23 October 2024 - Legal Updates

1. Take Proactive Steps To Release Deserving Undertrial Prisoners Under Section 497 BNSS: Supreme Court to States/UTS

The Supreme Court expressed concern over inadequate implementation of section 479 of the Bharatiya Nagrik Suraksha Sanhita (BNSS), 2023, which the maximum period for which undertrial prisoners can be detained.

“A cursory examination of the reports from few of the states and the union territories would indicate that the process of identification of the undertrial who are entitled to benefit under section 479 of BNSS is somewhat deficient,” the court observed.

Section 479 of BNSS the release of prisoners who have served half the maximum sentence for the alleged crime (except those offence which carry the punishment of life sentence or death penalty). Additionally, first time offenders, who have never been convicted are eligible for release after serving one-third of their maximum sentence.

“In order to make the process of identification of the deserving undertrial efficient, the Undertrial Review Committee present in each district must play a proactive role by co-ordinating with the Jail Superintendents...The District Legal Services Authority and the State Legal Services Authority should mobilize their panel advocates and para legal volunteers so that the release information of the under trials can be updated. This is necessary as a particular under trial may cross the threshold bar of one third or 50% of the sentence the very next day after the information is collected or thereafter. Therefore this has to be an ongoing process, and steps must be taken to ensure the release of deserving under trials under section 479 BNSS in a proactive way.”

A bench of Justice Hrishikesh Roy and Justice SVN Bhatti was dealing with a writ petition concerning overcrowding in the prisons across India. The Court on August 23, 2024 had held that the beneficial provision of Section 479 of BNSS would apply retrospectively to the undertrials across the country, i.e., to all undertrials in cases registered before July 1, 2024.

The Court had directed jail superintendents nationwide to process applications for the release of eligible undertrials under Section 479, in order to alleviate the issue of prison overcrowding. Further, it had sought reports within two months from each state and union territory detailing the number of undertrials eligible for release, the applications filed for their release, and the number of actual releases.

Today, the Court noted that only 19 states/UTs out of 36 have filed reports. It further observed that the identification process for eligible undertrials under section 479 was lacking in several states and union territories. For example, the report filed by State of Andhra Pradesh indicated that the state had no undertrial prisoners eligible for release under Section 479. The Court noted that if this information is correct, no further comment is required. However, if this is inaccurate, necessary steps must be taken to identify eligible undertrials properly.

Reports from various states and union territories indicated that some eligible undertrials had been identified, and applications for their release were being processed. However, the Court noted release orders were not yet obtained. The Court added that the reports did not indicate why some undertrials, despite being eligible under Section 479, had not yet been released.

The Court directed all states and union territories to submit their respective responses by November 8, 2024, in compliance with the order dated August 23, 2024. It called for the Undertrial Review Committees in each district to play a more proactive role, working with jail superintendents to ensure eligible undertrials are identified and released promptly.

Further, the Court directed all District Legal Services Authorities and State Legal Services Authorities to mobilize their panel advocates and paralegal volunteers to update the release information of undertrials continually.

The Court also highlighted the toll of incarceration, quoting the words of author Oscar Wilde while he was incarcerated –

“I know not whether loss be right or whether laws be wrong all that we know who be in jail is that the jail wall is strong. And that each day is like a year, a year whose days are long.”

“An under trial who deserves release under the provisions of section 479 BNSS deserves consideration under the beneficial legislation enacted from 1-7-2024 as the agony of the person who is incarcerated can only be felt by the one within before 4 corners of the jail”, the Court observed.

As per the Court's directions, reports from the states and union territories must also include reasons why a particular undertrial, despite falling under the permissible category, has not yet been granted the benefit of release.

Additionally, the suggestions provided by the amicus curiae regarding steps to reduce overcrowding in prisons have to be circulated to all standing counsel of the states and union territories.

Case- In Re-Inhuman Conditions in Prisons

2. Bo Absolute Prohibition To Consider Anticipatory Bail Plea Of Accused Facing Arrest Warrant/Proclamation U/S 82 CrPC: Allahabad High Court

The Allahabad High Court has observed that there is no ‘absolute prohibition’ against considering an application for anticipatory bail filed by an accused against whom a warrant of arrest or a proclamation under section 82 CrPC has been issued. It added that the court is empowered to consider the merits of the case in extremely exceptional cases in the interest of Justice.

