One of the few perks of being empanelled by Delhi State Legal Services Authority are the duties and extra judicial tasks that are assigned to an empanelled advocate. This means that the body entrusts the advocate with some tasks that are above and beyond the work done in the court of law.
One such duty that was entrusted
upon me was Jail Visiting duty. In this, empanelled advocate is supposed to
visit jail premises and give free legal aid to the prisoners along with other miscellaneous
tasks that needed to be performed. I was given the responsibility of Tihar Central
Jail, Delhi, where I used to visit the jail premises after court hours and
provide free legal aid to the prisoners of Tihar Jail as Legal Services Advocate
(LSA). I find myself to be fortunate enough to have done such a work as this is
something that I consider to be an eye opener for me.
Before joining DSLSA, I had no
idea as to how things work in and after arrest and also in prison. I used to
think that everything goes by the book, and I had no reason to suspect that
theory taught to us in the law school would not be applicable in the practical
part of our judicial system. But this is how a lawyer gains experience, gets to
know the difference in what is taught and what is on ground. One thing I want
to highlight here which I saw in Tihar jail was how the laws are abused by
everyone, and by everyone, I mean not just the police but also the lawyers the
clients. Everyone has a vested interest and nobody has their hands clean, but
ask anyone of them about the law-and-order situation and they will say “kya
hoga iss desh ka?!”. Lawyers want the case to be prolonged so they get the most
out of the case in terms of monetary benefits. The client wants the case to
prolong so the other party suffers from the prosecution. There are times when
the victim of the crime is not actually the victim but a person with malicious
intent to make other party suffer. And just like that, sometimes we also find
the accused to be the real victim of the chain of events, but all he can do is
try to save himself from further abuse of process.
If you are not following what is happening
till now don’t worry, I will be explaining everything that has been deliberately
left cryptic in this post and everything will start to make sense. I would be
discussing about the types of prisoners in Tihar jail who were still in jail despite
them having not committed the offence and grounds sufficient to have them grant
of bail by the court. We shall be discussing the reasons of these undertrials
being subjected to arrest and not being granted bail despite opportunity. We shall
also be looking into one provision which I never used to consider important before
my eyes were opened to realty, which deals with the release of undertrial
prisoners who have already undergone detention for a maximum sentence they
would have received if convicted of the offence charged with. This provision is
a less known remedy to most lawyers in the field, but for me is a must know for
every lawyer who wants or intends to help the criminal justice system actually
become one of the best parts of our society.
Learnings from my experience in Jail Visits
During the times I visited Tihar
Jail for various duties including jail Visiting LSA and duty In Tihar jail
court Complex, I saw that most undertrials that were there for a long time,
were actually the ones who were either not properly represented by any counsel
in the courts or were people who were belonging to the lower strata of our
society and did not know their rights and never focused on getting a bail or engaging
a lawyer to be represented by in front of a bench, or both. This led me to a
conclusion that legal awareness and legal literacy is very important everybody and
even for a person who does not consider himself/ herself associated to legal
system. Not having legal knowledge of your rights to get a bail, to live
peacefully, to be represented by a counsel at all times is fundamental to defending
your right to live. Again, only a few have knowledge about their fundamental
rights given to them by the constitution of India and most people who do have a
vague idea do not know how to use them when the time comes.
I constantly try my best to
educate all people to at least know what options they have available in certain
situations. They might not necessarily be inclined to avail all those options,
but knowing all options will lead to an informed decision from people. Even for
the undertrials, based on their cases I used to list all their options for
present and future course of actions. It was not just my duty as a LSA but also
a moral obligation to let them know that DSLSA will provide them with free
legal aid, both in and outside the court and they need not spend money on high
paying private lawyer as they can get services of LSA’s for free.
Main reasons behind most undertrials who were still imprisoned
When I ask someone question as to
what they think would be the reason behind most undertrials not opting out for
bail, the response I get is usually on the lines of that he must have committed
a very serious offence for which he could have not been released. While this is
true in some cases, its not the complete truth. There is a plethora of reasons
which come up more often than the crime being a very serious one. This means that
even in cases which are not of serious nature or are not against the laws relating to women and child safety or do not directly hamper social fabric of
our society or are against sovereignty and integrity of our country. The main
reason being giving up on the judicial system and not opting to be represented
by an advocate in courts, not filing a bail application, or simply missing the opportunity
to avail benefits of different types of schemes and provisions provided in our
law. For example, there were many undertrials on a regular basis who visited me
inside jail, who were now imprisoned for a term more than what is prescribed in
the law, and had not availed benefits of default bail and other provisions. Sometimes
in their cases they would think that since they filed several bail applications
in the initial days of arrest and all such bail applications got rejected, they
would restrain themselves from filing another till a specific amount of time
has passed.
