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

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LLM Notes: “Any torture or third-degree methods negate the basic human rights of human dignity and freedom of personal liberty. Discuss the notion of human rights and judicial attitude vis-à-vis these concepts as per Indian law.”

 INTRODUCTION (2-3 marks)

Torture and third-degree methods represent the antithesis of constitutional democracy and civilised governance. These practices—involving deliberate infliction of physical or mental pain by state authorities to extract confessions, obtain information, or intimidate individuals—fundamentally violate the core constitutional protections available to every person under the Indian Constitution. The notion of human dignity and personal liberty are not negotiable commodities or instrumental means to achieve law enforcement objectives; they are constitutional absolutes that cannot be suspended, circumscribed, or justified under any circumstances, no matter how pressing the state interest. The Indian judiciary has evolved a sophisticated framework through dynamic interpretation of Articles 21, 22, and 20 to establish that torture and third-degree methods are unconstitutional, violative of human dignity, destructive of personal liberty, and destructive of the rule of law itself.

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LLM Notes: Guardians of Liberty: The Supreme Court's Crusade for Undertrial Prisoners in India

 In a country where over 75% of the prison population comprises undertrial prisoners and prisons operate at 118% capacity, the Supreme Court of India has emerged as a critical guardian of liberty, consistently working to address the systemic crisis of undertrial detention. Through landmark judgments and robust directives, the Court has transformed bail jurisprudence and established mechanisms to prevent unnecessary pre-trial detention.

The Undertrial Crisis: A Judicial Awakening

The serious judicial intervention on behalf of undertrial prisoners began as early as 1979, when reports in The Indian Express highlighted the plight of thousands languishing in prisons without trial. This led to the landmark Hussainara Khatoon judgment, where the Supreme Court established speedy trial as a fundamental constitutional right.

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Supreme Court Guidelines for taking action for non compliance of judgment of Satender Kumar Antil vs. CBI

E. The learned Amicus also submitted that apart from the directions sought for against the High Courts and States/UTs, general directions may be issued with respect to Undertrial Prisoners (hereinafter referred to as UTPs) so as to ensure that all the High Courts and States/UTs are in full compliance of the

SOP for UTPs as laid down by this court vide order dt.13.02.2024. He further submitted that it is extremely unfortunate that UTPs despite getting bail, are not being released from the prison since no family member or friend is coming forward to stand as surety or furnish bonds on the UTP’s behalf.

F. We are in full agreement with the aforesaid submission, as it is indeed a palpable situation which continues to be faced by the UTPs. Further, directions are also required to be issued to set in place an Institutional Monitoring Mechanism to ensure full and complete compliance of not only the directions which have already been passed, but also those directions which may be passed by this Court in the future as well. Accordingly, it is directed as follows: -

i. That all the High Courts and States/UTs must ensure compliance of the SOP for UTPs as laid down by this court vide order dt.13.02.2024, in those cases where no family member or friend is coming forward to stand as surety or furnish bonds on the behalf of the UTPs. ii. NALSA shall suggest a policy for implementing the direction sought for by the Amicus in Para.14(b) of the Report dt. 03.08.2024;

iii. To ensure implementation of the mandate of Para.100.2 & 100.3 of Satender Kumar Antil vs. CBI & Anr., (2022) 10 SCC 51, the following directions must be carried out:

a. Every Magistrate and/or Sessions Judge shall inform its

jurisdictional Principal District Judge about any form of noncompliance of Para.100.2 or Para.100.3 of Satender Kumar Antil vs. CBI & Anr. (2022) 10 SCC 51, within 1 week of recording such non-compliance;

b. Every Principal District Judge shall maintain a record of details of such non-compliances received from the concerned Magistrates;

c. Every Principal District Judge upon receipt of details of noncompliance by the concerned Magistrate shall, on a monthly basis, forward the same to the Registrar General of the concerned High Court and to the Head of Police in the concerned District;

d. The Head of Police of the concerned District shall, upon receipt of details of non-compliance of Para.100.2, take action against the erring officer as soon as possible and inform the concerned Principal District Judge;

e. The Registrar General of each High Court shall, upon receipt of details of such non-compliance of Para.100.2 and/or Para.100.3, place the same before the Committee for “Ensuring the Implementation of the Decisions of the Apex Court” for further action and forward it to the higher Police Authority. In those High Courts where such a committee is not currently in place, the same shall be constituted by the respective High Court.

