Image Source-

This article is written by Muskan Gupta who is pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.


A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgement on an issue as a fact or relevant facts which may lead to the discovery of the fact in issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to meet the justice and to convict the guilty and protect the innocent, the trial should be a search for the truth which must be conducted under such rules as will protect the innocent, and punish the guilty.

The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial and not by an isolated scrutiny. Most importantly there must be speedy trial so that no one has to suffer superfluously as the condition of prisons in our country is worse and the state of under trial incarceration is something disastrous than the life of a convict person.

Download Now

Conditions of Prisons

The prisons are a requisite unit of the criminal justice system of the country, but the condition of prisons of the country is way disastrous and disgruntled. There is no adequate attention paid to the prisons and prisoners over the decades and the situation prevailing is quite alarming in various states. Most affected groups in these prisons are under-trial prisoners as they are the unconvicted prisoners who are on trial in a court of law but they have to live a miserable life while they are in jail. The most common problems of prisons in India are poor condition of their health and sanitation facilities, lack of hygienic food, element of overcrowded jails, discrimination and inequalities among the prisoners based on their religion, financial status and many more.

Who are Under-Trial Prisoners?

Under-Trial Prisoners are unconvicted prisoners. In layman’s language when the accused in is jail during the period of investigation, inquiry or trial of the offence in which he was arrested can be known as under Trial Prisoners. The two elements (i) Accused in Jail (ii) period from arrest to the period just before the outcome of the criminal case are essential to explain the term.

Generally, under-trial prisoners are those accused who are charged with non-bailable offence and their bail has been denied or the accused who are charged with bailable offence and their bail has been granted as a matter of their right provided by the law but fail to furnish the bail bond and sureties. It also includes the accused who has been granted bail in the non-bailable offence but they failed to fulfil the mandatory conditions stated in order by the courts of law.

Problems faced by Under-Trial Prisoners

The count of under-trial prisoners increases rapidly with each hour in our country. Even the rate of its increase is quite more than that of prisoners who are actually convicted by the court of law. The portion of undertrial prisoners for more than a year in prisons has taken a rapid growth so does the pendency of the criminal litigations and their trials. The data and reports of department officials clearly indicate that at the end of 2019 out of total prisoners there are 3.28 lakhs of under trial prisoners in jail on the other hand the count of actual convicts by the courts is 1.42 lakhs which is not even half of the count of under trial prisoners.

The rise in pending cases is a major issue in criminal trials. As of now over 1.7 crore Criminal cases (Trial and appeal) are pending from more than a year and within that over 22 lakhs cases are pending from more than 10 years from the date of its commencement. The count of under-trial prisoners is somewhere directly proportional to the pendency of criminal cases. Making a blistering observation 40 years ago, the supreme court had said the high prevalence of undertrials in jails is a “crying shame on judicial system” as it permits imprisonment of people for long periods even without trial commencing in many cases. 

The poor condition of health and sanitation facilities, lack of hygienic food, discrimination and inequalities among the prisoners based on their religion, financial status and many more altogether made the lives of under-trial prisoners catastrophic and no aspiration or desire is usually left in them.

Statistics related to undertrial Prisoners

The other major concern with the under-trial prisoners is their illiteracy and unawareness level. As of now 90% of under-trial prisoners are not even graduates which is quite alarming and even 28 % of the under-trial prisoners are illiterate and over 50% under-trial prisoners haven’t studied even till 10th grade. These statistics directly raise the question of whether such under-trial prisoners know their basic legal and constitutional rights or not. Among under-trial prisoners nearly 48% are from the age group of 18-30 years and 40% belong to the age group of 30-50 years. This highlights the suffering of youth who are not even convicted for the alleged offence and spend the crucial years of their life in jail even without conviction.

In the past, various Law commissions in their reports stated that the majority of the under-trial prisoners are poor and they can’t even afford basic legal defence to get bail or acquittal. In its 268th Law Report, the Law Commission had said it has become a norm in India that the “powerful, rich and influential obtain bail promptly and with ease, whereas the masses or the common or poor languish in jails”. It said this prevalence puts “human dignity at stake”.

