SC order on better implementation of 436A

[Surya Prakash Loonker]

W.P.(Crl.) No.310/2005 etc. 1

ITEM NO.25 COURT NO.1 SECTION X

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Writ Petition(s)(Criminal) No(s). 310 of 2005

BHIM SINGH Petitioner(s)

VERSUS

UNION OF INDIA & ORS. Respondent(s)

(with appln. (s) for directions, impleadment and office report)

WITH

W.P.(C) No. 341/2004

(With appln.(s) for directions, prayer for interim relief and Office

Report)

W.P.(Crl.) No. 175/2005

(With Office Report)

Date : 05/09/2014 These petitions were called on for hearing today.

CORAM :

HON'BLE THE CHIEF JUSTICE

HON'BLE MR. JUSTICE KURIAN JOSEPH

HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN

For Petitioner(s) Prof. Bhim Singh, Sr. Adv.

In person

Mr. P. V. Yogeswaran, Adv.

Mr. Prashant Bhushan, Adv.

Mr. Rohit Kumar Singh, Adv.

Mr. Govind Jee, Adv.

For Respondent(s) Mr. Mukul Rohatgi, Attorney General

UOI Mr. Ranjit Kumar, Solicitor General

Mr. N.K. Kaul, ASG

Ms. Indra Sawhney, Adv.

Mr. Chetan Chawla, Adv.

Ms. Charul Sarin, Adv.

Ms. Asha G. Nair, Adv.

Ms. Sunita Rani Singh, Adv.

W.P.(Crl.) No.310/2005 etc. 2

Ms. Binu Tamta, Adv.

Mr. Vikas Bansal, Adv.

Ms. Atreyi Chatterjee, Adv.

Mr. Arif Sikandar Mir, Adv.

Ms. Sushma Suri, Adv.

Mr. Tapesh Kr. Singh, Adv.

Mr. Mohd. Waquas, Adv.

NCT of Delhi Mr. S. Wasim A. Qadri, Adv.

Mr. P.K. Dey, Adv.

Mr. Zaid Ali, Adv.

Mr. Shadman Ali, Adv.

Mr. V. Bansal, Adv.

Mr. D.S. Mahra, Adv.

State of U.P. Mr. M.N. Krishnamani, Sr. adv.

Mr. Vibhu Tiwari, Adv.

Mr. R.P. Mehrotra, Adv.

Mr. Vikas Bansal, Adv.

Mr. Utkarsh Sharma, Adv.

Ms. Pragati Neekhra, Adv.

State of Uttarakhand Mr. Mukesh K. Giri, AAG

Ms. Alka Sinha, Adv.

State of Punjab Mr. V. Madhukar, AAG

Ms. Anvita Cowshish, Adv.

Mr. Mohit Nain, Adv.

Mr. Kuldip Singh, Adv.

State of Haryana Mr. Majit Singh, Sr. Adv./AAG

Mr. Nupur Choudhary, Adv.

Ms. Vivekta Singh, Adv.

State of Mizoram Mr. Pragyan Sharma, Adv.

Mr. Heshu Kayina, Adv.

Mr. P.V. Yogeswaran, Adv.

State of Manipur Mr. Sapam Biswajit, Adv.

Mr. Ashok Kr. Singh, Adv.

State of Assam Mr. Navnit Kumar, Adv.

For Corporate Law Group

State of West Bengal Mr. Soumitra G. Chaudhuri, Adv.

Mr. Anip Sachthey, Adv.

W.P.(Crl.) No.310/2005 etc. 3

Mr. Mohit Paul, Adv.

Mr. Saakaar Sardana, Adv.

State of Sikkim Ms. Aruna Mathur, Adv.

Mr. Yusuf Khan, Adv.

State of Tripura Mr. Gopal Singh, Adv.

Mr. Rituraj Biswas, Adv.

State of Nagaland Ms. K. Enatoli Sema, Adv.

Mr. Amit Kumar Singh, Adv.

Mr. Balaji Srinivasan, Adv.

State of Kerala Ms. Bina Madhavan, Adv.

State of Arunachal Mr. Anil Shrivastav, Adv.

Pradesh Mr. Rituraj Biswas, Adv.

State of Rajasthan Ms. Archana Pathak Dave, Adv.

Mr. Milind Kumar, Adv.

State of Meghalaya Mr. Ranjan Mukherjee, Adv. (NP)

Mr. Rudreshwar Singh, Adv.

Mr. Samir Ali Khan, Adv.

Mr. Divya Jyoti Jaippuriar, Adv.

For Ms. Jyoti Mendiratta, Adv.

Mr. Anil K. Jha, Adv.

Mr. Ardhendumauli Kumar Prasad, Adv.

Mr. Arun K. Sinha, Adv.

Mr. Javed Mahmud Rao, Adv.

Mr. Milind Kumar, Adv.

Mr. Pradeep Misra, Adv.

Mr. Praveen Swarup, Adv.

Mr. Ratan Kumar Choudhuri, Adv.

Mrs. Anil Katiyar, Adv.

W.P.(Crl.) No.310/2005 etc. 4

Mr. Satish Vig, Adv.

Mr. Sunil Fernandes, Adv.

Mr. Vipin Kumar Jai, Adv.

Ms. Kamini Jaiswal, Adv.

Mr. Anuvrat Sharma, Adv.

Mr. Ashok Kumar Singh, Adv.

Mr. Ashok Mathur, Adv. (NP)

Mr. Balaji Srinvasan, Adv.

Mr. C.D. Singh, Adv.

Mr. P.V. Yogeshwaran, Adv.

