The Supreme Court has been moved in a PIL seeking release of under-trial prisoners held for non-heinous crimes such as fraud, cheating and other economic offences, and those suffering from various medical conditions (diabetes, asthma etc) in light of the COVID-19 global pandemic.
In the interest of containing the contagion, the Apex Court on March 23 had directed that each State/Union Territory shall constitute a High Powered Committee to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate. The court suggested that the states could consider the release of prisoners who have been convicted or are undertrial for offences for which prescribed punishment is up to 7 years or less, with or without fine and the prisoner has been convicted for a lesser number of years than the maximum.
"It is made clear that we leave it open for the High Powered Committee to determine the category of prisoners who should be released as aforesaid, depending upon the nature of offence, the number of years to which he or she has been sentenced or the severity of the offence with which he/she is charged with and is facing trial or any other relevant factor, which the Committee may consider appropriate", the bench headed by Chief Justice S. A. Bobde stated.
Petitioner-advocate Vishendra Tomar has narrated that the HPC set up by the government of NCT of Delhi, in its meeting of March 28, "without any reason, basis and without application of mind and/or bearing in mind the need and requirement for releasing prisoners, completely arbitrarily decided to exclude the following category of undertrial prisoners: All inmates who are underlying trial under NDPS Act; under Section 4 & 6 of the POSCO Act; under IPC Section 376, 376A, 376B, 376C, 376D and 376E and Acid Attack; under Prevention of Corruption Act/ PMLA; Cases investigated by CBI/ED/NIA/Special Cell Police and Terror related Cases, cases under Anti-National Activities and Unlawful Activities (Prevention) Act etc; and those Undertrial Prisoners who are foreign nationals"
"...the under trials facing charges under non-heinous crimes including fraud, cheating and other economic offences will not be granted bail. Those being probed by the CBI, enforcement directorate and the other agencies will also not be released, even if they have remained in custody for over a month", he has contended.
It is submitted that a reason for over-crowding in jails is due to frivolous or over-zealous prosecutions where alleged offences are purportedly made out without any basis or substance and thus, unsubstantiated charges under sections such as 406 IPC, 409 IPC, 467 IPC which mandate punishments for longer than 7 years are levelled. However, such offences are triable by a Magistrate and a Magistrate under the CrPC is not permitted to pronounce a sentence beyond 7 years. It is only upon conclusion of trial that such charges will be proved and then a conviction will be pronounced. Thus, merely the duration of sentencing cannot be the basis for determining the release of an UTP.
It is suggested that in the present one, all that the authorities should be concerned about is whether the person will turn up to surrender when the situation improves and for that the antecedents have to be examined- "To fix it on the basis of a possible sentence (such as 7 years which has been fixed by the Govt. of NCT of Delhi) is flawed to say the least"
It is further argued that unequals have been compared and clubbed together. The basis for not granting interim-relief to an inmate who is in custody for an economic offence has not been mentioned. Effectively, a person accused of a non-heinous crime has been clubbed with an accused who has committed a heinous crime. Further, the criteria fails to distinguish between those who suffer from serious medical conditions such as diabetes and asthma as well.
It is further clear from the minutes of meeting of the High-Powered Committee that approximately 2000 prisoners are being released by the Jail Authorities, which will still leave the jails overcrowded. "Hence, for this reason itself the criteria as laid-down by the HPC needs to be re-evaluated and needs to be made more transparent and inclusive", it is urged.
"Harvey Weinstein the famous American Film Producer has tested positive for the coronavirus at a state prison in New York after two inmates tested positive for COVID-19. The Iran Government has released more than 85,000 prisoners as the coronavirus crisis escalated in the country. Further, there are reports of unrest and even riots in prisons across Latin America to Europe to the Middle East of contamination amid the coronavirus outbreak. China alone has reportedly had 806 cases in five prisons...Majority of inmates in Delhi Jails are Under-Trial prisoners i.e. out of 17,440 inmates approx. 14,355 are under-trails. The question is are we waiting for a calamity to occur in prisons and then take action", Tomar has pressed.
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