Delhi High Court - Orders
Ravi Kumar vs State Of Nct Of Delhi on 1 February, 2022
Author: Anu Malhotra
Bench: Anu Malhotra
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 138/2022
RAVI KUMAR ..... Petitioner
Through: Mr. Deepak Goel, Advocate.
versus
STATE OF NCT OF DELHI ..... Respondent
Through: Mr. Mukesh Kumar, APP for State.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
ORDER
% 01.02.2022 (Through Video Conferencing) The applicant vide the present application has sought the grant of interim bail in relation to FIR No. 187/2020, PS IP Estate, under Sections 498A/304B/120B/34 of the Indian Penal Code, 1860, placing reliance on the ambit of the HPC Guidelines dated 04.05.2021 of this Court, whereby in the wake of the second pandemic, which was more virulent and fatal in comparison to the strain of the year 2020, with at that stage 127 active cases of the prison staff and 249 active cases of prison inmates, with a cumulative data on the date 04.05.2021 indicating 448 deaths as per the information supplied by the Delhi government on 03.05.2021 with a positivity rate of 29.56%, it had been observed to the effect that there was an emergent requirement of identifying the class/category of prisoners who could be released on interim bail/emergency parole, and thus it was observed to the effect:-
"The Members of the Committee discussed and deliberated upon the proposed category of prisoners, who may be considered for grant of interim bail for 90 days in view of the circumstances in Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:03.02.2022 15:45:37 This file is digitally signed by PS to HMJ ANU MALHOTRA.
which we are in, preferably on „Personal Bond‟:
(i) Inmates undergoing Civil Imprisonment;
(ii) Under trial prisoners (UTPs) who are facing trial in a case which prescribes a maximum sentence of 7 years or less wherein he/she is in custody for a period of 15 days or more;
(iii) Under trial prisoners (UTPs)/Remand Prisoners (with respect to whom, Charge sheets are yet to be filed), who are in custody for 15 days or more, facing trial in a case which prescribes a maximum sentence of 7 years or less ;
(iv) Under trial prisoners (UTPs), who are senior citizens more than 60 years of age and are in custody for three months or more, facing trial in a case which prescribes a maximum sentence of 10 years or less;
(v) Under trial prisoners (UTPs), who are less than 60 years of age and are in custody for six months or more, facing trial in a case which prescribes a maximum sentence of 10 years or less;
subject to the condition that he should not be involved in any other case which prescribes punishment of more than 7 years;
(vi) Under trial prisoners (UTPs), who are suffering from HIV, Cancer, Chronic Kidney Dysfunction(UTPs requiring Dialysis), Hepatitis B or C, Asthma, and TB and are in custody, facing trial in a case which prescribes a maximum sentence of 10 years or less and are not involved in multiple cases;
(vii) Under trial prisoners (UTPs) who are suffering from HIV, Cancer, Chronic Kidney Dysfunction (UTPs requiring Dialysis), Hepatitis B or C, Asthma, and TB and are in custody for a period of three months or more and facing trial in a case which prescribes punishment of 10 years upto life imprisonment and are not involved in multiple cases.
(viii) Under trial prisoners (UTPs) facing trial for offence under Section 304 IPC and are in jail for more than six months with no involvement in any other case;
(ix) Under trial prisoners (UTPs) facing trial in a case under Section 307 IPC and are in jail for more than six months; subject to the condition that he should not be involved in any other case which prescribes punishment of more than 7 years;
(x) Under trial prisoners (UTPs) (who are related as spouse of the deceased) facing trial for a case under 304B IPC and are in Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:03.02.2022 15:45:37 This file is digitally signed by PS to HMJ ANU MALHOTRA.
jail for more than one year with no involvement in any other case;
(xi) Under trial prisoners (UTPs) (who are related as father-in- law, mother-in-law, brothers-in-law, sisters-in-law of the deceased) facing trial for offence under Section 304B IPC and are in jail for more than six years with no involvement in any other case;
It has further been resolved that following category of UTPs, even if falling in the above criterion should not be considered :-
(i) Those inmates who are undergoing trial for intermediary/ large quantity recovery under NDPS Act ;
(ii) Those under trial prisoners who are facing trial under Section 4 & 6 of POCSO Act;
(iii) Those under trial prisoners who are facing trial for offences under section 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, and 376E and Acid Attack;
(iv) Those UTPs who are foreign nationals ;
(v) Those under trial prisoners who are facing trial under Prevention of Corruption Act (PC Act) / PMLA, MCOCA ; and
(vi) Cases investigated by CBI/ED/NIA/Special Cell of Delhi Police, Crime Branch, SFIO, Terror related Cases, Riot cases, cases under Anti-National Activities and Unlawful Activities (Prevention) Act etc. EXLUSION CLAUSE Apart from the above six categories, Committee resolved to exclude those UTPs who after having availed the benefit of the criteria adopted in the earlier meetings, had committed fresh crimes while on interim bail. Thus, following seventh and eighth category is also included in the exclusion clause.
