1

ITEM NO.23 COURT NO.2 SECTION PIL-W

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

SMWP(CRIMINAL) NO.. 4/2021

IN RE POLICY STRATEGY FOR GRANT OF BAIL Petitioner(s)

VERSUS

Respondent(s)

(MR. GAURAV AGRAWAL, ADV. IS AMICUS CURIAE

IA No. 203407/2022 - INTERVENTION APPLICATION)
IA NO. 203408/2022- DIRECTIONS
IA NO. 21741/20330 EXEMPTION FROM FILING O.T

WITH

SLP(Crl) No. 529/2021 (II-C)

(FOR ADMISSION AND I.R AND MR. NEERAJ KUMAR JAIN, SR. ADVOCATE
(A.C.), MR. GAURAV AGRAWAL, ADVOCATE FOR NATIONAL LEGAL SERVICES
AUTHORITY, MR. DEVANSH A. MOHTA, ADVOCATE (A.C.), MR. ABHIMANYU
TEWARI, ADVOCATE FOR STATE OF ARUNACHAL PRADESH, MR. YOGESH KANNA,
ADVOCATE FOR STATE OF TAMIL NADU, MR. CHANCHAL K. GANGULI, Advocate
for STATE OF WEST BENGAL, MRS. NIRANJANA SINGH Advocate for State
of Bihar, MR. MILIND KUMAR, ADVOCATE FOR STATE OF RAJASTHAN, MR.
NIKHIL GOEL, ADVOCATE FOR HIGH COURT OF GUJRAT, MR. SARVESH SINGH
BAGHEL, ADVOCATE FOR STATE OF UTTAR PRADESH, MAHFOOZ A NAZKI FOR
STATE OF ANDHRA PRADESH, MR. SACHIN PATIL FOR STATE OF
MAHARASHTRA,MR. SUBHRANSHU PADHI FOR STATE OF KARNATAKA, MR.
GARVESH KABRA FOR STATE OF UP, MR. G.S MAKKER FOR ANDAMAN AND
NICOBAR ISLANDS, MR. HARSHAD V HAMEED FOR STATE OF KERALA, MR.
SHOVAN MISHRA, ADVOCATE FOR STATE OF ODISHA, DR. MONIKA GUSAIN,
ADVOCATE FOR STATE OF HARYANA AND MR. ABHINAV MUKERJI, ADVOCATE FOR
STATE OF HIMACHAL PRADESH, Mr. Aaditya Aniruddha Pande, Advocate
for State of Maharashtra, Mr. Pukhrambam Ramesh Kumar, Advocate for
State of Manipur, Ms. Swati Ghildiyal, Advocate for State of
Gujarat, Mr. Shuvodeep Roy, Advocate for State of Assam, Mr.
Pashupatinath Razdan, Advocate for State of MP. [FOR FURTHER
DIRECTIONS])

Date : 31-01-2023 These matters were called on for hearing today.

CORAM :
Signature Not Verified

Digitally signed by
Charanjeet Kaur
Date: 2023.02.01
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
17:59:40 IST
Reason: HON'BLE MR. JUSTICE ABHAY S. OKA

By Courts Motion, AOR

Mr. Gaurav Agrawal, Adv. (AC)

 2

Mr. Neeraj Kumar Jain, Sr. Adv. (AC)

Mr. Sanjay Singh, Adv.

Mr. Devansh A Mohta, Adv. (AC) (NP)

For Petitioner(s)
Ms. Liz Mathew, AOR (AC)

For Respondent(s) Mr. K.M. Nataraj, Ld. ASG

Mr. Jayant Sud, Ld. ASG
Mr. Mukesh K Verma, Adv.
Mr. Neeraj K Sharma, Adv.
Mrs. Indra Bhaker, Adv.
Mr. Piyush Beriwal, Adv.
Mr. B.K. Satiya, Adv.
Mr. S.N. Terdol, AOR
Mr. Gurmeet Singh Makker, AOR

Ms. Prachi Mishra, A.A.G.

Mr. Sumeer Sodhi, AOR
Mr. Gaurav Arora, Adv.