This Ruling by a bench of Justice Subhyash Vidyarthi assumes significance as recently the Supreme Court, in Srikant Upadhyay vs. State of Bihar 2024 [Bench of Justices C.T. Ravikumar and Sanjay Kumar], rules that an accused would not be entitled to pre-arrest bail if the non-bailable warrant and the proclamation under section 82(1) CrPC is pending against him.

Though the single judge took into account the ruling of the Top Court in the Srikant Upadhyay case (supra), he noted that the Apex Court passed this judgment following the 2010 Judgment in HDFC Bank Ltd. v. J.J. Mannan 2009, which was overruled in Sushila Aggarwal v. State (NCT of Delhi) 2020.

“Apparently, the judgment in the case of Srikant Upadhyay has been passed after following the law laid down in the overruled judgment in the case of HDFC Bank (Supra) that anticipatory bail can be granted only in exceptional cases. The law laid down by the five Judge Bench of the Supreme Court in the subsequent judgment in the case of Sushila Aggarwal (Supra) will govern the field but it has not been considered in Srikant Upadhyay (Supra),” Justice Vidyarthi observed.

However, he added that even in the Shrikant Upadhyay case, the Top Court has left a scope for the Courts to consider anticipatory bail pleas at its discretion, depending on the facts and circumstances of each case. The Court quoted the following para from the Supreme Court's 2024 judgment:

“At any rate, when warrant of arrest or proclamation is issued, the applicant is not entitled to invoke the extraordinary power. Certainly, this will not deprive the power of the Court to grant pre-arrest bail in extreme, exceptional cases in the interest of justice”

[For context, in the HDFC Case, the Supreme Court held that Section 438 CrPC cannot be invoked to exempt the accused from surrendering to the Court after the investigation is complete and if a charge sheet is filed against him. In this case, it was observed that S. 438 CrPC IS an exceptional power and should be exercised only in exceptional cases and not as a matter of course. However, in Sushila Aggarwal's case, the SC's view was that no time limit could be set while granting anticipatory bail and it could continue even until the end of the trial. It was also held that mere subsequent event of the filing of a charge sheet cannot compel the accused to surrender and seek regular bail]

The High Court was essentially dealing with a plea moved by one Ankur Agarwal seeking anticipatory bail in connection with an FIR lodged under Sections 419, 420, 467, 468, 471 & 129-B IPC.

The FIR was registered by a Lekhpal on September 15, 2023, against seven individuals, including the applicant alleging that co-accused Jawahar Lal executed two registered agreements in favour of co-accused Amit Agarwal to sell a piece of government land which is recorded as banjar in the revenue records.

It was further alleged that another co-accused, Rajmangal Mishra, executed a registered agreement in March 2022 to sell a part of the aforesaid land to the applicant-accused.

The applicant moved the HC after the Sessions Court dismissed his anticipatory bail plea on November 16, 2023. In support of his bail application, the applicant's counsel claimed innocence, arguing that he was falsely implicated in the case.

It was also submitted that the applicant-accused had presented a plaint in October 3, 2023, seeking to cancel the March 11 agreement. The bench was also apprised that co-accused Jawahar Lal has already been granted bail, and the other co-accused have received anticipatory bail.

On the other hand, the counsel for the State opposed the anticipatory bail application on the grounds that that proceedings under Section 82 CrPC have already been initiated against the applicant in August 2023 and, therefore, in view of the law laid down by the Supreme Court in the case of Lavesh versus State (NCT of Delhi) 2012 and Srikant Upadhyay, his plea was liable to be dismissed.

Against this backdrop, the Court, at the outset, noted that the agreement in question does not specify that possession was transferred and that the applicant has already filed a civil suit to cancel the agreement after he discovered the seller was not the legitimate tenure holder and acted fraudulently.

It also noted that a non-bailable warrant of arrest was issued against the applicant on June 15, 2024, and proceedings under Section 82 CrPC were initiated against him on August 16, 2024, when all the co-accused persons had already been granted anticipatory bail.

In fact, the Court was of the prima facie view that the applicant was a victim of fraud committed by the agreement's executor, the co-accused Rajmangal Mishra, who has already been granted anticipatory bail.

In view of this, the Court was of the considered opinion that the aforesaid facts make out a case warranting a grant of anticipatory bail to the applicant in order to secure the interest of justice.

Thus, his plea was allowed.

Case- Ankur Agarwal vs. State of Uttar Pradesh