[Decongestion Of Prisons During Covid-19] "Can Lower Court Deny Bail Despite Undertrial Being Eligible As Per State Guidelines", Asks Bombay HC [Read Order]

The Bombay High Court on Friday raised an important question in a case regarding bail of a former BJP Corporator from Kalyan Dombivli Mahesh Baburao Patil, who approached the High Court as his bail application was rejected by the Sessions Court on merits. Patil contends he is eligible to be released as per the State Government's guidelines issued by the High Power Committee for release of undertrials during the Covid-19 pandemic.

Justice Bharati Dangre referred to the Supreme Court's order dated March 23 directing all State Governments and Union Territories to set up High Power Committees to determine the class of prisoners to be released on parole for at least 4-6 weeks in order to decongest the prisons.

Based on the said directives, the State of Maharashtra also constituted the High Power Committee and issued directions regarding the same. As per these directions, undertrial prisoners who have been booked/charged of offences for which maximum punishment is 7 years or less, will be considered to be released on interim bail on a personal bond.

However, undertrial prisoners booked or charged for serious economic offences/bank scams, and offences under special enactments like MCOCA, PMLA, MPID, NDPS, UAPA etc. will not be eligible to be released.

On the basis of these directives, the applicant preferred a representation before the Superintendent, Kalyan Jail which addressed a communication to the District and Sessions Judge to consider the said representation.

Patil is accused under Sections 25 and 30 of the Arms Act and Section 120 B and 115 of IPC. Although he has been accused of hatching a failed conspiracy to committ murder of a fellow BJP Corporator, police removed Section 302 as one of the charges in the chargesheet.

Upon examining the sessions court order rejected Patil's bail, Justice Dangre observed-

"Surprisingly, the Sessions Court rejected the application of the applicant on merits of the case and in paragraph no.7 has made a reference to the directive of the High Power Committee but it has observed that the temporary bail cannot be allowed as of right and need to be considered in light of the guidelines of the High Power Committee and the facts and circumstances in case and the possibility of adverse effect."

In paragraph no.7, the reasoning is cited by the Sessions Court that the charges against the accused may be minor but the incident is serious and releasing the accused on bail would cause adverse effect to the prosecution's case. With this reasoning, the Bail Application has been rejected."

Court noted that the applicant has not been accused under any special enactments and questioned the Sessions Court's decision-

"The question that arises is whether in the wake of the guidelines issued by the Government of Maharashtra, it is permissible for the Sessions Court to take a decision on merits particularly when the case of a particular applicant does not fall within the exceptions framed out by the High Power Committee."

Public Prosecutor Deepak Thakare sought one weeks time to ascertain the position and make a statement in this regard. Advocate Ghanshyam Upadhyay instructed by Advocate Prakash Salsingikar for the applicant accused.

The next date of hearing is May 15.

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