Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023 addresses the issue of bail to undertrials who have already undergone detention for a period longer than the maximum sentence they would have received if convicted for the offense they are charged with.

List of Sub-Topics:

• Introduction
• Rights of Prisoners
• Reasons of Prolonged Detention of Undertrials
• Bail to Undertrials Under Section 479 BNSS
• Conclusion

Fundamental rights are the basic rights of the citizens which cannot be taken away under any circumstances. In Maneka Gandhi v. Union of India, AIR 1978 SC 597 case, speaking about the importance of fundamental rights Bhagwati J. observed: “These fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent. They weave a “pattern of guarantee” on the basic structures of human rights and impose negative obligations on the State not to encroach on individual liberty in its various dimensions.” In this article, we shall discuss the rights of prisoners and provisions in BNSS for bail to undertrials.

Rights of Prisoners:

The conviction of a human does not render him non-human. He still remains a human who should be treated like one. He should be given the basic human /fundamental rights available to every man walking on the earth. But his freedom should be subject to certain limitations and reasonable legal restrictions. Giving prisoners Right to Fair procedure forms the soul of Article 21 of the Constitution of India. Thus the convicts are not by mere reason of their conviction deprived of all the fundamental rights which they otherwise possess. Thus, a prisoner is entitled to all his fundamental rights unless his liberty has been constitutionally curtailed.

In Charles Shobraj v. The Suptd., Central Jail, Tihar AIR 1978 SC 1514 case, Justice V.R. Krishna Iyer observed that imprisonment does not spell farewell to fundamental rights although, by a realistic re-appraisal, Courts will refuse to recognize the full panoply of part III enjoyed by free citizens. Further, observed that the axiom of prison justice is the Court’s continuing duty and authority to ensure that the judicial warrant which deprives a person of his life or liberty is not exceeded, subverted or stultified. It is a sort of solemn covenant running with the power to sentence. Referring to the decision of Supreme Court in Rustom Cowvasjee Cooper v. Union of India, AIR 1970 SC 1318, and Maneka Gandhi v. Union of India, AIR 1978 SC 597 cases, it was observed that Prisoner’s retain all rights enjoyed by free litigants except those lost necessary as an incident of confinement, the rights enjoyed by prisoner’s under Article 14, 19 and 21 though limited, are not static and will rise to human heights when challenging situation arise.

In the case of T.V. Vatheeswaran v. State of Tamil Nadu 1983 AIR 361 case, it was held that the rights guaranteed in Article 14, 19, and 21 are available to prisoners as well as freemen. The walls of prison cannot keep out the fundamental rights

In Sunil Batra v. Delhi Administration, (1980) 3 SCC 488 case, the Apex Court observed “Prisons are built with stones of law”, and sort behoves the Court to insist that, in the eye of law, prisoners are persons, not animals and punish the deviant “guardians” of the prison system where they go berserk and defile the dignity of the human inmate. Prison houses are part of Indian earth and the Indian Constitution cannot be held at bay by Jail officials “dressed in a little, brief although when Part III is invoked by a convict. For when a prisoner is traumatized, the constitution suffers a shock. The Supreme Court further held that the Court has power and responsibility to intervene and protect the prisoner against may how, crude behaviour.

Article 20(1) protects the persons from “ex post facto laws.” This Article provides to protect a prisoner from being subjected to any punishment which was not authorized by law at the time when he committed the alleged act and to which he was convicted and sentenced after the trial then provided under the law.

Reasons of Prolonged Detention of Undertrials:

Following are some reasons due to which undertrials are not able to give bail:

• Poverty and Social Marginalization: Undertrials from marginalized communities, including the poor, minorities, and tribal populations, may face challenges due to social and economic factors that limit their access to legal assistance and resources.
• Lack of Legal Representation: Undertrials who lack adequate legal representation may face challenges in presenting their case for bail effectively, leading to bail being denied even in cases where it might have been granted with better legal assistance.
• Backlog in Legal System: Delays in the judicial process, including the backlog of cases, can result in undertrials spending prolonged periods in custody awaiting trial, even if they are eligible for bail.
• Inability to Pay Bail Amount: Bail often requires the payment of a certain amount of money or the provision of property as collateral. Many undertrials come from economically disadvantaged backgrounds and may lack the financial resources to meet bail requirements.
• Lack of Access to Funds: Even if undertrials have some financial resources, they may not have immediate access to the funds necessary to pay bail. This could be due to various reasons such as limited savings, assets that are not easily liquidated, or reliance on informal sources of income.
• High Bail Amounts: In some cases, bail amounts set by the courts may be prohibitively high, especially for individuals from low-income backgrounds. This effectively denies bail to undertrials who cannot afford to pay the specified amount.