(vii) Those Under Trial Prisoners who are now in custody for an offence committed by him during the period of interim bail granted to him on the basis of criteria adopted by High Powered Committee in its earlier meetings;
(viii) Those Under Trial Prisoners who were granted interim bail on the basis of criteria adopted by High Powered Committee in its earlier meetings but failed to surrender in terms of the surrender order and are now in custody, only on execution of Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:03.02.2022 15:45:37 This file is digitally signed by PS to HMJ ANU MALHOTRA.
non-bailable warrant against him/them.
DG (Prisons) has informed that on the basis of these criteria approximately 4000 UTPs would be benefited and their release would ease out the Jail Population.
The UTPs falling in above criteria may move their application for interim bail either through their Private Counsels or through Panel Lawyers of DSLSA, annexing the copy of custody warrants with the applications.
Chairperson of the Committee has directed Kanwal Jeet Arora, Member Secretary, Delhi State Legal Services Authority (DSLSA) to request Principal District & Sessions Judges to apprise all the Judicial Officers that in the event of Court being satisfied that the under trial prisoners falling in the above mentioned criteria are to be released on interim bail, they may be released on „Personal Bond‟, to the satisfaction of Jail Superintendent, so as to implement the social distancing policy of the Government.
It is clarified that the decision taken by this Committee for release of prisoners on "interim bail" vide criterion adopted hereinabove today, shall in no way affect the rights of other UTPs, who do not stand covered under these categories, from invoking the jurisdiction of concerned courts for grant of regular/interim bail. The concerned courts on filing of applications by such UTPs may consider the same on merits, in accordance with law."
The applicant submits that he being the spouse of the deceased facing trial for a case under Section 304(B) of the Indian Penal Code, 1860 and being incarcerated for more than a year with no involvement in any other case, in terms of the HPC Guidelines dated 04.05.2021, is entitled to be released on bail.
It is further submitted on behalf of the applicant that the order of the learned ASJ vide which the application of the applicant seeking release on interim bail in terms of the HPC Guidelines was declined, observing to the effect that the said HPC Guidelines dated 04.05.2021 do not relate to the Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:03.02.2022 15:45:37 This file is digitally signed by PS to HMJ ANU MALHOTRA.
present pandemic, is wholly erroneous and that though there are no fresh guidelines that have been issued in the prevailing circumstances by the High Powered Committee of this Court, the said HPC Guidelines are still in force, and that in other cases inclusive of in FIR 690/2020, PS Nihal Vihar vide order dated 22.06.2021 in a case under Sections 304B/498A/34 of the Indian Penal Code, 1860, the applicant therein has been allowed to be released on interim bail for a period of 90 days, in terms of the HPC Guidelines dated 04.05.2021 and 11.05.2021.
The said application is vehemently opposed on behalf of the State submitting to the effect that there was no infirmity whatsoever in the order dt. 10.01.2022 of the learned ASJ declining the application of the applicant seeking grant of interim bail for a period of 90 days submitting also to the effect that the pandemic had wholly eased.
During the course of the proceedings dated 17.01.2022, a submission had been made on behalf of the applicant by learned counsel for the applicant that a person named Himanshu had been found Covid positive on 04.01.2022 in the same Jail, where the applicant was in custody. Thus, vide order dated 17.01.2022, a report was called for from the Superintendent Jail, Delhi, in relation to the aspect of the number of persons who had tested positive for Covid in Jail No.7, where the applicant was lodged.
The report dated 19.01.2022 was received from the Superintendent Central Jail No.7, Tihar, which indicated that till the date 18.01.2022, there were four prisoners who had tested positive for Covid-19 with the details being to the effect:-
"(3) That as per the prison records maintained in Jail No-07 a total number of 04 prisoners tested positive for Covid-19 till Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:03.02.2022 15:45:37 This file is digitally signed by PS to HMJ ANU MALHOTRA.
