Madhya Pradesh High Court
In Reference (Suo Motu) vs The State Of Madhya Pradesh on 31 May, 2021
Equivalent citations: AIRONLINE 2021 MP 607
Author: Chief Justice
Bench: Chief Justice
1
THE HIGH COURT OF MADHYA PRADESH
W.P.No.9320/2021 (PIL)
(In Reference (Suo Moto) Vs. State of M.P. & others)
Jabalpur, Dated:-31.5.2021
Per: Mohammad Rafiq, Chief Justice:
Heard through Video Conferencing.
Mr. Sankalp Kochar, Advocate appeared as Amicus Curiae.
Mr. Pushpendra Yadav, Additional Advocate General for the
respondent-State along with Mr. Arvind Kumar, Director General
of Prisons and Mr. Sanjay Pandey, Deputy Inspector General of Jails.
Mrs. Girbala Singh, Member Secretary, M.P. State Legal Services Authority, Jabalpur.
Status report has been filed on behalf of the State in compliance of the orders dated 7.5.2021 and 17.5.2021. It is stated that pursuant to the earlier order of this Court dated 10.5.2021 a meeting of High Powered Committee was convened on 12.5.2021 and thereafter, in compliance of the subsequent order of this Court dated 17th May, 2021, another meeting of High Powered Committee was convened on 27.5.2021. The minutes of the meeting of the High Powered Committee held on 22.5.2021 have been placed on record.
Shri Pushpendra Yadav, learned Additional Advocate General submitted that a total 3927 prisoners have been released on 2 THE HIGH COURT OF MADHYA PRADESH W.P.No.9320/2021 (PIL) (In Reference (Suo Moto) Vs. State of M.P. & others) emergency parole pursuant to the earlier criteria laid down by the High Powered Committee. As regard the category of the prisoners who are more than the age of 60 years and female prisoners who are more than the age of 45 years, female prisoners lodged in jail along with their minor children and those prisoners suffering from serious illness, it is submitted that their case for grant of emergent parole is in the pipelines. Out of 4874 under trails prisoners facing trial for the offence punishable with 7 years of less, 1219 under trials prisoners have been released on bail.
As regard the suggestion given by the learned Amicus Curiae and learned Senior Counsel contained in the order of this Court dated 17.5.2021, the learned Additional Advocate General submitted that as per the data submitted by the D.G. (Prisons), there are 2719 convicts who have already been served out 1/3 rd of the substantive sentence awarded to them. Similarly, there are 6047 convicts sentenced to life, have completed incarceration of 7 years or more. The Committee was apprised of the fact that many of the convicts who have been granted parole are not in a position to furnish security of Rs.50,000/-. Some of them have not even filed an application for parole despite being informed of their eligibility for parole. In these circumstances, the Committee 3 THE HIGH COURT OF MADHYA PRADESH W.P.No.9320/2021 (PIL) (In Reference (Suo Moto) Vs. State of M.P. & others) resolved that Legal Services Institutions across the State shall assist such prisoners in filing their applications for parole so as to expedite the process at the earliest. The Committee therefore resolved that on fulfilling of the requisite conditions for grant of parole all such convicts who have either served out 1/3 rd of the sentence awarded to them or if sentenced to life imprisonment, have completed sentence of 7 years or more, may be granted parole.
However, as regards the grant of interim bail to under trial prisoners facing trial for offences exclusively triable by the Court of Magistrate, regardless of the outer limit of the sentence, it is submitted that in this category there are 8781 under trial prisoners, but applications of 4874 prisoners have been forwarded to the Trial Court which after due consideration have granted bail to only 1219 under trial prisoners till date. It is submitted that out of 3179 under trial prisoners who were released on temporary bail in the first wave of COVID-19, 1536 inmates have not returned to jail either on account of having been granted regular bail or having not reported back. The learned Additional Advocate General was unable to give the break up of figure of 1536; as to how many of them are those who have been granted regular bail 4 THE HIGH COURT OF MADHYA PRADESH W.P.No.9320/2021 (PIL) (In Reference (Suo Moto) Vs. State of M.P. & others) and how many are those who have not reported back.