Efforts are being made by the government and various NGOs to address these issues through legal reforms, improving prison infrastructure, enhancing legal aid services, and promoting alternative dispute resolution mechanisms.

Bail to Undertrials Under Section 479 BNSS (S. 436A CrPC):

Objectives of Section 479 BNSS:

The Law Commission recommended incorporation of Section 436-A CrPC, keeping in mind the inordinate delay in trials, where even for lesser offences long incarceration continued without trial leading to overcrowd in jails also.

Bare Act Provisions:

Section 479 BNSS:

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.

Comment:

This Section corresponds to Section 436A CrPC.

Analysis:

There had been instances where under trial prisoners were detained in jail for periods beyond the maximum period of imprisonment provided for the alleged offence.

According to Section 479(1) BNSS, where a person has, during the period of investigation, inquiry or trial under the Sanhita of an offence under any law (not being an offence for which the punishment of death 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 his personal bond with or without sureties.

According to the first proviso attached to Section 479(1) BNSS, 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

According to the second proviso attached to Section 479(1) BNSS, 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 instead of the personal bond with or without sureties.

According to the third proviso attached to Section 479(1) BNSS, 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.

Furthermore, the explanatory provision states that 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.

The proviso balances the liberty of the citizen with the need for protection of the interest of the society. Therefore, it is apparent that the Legislature did not intend to make the first part concerning the liberty of the citizen absolute in terms, but allowed it to be subject to regulatory control. But when this liberty is to be denied, the Court must indicate the reasons for exercise of the regulatory control. Thus, the legislation itself incorporates adequate safeguard for the person in custody.

According to Section 479(2) BNSS, 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.

According to Section 479(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 make an application in writing to the Court to proceed under sub-section (1) for the release of such person on bail.

In Hussainara Khatoon and others v. Home Sec, State of Bihar, AIR 1979 SC 1369 case, the Supreme Court directed the release of prisoners who had undergone more than half of the imprisonment which could have been granted if they were convicted.

In Bhim Singh v. Union of India, W.P. (Criminal.) No. 310/2005  case, the Supreme Court directed the jurisdictional magistrate/ chief judicial magistrate/Session Judge to conduct a setting in jail once in a week for identifying the prisoners entitled for release as per the provision of section 436 A CrPC (479 BNSS) and release such prisoners then and there itself. Such visits were directed to be conducted for two months commencing from 1 October 2014 for effective implementation of Section 436 A CrPC (479 BNSS).

In Dipak Shubhashchandra Mehta vs. C.B.I., AIR 2012 SC 949 case, the Supreme Court laid down that when the undertrial prisoners are detained in jail custody to an indefinite period then its a violation of Article 21 of the Constitution of India but the court granting bail should exercise its discretion in a judicious manner and not as a matter of course.

In Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731 case, the Supreme Court, relying on Hussainara Khatoon case directed the release of prisoners charged under the Narcotic Drugs & Psychotropic Act after completion of one half of the maximum term prescribed under the Act. A. M. Ahmadi, J. (speaking for the Court) directed the same in an Article 32 Petition, after taking into account the non obstante provision of Section 37 of the Act which imposed the rigours of twin conditions for release on bail.

Conclusion:

Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023 addresses the issue of bail to undertrials who have already undergone detention for a period longer than the maximum sentence they would have received if convicted for the offense they are charged with. This provision aims to prevent the unjust incarceration of individuals who are unable to secure bail due to financial constraints or other reasons. Section 79 BNSS provides for the mandatory release on personal bond or bail of undertrials who have spent half of the maximum period of imprisonment prescribed for the offense they are accused of, subject to certain conditions. These conditions include the requirement that the undertrial has cooperated with the investigation and other legal proceedings, and that they have not been previously convicted of certain offenses specified under the provision. Overall, Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023 serves as an important safeguard against the unjustified detention of undertrials and contributes to promoting the principles of fairness, equality, and access to justice in the Indian criminal justice system.