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Judgment
This Public Interest Litigation has been initiated suo motu by this Bench in view of the amendment and addition of Section 436A in the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code), which came to be published in "The Times of India, on June 26, 2006. The notice was issued to the Government and the learned Additional Advocate General II. Mr. S.K. Ghose appeared for the State on the first date and desired for some time to examine and collect the informations so as to file the detailed affidavit. We had, also, requested the learned Counsel Mr. Amber Nath Banerjee to act as amicus curiae on the last date. We have heard the learned Counsels appearing for the parties today.
It would be interesting with profit to reproduce our earlier order dated 14th August, 2006:
This matter has been taken up by this Court as suo motu Public Interest Litigation, in view of the amended provision of Section 436A of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code".), which came to be enforced by virtue of a notification of the Government of India with effect from 23rd June, 2006.
The learned Additional Advocate General II Mr. S.K. Ghosh appears for the State whereas, learned amicus curiae Mr. Ambar Nath Banerjee has also appeared and assisted the court. Pursuant to our direction contained in our last order dated 2.8.2006, both the counsel have submitted their written suggestions for the efficient and effective enforcement and implementation of the amended provisions of Section 436A of the Code introduced by the "The Code of Criminal Procedure (Amendment) Act, 2005 (No. 25 of 2005)", which prescribes, statutorily, the maximum period after which an Under Trial Prisoner not facing a charge punishable with death, becomes entitled to seek bail. According to the affidavit filed on behalf of the State, at present, the number of such under trial prisoners is 247. It can vary with passage of each day.
We have heard the learned Additional Advocate General, as well as, the learned amicus curiae and have enjoyed the benefits of their suggestions which were taken on record.
Section 436A of the Code, as introduced by the amendment, reads as under:-
"436A. Maximum period for which an undertrial prisoner can be detained.- Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the court on his personal bond with or without sureties:
Provided that the court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties:
Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.
Explanation.- In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded."
In view of the submissions and written suggestions, we propose to pass the following directions for the efficacious enforcement of the benevolent provision of Section 436A of the Code:-
(i) Where any Under Trial Prisoner (UTP) is entitled to the benefit of the provisions of Section 436A of the Code, quoted hereinabove, the Superintendent of the Jail concerned where the UTP is in custody shall inform such person or persons about such entitlement and his right with a written intimation to the Presiding Officer of the Court concerned where he is proposed to be tried, as well as, the Jail Cell, which we propose to constitute hereinbelow under the auspices of the Bihar Legal Services Authority. The Jail Superintendent and the Jail Cell shall ensure that the requisite actions are immediately taken for the enforcement of the aforesaid provisions in favour of those inmates who are eligible for the same as also to provide legal aid to the needy UTP in terms of the provisions of the Legal Services Authority Act, 1987, as well as, Rules and Regulations made thereunder by the Bihar State Leaal Services Authority Act.
(ii) We request the Member Secretary of the Bihar State Legal Services Authority to place this matter before the Hon''ble Executive Chairman of the Bihar State Legal Services Authority for the purpose of constituting a Jail Cell for the districts, as well as, for the subdivisions where the Legal Services Committees are functioning. It will be within the discretion of the Hon''ble Executive Chairman to decide the number of members of such Jail Ceil and to cast duties on them and they will also have discretion to direct the Jail Authority to assist the Jail Cell for expeditious implementation [68 In the matter of News reports published in TOI v. State of Bihar 2007(1) PLJR] of the aforesaid provisions of Section 436A of the Code.
(iii) The Jail Cell or the Authority or the Committee concerned shall have free hand in evolving the procedure so as to regularly monitor such cases of UTP, who in course of time, may become entitled to the benefits of provisions of Section 436A of the Act and to give effect to them, the Jail Superintendent, as well as, the District Authorities shall be rendering assistance as and when required by the District Legal Services Authority, Sub-Divisional Legal Services Committee or the Jail Cell.
To monitor further progress in the matter, let it be listed after two months in the same list.
Let a copy of this order be given to the learned Counsel for the parties."
Pursuant to that the learned Additional Advocate General II has placed on record the supplementary counter affidavit on behalf of respondent No. 2, The Home Secretary, Bihar, Patna and respondent No. 3, The Inspector General of Prisons, Bihar, Patna. We have examined the affidavit, in reply, and the supplementary counter affidavit. It has been brought to our notice that there are about 247 such Under Trial Prisoners as on July, 2006 in different Jails as highlighted and enumerated in Annexure-B alongwith the supplementary counter affidavit.
We had, also, requested the learned Additional Advocate General II to place on record the suggestions for effective and efficient implementation of the newly amended provision of Section 436A which provides maximum period for detaining each under trial prisoner and which has already been quoted in our earlier order, which has been reproduced hereinabove.
The following suggestions as mentioned in paras 4, 5 & 6 are made in the statements submitted to us on 14th August, 2006 by the learned Additional Advocate General II:-
"In case where the Under Trial Prisoner is unaware of the benefits of provisions of 436A of Code of Criminal Procedure the Jail Superintendent of the Jail where he is in detention should inform such Under Trial Prisoners to apply under the provisions of 436A of the Code of Criminal Procedure and arrange for his being produced before the concerned Court at the earliest.
The State Legal Aid Committee should contact the concerned Under Trial Prisoners and provide them the required assistance including appointment of counsel where necessary.
A method should be evolved may be by forming a Committee to regularly monitor the cases of the Under Trial Prisoners to find out if and when they should be accorded the benefit of the provisions of 436A of the Code of Criminal Procedure since detaining them beyond the period under this provision will be against the law."
We have, also, heard the learned Additional Advocate General II on this point and, also, examined the advisability of incorporating of such suggestions in our orders.