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

 RECORD OF PROCEEDINGS

Miscellaneous Application No. 2034/2022 in MA 1849/2021 in SLP(Crl)

No. 5191/2021

SATENDER KUMAR ANTIL Vs CENTRAL BUREAU OF INVESTIGATION & ANR. 

Date : 06-08-2024 These applications were called on for hearing

today.

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Important Supreme Court Judgments on bail(Part 3)

 

1) Supreme Court: Participation in protest and expression of strong views is not violation of bail conditions-bail is not liable to be cancelled on that ground

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1994 OF 2024

A.DURAIMURUGAN PANDIYAN SATTAI @ DURAIMURUGAN  VS. STATE REP. BY THE INSPECTOR OF POLICE & ANR.

Dated: April 08, 2024.

https://www.lawweb.in/2024/06/supreme-court-participation-in-protest.html

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Supreme Court issues seven directions to avoid delay in release of prisoners after getting bail

With a view to ameliorate the problems a number of directions are sought. We have examined the directions which we reproduce hereinafter with certain modifications:

“1) The Court which grants bail to an undertrial prisoner/convict would be required to send a soft copy of the bail order by e-mail to the prisoner through the Jail Superintendent on the same day or the next day. The Jail Superintendent would be required to enter the date of grant of bail in the e-prisons software [or any other software which is being used by the Prison Department].

2) If the accused is not released within a period of 7 days from the date of grant of bail, it would be the duty of the Superintendent of Jail to inform the Secretary, DLSA who may depute para legal volunteer or jail visiting advocate to interact with the prisoner and assist the prisoner in all ways possible for his release.

3) NIC would make attempts to create necessary fields in the e-prison software so that the date of grant of bail and date of release are entered by the Prison Department and in case the prisoner is not released within 7 days, then an automatic email can be sent to the Secretary, DLSA.

4) The Secretary, DLSA with a view to find out the economic condition of the accused, may take help of the Probation Officers or the Para Legal Volunteers to prepare a report on the socio-economic conditions of the inmate which may be placed before the concerned Court with a request to relax the condition (s) of bail/surety.

5) In cases where the undertrial or convict requests that he can furnish bail bond or sureties once released, then in an appropriate case, the Court may consider granting temporary bail for a specified period to the accused so that he can furnish bail bond or sureties.

6) If the bail bonds are not furnished within one month from the date of grant bail, the concerned Court may suo moto take up the case and consider whether the conditions of bail require modification/ relaxation.

7) One of the reasons which delays the release of the accused/ convict is the insistence upon local surety. It is suggested that in such cases, the courts may not impose the condition of local surety.”

We order that the aforesaid directions shall be complied with.

IN THE SUPREME COURT OF INDIA 

Coram: SANJAY KISHAN KAUL; J., ABHAY S. OKA; J.

 SMWP(CRIMINAL) NO. 4/2021;

 In Re Policy Strategy for Grant of Bail 

Dated;  31-01-2023

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Whether the court should reject bail of undertrial accused to send message to society?

While in the additional status report the State says that

".... Granting of bail at this early stage may send an adverse message in the society and such crimes should not be allowed to happen in the national capital. ....".

(Emphasis supplied)

this court is of the view that cannot be basis for denying bail, if the court is otherwise convinced that no purpose in aid of investigation and prosecution will be served by keeping the accused in judicial custody. Prison is primarily for punishing convicts; not for detaining undertrials in order to send any 'message' to society. The remit of the court is to dispense justice in accordance with law, not to send messages to society. It is this sentiment, whereby the State demands that undertrials be kept in prison inordinately without any purpose, that leads to overcrowding of jails; and leaves undertrials with the inevitable impression that they are being punished even before trial and therefore being treated unfairly by the system. If at the end of a protracted trial, the prosecution is unable to bring home guilt, the State cannot give back to the accused the years of valuable life lost in prison. On the other hand, an accused would of course be made to undergo his sentence after it has been awarded, after trial.

IN THE HIGH COURT OF DELHI

Bail Appl. 945/2020

Decided On: 29.05.2020

 Firoz Khan  Vs. State (NCT of Delhi)

Hon'ble Judges/Coram:

Anup Jairam Bhambhani, J.

