Supreme Court: Jail Superintendents Should Make Special Efforts To Identify Women Prisoners Eligible For Release U/s. 479 Of BNSS:

 UPON hearing the counsel the Court made the following

 O R D E R

1. Pursuant to the last order passed by this Court on 22.10.2024,

a Note prepared by Mr. Gaurav Agrawal, learned Amicus Curiae, and

Ms. Rashmi Nandakumar representing NALSA, is filed.

2. As earlier noticed, the matter pertains to Section 479 of the

Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which provides forthe release of undertrial prisoners suffering prolonged

incarceration. The benefit, of course, is not available for those

charged with heinous offenses such as death sentences or life

imprisonment. Section 479 of the BNSS reads as under:-

“479 Maximum period for which undertrial prisoner can be

detained.-

(1)Where a person has, during the period of investigation,

inquiry or trial under this Sanhita of an offence under any

law (not being an offence for which the punishment of death or

life imprisonment 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 bail:

Provided that where such person is a first-time offender (who

has never been convicted of any offence in the past) he shall

be released on bond by the Court, if he has undergone

detention for the period extending up to one-third of the

maximum period of imprisonment specified for such offence

under that law:

Provided further 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

bond instead of his bond:

Provided also 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.

(2)Notwithstanding anything in sub-section (1), and subject to

the third proviso thereof, where an investigation, inquiry or

trial in more than one offence or in multiple cases are

pending against a person, he shall not be released on bail by

the Court.

(3)The Superintendent of jail, where the accused person is

detained, on completion of one-half or one-third of the period

mentioned in sub-section (1), as the case may be, shall

forthwith make an application in writing to the Court to

proceed under sub-section (1) for the release of such person

on bail.”

3. The proviso to section 479 of the BNSS specifies that for the

first time offenders, who have not been convicted of any offence in

the past, shall be released on bond by the Court if the person has

undergone detention for a period up to one-third of the maximum

period of imprisonment, specified for such offence under that law.

4. For the other category, i.e. those who are not first-time

offenders, the period of detention is minimum one-half of the

maximum period of imprisonment to get the benefit of the release

order, under Section 479 of the BNSS.

5. As recorded earlier on 23.08.2024, the beneficial provisions

of Section 479 of the BNSS shall apply to all undertrials in

pending cases irrespective of whether the case was registered

against them prior to 01.07.2024 i.e., the date when the new

legislation has come into effect.

6. The identification of the deserving undertrials is required to

be made by the Undertrial Review Committee (UTRC) present in each district, with appropriate coordination with the Jail

Superintendents of all the Jails in the country. The Member

Secretaries of the District Legal Services Authority and State

Legal Services Authority were directed to mobilize their panel

advocates/ para legal volunteers, so that relevant information on

the incarcerated undertrials, can be regularly updated. It was

emphasized that this should be a continuous process since a

particular undertrial may cross the threshold bar of one-half or

one-third of the sentence, the very next day or soon after the

information is collected. Therefore, the need for a pro-active

effort for the cause of liberty of the individual prisoners was

emphasized, in this Court’s last order dated 22.10.2024.

7. The Note produced by Mr. Gaurav Agrawal, learned Amicus

Curiae, and Ms. Rashmi Nandakumar representing NALSA indicates that responses have been received from around 27 States and Union

Territories. However, no response has been filed by the State of

Uttar Pradesh, Bihar, Tripura and the Union Territory of Goa.

Despite the fact that the last order passed by this Court (on

22.10.2024) was communicated to the Chief Secretaries of all the

State and Union Territories, the non-filing of response by the

concerned States shows that perhaps the concerned States/UTs are

lax in ensuring that the benefits of Section 479 of the BNSS are

availed by the deserving category of undertrials. Therefore,

submission on this score was heard from Ms. Garima Prasad, learned

Additional Advocate General for the State of U.P., Mr. Samir Ali

Khan, learned counsel for the State of Bihar, Mr. Surjendu Sankar

Das, learned counsel for the UT of Goa and Mr. Shuvodeep Roy,

learned Counsel for the State of Tripura. Each of them has assured

the Court that the requisite response would immediately be filed.

8. From the note filed by the learned Amicus, the following key

issues are discernible and are expected to be addressed by the

concerned stakeholders. First, the identification of the deserving

undertrials should not only be complete but must also be accurate.

Second, the eligible cases must be forwarded to the concerned Court

to facilitate the release of the undertrial prisoner, through the

Court’s order regarding Section 479 of BNSS. Equally important is

the follow-up steps before the Court to obtain appropriate orders

for each of the undertrials who have been identified and whose

cases have been referred to the Court.

9. The Reports to the Amicus Curiae were given by respective

parties in different formats. However, this does not lend clarity

and makes it difficult to appreciate why release orders have not

been obtained despite identifying the deserving undertrial and

sending the concerned person’s case to the Court. In this context,

the Report furnished by the West Bengal Legal Services Authority on

18.11.2024 and also U.P. Legal Services Authority appear to address

this issue well and the information should therefore henceforth be

bifurcated under appropriate heads so that a clearer picture

emerges on the fate of those who have been identified and whose

cases have been forwarded to the concerned Courts.

10. The Report to be furnished by the States/UTs, which are yet to

respond pursuant to this Court’s last order dated 22.10.2024, as

also the updated Reports which may be required to be furnished from

time to time (this being an ongoing process), should be furnished

in the following format:-

10

Sl.

NO

.

Name

of

Priso

n

Name of

Prisoner/Name

of

Father/Husban

d (Including

Challani Police

Station and

District)

Crime

No. and

Sections

(includin

g challani

Police

Station

and

District)

Date of

Jail

Admissio

n

Maxim

period

of

Sentenc

e u/s

imposed

on the

prisoner

Total

period

in

prison

(in all

prisons

in case

of

transfer

)

Date when

applicatio

n was sent

to the

Hon’ble

Court

(including

name)

The

date of

referral

of the

case

from

the

prison

to The

Hon’bl

e

DLSA

Date of

referral

of case

from the

Hon’ble

DLSA to

the

Hon’ble

Court

(includin

g name)

Date

of

releas

e from

the

prison

The

reason

of not

allowin

g the

bail to

the

prisoner

by the

Hon’ble

Court

Remark

s (in

any)

11. As per the exigencies, the details in the above format can be

updated from time to time. The concerned authorities must also

take care to avoid confusion for an undertrial, who might initially be charged with a heinous crime entailing life imprisonment or the death penalty but against whom charges have been framed subsequently, for a lesser offence. This is being flagged as there could be cases of prisoners whose jail records may not have been updated with charges being framed for lesser crimes.

12. Although the provisions of Section 479 of the BNSS are gender neutral, it is also necessary for this Court to say that special efforts should be made to identify women prisoners who are entitled to release under the beneficial provision. The concerned Jail Superintendents where the women prisoners are lodged should therefore pay personal attention to the female prisoners, who might have become eligible for the release benefits, under Section 479 of the BNSS.

13. When such a beneficial provision for release of those are

incarcerated for long period in jails is made available by the

legislature, all stake holders must bear in mind that justice must

extend to the last person, who might be standing unheard and unseen

within the four walls of jails. Therefore those States/UTs which

have not responded pursuant to this Court’s last order dated

22.10.2024 should urgently file their response, within two weeks.

14. List the matter on 10.12.2024.