The Madhya Pradesh High Court has issued notice on a petition alleging non-implementation of the Supreme Court order for decongestion of prisons in the state.
The bench of Chief Justice AK Mittal and Justice Vijay Kumar Shukla has issued notice to the MP Government, its Law and Legal Affairs Department, its Health Department, the Director General of Prisons, State Legal Services Authority and the Director General of Police, and has posted the matter for hearing on July 20.
Social activist Madhuri Krishnaswami has filed the plea stating that despite Supreme Court order date March 23, 2020 in In Re: Contagion of COVID-19 Virus in Prisons, individuals continue to be detained in a congested environment at the grave risk of spread of COVID-19 in the prisons in Madhya Pradesh.
It is averred that when the above direction was passed, MP's prisons had occupancy of 153% of its capacity and as of May 17, 2020, merely 14.7% of the prisoners had been released.
She further submitted that the situation becomes graver as there is no information publicly available with regards to the health protocol being adopted in prisons or about the provision of PPEs and N-95 masks for medical and other prison staff.
Inter alia, it is pointed out that during the course of the lockdown, several additional arrests have also been made, adding to the cumulative prison population, rendering the decongestion orders "fruitless".
"That, the Police has been arresting people under Section 188 of Indian Penal Code for violating the lockdown but given that the said provision is non-bailable in Madhya Pradesh unlike most other states in the country, the accused persons are being detained in the Police Stations before being produced before the Magistrates where conditions are enclosed and unsanitary and there remains the threat of infection to both the accused persons and the police personnel on duty. That the prison statistics reflected above also suggest that persons have also been denied bail for such offences and sent to judicial custody thus increasing the numbers," the plea states.
The Petitioner has submitted that "several dozens" of COVID-19 positive cases have come up in Madhya Pradesh's prisons and the state's (in)action has resulted in violation of their Fundamental Rights guaranteed under Article 14 and 21 of the Constitution.
Unreasonable Classification of prisoner by State's High Power Committee
The Petitioner has submitted that the classification of prisoners to be released on interim bail made by the MP's High Power Committee is unreasonable and non-compliant with the test of reasonable classification outlined by the Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.
"The decision of HPC to release under trial prisoners undergoing trials for 5 years or less does not provide any reasoning for leaving out those in pre-trial detention for offences punishable by more than five years and not more than seven years…the classification adopted both lacks any discernible reasoning or determining principle, and does not form a rational nexus with the objective of the exercise, which was to release undertrials incarcerated for offences for which arrest is an exception, towards decongesting prisons," the plea states.
It is submitted that under sections 41 and 41-A of CRPC, the law makes a distinction between offences punishable by imprisonment of seven years or less and those punishable by imprisonment of over seven years.
However, the plea states, "despite available distinction in law whereby in the case of the former, giving a notice of appearance is the exception and arresting is the exception and in the case of the latter, vice versa, the High Powered Committee has restricted the benefit of applying for bail for under trial prisoners undergoing trial for offences punishable by five years or less."
The plea therefore seeks the following reliefs:
Case Title: Madhuri Krishnaswami v. State of Madhya Pradesh & Ors.
Case No.: WP No. 8391/2020
Quorum: Chief Justice AK Mittal and Justice Vijay Kumar Shukla
Appearance: Senior Advocate Chander Uday Singh with Advocates Bhavil Pandey, Nikita Sonwane and Aditi Pradhan (for Petitioner); Deputy Advocate General Swapnil Ganguly (for State)
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