As regards release of all women prisoners, both convicts and under trials, regardless of the offence for which they have been convicted or are facing trial, it is submitted that there are 1144 women under trial prisoners and 577 convict women prisoners. While 133 convict women prisoners have been released on parole, but the Director General (Prisons) opposed blanket recommendation for release of all women prisoners on the premise that it would not be congenial to the criminal justice system. Even then the High Power Committee recommended the cases of women prisoners for release on parole as per the existing provisions in the Jail Manual and further directed that the matters for under trial women prisoners should be considered sympathetically.
As regards the directions for moving appropriate applications before the Juvenile Justice Board for release of children in conflict with law on temporary bail, it is submitted that out of 218 children lodged in observation homes, 192 children have been released on bail and the applications on behalf of the remaining children are under consideration.
Mr. Pushpendra Yadav, Additional Advocate General 5 THE HIGH COURT OF MADHYA PRADESH W.P.No.9320/2021 (PIL) (In Reference (Suo Moto) Vs. State of M.P. & others) submitted that the Principal Registrar, Bench at Gwalior forwarded a note of the Administrative Judge, High Court of M.P., Bench at Gwalior for clarification of certain doubts expressed by the District and Sessions Judges, especially with regard to the expression "orders to be passed on case to case basis" contained in the SOP notified by the High Powered Committee contending that it gives an impression that while considering application for temporary bail, merits of each case need to be considered. Second doubt was raised as to what should be the approach in cases where regular bail application under section 439 of Cr.P.C. has been recently rejected on merits by the High Court. Third doubt was that can an application for release of under trial prisoner be rejected, despite the said under trial prisoner satisfying all the prerequisites laid down in the orders of the Supreme Court passed in Suo Motu Writ Petition (Civil) No.01/2020 and orders of Division Bench of this Court passed in W.P.No.9320/2021 and the SOP issued by the High Powered Committee in its meeting dated 12.5.2021?
Mr. Sankalp Kochar, learned Amicus Curiae submitted that the High Power Committee dispelled all the doubts by observing that the purpose of the Supreme Court in passing the aforesaid 6 THE HIGH COURT OF MADHYA PRADESH W.P.No.9320/2021 (PIL) (In Reference (Suo Moto) Vs. State of M.P. & others) orders was to decongest the jails of the State as their lordships were of the view that it was a matter of serious concern in the context of present pandemic. The High Powered Committee further observed that if no pressing negative conditions exist, then the Court may pass appropriate orders for consideration of interim bail. The High Powered Committee further observed that where a bail application has been rejected on merits by the High Court, even if such order cannot be ignored in totality by the District and Sessions Judge while executing the SOP, the case of the applicant for interim bail should be considered in the backdrop of the directions of the Supreme Court and the Division Bench of this Court for safeguarding the health of prisoners in the existing circumstances. As regards rejection of the application for release of an under trial prisoner despite such under trial prisoner satisfying the conditions laid down in the orders of the Supreme Court in Suo Motu Writ Petition (Civil) No.01/2020 and orders of the Division Bench of this Court passed in W.P.No.9320/2021 and the SOP issued by the High Powered Committee in its meeting dated 12.5.2021, it was observed that such application can be rejected only if there existed strong detriment of social order.
On query by the Court, the Director General (Prisons) 7 THE HIGH COURT OF MADHYA PRADESH W.P.No.9320/2021 (PIL) (In Reference (Suo Moto) Vs. State of M.P. & others) submitted that only 550 convicted persons have been so far granted parole, in addition to those who were released on parole as per the criteria earlier prescribed by the High Powered Committee. Even after the orders passed by this Court on 10.5.2021 and 17.5.2021, total 4759 applications for release of accused on temporary bail under trial prisoners were filed, out of which 2311 have been granted bail, but 415 of them could not be released despite grant of bail because they were arrested in some other cases as well. The Director General (Prisons) is not in a position to give the exact break up of the figure of 1536 inmates who according to the respondents did not return to the jail, either on account of regular bail being granted to them or having not reported after completion of period of interim bail.
