‘Shortage of staff’: How gaps in the system lead to prolonged absence of undertrials in courts

This is not an exceptional case when it comes to an undertrial’s prolonged absence in court. With jails and courts spread across over 50 km in the Mumbai Metropolitan Region, undertrials lodged in jails on the outskirts of the city have often complained of not being physically produced in courts for weeks on end. From VIP visits and protests to cricket matches and music concerts, the police guards meant for ferrying the accused to courts end up being diverted for other purposes, or there is simply not enough personnel compared to the number of undertrials.

From hunger strikes to contempt petitions, undertrials, too, have sought accountability from the authorities, but the problem continues to prevail. Videoconferencing is pegged as a solution, but that too is not without its own share of technological challenges.

The case before the Supreme Court

On December 2, while hearing the bail application of one Shashi Jumani who has been lodged in Kalyan jail for over four years in a case of alleged assault of a policeman – the officer died two months after the incident – the court was told that the accused had not been physically produced for 55 of the 85 hearings.

Jumani’s lawyer, Sana Raees Khan, had submitted copies of the roznama or daily record of the court proceedings from the Kalyan court website in Thane district, stating that its analysis shows that Jumani was usually not produced in court. Khan argued that apart from the merits of his case, his bail plea should be considered on the ground of non-production.

“The record showed that he was produced some days by video-conference or not at all, and very rarely physically. We submitted that this leaves an accused unable to make any submissions about any issues he may have in jail, any health issues, or other grievances. The trial court also may not be able to see if he is in a fit condition. There might be delays in the commencement and conclusion of the trial, but the accused cannot be kept away from court,” Khan told The Indian Express.

The bench of Justices Ahsanuddin Amanullah and Prashant Kumar Mishra said that the accused’s contact with the court in whose judicial custody he is, is a fundamental safeguard. “We find that there has been a grave infraction of such a fundamental safeguard, which is appalling and shocking. We deprecate the same,” the bench said.

In another similar case before the high court in July, the prison superintendent of Pune informed that an accused was not produced before the court due to the non-availability of guards.

How undertrials are brought to court

The accused who remain behind bars pending their criminal trial are called undertrials. This means that the allegations against them have not yet been proven, and they are assumed to be innocent till proven guilty.

According to the Prison Statistics of India, 2023, around three-fourths of the country’s prison population comprise undertrials – 3.9 lakh of the 5.3 lakh. This means that most people lodged in jails are in judicial custody of the respective trial courts. They are meant to be produced in courts, where they can file applications to seek relief while in jail, including bail, medical interventions, and certain facilities, like home food, which the courts may or may not grant as per their discretion on a case-by-case basis.

The responsibility of taking the accused outside the jail, to courts or hospitals, is with the police and not the prisons department. The commissionerate or the district police under which the jail is situated has to provide the personnel required for this task. This depends on the number of prisoners in the jail but since the number in cities is always much higher than the sanctioned strength, a gap remains.

The city or district police department usually keeps a specific strength of its personnel aside for police escort duties. Every morning or evening, the jail department emails the authority responsible in the police department regarding the undertrials who need to be taken to court or hospital on that day or the next. Based on this, the police send an adequate number of personnel to the jail to pick up the undertrials. If the exact number is not provided, the prison authorities may prioritise who gets to go, based on the urgency of the hearing.

“Priority is given to those who require urgent medical intervention or in production in courts – those whose cases are set for pronouncement of judgment, or if they are crucial witnesses, or if it is in any other important stage of the trial,” an officer said. Those whose trials are yet to begin may be produced via videoconferencing.

The Bombay High Court had in 2005 issued guidelines which specified that after every three productions via videoconferencing, there should at least be one physical production. Courts, however, may not issue production warrants, citing that the trial has not begun, or any other security issue raised by the jail or police. Undertrials are also seen requesting the court for physical production when they interact with the judges via videoconference, which may or may not be accepted. In the past, undertrials have also made allegations that there is corruption in the system, with some getting more regular physical production than others, which is denied by the authorities.

The guard gap

Shortage of guards is often cited as the reason for non-production of the accused before courts. Guards appointed for prison escort duties are also diverted for other purposes, like bandobast duty due to VIP movement, like visits by the Prime Minister, or other national, international dignitaries, or due to protests, concerts, or other law and order issues.

In January this year, some accused in the Elgaar Parishad case had threatened to go on a hunger strike after the Navi Mumbai police said it had to deploy guards for the Coldplay concert at the D Y Patil Stadium. The accused, however, were later produced in court.

A Bombay High Court-appointed prison reform committee, led by retired Justice S Radhakrishnan in 2017-18 was informed about this problem. The committee had suggested that there should be a ‘system of meetings’ between the Commissioner of Police and the Superintendent of Police to resolve this issue and also recommended that Principal District Judges, who head existing district inter-departmental sub-committees on prisoners, hold meetings on this.

Officials said the system has improved following meetings with representatives of the police and jail on the number of guard requests that remained unfulfilled. The committee had also suggested that five per cent of the staff sanctioned for the district police should be earmarked for guard duty for undertrials.

The number, however, remains low compared to the requirement for undertrials. For instance, the Navi Mumbai police commissionerate has earmarked 239 guards for police escort duties. The commissionerate, smaller in size compared to Mumbai, ends up sending most guards to Mumbai courts, since the undertrials kept in Taloja jail include many accused in cases registered by the Mumbai police, or for other duties like bandobast or law and order issues.

While the committee had suggested videoconferencing as a solution, officials said technological challenges remain, with the connection not always seamless in all courts and jails.

“Undertrials also insist on being produced physically as they can meet their lawyers and family members at ease, which they feel is necessary, especially if they have been in jail for a longer period. The videoconferencing facility during trials may not be ideal as a lot of the judicial process may not be easily accessible for the undertrial who is attending the proceedings in jail without a lawyer to explain it to him,” an official said.

The Supreme Court order says the inquiry ordered by it should fix responsibility and take action based on why the accused was not produced physically for so many dates. It may help in explaining the larger issues in the system, and the possible ways to resolve them.