59% prison population in Kerala are undertrials; Kerala High Court bats for hearings in trial court based on date of incarceration

The Kerala High Court recently highlighted the need for speedy trials and proper assistance to prisoners for filing appeals to avoid the long periods of incarceration suffered by under-trial prisoners. [Jahir Hussain v State of Kerala].A division bench of Justices K Vinod Chandran and C Jayachandran pointed out the distressing fact that as of 2020, 59% of the entire prison population in Kerala was comprised of under-trial prisoners"We cannot but point out the distressing aspect of continued incarceration of under-trial prisoners and the delay occasioned in conducting trials. As per the statistics of the National Legal Services Authority, the ratio of under-trial prisoners to that of the total population in prisons in Kerala is 59% in the year 2020", the court said.To address this issue the Court opined that the High Court may issue directions to trial courts to take up matters based on the date of commencement of incarceration of convicts and to grant bail in appropriate cases."We are of the opinion that the High Court could issue directions to the trial courts to take up matters based on the date of incarceration of convicts and also in fit cases to consider bail, if there is inordinate delay caused, for any reason not attributable to the accused," the judgment stated..The bench pointed out two following aspects that also need to be addressed and asked the State government, Legal Services Authorities and Department of Prisons to take necessary steps in that regard.Rehabilitation of prisoners after they are released from prisonDelay in filing appeals by convictsAs regards the first issue, the Court called upon the Legal Services Authorities to take a more proactive role to ensure rehabilitation. "We also have to call upon the District Legal Services Authorities (DLSA) to take up a more proactive role in the case of under-trial prisoners and also in cases like the present one and in the case of any convict, released after completing the sentence imposed, for rehabilitation; especially of first offenders. It is also for the State to formulate a scheme for such rehabilitation, which alone could realize the shift from the retributive and punitive theories of sentencing to the broader one intended of reformation," the Court said. With regard to the second aspect, the Court called for sensitizing the jail authorities about the need to render assistance to the convicts in filing timely appeals."We also notice the long delay in filing appeals by indigent convicts, despite there being in existence Legal Aid Clinics at the Prisons, manned by Para Legal Volunteers of the Legal Services Authority. The Department of Prisons and Correctional Home shall also sensitize the Jail Authorities about the need to render assistance to the convicts in filing timely appeals before this Court and moving applications for suspending the sentence," the judgment said. .The judgment came in an appeal moved by the first accused in a crime who was arrested and arraigned before the Sessions Court in the year 2005 but had absconded. The appellant was arrested sometime in 2009 and he was an under-trial prisoner for 8 years till 2017. The Court found from the proceedings sheet that the original documents were not available and there was a request made to the High Court for reconstructing the documents. The matter was kept pending and communications were exchanged between the Sessions Court and the High Court and eventually as per the directions of the High Court, in June 2013, the Public Prosecutor was directed to produce the photocopies of original records. The accused was produced and remand was extended periodically. In March 2014, the charges were read over to the accused on being produced. However, the material objects were not available. Again, the matter was kept pending for tracing out the material objects.Eventually, the trial commenced in February 2017 with the examination and after four months, the trial court passed a judgment convicting the appellant which was challenged before the High Court in the present appeal."The distressing aspect is that from 2009 to 2017 the accused was an under trial prisoner. Further, even after the conviction in 2017, the appeal was not filed. The present appeal, as a jail appeal, was filed in the year 2020, after three years," the Court noted.Therefore, it directed the registry to place a copy of the judgment before the Chief Justice for the purpose of considering guidelines to be drawn up in prioritizing trials in criminal cases, with reference to the date of continued incarceration of the accused.In the present case, the Court said that it was appalling that the accused had completed 13 years in prison, almost the life term as per the Criminal Procedure Code entitling commutation."In the present case when we have acquitted the accused, it is appalling that he has completed 13 years in prison, almost the life term as per the Criminal Procedure Code; to enable commutation. We are also informed that the co accused, who was convicted, has been released after 14 years of incarceration," the Court said in its judgment..Since the appellant in the instant was incarcerated in the Central Prison, Thiruvananthapuram and is a native of Kayalpattanam, the Court directed the Secretary, DLSA, Thiruvananthapuram to coordinate with the Secretary, DLSA of the place where the appellant intends to reside, and provide assistance to enable effective rehabilitation. "We direct the judgment to be placed before the Chief Secretary, State of Kerala to apprise the Government of the concern of this Court regarding the absence of a proper scheme for rehabilitation of prisoners and also the Director General of Police, Prisons and Correctional Services, for appropriate action," the bench directed..After setting aside the appellant's conviction, the Court kept the matter pending to have an effective follow up on the rehabilitation of the acquitted appellant. The Court will take it up again after 2 months. .[Read Judgment]

59% prison population in Kerala are undertrials; Kerala High Court bats for hearings in trial court based on date of incarceration

Giti Pratap

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