Mr. Partha Sil, AOR

Mr. Tavish Bhushan Prasad, Adv.
Ms. Sayani Bhattacharya, Adv.

Ms. Uttara Babbar, AOR

Ms. Vanshaja Shukla, AOR

Mr. Abhishek Chaterjee, Adv.

Mr. Tapesh Kumar Singh, AOR

Mr. Aditya Pratap Singh, Adv.

Mr. Shekhar Raj Sharma, D.A.G.

Mr. Paras Dutta, Adv.
Dr. Monika Gusain, AOR

Dr. Sumant Bharadwaj, Adv.

Mr. Vedant Bharadwaj, Adv.
Mr. Manoj Kumar, Adv.
Ms. Mridula Ray Bharadwaj, AOR

Mr. Divyakant Lahoti, AOR

Mr. Parikshit Ahuja, Adv.
Ms. Praveena Bisht, Adv.
Ms. Madhur Jhavar, Adv.
Ms. Vindhya Mehra, Adv.
Mr. Kartik Lahoti, Adv.
Ms. Garima Verma, Adv.
 3

Mr. Basava Prabhu S Patil, Sr. Adv.

Mr. Raghavendra S Srivatsa, AOR
Mr. Venkita Subramoniam T.R., Adv.
Mr. Likhi Chand Bonsle, Adv.
Ms. Komal Mundhra, Adv.
Mr. Saurabh Agrawal, Adv.

Mr. Sanjai Kumar Pathak, AOR

Mr. Arvind Kumar Tripathi, Adv.
Mrs. Shashi Pathak, Adv.

Mr. P. I. Jose, AOR

Mr. A. Hari Prasad, Sr. Adv.,

Mr. V. K. Biju, AOR
Ms. Ria Sachthey, Adv.
Mr. Chetanya Singh, Adv.
Dr. Ranjit Bharti, Adv.
Mrs. Rubina Jawed, Adv.

Mr. Mrigank Prabhakar, AOR

Mr. Mahesh Thakur, AOR

Mr. Maibam Nabaghanashyam Singh, Adv.
Mr. Mahesh Thakur, Adv.

Mr. Raghavendra S. Srivatsa, AOR

Mr. Mahfooz Ahsan Nazki, AOR

Mr. Polanki Gowtham, Adv.
Mr. T Vijaya Bhaskar Reddy, Adv.
Mr. Shaik Mohamad Haneef, Adv.
Ms. Rajeswari Mukherjee, Adv.
Ms. Niti Richhariya, Adv.

Mr. Kedar Nath Tripathy, AOR

M/S. KSN & Co., AOR

Mr. Harshad V. Hameed, AOR

Mr. Dileep Poolakkot, Adv.
Mr. Subhash Chandran K.r., Adv.
Mrs. Ashly Harshad, Adv.

Mr. Manish Kumar, AOR

Mr. Siddhesh Kotwal, Adv.

Ms. Ana Upadhyay, Adv.
Ms. Manya Hasija, Adv.
Mr. Akash Singh, Adv.
Mr. Nihar Dharmadhikari, Adv.
Ms. Sampriti B., Adv.
 4

Mr. Nirminesh Dube, AOR

Mr. Debojit Borkakati, AOR

Mr. Sahil Tagotra, AOR

Ms. Abhivyakti Banerjee, Adv.
Ms. Sakshi Garg, Adv.

Mr. Shovan Mishra, AOR

Ms. Bipasa Tripathy, Adv.

Ms. Prachi Mishra, A.A.G.

Mr. Sumeer Sodhi, AOR
Mr. Gaurav Arora, Adv.

Ms. Ankita Choudhary, Dy. A.G.

Mr. Sunny Choudhary, AOR
Mr. Manoj Kukmar, Adv.

Mr. Avneesh Arputham, Adv.

Ms. Anuradha Arputham, Adv.
Mr. Ankit Sharma, Adv.
For M/S. Arputham Aruna And Co, AOR

Mr. Vinod Ghai, Sr. Adv.

Mr. Ajay Pal, AOR
Mr. Mayank Dahiya, Adv.
Ms. Bhupinder, Adv.
Ms. Sugandh Rathor, Adv.
Ms. Priyanka C., Adv.

