Despite being granted bail by the Delhi High Court, JNU scholar Sharjeel Imam will not be released from custody. Imam was granted bail in a case in which he is charged with sedition and unlawful activity under the stringent Unlawful Activities Prevention Act (UAPA) for an alleged inflammatory speech. Arrested in January 2020, he has spent nearly four years in prison as an undertrial in this case. On what grounds did the HC grant him bail, and why is he still in jail? Grounds for Imam’s bail The charges against Imam under Section 13 of the UAPA carry a maximum sentence of seven years. Sedition carries a maximum sentence of life imprisonment. In a case involving life sentence, 10 years is considered as half the sentence for the purposes of granting statutory bail (more on that later). In a 2021 ruling, SC stayed the operation of Section 124A, which penalizes sedition. Till the constitutional validity of the provision is determined, all trials on sedition, including Imam’s, are effectively stayed. With no prospects of a speedy trial, Imam’s statutory bail was the only viable option for release in this case, especially since his bail was rejected on merits in earlier occasions. But this bail does not mean that Imam will be released from custody since he is also in custody in another case involving the 2020 North East Delhi riots. In fact, there are several other cases pending against Imam in at least four states — Assam, Manipur, Arunachal Pradesh, and Uttar Pradesh — other than Delhi. He is not in custody in these cases, thus does not need to apply for bail. Bail under Section 436-A of CrPC A two-judge Bench of Justices Suresh Kumar Kait and Manoj Jain granted statutory bail to Imam on May 29. They had little discretion in doing so. On merits, Imam has had his bail rejected several times by the trial courts and high court. However, this time, he was granted bail on technical grounds under the statute (hence statutory) Section 436-A of the Code of Criminal Procedure (CrPC), where an accused is granted bail if he has served half of the maximum period of imprisonment prescribed for the offence. 436-A of the CrPC (Maximum period for which an undertrial prisoner can be detained) reads: “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.” This provision was introduced in 2005 to tackle the issue of the rising population of undertrials in prison. This is especially helpful for undertrials who are booked for offences that carry a shorter sentence. For example, according to the National Crime Records Bureau data for 2022, there were 63,502 undertrials across the country who were charged for offences that carry a sentence of less than two years. Other protections for undertrials First, for all bailable offences, it is mandatory for Courts to grant bail under Section 436 CrPC. An accused willing to furnish a bail bond has to be granted bail in such cases. In case of non-bailable offences, it is the Court’s discretion to grant bail. To shield from lengthy periods of incarceration without trial, the Courts also grant default bail. Under Section 167(2) of the CrPC, the police have 60 days to complete the investigation and file a final report before the court. For offences that prescribe death sentence or life imprisonment, or a jail term of not less than 10 years, this period for investigation is 90 days. If the police are unable to finish the investigation and file a chargesheet within this period, then default bail is granted. Default bail is only for IPC crimes. Stringent special legislations like the UAPA have relaxed timelines for police to investigate.
