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Above: A sister celebrating Raksha Bandhan with her brother imprisoned in a Jaipur jail/Photo: UNI

Is it fair not to set free undertrial prisoners on bail under the stringent provisions of certain statutes when even murderers and money launderers can avail of this right?

Aabad Ponda 

~By Aabad Ponda

With the alarming rise in the number of undertrials, there is a need for the legislature to make amendments in various statutes relating to the provisions governing bail and bail bonds. The need for this arises because crime only multiplies when these undertrials mix with hardened criminals in jails for long durations. This leads to conspiracies being hatched by undertrials whose idle minds act like devils’ workshops.

In special statutes such as the Narcotic Drugs and Psychotropic Substances Act, 1985; Unlawful Activities Prevention Act, 1967 and the Maharashtra Control of Organized Crime Act, 1999, grant of bail on humanitarian grounds like sickness, infirmity, being under 16 years of age and being a woman is not permissible. But in a case of murder or even multiple murders, magistrates who are in the lowest rung of the criminal judiciary are empowered to grant bail on the same humanitarian grounds mentioned above. However, high courts, much less sessions courts, are virtually disempowered from granting bail to those arrested under the stringent conditions of these special statutes. Grant of bail is not admitted by such statutes or provided for in provisions analogous to those under the Criminal Procedure Co-de like the first proviso to Section 437(1) of the said Code which empowers magistrates to grant bail.

The legislature needs to incorporate provisions analogous to those under the Criminal Procedure Code in all statutes, where ordinarily, a person is required to fulfill special conditions to avail of bail. Surprisingly, while enacting the Prevention of Money Laundering Act, 2002, the legislature made a provision for grant of bail to such launderers on humanitarian grounds by virtue of Section 45 of the said Act. If the legislature can do so while amending the draft of the said Act, then, there is no reason why persons who are genuinely entitled to bail on these rounds and who are framed in false cases, should languish in jail for years only because the dockets of trial courts are bursting at their seams!

Such an approach will be welcomed by states also as they will be relieved of the burden of keeping undertrials in jails. Further, crime mushrooms and grows in jails particularly when there is an unholy association of undertrials who are already victims of their own peculiar follies and further frustrated by the delay in trying them.

One never hears of public prosecutors granting a no-objection to the release of persons on bail covered under special statutes as they fear that the repercussions of their actions would be wholly misunderstood. They, therefore, fail to rise to the occasion even when there is a dire need for the same. Courts cannot be helpless in such situations. After all, courts are meant for dispensation of justice which must not only be done but also seen to be done.

Pondering on this issue is the dire need of the hour as it can have important consequences in upholding the rights of undertrials enshrined in Article 21 of the Constitution of India.

                          —The writer is an advocate in the Bombay High Court practising on the criminal side

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