Mr. Sibo Sankar Mishra, Adv.

Ms. Bina Madhavan, Adv.

Mr. Kamlendra Mishra, adv.

Mr. Ratan Kuamr Choudhuri, Adv.

UPON hearing the counsel the Court made the following

O R D E R

On 01.08.2014, whereby we wanted to know from

the learned Attorney General about Government of

India's plan in fast-tracking criminal justice in

the country, learned Attorney General on that day

took time to have a comprehensive look at the

problem and come out with a concrete proposal in

this regard within four weeks.

W.P.(Crl.) No.310/2005 etc. 5

Mr. Mukul Rohatgi, learned Attorney General

submits that process of consultation with the State

Governments for fast-tracking criminal justice has

been commenced by the Central Government but the

blueprint/road-map for fast-tracking of criminal

cases shall take some time. He prays for time to

place the same by way of an affidavit within three

months.

We reiterate that it is high time, positive

steps are taken by the Central Government in

consultation with the State Governments in fast

tracking all types of criminal cases so that

criminal justice is delivered timely and

expeditiously.

Learned Attorney General informs us that more

than 50% of the prisoners in various jails are

under-trial prisoners. Even many of them may have

served maximum sentence prescribed under the law for

the offences they have been charged with. The

Parliament by Act 25 of 2005 amended Code of

Criminal Procedure, 1973 providing for maximum

period for which an under-trial prisoner can be

W.P.(Crl.) No.310/2005 etc. 6

detained under any law not being an offence for

which the punishment of death has been specified as

one of the punishments. Section 436A reads as

follows :-

“436A. Maximum period for which an

undertrial prisoner can be detained -

Where a person has, during the period of

investigation, inquiry or trial under

this Code 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:

Provided 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

instead of the personal bond with or

without sureties:

Provided further 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.]”

W.P.(Crl.) No.310/2005 etc. 7

Having given our thoughtful consideration to

the legislative policy engrafted in Section 436A and

large number of under-trial prisoners housed in the

prisons, we are of the considered view that some

order deserves to be passed by us so that the

under-trial prisoners do not continue to be detained

in prison beyond the maximum period provided under

Section 436A.

We, accordingly, direct that jurisdictional

Magistrate/Chief Judicial Magistrate/Sessions Judge

shall hold one sitting in a week in each jail/prison

for two months commencing from 1st October, 2014 for

the purposes of effective implementation of 436A of

the Code of Criminal Procedure. In its sittings in

jail, the above judicial officers shall identify the

under-trial prisoners who have completed half period

of the maximum period or maximum period of

imprisonment provided for the said offence under the

law and after complying with the procedure

prescribed under Section 436A pass an appropriate

order in jail itself for release of such under-trial

prisoners who fulfill the requirement of Section

W.P.(Crl.) No.310/2005 etc. 8

436A for their release immediately. Such

jurisdictional Magistrate/Chief Judicial Magistrate/

Sessions Judge shall submit the report of each of

such sitting to the Registrar General of the High

Court and at the end of two months, the Registrar

General of each High Court shall submit the report

to the Secretary General of this Court without any

delay.

To facilitate the compliance of the above

order, we direct the Jail Superintendent of each

jail/prison to provide all necessary facilities for

holding the court sitting by the above judicial

officers.

A copy of this order shall be sent to the

Registrar General of each High Court, who in turn

will communicate the copy of the order to all

Sessions Judges within his State for necessary

compliance.

W.P.(Crl.) No.310 of 2005

Mr. Mukul Rohtagi, learned Attorney General

placed before us status of 25 foreign nationals

W.P.(Crl.) No.310/2005 etc. 9

covered under the order dated 10.11.2008 passed by

this Court.

As regards the status of the detenue-Hamid

Numain Bhat s/o Mohd Iqbal Bhat (mentioned at serial

No.1), it appears that he is lodged in Central Jail,

Srinagar. He has been discharged in the case in

which he was arrested by the Additional Sessions

Judge, Srinagar. It is stated that having regard to

legal and factual position, Government of Jammu and

Kashmir is now processing his case of deportation,

but so far 'No Objection' from the State has not

been received, although, his nationality has been

confirmed by Pakistan High Commission.

In light of the above, we direct the Home

Secretary, Government of Jammu and Kashmir to take

immediate steps in respect of forwarding 'No

Objection' by the State Government to the Central

Government for deportation of the prisoner-Hamid

Numain Bhat, if it has decided not to challenge the

discharge order. In that event, the 'No Objection'

shall be positively sent within four weeks. On

receipt of 'No Objection', if any, from the

W.P.(Crl.) No.310/2005 etc. 10

Government of Jammu and Kashmir, the Central

Government shall take steps for his deportation as

early as possible and in no case not later than four

weeks from the date of receipt of the 'No Objection.

Professor Bhim Singh, petitioner-in-person,

invited our attention to the affidavit dated 16th

July, 2013 filed on behalf of the Government of

India by Mr. Vikas Srivastava in compliance of Order

dated 08.05.2013.

Learned Attorney General prays for time to

look into that affidavit and put forward the Central

Government's view in that regard.

Mr. Divya Jyoti Jaippuriar, learned counsel

has placed before us status of Pakistani fishermen

detainees in Indian jails/prisons, which is taken on

record. A copy thereof has been given to the

learned Attorney General.

He prays for time to seek instructions in this

regard and respond appropriately on the next date.

List all the matters on 08th December, 2014.

(Neetu Khajuria)

Sr.P.A.

(Renu Diwan)

Court Master

W.P.(Crl.) No.310/2005 etc. 11