Supreme Court Issues Guidelines undertrial prisoners for the speedy release of Prisoners On Bail

A bench of Justices Sanjay Kishan Kaul and Abhay S. Oka of the Supreme Court(SC), 2 February, issued a set of directions related to undertrial prisoners, who have been granted bail, but continue to languish in prison for not being able to fulfill conditions mentioned in their bail order.

  • The Court passing the bail order would be required to e-mail a soft copy of the order to the prisoner through the jail superintendent on the same or the next day. The Superintendent will then have to enter the date of the grant of bail in the e-prisons software or any other software being used by them.
  • If the accused is not released within a period of 7 days, it would be the jail superintendent’s responsibility to get the prisoner in touch, through appropriate authorities, with a para legal volunteer or jail visiting advocate to assist them.
  • If the prisoner says that they can furnish bail bonds or sureties only when released, then the court should consider granting them temporary bail for a specific period so that they can do what is necessary.
  • If the bail bonds are not furnished within one month from the date of grant bail, the Court may suo moto take up the case and consider whether the conditions of bail require modification/ relaxation.
  • The court can even consider not imposing the condition of local surety in some cases because one of the reasons which delays the release of the accused/convict is the insistence on local surety.
  • If the inmate is unable to file sureties or fulfill bail conditions because of their socio-economic conditions then the appropriate officer can file a report before the court and request relaxation of bail conditions.
  • The National Informatics Centre (NIC) would make upgrades in the e-prison software so that whenever the prisoner is not released within the seven days, an automatic email is sent to the Sectretary of the District Legal Services Authority (DLSA).


Bail, in law, means release from prison of a person awaiting trial or an appeal, by the deposit of security to ensure his submission at the required time to legal authority. The concept of bail is a necessary implication of Article 21 enshrined in the Constitution of India.
 Chapter-XXXIII (Section 436 to 450) of the Criminal Procedure Code deals with various provisions for bail.

Bail for Bailable offenses:

According to section 436 of CrPC, If the offense alleged is bailable, then, the accused is entitled to Bail as a matter of right and not as a favor. Bailable offenses are presumably less heinous therefore the sentence for the same is less severe and the accused can claim release on bail as a matter of their right.

Section 436A deals with the ‘Maximum period for which an undertrial prisoner can be detained. In this case, when the accused, during the investigation, inquiry or trial has already undergone detention for more than half of the term of conviction. He must be granted bail unless the offense doesn’t amount to the punishment of death.
It is also provided that in no case the under-trial be detained beyond
the maximum period of imprisonment for which he can be convicted for the alleged offense.

Section 437, Criminal Procedure Code, deals with the powers of the trial court and of the Magistrate to whom the offender is produced by the police or the accused surrenders or appears, to grant or refuse bail to a person accused of, or suspected of the commission of any non-bailable offense.

Section 438 of Cr.P.C. deals with anticipatory bail which is exclusively vested with the Court of Session and High Court.

When any person has a reason to believe that there is a chance to get him arrested on false or trump-up charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him, he has the right to move the court of Session or the High Court under Section 438 of the code of Criminal Procedure for grant of bail.

Mandatory bail

Section 167(2) of Cr.P.C. empowers judicial magistrates to detain the accused in police/judicial custody and release him on bail on expiry of the
statutory period of 60 or 90 days of a total period of custody

Legal provisions pertaining to the cancellation of bail are mainly contained in S.437 (5) and 439(2) Cr.P.C.

Section 437(5) states that a Magistrate which has released a person on bail may if it considers it necessary so to do, direct that such person be re-arrested. Section  439(2) confers powers on the High Court and the Sessions Court to direct re-arrest of the accused who has been released on bail by any court.

Nearly 80 per cent of the prisoners in Indian jails are undertrials.
A huge number of such undertrials are later found not to be guilty and eventually released. There are over 6.1 lakh prisoners in our country and around 1400 prisons. Most of these prisoners belong to the most vulnerable sections of our society. Such arbitrary denial, guaranteed under Article 21,
of personal liberty is directly in contradiction to the principles of natural
justice and due process of law.

The Doctrine of Due Process of law prohibits the state from taking actions that shall deprive an individual of their rights to safety, liberty, or life.

The procedure established by the law says that a law that has been lawfully enacted is valid, even if it violates justice and equitable ideals.




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