18.01.2022.
Following are the details:-
with it having also been informed through this status report from the Superintendent Central Jail No.7, Tihar, that there was no inmate by the name of the Himanshu as reflected in the order who had been found to be Covid-19 positive, but there was one Himanshu Choudhary, an Assistant Superintendent, who was Covid-19 positive on 29.12.2021 and remained on leave till 09.01.2022 and had joined duty on 10.01.2022 after producing the RTPCR negative report. The four inmates of Jail No.7 who were hospitalized are indicated to have dates of admission of 06.01.2022, 15.01.2022, 17.01.2022 and 17.01.2022, of whom one Prashant Shekar had already been discharged on 11.01.2022. The persons who had been so admitted to hospital apparently are not within the barracks of the Central Jail No.7 and were admitted to the LNJP, Central Jail Hospital, Central Jail Hospital and Central Jail Hospital, and apparently not in the barracks as observed hereinabove, where the applicant is lodged.
Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:03.02.2022 15:45:37 This file is digitally signed by PS to HMJ ANU MALHOTRA.
Furthermore, the positivity rate in Delhi today is 6.3% with 3674 cases with recoveries at 6954, the situation in the city is not as compelling as was at the time of the pandemic in May, 2021.
Learned counsel for the applicant had however submitted on 25.01.2022 that the surrender of persons pursuant to the HPC guidelines of various committees of various High Courts pursuant to the pandemic have since been extended by the Hon'ble Supreme Court, the said submission being a material aspect to be considered, the applicant was directed to place on record the copy of the order of the Hon'ble Supreme Court on which reliance was sought to be placed. On behalf of the applicant, copy of the order of the Hon'ble Supreme Court in Suo Motu Writ Petition(C) No.1/2020 in "Re-contagion of Covid-19 virus in prisons" dated 16.07.2021 has been placed on record which observes to the effect:-
"So far as those prisoners who have already been released on bail from the prison by virtue of Orders passed by this Court from time to time and on the basis of recommendations of High Powered Committees constituted for the purpose are concerned, they shall not be asked to surrender to the prison, until further orders."
In relation to the reliance that has been placed on behalf of the applicant on the proceedings dated 16.07.2021 in Suo Motu Writ Petition(C) No.1/2020 before the Hon'ble Supreme Court, it is essential to observe that the applicant has never been released on interim bail in terms of the HPC Guidelines and thus the observations to the effect that those who have already been released on bail pursuant to the orders of the Hon'ble Supreme Court from time to time on the basis of the recommendations of the High Powered Committees constituted for the purpose concerned, would not be Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:03.02.2022 15:45:37 This file is digitally signed by PS to HMJ ANU MALHOTRA.
asked to surrender to the prison until further orders, cannot be held applicable in the instant case.
Significantly, even the HPC Guidelines of the date 04.05.2021 indicate that in the meeting dated 17.02.2021 on the improved situation of Covid-19 in the Delhi NCR and taking cognizance of the order No.40- 3/2020-DM-I(A) dated 30.09.2020 then passed by Govt. of India regarding Unlock-5 effective from 15.10.2020, and considering the Office Order No.35/RG/DHC/2021 dated 14.01.2021, wherein at that time there had been resumed functioning through physical mode/Video Conferencing mode, the HPC had resolved not to recommend further extension of interim bails to the UTPs, and as such all the 3499 UTPs enlarged on interim bail, who had not been admitted to regular bail, either by the Court concerned, or the Superior Courts, had been asked to surrender back to the Jail, including 1184 convicts released on Emergency Parole.
Apparently, it is only in relation to those who have not surrendered in terms of the said directions and in terms of the orders of the Hon'ble Supreme Court, the surrender of those already released has been directed to be not called for, that the situation of the pandemic has currently improved as per the DDMA Guidelines is also apparent with the opening of the restaurants, bars, 50% functioning of private offices, and the report from the Jail referred to hereinabove, and the duration of the virulent Omicron, in the facts and circumstances of the instant case, the Court does not consider it appropriate to release the applicant on interim bail. The application is declined.
ANU MALHOTRA, J FEBRUARY 1, 2022/ha Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:03.02.2022 15:45:37 This file is digitally signed by PS to HMJ ANU MALHOTRA.