Released for Grief: Under-Trial Prisoners, Funeral and Shraddha Ceremonies, and How to Write the Order

An under-trial prisoner (UTP) can be allowed to attend a close relative's funeral or shraddha, either on short interim bail or in police custody. The court decides on the facts of each case. It weighs humanitarian and religious needs against the risk of flight, witness interference and harm to the trial. This article also sets out how a judge can approach and write such an order, with a sample order.

Why It Matters

Death rites are among the most important religious and social duties in Indian life. An under-trial is presumed innocent and is held only to secure his presence at trial. Refusing him a last farewell to a parent, spouse or child can therefore be harsh. Article 21 protects dignity even in custody, and Article 25 protects religious practice. Neither right is absolute. Both can be reasonably restricted for legitimate custodial and public-interest reasons.

Funeral and Shraddha Compared

A funeral or cremation is urgent, usually within hours or a day. It should be decided the same day, and where necessary the court should hear the matter on a mention or on short notice. Shraddha and later rites, such as the 10th, 13th or 16th-day ceremonies, are scheduled. The applicant must show the ceremony's date and venue, the religious necessity, and why his own presence is needed. 

Forms of Relief

• Short-term interim bail: This is granted for a few hours or days, covering only the ceremony and the travel. The court usually takes a bond, sureties and an undertaking to surrender on time.
• Escorted attendance: Where interim bail is unsafe, especially in grave offences, the court permits attendance under police escort.

How the Judge Should Approach the Order

1. Act promptly. For a funeral, a delayed order defeats the relief. Call for an urgent report and decide the same day where possible. For a scheduled ceremony, allow a short reply from the prosecution and the jail authorities.

2. Verify before deciding. Call for a report on the death and relationship, and on the ceremony details, from the jail superintendent or the police station concerned. Check the death certificate or other reliable proof. False claims should lead to rejection and appropriate further action.

3. Record the material facts. The order should set out the accused, the case and the stage of the trial. It should also record the deceased, the relationship, the ceremony, and the date, time and place. Add the prosecution's stand and the jail report, including the accused's conduct.

4. Apply the settled test in individual terms. Do not refuse only because the offence is serious. Do not grant only because the ground is emotional. Address each of the following and give reasons on each:

• the closeness of the relationship and the genuineness of the ceremony
• the gravity of the offence and the stage of the trial
• the risk of absconding, based on antecedents and roots in the community
• the risk to witnesses, evidence or public order
• any earlier misuse of bail or parole
• conduct in jail

5. Choose the least restrictive mode that is safe. Consider interim bail first where the risk is low. Where it is not, order escorted attendance. Explain why the chosen mode is enough and why the other mode was not chosen.

6. Keep the relief short and precise. Give exact dates, hours, place and route. Include travel time, and no more.

7. Fix conditions that can be enforced. Typical conditions are:

• a bond and sureties, or a personal bond where the accused is indigent
• surrender before the fixed hour, with a named authority to receive him
• no contact with witnesses or the complainant side
• no media interaction, speeches or public gatherings
• staying only at the specified place
• a mobile number for the escort to reach him

8. Deal with cost fairly. If escort cost is imposed, keep it proportionate. Where the accused is indigent, reduce or waive it, so that relief does not depend on the ability to pay.

9. Direct compliance and consequences. Direct the jail superintendent and the police to comply, and to report back. State that any breach may lead to cancellation of the relief and to action against the accused and the surety.

10. Pass a reasoned, speaking order. Even a short order should show that the judge considered both the humanitarian claim and the risk. That is the part most likely to withstand scrutiny in revision or appeal.

