The administration of the UT of Jammu and Kashmir on Tuesday informed the J&K High Court that the High Powered Committee constituted by it for determination of class persons who may be released on interim bail to decongest prisons amid the threat of pandemic has suggested that,
"a person, who has been convicted in one case and has spent more than ten years (eight years 5 in case of woman) in jail, except the cases vis-à-vis militancy, NDPS Act, POCSO Act or offence against women or acid attack or foreign national, can be considered for grant of special parole."
The Committee has also suggested that persons, who have been sentenced to imprisonment for three years with or without fine and conviction has been upheld by Appellate Court but revision against judgment by Appellate Court is pending before the High Court, can as well be considered for parole.
The submission was made before a bench of Justice Tashi Rabstan in an application for parole moved by Mushtaq Ahmad Peer, former Chairman of the Board of Professional Entrance Examination, sentenced to undergo rigorous imprisonment for a period of sixteen years by a Special Anti-Corruption Court in connection to a cash-for-paper scam.
Opposing the application, the Crime Branch submitted that the applicant did not fall in any category of prisoners as proposed by the Committee in the backdrop of the Supreme Court's order in In Re : Contagion of Covid 19 Virus In Prisons.
In the said case, the top court had directed all states and Union Territories to set up 'High Level Committees' to determine the class of prisoners who could be released on parole for four to six weeks. It also observed that the prisoners convicted of or charged with offences having jail term of up to seven years can be given parole to decongest jails.
The UT administration further submitted that medical procedure, as required by the Applicant was also being provided to him.
Nevertheless, the bench noted that the Head of Prisons Department had been appointed as the "competent authority" under the Jammu and Kashmir Suspension of Sentence Rules, 2020 to grant "emergency parole" or "regular parole" to a prisoner, as the case may be.
"There shall be, as provided under Rule 5, two types of parole to which a convict would be eligible. They are custody parole or emergency parole and regular parole. Custody parole, as envisaged under Rule 6, can be granted to a convict by an order in writing issued by Jail Superintendent under intimation to Head of Prisons Department and to an undertrial prisoner by the trial court concerned in the event of death of a family member of undertrial prisoner or marriage of a family member or serious illness of a family member or any other emergency with the approval of the range DIG Prisons. Rule 6 also envisages that the prisoners who have been convicted but their appeal is pending before the higher courts may also avail custody parole from the prison authority. Insofar as regular parole is concerned, the case of eligible prisoners shall be considered for regular parole by competent authority," the court noted.
Accordingly, the High Court has directed the Applicant to avail of the above remedy by approaching the High Powered Committee, comprising of Chairman of the State Legal Services Committee, Head of Prisons and Director General of Prisons.
"In the event, applicant approaches the High Powered Committee, it shall consider and decide the application of applicant in accordance with the scheme/guidelines, laying down the categories for release of prisoners given the spread of COVID 19. Let such consideration be accorded and a decision taken within a period of one week from the date applicant approaches the High Powered Committee," the bench ordered.
Case Title: Mushtaq Ahmad Peer v. State of J&K & Ors.
Case No.: CRA No. 34/2018
Quorum: Justice Tashi Rabstan
Appearance: Advocate MM Iqbal (for Petitioner); Advocate Mohsin Qadri (for Respondents)
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