Section 436(a) of CrPC: An under trial should be released on personal bond without bail
1 Dec, 2013The media has reported of innumerable cases where under trials are languishing in the jail for long because of lack of information about Section 436(a) of CrPC. If an under trial has been in jail for more than half of the maximum punishment for the crime he is charged with, he should be released on personal bond without bail. In this regard, the SIC, Maharashtra has passed an order the english translation of which is put up below.
CHIEF STATE INFORMATION COMMISSIONER
STATE INFORMATION COMMISSION, MAHARASHTRA STATE
No. MUMA/REGN No. 282/13/APPEAL No. HQ/148/2013/02
Shri Shailesh Gandhi,
B-2, Gokul Apartments, Podar Road,
Sanatacruz (W.), Mumbai 400 054.
First Appellate Authority & Deputy Superintendent of Prisons (Mumbai),
Deputy Director General of Police and Superintendent General of Prisons, Maharashtra State,
Old Central Building, 2nd Floor, Pune 411 001.
Public Information Officer & Organisation & Systems Officer,
Deputy Director General of Police and Superintendent General of Prisons, Maharashtra State,
Old Central Building, 2nd Floor, Pune 411 001.
Date of Second Appeal : 11.01.2013
Date of Hearing : 12.04.2013
Appellant : Present
Public Information Officer : Present
First Appellate Authority : Absent
|
Date of original application |
Date of CPIO’s reply |
Date of First appeal |
Date of First Appellate Authority’s Decision/ Order |
|
26.11.2012 |
|
12.12.2012 |
03.01.2013 |
The appellant requested for information from the Public Information Officer on under trials in jail for more than 3 years under his application dated 26.11.2012 under section 6(1) of the Right to Information Act, 2005. The Public information officer not having supplied the information within the prescribed time limit, the appellant filed his first appeal on 12.12.2012. The First Appellate Authority, vide her order dated 03.01.2013, disposed of the appeal, ordering that the information cannot be made available as it is not obligatory to supply it, referring to clause (b), (g), (h) and (j), of Sub section (1) of Section 8, in Section 1 of the Part II of the Gazette of the Government of India, dated 22.12.2005, with regard to Right to Information.
Since the Public Information Officer did not supply the information to the appellant, he filed the second appeal on 11.01.2013. The appellant, the Public Information Officer and the First Appellate authority were informed, issuing notices to them, to attend the hearing.
The appellant and the Public Information Officer are present for the hearing today.
The appellant stated that he had not yet received the information sought under his application dated 26.11.2012 and the Public Information Officer gave no satisfactory explanation for this.
In fact, in this matter, the appellant had sought, vide his application dated 26.11.2012, information on the under trials in jail for more than 3 years against whom cases were filed under various sections of the Indian penal code and the maximum punishment under those sections and this information is certainly very important from the point of view of public interest. During the hearing, the appellant mentioned that as per Section 436(a) of the Criminal Procedure Code if an under trial has been in jail for more than half of the maximum punishment for the crime he is charged with, he should be released on personal bond without bail; but many under trials are languishing in the jail because of poverty and lack of information about the violation of the relevant Act, it is necessary for the citizens to get the information in this regard from the point of view of public interest.
In this matter, the Public Information Officer and the First Appellate authority have taken a very negative and wrong attitude in this matter, which is very important from the point of view of public interest. Besides, it is necessary to supply the information as it does not fall under clause (b), (g), (h) and (j) of Sub section (1) of Section 8 of the Right to Information Act, 2005.
In this matter, the information sought by Shri. Shailesh Gandhi is very important from the point of view of public interest; and in fact it is necessary that the Deputy Director General of Police and Superintendent General of Prisons, Maharashtra State should load this information under section 4 (1) (b) of the Right To Information Act, 2005 on their website. If this is done, Human Right activists would contact the concerned under trials or, if necessary, would get them justice by going to court.
In this matter, prima facie, it is evident that the Public Information Officer & Organisation & Systems Officer and First Appellate Authority & Deputy Superintendent of Prisons (Mumbai) have ignored provisions of section 6(1) of the Right to Information Act, 2005. Under section 7(1) Subject to the proviso to sub-section (2) of section 5 or the proviso to subsection (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9: of the Right to Information Act, 2005, it is obligatory on the part of the Public Information Officer to supply the information, as per section 6, as soon as possible, on receipt of the application for information, or under any circumstances within 30 days from the date of the request for the information. Therefore, the Public Information Officer should present himself at 01.00 p.m. on 03.05.2013 and explain why penalty should not be imposed on him under sections 19(8)( c ) and 20(1) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees: Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him: Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be. of the Right to Information Act, 2005. Should he not attend, penalty would be imposed, presuming that he has nothing to say regarding the penalty. In addition, under section 20(2) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause and persistently, failed to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall recommend for disciplinary action against the Central Public Information Officer or the State Public Information Officer, as the case may be, under the service rules applicable to him. of the Right to Information Act, 2005, disciplinary action would also be proposed.
It is ordered that the Public Information Officer gives an opportunity to the appellant to inspect all documents relevant to the information sought by him and give him, by 03.05.2013, the information asked by the appellant, if necessary by coordinating with other concerned officers under sections 5 (4 )of the Right to Information Act, 2005.
As the Public Information Officer has delayed in supplying the information in this matter, the information sought by the appellant and available be given free of charge under section 7(6) of the Right to Information Act, 2005, before 03.05.2013, if necessary after giving an opportunity for inspection of the documents.
It is ordered under Section 19(8) of the Right to Information Act, 2005 that the Deputy Director General of Police and Superintendent General of Prisons, Maharashtra State should display, within one month from the receipt of this order, the information on under trials in jail for more than half of maximum punishment under section 436 (a) of the Criminal Procedure Code, on their website and on the notice board of every prison and file with the commission its compliance report by 12.05.2013.
It is ordered under Section 19(8) of the Right to Information Act, 2005 that the Deputy Director General of Police and Superintendent General of Prisons, Maharashtra State should display, within one month from the receipt of this order, the information on under trials in jail for more than half of maximum punishment under section 436 (a) of the Criminal Procedure Code, on their website and on the notice board of every prison and file with the commission its compliance report by 12.05.2013.
ORDER
Appeal is admitted.
Mumbai (Ratnakar Gaikwad)
Date: 12.04.2013. Chief State Information Officer