The rights provided to the under-trial prisoners

Fair Trial

A fair trial implies that it should be fair both to the prosecution as well as the accused person. Every criminal trial begins with the presumption of innocence in favour of the accused and the provisions of the Criminal Procedure code are framed that a criminal trial should begin with and be throughout governed by this essential presumption. The accused person is presumed to be innocent unless his guilt is proved beyond reasonable doubt. The factor which assumes importance in modern times is the speedy disposal of criminal cases. Any delay keeps the accused in constant fear and psychological torture, and if he is in police custody, the tortures of confinement enhance. The law provides for speedy disposal of all cases.

The law says that the trial should not be unnecessarily delayed. There is a most common legal doctrine that “Bail is a rule jail is an exception” which is laid down in a landmark Supreme court judgement of state of Rajasthan vs. Balchand aliyas Baliya (AIR 1977 2447) by V.R. Krishna Iyer, who found it on the basis of Fundamental Right provided by the Constitution of India. But the applicability of the said doctrine in the Court of law is totally outlying from its foundation.

Legal Aid and Right to be defended by pleader

The adversary system of criminal aid, which we have adopted, assumes that the state using its investigative resources and employing a competent prosecutor to prosecute the accused, who in turn, will employ equally competent defence counsel to challenge the evidence of the prosecution. Therefore, both the constitution of India (Article 21) and the criminal procedure code (Section 303) confer on the accused person a right to consult and to be defended by a legal practitioner of his choice. The right to be defended by a legal practitioner of his choice would however be of no use if the accused due to his poverty or indigent conditions has no means to engage a counsel for his defence.

Our criminal law system, to a limited extent, has attempted to find a solution to this problem. The law enables the session court to assign a pleader for the defence of the accused at the expense of the state provided he is unrepresented and the court is satisfied that he has no sufficient means to engage a pleader. The selection of such a leader, the facilities to be given to him by the court and his remuneration to be governed by the rules may be framed by the high court in this regard with the previous approval of the state government.

But the main question related to the aid provided by the government appointed pleader is his efficiency and interest in the concerned matter allotted to them. Many times, counsels neglect the legal aid matters due to the interest in their private heavily paid matters and the pending cases of undertrial prisoners who are on legal aid by the counsels continue for years due to the lethargic legal system.

Bail to under-trial prisoners

There had been instances, where under-trial prisoners were detained in jail for periods beyond the maximum period of imprisonment provided for alleged offence. As a remedial measure, the section 436A provided in the Criminal Procedure Code envisages the release of the accused on bail on his own surety if he has served half of the maximum term prescribed for that offence for which death is not one of the prescribed punishments. In such cases also the prosecution should be heard and on recording the reasons, the court may order continued detention beyond one half of the said maximum punishment or release him.

It is a salutary provision and it improves the longstanding grievances of the under-trial prisoners that they are incarcerated even for the period more than the maximum period of sentence provided for the offence.

The Apex court in a number of cases has issued mandamus to release accused persons incarcerated in jail for long without any chance for early trial on bail and even in cases when they are in detention as under trial prisoner for more than the maximum period which the imprisonment has been prescribed for the offence to be released forthwith.

Bail under default clause

An order for release on bail under section 167 may appropriately be termed an in order on default. Indeed, it is a release on bail on the default of the prosecution in filing charge-sheet within the prescribed period. The right to bail under Section 167(2) proviso (a) there is absolute. If the investigating agency fails to file charge-sheet before the expiry of 90 or 60 days as the case may be, the accused in custody should be released on bail. The accused cannot claim any special right to remain on bail. If the investigation reveals that the accused has committed a serious offence and charge sheet is filed, the bail granted under the proviso to section 167(2) can be cancelled.

Conclusion and suggestions

It is fairly known to everyone who is well versed with the criminal system of our country how the life of an under-trial prisoner is. Many times, even without being convicted for the alleged offence during the pendency of the trial the prisoners live crucial years of their life in jail and the more devastating moment is when they are acquitted by the court of law after years of jail. The under-trial prisoners are the most affected people in the criminal justice system as they have to live life just like the convicted prisoners which causes them big mental agony and emotional distress.

There must be a speedy trial of the criminal cases not only in our statutes but their application must be held fairly in the real world. On the other hand, the conditions and facilities of the prisons should be improved in a good manner and the under-trial prisoners should be kept in different jails and not with the convicted prisoners.


  • The Code of Criminal Procedure by Ratanlal & Dhirajlal.
  • The 25th edition of the Prison Statistics in India report released by the National Crime Record Bureau (NCRB).

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.


Please enter your comment!
Please enter your name here