But this is not how law works. You
have to move applications at the right time before the court. Not early, as it
would lack maturity, and not after the moment has passed, since it no longer is
a cause of action. For example, if in a case pertaining to theft a person is
detained and put in jail. Now the investigating officer does not file his
report before the court within stipulated time of 60 days. Now irrespective of
whether 50 bail applications were rejected on the 59th day, the
court will grant a default bail to the undertrial on the completion of the 60th
day. If the undertrial now waits for another day (61-62nd day), and
the police files the chargesheet during this time, no matter if the police are
late or not, the court will look at the chargesheet and if the evidence is
against the undertrial, the bail application would be rejected again.
You must act at the right time,
not before, not afterwards but on the right time. This can only happen when you
have someone who knows the law, looking out for you in the court. Not having an
advocate and or a family member looking after the details of the case does not
help the cause of such undertrials. Not communicating with an advocate that you
appointed, or the family member that is looking out for you at regular
intervals also does not help.
In conclusion the main reasons
for such undertrials not being able to get out of jail is their lack of legal
rights and inability to act or respond to situations arising out in their respective
case, along with a depressed mindset of feeling trapped forever in a case, especially
when they are innocent but have to prove it in court. They may think that the
court will derive their innocence from their past and present conduct, but this
is also not how our judicial system works. One has to make efforts to prove
everything on their own. The law may say that it presumes an accused as
innocent until proven guilty, but one visit to the court shall smash any such illusion
for anyone. I have particularly seen this in cases of matrimonial disputes,
where one party thinks that the court will automatically look at both parties
conduct and will adjudge that very second that the other party is at fault and
not them. I just tell them, I wish this was true, but it isn’t and therefore
all of us need to do focus on making efforts to put our point across the bench
and ultimately win the case so that justice prevails and faith is maintained in
our judicial system.
Now that we know the details of
the problem faced by the undertrials and the advocates representing the
undertrials, we shall discuss a provision of BNSS which provides effective remedy
to such problems in certain situations. We will be discussing about Section 479
BNSS, its origin and history and salient features of this provision.
Section 479 BNSS: Bail for Undertrials
Background
The journey to Section 479 began
with a Public Interest Litigation (PIL) initiated in 2013. The Supreme Court of
India, acting Suo motu, took up the matter upon receiving a letter from former
Chief Justice of India R.C. Lahoti. This letter highlighted critical issues
plaguing prisons across the country, including overcrowding, unnatural deaths
of prisoners, and inadequacy of trained prison staff.
In its supervisory jurisdiction,
the Supreme Court has been closely monitoring the implementation of various
directives aimed at improving prison conditions and safeguarding prisoners’
rights. The enactment of the Bhartiya Nagarik Suraksha Sanhita (BNSS) in 2023
marked a significant legislative development. Within this new legal framework, Section 479
assumes particular importance.
Key Provisions of Section 479 BNSS
Maximum Detention Period:
Section 479(1) of BNSS states
that an undertrial who has undergone detention during the investigation,
inquiry, or trial for an offense (other than one punishable by death or life
imprisonment) can be released on bail if the maximum detention period suffered
by the undertrial from the time of arrest which includes time during the
investigation and trial is up to one-half of the maximum imprisonment specified
for that offense under the relevant law.
First-Time Offenders:
For first-time offenders or those
with no prior convictions or criminal records, the provision is even more
lenient.
If such an undertrial has
undergone detention for a period extending up to one-third of the maximum
imprisonment specified for the offense, they shall be released on bond by the
Court.
However, these provisions are not
automatic, meaning that one has to be vigilant enough to bee at the lookout for
any of the conditions maturing for the undertrial, and a relevant application
must be moved before the court of law to enjoy the benefits of the provision.
Retrospective Application
The Supreme Court clarified that Section 479 of the BNSS has retrospective application. This means that eligible undertrials, regardless of when their cases were filed, can benefit from this provision. The Court identified two main groups who stand to gain from this provision:
1. Regular Undertrials:
- Those who have spent at least half of their potential maximum sentence in jail.
- This provision aims to address the problem of overcrowding in prisons.
2. First-Time Offenders:
- Individuals with no prior convictions who have spent one-third of their potential maximum sentence in jail.
- The Court emphasized the need for swift action and instructed jail superintendents to review cases promptly.
- Coordination between jails and courts is crucial to process all eligible cases within three months.
Conclusion
In conclusion, I feel that a lot
has to be done to impart citizens with relevant legal knowledge that shall help
them fight for themselves. Also, it is very important for young lawyers to not
just study bookish knowledge about a topic, rather invest time in studying the on-ground
realities of our criminal justice system. Once we know what is wrong with our
system, we all collectively could take better steps towards reforming this
system and taking it towards perfection.
Section 479 of the BNSS
represents a progressive step toward ensuring justice, fairness, and humane
treatment for undertrial prisoners. By addressing overcrowding and providing
relief to those who have already undergone significant detention, this provision
aligns with the spirit of a modern and compassionate legal system.
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Related Blogs:
Conditions Apply: What You Need to Know About Anticipatory Bail
Compensation for Wrongful Arrests: BNSS Section 399 Explained
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