(ii) The District Judges shall also undertake an exercise of verification of the list submitted by the Govt. of NCT of Delhi before us and also to undertake a review of the pending cases to ascertain as to whether there is any other under-trial prisoner who has been unable to secure release from prison despite an order of bail in his/her favour.
(iii) The trial courts shall undertake the exercise of risk assessment with regard to the persons enumerated in the list forwarded to the trial courts i.e. the District Judges who shall submit a report to this court of the outcome of such consideration by the trial courts within four weeks from today.
(iv) Copy of this order shall also be sent to the Directorate of Prosecution, Tis Hazari Courts, Delhi to ensure that a copy of this order is brought to the notice of all prosecutors and a sensitization programme on the subject is undertaken.
(v) Copy of this order be also sent to the Director General of Prisons, Central Jail, Tihar.
(vi) We direct the prison authorities to promptly bring in to the notice of the trial court as well as the concerned Secretary of the District Legal Services Authority about any incidence of a prisoner being unable to secure release from prison despite an order of bail.
(vii) The Director General of Prisons may consider the possibility of incorporating software which would raise a notification or an alarm in cases where under-trial prisoners in whose cases bail orders have been passed, are still lodged in custody, to enable action thereon.
(viii) Copy of this order shall also be brought to the notice of every judge in the District Courts in Delhi, irrespective of whether they exercise civil or criminal jurisdictions.
(ix) Copy of this order be also sent to the Member Secretary of the Delhi State Legal Services Authority as well as the Secretary, Delhi High Court Legal Services Committee to ensure sensitization of all the legal aid lawyers on the aspect noted by us.
(x) Copy of this order shall also be made available to the Delhi Judicial Academy to ensure that a proper sensitization programme of the District Judiciary on the subject is undertaken."