Delhi State Legal Services Authority (DLSA) has moved the Delhi High Court to strike down a provision of the Criminal Procedure Code (CrPC) over reports of persons being detained in jail even after their acquittal due to this legal formality. Section 437A of the CrPC, introduced by an amendment in 2009, makes it mandatory for a court to release an acquitted person only after the person furnishes a bail bond with sureties.
DLSA, which gives legal aid to indigent undertrials and carries out various legal education and welfare projects, filed the PIL after it was notified about a case where an undertrial was acquitted but had to remain in jail as he could not furnish the bail and sureties.
The provision of Section 437 A was created in order to ensure that the accused remains present when the appeal is being heard in the higher court. However, according to the DLSA plea, several people end up spending extra time in jail because they are unable to furnish the bond.
“If an acquitted person is not in a position to procure sureties then, even after his acquittal, he would continue to suffer incarceration. Such an interpretation would defeat the jurisprudence of the law on acquittal,” the plea, filed by DLSA member secretary Dharmesh Sharma, says.
“There are no records kept by Tihar jail authorities on how many such acquitted persons are still in jail…,” DLSA OSD S S Rathi said.
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The legal aid agency has also pointed out in the PIL that the provision violates the acquitted person’s rights to life and equality. “Not releasing the accused, who has been acquitted by a criminal court, even for a minute after his acquittal is unconstitutional and violates the fundamental right to personal liberty,” the plea says.
The PIL also alleges that the provision was created “solely for administrative convenience”, to ensure that the person does not disappear after the acquittal. The plea, however, states that many other options are available to ensure the presence of an accused during appeal proceedings, including taking the actual address of the accused on record.
During the brief hearing before the court of Chief Justice G Rohini and Justice R S Endlaw on Wednesday, Additional Solicitor General Sanjay Jain told the court that the government was already apprised of the issue and was “looking into the matter”.
The court has now issued notice and asked the government to file its response.
The plea has sought that the section should be struck down or should be read down to remove the mandatory provision of furnishing a bail bond.