The Supreme Court has underscored the need for executing a provision allowing the release of undertrial prisoners, particularly first time offenders, stating that when a beneficial provision of such kind has been made by the legislature, all stakeholders should ensure that justice is extended all eligible persons.

The Court was hearing a Writ Petition titled 'In Re: Inhuman Conditions in 1382 Prisons' in which it has passed several orders till date on the issue of overcrowding in prisons and during the course of which the Court's attention was drawn to Section 479 (Maximum period for which undertrial prisoner can be detained) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which provides for the release of undertrial prisoners suffering prolonged incarceration. On August 8, 2024, the Court had clarified that the benefit of the provision would extend to all undertrials in pending cases irrespective of whether the case was registered prior to the enactment of the BNSS on July 1, 2024.

In an Order passed on November 19, a two-Judge Bench of Justice Hrishikesh Roy and Justice S.V.N. Bhatti held, "When such a beneficial provision for release of those 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."

Calling for special attention to be paid to eligible female prisoners, the Court said, "...[S]pecial efforts should be made to identify women prisoners who are entitled to release under the beneficial provision," asking Jail Superintendents where the women prisoners are lodged to "pay personal attention to the female prisoners, who might have become eligible for the release benefits, under Section 479 of the BNSS."

Senior Advocate Gaurav Agrawal appeared as an Amicus Curiae and Advocate Rashmi Nandakumar appeared for the National Legal Services Authority in the matter. They had filled status reports to the Court on the identification of undertrial prisoners eligible to be benefitted under Section 479 of the BNSS, based on data gathered from states and Union Territories (UTs).

In its latest Order, the Court recorded that responses have been filed by 27 states and UTs, with Uttar Pradesh, Bihar, Tripura and Goa being defaulters. "[T]he 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," the Court observed. After hearing the counsel for the concerned states, the Court stated that the states and UTs which have not responded must do so urgently within two weeks.

As per the Court's October 22 Order, the identification of deserving undertrials is required to be made by the Undertrial Review Committee (UTRC) present in each district, in coordination with the Jail Superintendents. The Member Secretaries of the District Legal Services Authority and State Legal Services Authority were directed to mobilise their panel advocates and para legal volunteers, so that relevant information on the incarcerated undertrials can be regularly updated. In that Order, Court had emphasised 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 soon after the information is collected for the purpose.

After perusing a note prepared by the Amicus Curiae, the Court recorded that two issues are discernible. "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." The Court added, "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."

The concerned authorities must take care to check for cases where an undertrial who was initially charged with a heinous crime entailing life imprisonment or the death penalty but against whom charges were framed subsequently, for a lesser offence, the Court said. "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."

Section 479 of the BNSS

Section 479 of the BNSS is a provision equivalent to Section 436A of the now-repealed Code of Criminal Procedure, 1973 (CrPC) which provided relief to undertrial prisoners who had undergone a set duration of incarceration in proportion to the maximum imprisonment specified for that offence under law.

The proviso to Section 479 of the BNSS makes a specific provision for first time offenders —who have not been convicted of any offence in the past — mandating that they shall be released on bond by the Court after undergoing detention for a period of one-third of the maximum period of imprisonment, specified for such offence under law.

For those undertrials who are not first time offenders, Section 479 of the BNSS retains the relief that was available under Section 436A of the CrPC which is that an undertrial shall be released by the Court on bail if they have undergone detention for a period of one-half of the maximum available punishment. The benefit of this provision is inapplicable for those charged under offences for which death or life imprisonment is specified as one of the punishment under law.

Cause Title: In Re Inhuman Conditions in 1382 Prisons [Writ Petition(s)(Civil) 406/2013]

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Justice Hrishikesh RoyJustice S.V.N. Bhatti

Tushar Kohli