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. {Para 12}
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Writ Petition(s)(Civil) No(s).406/2013
IN RE-INHUMAN CONDITIONS IN 1382 PRISONS
VERSUS
. & ORS. Respondent(s)
([MR. GAURAV AGRAWAL, SENIOR ADVOCATE IS AMICUS CURIAE.] )
Date : 19-11-2024 This petition was called on for hearing today.
CORAM :
HON’BLE MR. JUSTICE HRISHIKESH ROY
HON’BLE MR. JUSTICE S.V.N. BHATTI
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.