Citation:  MANU/DE/1134/2020

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Whether undertrial prisoner can get Home food without permission of Magistrate?

The provision of law, as they stand comprised, under Section 167 of the Code of Criminal Procedure, therefore, discloses implicit power in favour of the Magistrates and the Courts before whom the accused is produced for remand or continuation of detention of the accused in custody, to order the facility of home food on being requested for by such accused and on being satisfied about the need for grant of such facility. Undoubtedly, the respondents would be entitled to take appropriate steps to ensure that the drugs, messages, weapons, etc. are not transported inside the jail under the guise of supplying home food to the under-trials, and, in case, any such mischief is brought to the notice of the Court, nothing would prevent the Court or the Magistrate either to refuse such facility or even to recall the order already passed granting such facility, albeit, after hearing the concerned accused and in extreme urgency, even ex parte subject to confirmation after hearing the accused.

28. The view that we are taking in the matter and bearing in mind the practice which is followed by the Courts below in the matter of grant of facility of home food to the under-trial prisoners whenever asked for and reasons to be recorded, the contention that the power to order facility of home food was exercised by the Courts below in terms of the unamended Sections 31 and 32 is to be held as totally devoid of substance. Those provisions do not deal with the powers of the Magistrate or the trial Courts. Those are the powers which are given to the Jail Administrative Authorities, and similar is a situation in relation to the amended provisions of law. The power to order home food vests in the Magistrate or the trial Court under Section 167 of the Code of Criminal Procedure and the same is not controlled by virtue of Sections 31 and 32 of the Prisons Act, 1894.

IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition No. 1438 of 2000

Decided On: 02.08.2004

 Asgar Yusuf Mukadam Vs.  State of Maharashtra and Ors.

Hon'ble Judges/Coram:

R.M.S. Khandeparkar and R.S. Mohite, JJ.

Followed in

Bombay High Court

The State Of Maharashtra vs Vikramsinh Dattusinh Chauhan on 10 November, 2017

Bench: A. M. Dhavale

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Whether Police can take photographs of undertrial prisoners and accused without permission of magistrate?

CHENNAI: Police cannot take photographs of undertrial prisoners and accused without permission from the magistrate concerned, the Madras high court has said. 

"Police have no authority to do it on their own," a division bench comprising Justice S Rajeswaran and Justice PN Prakash said while dismissing the appeal filed by Lieutenant Colonel (retired) K Ramaraj against his conviction and sentence in the July 3, 2011 Dilson murder case. 

The judges asked: "Can the police be allowed to take photographs of the accused in police station without magisterial sanction? If we concede that power, what will be the plight of women accused? Can the police take the accused to the scene of crime or anywhere else and take photographs of him? If the photographs get leaked to the Press, will it not affect the evidentiary value of identification during the test identification parade?" 

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Supreme Court: Jail authorities can refuse jail warrant if age of prisoner is not mentioned

It is time to turn to brass facts. We have come across cases where the warrant, be it for the undertrial or the prisoner, when sent by the court does not indicate the age of the prisoner authorised to be detained in the jail. This is a very wrong practice and is obviously in breach of the direction issued by this Court. We call upon every Magistrate or trial Judge authorised to issue warrants for detention of prisoners to ensure that every warrant authorising detention specifies the age of the person to be detained Judicial mind must be applied in cases where there is doubt about the age-not necessarily by a trial-and every warrant must specify the age of the person to be detained. We call upon the authorities in the jails throughout India not to accept any warrant of detention as a valid one unless the age of the detenu is shown therein. By this order of ours, we make it clear that it shall be open to the jail authorities to refuse to honour a warrant if the age of the person remanded to jail custody is not indicated. It 

would be lawful for such officers to refer back the warrant to the issuing court for ractifying the defect before it is honoured. Since it will create problems in keeping the undertrial or the prisoner during the intervening period, the judicial officer should realise his responsibility in accepting this direction and giving full effect to it.

Supreme Court of India

Sanjay Suri & Anr vs Delhi Administration, Delhi & Anr on 9 December, 1987

Equivalent citations: 1988 AIR 414, 1988 SCR (2) 234

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