Mr. V.K. Khanna, Sr. Adv.

Mr. Hitesh Kumar Sharma, Adv.
Mr. Akhileshwar Jha, Adv.
Ms. Yamini Sharma, Adv.
Ms. Niharika Dewedi, Adv.
Mr. Narendra Pal Sharma, Adv.
Mr. Amit Kumar Chawla, Adv.
For Mr. Anil Shrivastava, Adv.

Mr. Arjun Garg, AOR

Mr. Shobhit Jain, Adv.
Mr. Aakash Nandolia, Adv.
Mr. Sagun Srivastava, Adv.

Mr. Aravindh S., AOR

Mr. Abbas.b, Adv.

Mr. Siddharth Dharmadhikari, Adv.

Mr. Aaditya Aniruddha Pande, AOR
Mr. Bharat Bagla, Adv.
Ms. Kirti Dadheech, Adv.
 5

Mr. Abhimanyu Tewari, AOR

Ms. Eliza Bar, Adv.

Mr. Pukhrambam Ramesh Kumar, AOR

Mr. Karun Sharma, Adv.
Mrs. Anupama Ngangom, Adv.

Mr. Prashant Shrikant Kenjale, AOR

Mr. Ashutosh Chaturvedi, Adv.

Mr. Avijit Mani Tripathi, AOR

Mr. T.K. Nayak, Adv.
Mr. Kynpham V. Khalyngdoh, Adv.
Mr. Daniel Lyngdoh, Adv.
Ms. Marbiang Khongwir, Adv.
Mr. Upendra Mishra, Adv.
Mr. P.S. Negi, Adv.

Ms. Astha Sharma, AOR

Mr. Ravinder Singh, Adv.
Mr. Shreyaj Awasthi, Adv.
Ms. Mantika Haryani, Adv.
Mr. Devvrat Singh, Adv.
Ms. Muskan Surana, Adv.

Mr. Kanhaiya Singhal, AOR

Mr. Chetan Bhardwaj, Adv.
Mr. Prasanna, Adv.
Ms. Priyal Garg, Adv.
Mr. Udit Bakshi, Adv.

Mr. Nikhil Goel, AOR

Mr. Mukesh K. Giri, AOR

Mr. Sameer Abhyankar, AOR

Ms. Nishi Sangtani, Adv.
Ms. Vani Vandana Chhetri, Adv.

Mr. Pashupatinath Razdan, AOR

Ms. Swati Ghildiyal, AOR

Mr. Abhinav Mukherji, AOR

Mr. Yogesh Kanna, AOR

Mr. Ashok Kumar Panda, Sr. Adv.

Mr. Soumitra G Chaudhuri, Adv.
Mr. Shashwat Panda, Adv.
 6

Ms. Vandana Tiwari, Adv.

Ms. Simran Singh, Adv.
Mr. Chanchal K Ganguli, AOR

Mr. Niranjana Singh, AOR

Mr. Milind Kumar, AOR

Mr. Sachin Patil, AOR

Mr. Subhranshu Padhi, AOR

Mrs. Garima Prashad, Sr. Adv./AAG

Mr. Garvesh Kabra, AOR
Mr. Savesh Singh Baghel, AOR

Mr. Shuvodeep Roy, AOR

Mrs. K Enatoli Sema, AOR

Ms. Limayinla Jamir, Adv.
Mr. Amit Kumar Singh, Adv.
Ms. Chubalemla Chang, Adv.
Mr. Prang Newmai, Adv.

Mr. V. Krishnamurthy, Sr. Adv./AAG

Dr. Joseph Aristotle S., AOR
Mr. Shobhit Dwivedi, Adv.
Mr. sanjeev Kr. Mahara, Adv.
Ms. Richa Vishwakarma , Adv.
Ms. Vaidehi Rastogi, Adv.

Mr. Gopal Jha, AOR

Mr. Baij Nath Patel, Adv.
Mr. Umesh Kr. Yadav, Adv.
Mr. Keshari, Adv.
Ms. Sweta, Adv.

Ms. Meenakshi Arora, Sr. Adv.

