Undertrial Prisoner Rights: What Families Must Do

One of my clients recently had a case which I am explaining below and if you are stuck in such similar situation, here is what to do.

Note: Due to attorney-client privilege, I cannot disclose complete case details or identify the actual parties involved. However, I am sharing the essential facts and legal approach so that if you find yourself in a similar situation, you can understand the available solutions and legal remedies.

TL;DR: If a family member is in undertrial custody, the system is not a black hole. Indian law fixes hard timelines — production before a Magistrate within 24 hours, statutory — the clock on how long the police can keep someone, the 60/90-day deadline after which bail becomes a right, the outer ceiling on undertrial detention, and free legal aid for anyone who cannot pay for a lawyer. What goes wrong is rarely the law. It is that nobody in the family knows which paper to file, in which court, and before which date.

What has to happen in the first 24 hours

The clock starts at arrest, not at the police station's convenience.

• Production before a Magistrate. Article 22(2) of the Constitution and Section 58 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — the successor to Section 57 CrPC — require that an arrested person be produced before the nearest Magistrate within 24 hours of arrest, excluding the time taken for the journey. No police station can hold someone beyond that without a Magistrate's order.
• Grounds of arrest. The BNSS requires the police to tell the arrested person why he is being arrested and to inform a friend or family member. In practice this is where families get their first usable information: the police station name, the FIR number, and the sections.
• Notice of appearance. For many offences, the police are expected to issue a notice to appear rather than arrest outright. Where the offence is punishable with up to seven years, the Supreme Court has held that arrest is not automatic and the officer must record reasons. If your relative was picked up without any such notice for a seven-year offence, that is worth raising at the first hearing.

If the 24-hour rule is breached and no Magistrate's order exists, the detention is unlawful. The remedy is a habeas corpus petition before the High Court under Article 226, or the Supreme Court under Article 32. This is an emergency remedy, not a substitute for bail, and it is used when the person has simply disappeared into custody.

Why is he still in jail after the first remand?

Because the first remand is not a verdict. It is an administrative step.

Under Section 187 BNSS (the old Section 167 CrPC), the Magistrate before whom the accused is produced can authorise detention while the investigation continues. Two things matter here.

First, police custody — the accused being in the lock-up for interrogation — can only be granted within the first 15 days. After that window closes, custody becomes judicial. He stays in jail, but the police no longer have him for questioning.

Second, judicial custody gets extended every fortnight. A remand order is not a finding that he did anything. Families read a lot into that document and there is nothing in it to read.

What is default bail, and when does the 60 or 90 day clock start?

This is the single most important date in an undertrial case, and it is the one families most often lose.

Section 187 BNSS says that if the investigation is not completed within the prescribed period, the accused is entitled to be released on bail, provided he applies and furnishes bail. The periods are:

• 90 days — where the offence is punishable with death, imprisonment for life, or imprisonment of ten years or more.
• 60 days — for every other offence.

The clock runs from the date of the first remand order, not from the date of arrest and not from the date of the FIR. That is why you should photograph or keep a copy of that first remand order. Write the date on the wall if you have to.

Two practical points that decide cases:

• The charge-sheet defeats the right. The right to default bail exists only as long as the investigation is unfinished. The moment the police file the final report under Section 193 BNSS, the right disappears — even if the report is filed on the very last day. An application filed a day late is worth nothing.
• The application must come from the accused or on his behalf. If the family is not in touch with a lawyer, tell the jail superintendent in writing that the accused wants to move a default bail application. Judges and jail authorities are used to this, and the application can be filed through jail machinery. Do not wait for the police to remind you.

Default bail is not a discretionary favour. Courts have consistently treated it as a right that accrues on the expiry of the deadline. Where the facts are on your side, this is often the whole case.

Section 479 BNSS: the outer limit on undertrial detention

There is a second ceiling, separate from default bail, that applies to the whole trial.

Section 479 BNSS (the old Section 436A CrPC) provides that no person shall be detained during investigation or trial for longer than one-half of the maximum period of imprisonment prescribed for the offence. For a first-time offender, the ceiling is one-third of the maximum period.

So if the maximum sentence for the charge is seven years, an undertrial cannot ordinarily be held beyond three and a half years — and a person with no prior conviction should not cross roughly two years and four months. The court is expected to release such a person on bond, though it may hear the Public Prosecutor first in the more serious categories.

There has been argument in the courts about whether the first-time-offender concession applies to offences committed before the BNSS came into force. Judicial opinion has generally leaned towards applying it, but the position is not identical in every court. If your relative has been inside for years, this is a point your counsel should be pressing regardless.

Regular bail: what the court is actually weighing

If default bail is unavailable and the Section 479 ceiling has not been crossed, you are in a regular bail application. Section 480 BNSS governs bail in non-bailable offences before a Magistrate; the Sessions Court and the High Court have wider powers and you are not limited to one attempt.