Sample Order: Escorted Attendance at Shraddha Ceremony

IN THE COURT OF THE SESSIONS JUDGE, [PLACE]

Sessions Case No. of 20__

State of v. (Accused)

Crime No. of 20__, Police Station

Offences: Sections

Application Exhibit : Application for permission to attend the shraddha ceremony of the accused's _ (relationship)

ORDER (below Exhibit )

Date:

1. The accused is an under-trial prisoner in the above case, lodged in Jail. He has filed this application, praying that he be released for [a day/hours] to attend the [13th-day/shraddha] ceremony of his [father/mother/spouse/child] late , who died on . In the alternative, he prays that he be allowed to attend the ceremony under police escort.
2. The applicant has produced a copy of the death certificate and relevant identity documents. He states that the ceremony will be held on at [address], and that, as the [eldest son/only son/nearest male relative], his presence is necessary for the rites.
3. The learned APP opposes the application. He submits that the accused is charged with serious offences under Sections , that the trial is at the stage of , and that there is a risk that he may abscond or contact witnesses.
4. I have heard both sides and have gone through the record. I have also perused the report of the Superintendent, Jail, and the report of the Police Station .
5. The death of the applicant's on is supported by the death certificate. The reports confirm the relationship and the proposed ceremony at the place and time stated. The accused's conduct in jail is reported to be [satisfactory / as stated].
6. The offence charged is serious, but seriousness alone is not a ground to refuse this request. An under-trial is presumed innocent, and dignity and religious freedom under Articles 21 and 25 of the Constitution continue in custody, subject to reasonable restrictions. At the same time, the applicant has no absolute right to release. The request must be balanced against the risk to the trial and to public safety.
7. In this case, [the accused has no earlier record of absconding or misuse of bail / the following antecedents are noted: ________]. The prosecution has [not shown any specific material of threat to witnesses / pointed to the following risk: ________]. Considering the gravity of the charge, the stage of the trial and the need to ensure the accused's presence, I find that release on interim bail is [not safe / safe]. The ceremony can be attended adequately under police escort, and this is the least restrictive means to serve both interests.
8. The application is therefore [allowed in part / allowed] on the following terms: (a) The accused shall be taken from Jail under a police escort of on at hrs, directly to [address], to attend the ceremony. (b) He shall remain at that place only for the ceremony, from to hrs, and shall be brought back to the jail by hrs on the same day. Travel time is included in the above period. (c) He shall travel only by the route and vehicle arranged by the escort. He shall not stop at any other place. (d) He shall not make any speech, address any gathering, or give any interview or statement to the media. (e) He shall not contact, directly or indirectly, any prosecution witness, the complainant or their relatives. (f) He shall be kept in the custody of the escort throughout and may be handcuffed or restrained where the escort considers it necessary for security, in accordance with law. (g) [The cost of the escort, estimated at Rs. ________, shall be deposited by the applicant before the departure. / As the applicant is indigent, the cost of the escort shall be borne by the State.]
9. The Superintendent of Jail and the Station House Officer, Police Station, shall comply with this order and file a compliance report on . Any breach of these conditions shall render the accused liable to further restrictions, and the prosecution may apply for suitable action.
10. The application is disposed of accordingly. A copy of this order be sent to the Jail Superintendent and the SHO concerned immediately.

Place:

Date:

Sessions Judge

Sample Order: Interim Bail (Alternative Paragraph 8)

Where the court finds that interim bail is safe, replace paragraph 8 with:

"The accused is granted interim bail from (date, time) to (date, time) for attending the ceremony at , on executing a personal bond of Rs. with [one surety / no surety] of the like amount. He shall surrender before the Superintendent, Jail, by hrs on . He shall not leave the district of or contact any prosecution witness. He shall keep his mobile number active and shall report to the SHO, Police Station, on his release and on his return. Failure to surrender on time shall render the bond and the surety liable to forfeiture, and shall be a ground for cancelling his bail."

Drafting Checklist

• Are the death and relationship verified from a reliable document?
• Are the ceremony's date, time and place stated exactly?
• Have both the prosecution's stand and the jail report been recorded?
• Are the reasons for the chosen mode of relief stated?
• Are the hours, route and conditions specific and enforceable?
• Has the escort cost been handled fairly for an indigent accused?
• Is there a direction for compliance and a return date?

Conclusion

The law does not give an under-trial a right to walk out for a ceremony. It does require the court to consider the request with compassion and to decide it on the facts. False claims and earlier misuse of liberty will defeat an application. A well-documented request with firm safeguards will usually succeed in some form, either by short bail or by escort. A short, reasoned order that shows the judge weighed both humanity and risk is the best protection for the order itself.

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