- (1.) This writ petition has again come up before us for further directions. Mr. U.P. Singh, learned Advocate on behalf of the State of Bihar, has intimated to us that pursuant to the directions given by us in our order dated 9th March, 1979, the State of Bihar has already released 70 under-trial prisoners whose names were set out in the chart filed by Mrs. Hingorani on 9th March, 1979 Reported in , 1979CriLJ1045 . It is highly regrettable that those under-trial prisoners should have remained in jail without trial for periods longer than the maximum term for which they could, have been sentenced if convicted. We fail to see what moral or ethical justification the State have to detain these unfortunate persons for such unreasonably long periods of time without trial. We feel a sense of relief that they should once again be able to breathe the air of freedom. But we find that there are still many more tinder-trial prisoners who fall within this category of persons who have been in detention for periods longer than the maximum term without their trial having been commenced. Mrs. Hingorani has filed before me at the hearing of the writ petition on 16th April, 1979 a second chart, giving the names and particulars of some of these under trial prisoners who have not yet got the benefit of the earlier order made by us. There are 59 under-trial prisoners whose names and particulars are set out in this chart and we direct that they should be released forthwith as their continued detention is clearly illegal and in violation of their fundamental right under Article 21 of the Constitution. There are also several other under trial prisoners who are accused of multiple offences and even if we were to proceed on the assumption that the State would be able to secure their conviction and maximum sentences would be imposed on them and such sentences would not be concurrent in accordance with the usual practice followed by the courts but would be consecutive, they have already suffered the aggregate imprisonment which could be inflicted on them, and there is no reason why they should be subjected to any further detention. It may be pointed out that ordinarily the sentences imposed on conviction for multiple offences are concurrent and if we proceed on that assumption which is more realistic, it would be found that there are many under-trial prisoners who have already been in jail for periods exceeding the maximum term which could be imposed on them even if they were convicted of the multiple offences with which they are charged. We have requested Mrs. Hingorani to prepare a chart showing separately the above two categories of under-trial prisoners so that we can pass appropriate orders in regard to them at the next hearing of the writ petition. Mr. U.P. Singh, appearing on behalf of the State Government, will help Mrs. Hingorani in preparing this chart since Mrs. Hingorani has undertaken this public interest litigation as matter of public duty and her resources are, therefore, bound to foe limited.
(2.) We are informed that amongst the under-trial prisoners there are some who are lunatics or persons of unsound mind. It is difficult to understand how such persons could possibly be kept in the same jail along with other under-trial prisoners. We should like to know from the State Government, in an affidavit to be filed before the next hearing of the writ petition, as to what are the circumstances in which these persons have been kept as under-trial prisoners in the ordinary jails and what the State Government proposes to do in regard to them. Mrs. Hingorani will prepare a list showing the names and particulars of these persons and Mr. U. P. Singh on behalf of the State Government will render the necessary help in this connection. The list may be filed by Mrs. Hingorani at the next hearing of the writ petition so that we may be able to pass final orders in regard to this category of under-trial prisoners.
(3.) We find that pursuant to the directions given by us in our order dated 9th March, 1979, Bhageshwari Prasad Pandey, Superintendent of the Patna Central Jail has filed an affidavit dated 4th April, 1979 along with a chart showing the dates on which petitioners Nos. 1. 2, 3, 4, 5, 6, 7, 8, 9 and 17 confined in the Patna Central Jail prior to their release on personal bond, were produced before the Magistrates to compliance with the proviso to Section 167(2) of the CrPC. A similar affidavit dated 4th April, 1979 has also been filed by Pradeep Kumar Gangoli, Superintendent of Muzaffarpur Jail along with a chart showing the dates on which petitioners Nos. 10, 11, 12, 13, 15, 16 and 18 who were previously confined in the Muzaffarpur Central Jail prior to their release on personal bond, were produced before the Magistrates in compliance with the requirement of the proviso to Section 167(2). Bhuvan Mohan Munda, Superintendent of the Ranchi Central Jail has also filed an affidavit dated 12th April, 1979 together with a chart showing the dates on which some of the under-trial prisoners referred to in our Order dated 9th March, 1979 were produced before the Magistrates in compliance with the requirement of the proviso to Section 167(2). It is apparent from these charts that some of the petitioners and other under-trial prisoners referred to in these charts have been produced numerous times before the Magistrates and the Magistrates have been continually making orders of remand to judicial custody. It is difficult to believe that on each of the countless occasions on which these under-trial prisoners were produced before the Magistrates and the Magistrates made orders of remand, they must have applied their mind to the necessity of remanding those under-trial prisoners to judicial custody. We are also very doubtful whether on the expiry of 90 days or 60 days, as the case may be, from the date of arrest, the attention of the under-trial prisoners was drawn to the fact that they were entitled to be released on bail under proviso (a) of Sub-section (2) of Section 167. When an under-trial prisoner is produced before a Magistrate and he has been in detention for 90 days or 60 days, as the ease may, the Magistrate must, before making an order of further remand to judicial custody, point out to the under-trial prisoner that he is entitled to be released on bail. The State Government must also provide at its own cost a lawyer to the under-trial prisoner with a view to enable him to apply for bail in exercise of his right under proviso (a) to Sub-section (2) of Section 167 and the Magistrate must take care to see that the right of the under-trial prisoner to the assistance of a lawyer provided at State cost is secured to him and he must deal with the application for bail in accordance with the guidelines laid down by us in our Order dated 12th February, 1979. We hope and trust that every Magistrate in the country and every State Government will act in accordance with this mandate of the Court. This is the constitutional obligation of the State Government and the Magistrate and we have no doubt that if this is strictly carried out, there will be considerable improvement in the situation in regard to under-trial prisoners and there will be proper observance of the rule of law.;