Let it be recorded that Parliament in its wisdom has amended the provision and incorporated a new provision in Section 436A of the Code in relation to an important aspect of the Criminal Jurisprudence "right to bail".
436A provides for maximum period for which under trial prisoner can be detained. Right to bail provisions earlier were incorporated in Section 436 of the Old Code. Sub-section (1) of Section 436 provides the right to bail, absolutely, in a case of bailable offences and sub-section (2) of the said Section, however, provides that where a person released on bail is absconding or failed to appear before the Court on the date fixed, would not be entitled to bail when on a subsequent date in the same case he appears even though the offences may be bailable. The said sub-section, also, provides that refusal of bail in such circumstances shall be without prejudice to the powers of the court that may be taken u/s 446 for forfeiture of the bail bond.
Keeping in mind and upon various relevant consideration 436A of the Code came to be introduced and inserted in the Code of Criminal Procedure.
It is in this context and the statutory provision and, also, the spirit in which the amendment has been incorporated, we thought it fit on the basis of the "Press Report" as stated hereinabove, to take up the matter in suo motu Public Interest Litigation.
So far the Annexure-B contained in the supplementary counter affidavit filed on behalf of respondents 2 & 3 on 28.7.2006, which highlights and enumerates the number of under trial prisoners which is about 247 as on July, 2006 languishing in different Jails in different districts and the different jurisdiction of the Magistracy, is concerned, thereafter, also, 3 months have passed and this is the continuous process because the maximum period as prescribed in the new Section 436A of the Code would become mature on different dates in case of different accused persons.
It is, therefore, thought it expedient to issue necessary directions so that the newly amended provision in Section 436A of the Code are fully complied with and implemented by the concerned authorities.
We would like to pass the following directions:
(1) In so far as 247 under trial prisoners as highlighted in Annexure-2 by the Government is concerned the respective Jail Superintendents are directed to bring it to the notice of each prisoners in respect of jurisdiction by writing and also telling them orally that they are entitled to the benefit of the provision of Section 436A of the Code. It will be further mentioned in the said notice that they are entitled for apply of bail and they are entitled for their production at the concerned Court at the earliest.
(2) Each Jail Superintendent will continue to do so in such cases regularly as and when the maximum period is reached in an individual case. He shall also furnish a statement of such persons and the follow up actions taken by him and the number of inmates of the Jail who have availed the benefit and who have not availed the benefit by regularly informing the Inspector General (Prison) in respect of the aforesaid 247 prisoners, as well as, as and when case becomes mature for entitlement for earning the benefit of Section 436A of the Code.
(3) The Inspector General (Prison) is directed to maintain such up-to-date records in his office and that shall, also, be placed on computer data, as well as, wherever is available on the website. He is also responsible for monitoring the actions taken and the subsequent follow up action enjoyed by the prisoners for availing the benefit of Section 436A of the Code regularly.
(4) We are also directing the Member Secretary of the Bihar State Legal Services Authority that through its District Legal Services Authority and Subdivision Legal Services Committee to provide legal aid to the qualified under trial prisoners and to see that requisite free legal aid is provided to them including the appointment of Legal Aid Counsel at the cost of the Government. He shall also monitor under the guidance of the Hon''ble Executive Chairman.
(5) We further direct in respect of constitution of a Committee of each district consisted of (1) the District Magistrate, (2) the Jail Superintendent wherever Jail or Sub-Jail is available, & (3) the Public Prosecutor to monitor the actions taken as aforesaid or required to be taken and placed periodically the reports to this Court on every quarter beginning from December, 2006.
(6) We, also, direct the Jail Superintendent to furnish such periodical statements and status reports in respect of each accused person who is qualified and entitled to avail the benefit of Section 436A of the Code alongwith his affidavit before the Registry of this Court on every quarter beginning from January, 2007, failing which the Registry will bring up this matter for re-consideration or appropriate direction or orders.
We hope and trust that the underlying design and desideratum of the provision of Section 436A of the Code of Criminal Procedure shall be observed in its letter and spirit by the authorities, as well as, the directions enumerated hereinabove.
We direct the Registry to place this matter alongwith the report that may be received by them for appraisal and consideration and if need be for further direction on 28th February, 2007 and in between liberty is reserved for the Counsel appearing as amicus curiae, the State Counsel or any other interested party or person to mention before us appropriately.
Learned Additional Advocate General II has, rightly, drawn our attention to the specific provision provided under the proviso to Section 436A of the Code, which is quoted above.
It is quite explicit and manifest from the Legislative scheme evolved in Section 436A of the Code read with explanation that no person shall be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law, subject to as provided in the explanation in computing the period of detention under this Section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.
It is in this context, in view of the aforesaid last direction such cases shall be expeditiously brought to the notice of the Criminal Court concerned or the Magistrate or any other Court where the case is pending or otherwise also to consider the case and pass an appropriate order in terms of the proviso to Section 436A of the Code read with explanation. We direct that the Jail Superintendents shall strictly observe in accordance with that provision, as well as, in accordance with our directions.
Before parting with the order, we clarify that in order to exercise the statutory power as provided in the proviso to Section 436A of the Code read with explanation, obviously, shall have to be exercised in absence of any other case pending where the inmate or the person concerned is required.
Let a copy of this order be given to the Counsel appearing for the parties and be also transmitted to all the Chief Judicial Magistrates, the District Magistrates, the Superintendents of Police and the Public Prosecutors. For further consideration and an appropriate direction and order in case of requirement, office is directed to notify this matter on the last day of February, 2007 alongwith the reports received. However, in case if periodical reports are not received by the Registry, it will be open for the Registry to submit this file alongwith office note. The OSD (Incharge) will be directed by the Registrar General to look into and monitor it.