Mr. Sankalp Kochar, Amicus Curiae and Mr. Chander Uday Singh, Senior Advocate submitted that observations of the High Powered Committee that different Courts should consider the applications for release on temporary bail and pass orders "on case to case basis" does not mean that the application for grant of temporary bail to the under trial prisoners in the scope of the order passed by the Supreme Court in Suo Motu Writ Petition (Civil) No.01/2020 and the orders passed by this Court on 10.5.2021 and 8 THE HIGH COURT OF MADHYA PRADESH W.P.No.9320/2021 (PIL) (In Reference (Suo Moto) Vs. State of M.P. & others) 17.5.2021, should be decided on merits. It is submitted that Delhi High Court has in the case of such prisoners who are not in a position to give security has directed to release simply on the basis of execution of bail bonds by the prisoners. The State should give the complete break up to all those who have been granted parole out of those 2719 convicts, who have already served out 1/3rd of the substantive sentence awarded to them and those 6047 convicts, who have been sentenced to life and have completed incarceration of 7 years or more. The very purpose of grant of parole and interim bail is to protect the prisoners in view of the present health emergency considering the congestion of the prisoners in the jail. Similarly it has not been clarified as to how many convicts are such who have been sentenced to life and have completed incarceration of 7 years or more. Similarly, it is also not clear whether the applications with respect to all under trial prisoners who are facing trial, exclusively triable by the Court of Magistrate, have been filed.
It is submitted that this Court has already safeguarded against the misuse of liberty by those who released on emergent parole and temporary bail by providing that this facility shall not be applicable to those who are in custody for an offence committed by 9 THE HIGH COURT OF MADHYA PRADESH W.P.No.9320/2021 (PIL) (In Reference (Suo Moto) Vs. State of M.P. & others) them during the period of interim bail and those under trial prisoners who failed to surrender in time after grant of temporary bail during first wave of Covid-19.
In our considered opinion, merits of the case need not be looked into for the purpose of granting emergent parole or releasing the accused under specified categories on temporary bail. The order was passed by the Supreme Court keeping in view health emergency and outbreak of the Corona Virus. Considering that as against the capacity of 28675 even as on 7 th May, 2021 there were 45582 prisoners were lodged in different jails of the State, this Court also gave certain directions aimed at decongesting the Jail. Therefore, merits of the case need not be looked into while passing the order either grant of emergent parole or grant of temporary bail. However, as already clarified in earlier order dated 7.5.2021, such convicts or under trial, who are found to have misused the liberty of emergent parole or temporary bail, for the reasons of committing an offence during such parole or interim bail or after grant of such facility, pursuance to the earlier order of Supreme Court, failed to surrender in time in terms of conditions of grant of parole or the bail order, may not be entitled to such facility. The third reason which may be considered for not 10 THE HIGH COURT OF MADHYA PRADESH W.P.No.9320/2021 (PIL) (In Reference (Suo Moto) Vs. State of M.P. & others) extending this facility of the benefit of parole or temporary bail can be in the case of habitual offenders. If the accused, whether convicted or under trial prisoner, is found involved in multiple number of criminal cases, having minimum three criminal cases or more, may also be excluded from the purview of such benefits.
Having regard to the submissions made above, the Member Secretary of the M.P. State Legal Services Authority, Jabalpur is required to request the Executive Chairman of the High Powered Committee to again convene the meeting of High Powered Committee to issue clear and categorical directions for implementation of the order of the Supreme Court and this Court, within next three days under the intimation to Mr. Sankalp Kochar, Amicus Curiae and Mr. Chander Uday Singh, Senior Advocate, who would also be entitled to present their view point before the High Powered Committee.
Matters to come up on 14.6.2021.
(Mohammad Rafiq) (Atul Sreedharan)
Chief Justice V. Judge
Pawar*
ASHISH PAWAR
2021.06.01
23:10:36 +05'30'