Courts look at a fairly stable set of factors:

• The nature and gravity of the allegation, and the maximum sentence involved.
• Whether custodial interrogation is still needed, or whether the investigation is effectively over.
• Whether the accused is likely to run, or to influence witnesses.
• His antecedents, health, and age.
• Parity — if a co-accused with a similar role has been granted bail, that matters.
• Delay in trial, especially where the trial has not even started.

None of these is decisive on its own, and the weight given to each varies from court to court and judge to judge. Anyone who tells you a bail application has a settled outcome is guessing.

What the family should keep ready

Get these together before you sit with a lawyer. It saves a week.

• A copy of the FIR, with the police station name, FIR number, date and sections.
• The arrest memo and any grounds-of-arrest document handed over.
• The first remand order — the date on it is your 60/90-day starting point.
• The jail ID or prisoner number, once he is lodged. You will need it for the visitor list, for sending money, and for filing anything through the jail.
• A two-line note on what you know of the facts: what he is alleged to have done, whether he has any prior case, and whether he has a fixed address and a family here.
The name, address and ID proof of whoever will stand surety. Courts usually want a local surety, and a surety's worth has to be shown on paper — property documents, or a bank statement.
• Any medical record. A heart condition, diabetes, a psychiatric history or a disability goes into the bail application, and should also be entered in the jail's medical register. Ask the jail doctor to record it in writing.

Keep photocopies of everything. Do not hand over your only copy of the remand order to a police clerk or a jail official who says he needs it "for the file".

Who pays for a lawyer in an undertrial custody case?

Nobody in the family has to, if the family cannot pay.

Article 22(1) of the Constitution gives every arrested person the right to consult and be defended by a lawyer of his choice. Article 39A directs the State to provide free legal aid so that nobody is denied justice because of poverty. That duty is worked through the Legal Services Authorities Act, 1987 — the National Legal Services Authority at the top, State Legal Services Authorities, and District Legal Services Authorities (DLSA) in each district, with High Court Legal Services Committees for High Court work.

A person in custody is entitled to free legal aid, and the usual income ceiling does not apply to him. The practical route:

• Write to the DLSA of the district where the jail is located, giving the prisoner's name, the jail and prisoner number, the FIR number, the police station and the court.
• Or give a written request to the jail superintendent. Most district jails have a legal aid clinic and a panel of lawyers attached to them.
• At the first production itself, the Magistrate is expected to ask whether the accused has a lawyer. If he has none and cannot afford one, the court should provide one. If that question was never asked, say so at the next hearing.

The honest position: legal aid is free and it is a right, but panel lawyers carry very heavy caseloads, and the quality of attention your relative gets will vary. If the family can afford private counsel, free aid may not be granted. There is nothing wrong in engaging a lawyer, and nothing shameful in asking for legal aid. What is fatal is doing neither.

How long does an undertrial case actually run?

Longer than most families expect. The bail fight and the trial are two different clocks.

The investigation stage is time-bound: 60 or 90 days, as above. Once the final report is filed, the Magistrate takes cognizance and the case moves towards framing of charges and then evidence. In a Sessions trial with several accused, forensic reports, and outstation witnesses, this can run into years. It depends on the court's docket, the number of witnesses, how many adjournments are sought, and whether the investigating officer is available. No one can give you a date, and anyone who does is guessing.

That delay is itself a ground for bail. Where the accused has been inside for a substantial period and the trial has not even begun, courts have released him on bail on that ground alone. The law also expects the trial to proceed on a day-to-day basis once it starts; whether that happens depends on the court.

One underused remedy: every district has an Undertrial Review Committee, which reviews prisoners who have spent long periods in custody. Ask the jail superintendent in writing to place your relative's case before it. It does not substitute for a bail application, but it puts the file in front of a judge who is specifically looking at custody length.

What the bail bond and surety involve

Getting bail ordered and getting out of jail are two separate steps, and families lose days between them.

• The court fixes a bail amount and usually directs a surety for the same sum. The surety must be produced physically, with ID and proof of means.
• Many courts insist on a local surety. If your family lives in another state, start looking for someone local early — before the order comes, not after.
• Conditions are common: deposit of the passport, reporting at a police station on fixed dates, not contacting witnesses, not leaving the jurisdiction without permission.
• The bond is a financial undertaking. If the accused stops appearing, the surety can be called upon to pay, and bail can be cancelled. Keep the bond papers somewhere safe.
• Where the accused is indigent, counsel can ask the court to relax the surety amount or accept a cash deposit instead. Courts have discretion here, and it is worth asking.

Jail release also takes time — the release warrant has to travel from the court to the jail, and the jail verifies the sureties again. Budget a day, sometimes two, after the order.

Frequently Asked Questions

Facing a similar matter? Speak to a criminal advocate in Delhi — Advocate Sudhir Rao appears in bail, trial and appellate matters before the Delhi District Courts, the Delhi High Court and the Supreme Court of India.