Mr. Yash S Vijay, Adv.
Mr. Chandratannay Chubey, Adv.

UPON hearing the counsel the Court made the following

O R D E R

It is pointed out that there is bereavement

in the family of Mr. Devansh A. Mohta, learned Amicus

Curiae and the matter may be deferred for

consideration.

Mr. Gaurav Agrawal, learned Amicus Curiae

 7

however, submits that some aspects with which

Mr. Mohta is not concerned at present can be dealt

with.

SMWP(CRIMINAL) NO. 4/2021 :

EXECUTION OF BAIL ORDERS

Mr. Gaurav Agrawal, learned Amicus Curiae has

drawn our attention to order dated 29.11.2022 qua the

issue of undertrial prisoners who continue to be in

custody despite having been granted the benefit of

bail on account of their inability to fulfill the

conditions. In this behalf the report by the NALSA

has been placed before us filed on 30.01.2023. After

recording the discussions which have been held, it

has been stated in para 5 of the report that there

are 5,000 undertrial prisoners who were in jail,

despite grant of bail, out of which, 2,357 persons

were provided legal assistance and now 1,417 persons

have since been released.

One of the main reasons flagged why the

accused are in jail despite the grant of bail is that

he may be an accused in multiple cases and is

apparently not willing to furnish bail bonds until he

is given bail in all the cases as undertrial custody

will be counted in all the cases.

De hors this, it is pointed out that to

ensure that the remaining undertrial prisoners who

 8

are unable to furnish surety or bail bonds due to

poverty, NALSA is in the process of creating a master

data of all such undertrial prisoners in excel sheet

with all relevant details, including, reasons for

non-release and steps qua persons who are unable to

furnish bail bonds or surety are being taken up with

the respective SLSAs/DLSAs and result would be

obtainable in about one or two months’ time.

Learned Amicus Curiae has also drawn our

attention to the discussions with Shri Shashikant

Sharma, HOD and Sr. Technical Director of NIC

recording that five meetings were held along with the

participation of Shri K.M. Nataraj, learned ASG and

Home Ministry officials. A Standard Operating

Procedure (SOP) has been prepared by NIC which also

deals with this aspect. A relevant aspect is that

the NIC e-prison software, which is working in about

1,300 jails in the country, would now have a field

where the date of grant of bail would have to be

entered by the jail authorities. If the accused is

not released within seven days of the date of grant

of bail, the e-prison software would automatically

generate a flag/reminder and simultaneously the

e-mail would be sent to the office of the concerned

DLSA so that the DLSA can find out the reason for

non-release of the accused. The SOP has para 2.4

under the heading “Bailed out but not Released”

 9

which facility enables prison user to access the data

of inmates, to assist in identifying inmates who are

bailed out but not released due to some reasons like

sureties or pending cases.

Insofar as the discussion with TISS is

concerned, some suggestions are stated to be made but

learned Amicus Curiae submits that a more detailed

work out of that is necessary.

Another issue which has crept up during

discussion is whether the Government would give

access to this portal on a protected basis to the

Secretaries of the SLSAs and DLSAs which would

facilitate better follow up.

We call upon the Government of India to

discuss this issue with NALSA so that necessary

directions, if any, can be passed. Learned ASG would

obtain instructions in that behalf by the next date.

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
 10

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

 11

complied with.

IA No. 203407/2022-INTERVENTION, IA NO. 203408/2022-

DIRECTIONS AND 21741/2023- EXEMPTION FROM FILING O.T

Application for exemption from filing O.T. is

allowed.

IA No. 203407/2022 and IA NO. 203408/2022 have

been filed for intervention and appropriate directions

by the National Law University, Delhi through Fair

Trial Fellowship Programme under Project 39A.

We are of the view that instead of looking to the

suggestions and directions sought, more appropriate

course of action would be for Shri Gaurav Agrawal,

learned Amicus to look into them on behalf of the

NALSA and accordingly make suggestions to us taking

them as inputs.

List the applications along with SMWP(Criminal)

No. 4/2021 and SLP(Crl) No. 529/2021 on 28.03.2023.

[CHARANJEET KAUR] [POONAM VAID]

ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)