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Aryan Khan, Munawar Faruqui or Pinjra Tod — why bail doesn’t mean immediate release

Delayed release is an issue that has triggered concern in judiciary. SC judge Justice D.Y. Chandrachud said delay in communicating bail orders to jail administrations is a 'very serious deficiency'.

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New Delhi: Supreme Court Justice D.Y. Chandrachud earlier this week termed the delay in communicating bail orders to jail administrations a “very serious deficiency” as it touches the “human liberty” of every undertrial prisoner.

The top court judge’s statement came days after actor Shah Rukh Khan’s son Aryan Khan was released from jail. Aryan stepped out of jail two days after the Bombay High Court gave him bail in a Narcotic Drugs and Psychotropic Substances (NDPS) Act case.

Justice Chandrachud’s remark and Khan’s delayed release have put the spotlight on archaic prison rules that could be forcing undertrials to remain incarcerated without any justification, in violation of the basic constitutional right to liberty.  

Arrested on 2 October, Aryan Khan walked out of Mumbai’s Arthur Jail on 30 October. Bombay High Court Justice N.W. Sambre had accepted his and two others’ bail applications on 28 October, but a detailed order stipulating the release conditions was issued on 29 October.

By the time Khan’s bail formalities, including deposit of surety, were completed that day and a release warrant was issued, it was 5.30 pm. The Arthur Road jail didn’t release Aryan on the grounds that his documents reached there after 5.30 pm, the deadline fixed to receive such papers.

But the Aryan Khan case isn’t an isolated one.

Delay in completing the formalities required to process a prisoner’s release on bail have often resulted in extended imprisonment.

In Delhi, it took Tihar jail two days to implement the high court order granting bail to Pinjra Tod activists Natasha Narwal and Devangana Kalita and Jamia Millia Islamia student Asif Iqbal Tanha, all booked in a case related to the Northeast Delhi riots.

On the morning of 15 June, the high court ordered the trio’s release in a detailed verdict. However, the formalities in the trial court remained incomplete after Delhi Police sought three days to verify their sureties and addresses. The matter was again deferred the next day because the court’s workload was too heavy.

But on 17 June, when the high court intervened in the matter, the presiding judge of the trial court hastened to electronically transmit the warrants to Tihar jail, clearing their release in the evening on that day.

A few months earlier, Indore jail had refused to release stand-up comedian Munawar Faruqui, despite the Supreme Court giving him bail in a criminal case for allegedly hurting religious sentiments.

While the top court had also put on hold production warrants issued against Faruqui by a Prayagraj court, the jail superintendent didn’t release him, saying he was waiting for a communication from the Prayagraj court on the order.

Faruqui’s release became possible only after a senior registrar from the Supreme Court spoke to him over the phone following media reports about the procedural delay in his release.

In July, the Agra jail declined to release 13 prisoners because it hadn’t received the hard copy of the Supreme Court order granting them bail. A suo motu intervention by the top court paved the way for their release.

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What the procedure is

Administration of prisons is a state subject. Each state has its own manual that sets out the guidelines for releasing those who are given bail, including the deadline to receive and process documents.

For instance, Delhi’s Tihar jail does not accept release warrants issued by the court after 7 pm. “If the valid document is received before 7 pm, then the prisoner has to be released on the same day, or else next morning,” said Sunil Gupta, a former law officer at Tihar jail.

In Mumbai, the Arthur Road jail seeks the release warrant to be left in the designated drop box by 5.30 pm.

According to Gupta, the Prisons Act of each jail mandates closure of jails after a certain time for security reasons and the prisons are opened only in case of an “acute emergency”. However, it is the “mechanical” procedure to prepare the release warrant that can stall an early release.

“After granting bail to an applicant, the court sends a copy of the order to the prison where the inmate is lodged, either through a special messenger or courier. In case the order is by the HC or SC, order copy is also sent to the trial court for completion of formalities,” explained Gupta.

If the high court or the Supreme Court specify the bail bond and surety amount, then the trial court is simply required to verify the genuineness of the documents submitted in compliance of the order. And, when the conditions are not stipulated in the order, the trial court judge then carries out this task as well.

But the prisoner cannot leave till the trial court sends their release warrant to the jail. This warrant is prepared once the police completes verification of the sureties, which involves checking the veracity of documents such as the Aadhaar card, fixed deposit or property papers.

“Here the trial court judge has a lot of discretion. It is up to the court to fix a deadline for the police or it can even waive the verification, if the person standing as surety is a well-known personality,” said Gupta.

Preparation of the release warrant is the most crucial part of the entire release process, he added.  

The document continues to be a hand-written one. Even a minor mistake, such as a spelling error, can become grounds for the prisoner’s non-release, as the jail superintendent can return it for clarification, delaying the release.

In jail, the superintendent initiates steps as soon as the bail order is received from the court. The officer issues instructions to produce the prisoner to confirm they are the same one mentioned in the bail order. The prisoner is made to return the articles he got from the jail during incarceration and is allowed to leave once release warrants are received.

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Need to digitise process

On learning about the July Agra jail instance from media reports, Chief Justice of India (CJI) N.V. Ramana took up the issue of developing a system where the apex court will communicate bail orders electronically to jails.

“In this age of information and communication technology, we are still looking at the skies for the pigeons to communicate the orders,” he commented, proposing to set up FASTER (Fast & Secured Transmission of Electronic Record).

In a 23 September order passed in the Agra case, the top court directed that the authenticated e-copies of SC orders must be accepted by the prison authorities, and also directed the states and their police to amend the relevant rules and regulations to accept the e-copies.

However, sources in the SC told ThePrint that the system is yet to become operational as compliance of the order is still awaited. “Reminders have been sent to the states to comply with the order soon,” one of the sources said.

Legal experts echo CJI Ramana’s view that technology should be utilised to digitise the entire process.

Advocate Gyanant Singh said the high courts should issue instructions to prison authorities in each state to accept electronically transmitted bail orders and release warrants.

“Once the order is digitally signed and uploaded on the official website of any court, there should be no requirement for a hard copy. If courts can accept such orders, then why can’t jail authorities? High courts should adopt FASTER and reduce manual intervention in paperwork,” Singh added.

(Edited by Amit Upadhyaya)

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