The Supreme Court Tuesday said it had directed states to set up high powered committees (HPCs) to determine prisoners who could be released on interim bail or parole during COVID-19 pandemic, but its intention was not that "every undertrial or convicted prisoner" is to be released irrespective of the nature and severity of offence.
After coronavirus was declared a pandemic, the top court on March 23 had taken note of the necessity of maintaining social distancing in prisons and had directed states to constitute HPCs so as to release prisoners on interim bail or parole considering the seriousness, gravity and length of term of sentence and any other similar factor.
The top court said this while dismissing a plea filed against the Bombay High Court order which had upheld the classification of offences and imposition of additional conditions by HPC for releasing prisoners in the state.
"The present option provided is only as a solution to help decongestion and to avoid the spread of virus. At the same time the benefit granted in such circumstance cannot be to the detriment of social order by releasing all categories of prisoners irrespective of the categorisation to be made depending on the severity of the crime etc," a bench headed by Chief Justice SA Bobde said in its judgement.
"Further, the intention of this court was not that every undertrial or convicted prisoner is to be released irrespective of the nature of offence or severity thereof. The consideration was for the purpose of decongesting the prisons so that social distancing could be maintained to avoid the spread of virus," said the bench, also comprising Justices AS Bopanna and V Ramasubramanian.
Maharashtra government, in pursuance of the top court's earlier order, had set up HPC which later said that all persons, who are accused or convicted of offences punishable with imprisonment of 7 years or less, shall be released on interim bail or emergency parole as the case may be.
The bench said that entire right to claim such interim bail has arisen in the "unprecedented circumstance of the pandemic" and consideration for interim bail is "not in the nature of a statutory right for bail based on other legal consideration but is more in the nature of human right to safeguard the health."
It noted that the consideration would certainly be different in each state and Union Territory depending on the occupancy in jails, spread of virus, infrastructure available and the need, if any, to release certain number of inmates so as to decongest the prison.
The bench observed that high court had taken note of factual position as per the details furnished which said as on July 24 this year, 10,338 prisoners were released on interim bail or parole and presently 26,279 prisoners were in jail.
The court said it is necessary to indicate that cause for grievance may arise for an individual undertrial or a convicted prisoner only if such person has been discriminated against the one in same category for which benefit has been provided by categorisation made by HPC.
It said if any modification with regard to categories made by HPC is necessary, it would be open for the HPC to take note of the same and apply their mind to modify its guidelines in that regard.
The bench said it would be open for the petitioners to obtain necessary statistics and if any modification of the guidelines is necessary in future, they will be at liberty to submit an appropriate representation to the HPC.
The plea filed by NGO, National Alliance for People's Movements (NAPM), had said it was restricting the challenge to the high court's order only to the extent that it upheld the "classification for the prisoners for temporary release on emergency parole as well as interim bail" and the conditions for release.
"However, the HPC held that the said directions shall not apply to the prisoners who are accused of offences under the Special Acts or the serious economic offences. The HPC further directed the jail authorities to favourably consider the release of the convicts who are undergoing imprisonment for offences punishable with less than 7 years imprisonment, on emergency parole," the plea had said.
Exclusion of prisoners, being tried under special laws, from interim benefit of bails due to COVID-19 was arbitrary, it had said.
"Reconsider the cases of 11,000 convicted prisoners for temporary release on emergency parole pending the final hearing of the matter as per the classification of the prisoners done by HPC and pursuant to the decision of the Government of Maharashtra as announced by the Home Minister by way of press release dated March 26, if they are yet to be released," it had said.
The benefit of emergency parole is also denied to the prisoners convicted for serious economic offences, bank scams or offences under the special Acts like MCOC, PMLA, MPID, NDPS, UAPA etc. on the ground that those special Acts provide for additional restrictions on grant of bail in addition to those under CrPC, it had said.