Gujarat High Court
Himanshu Chandravadan Desai vs The State Of Gujarat on 24 July, 2020
Author: J.B.Pardiwala
Bench: Vikram Nath, J.B.Pardiwala
C/WPPIL/80/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/WRIT PETITION (PIL) NO. 80 of 2020
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HIMANSHU CHANDRAVADAN DESAI
Versus
THE STATE OF GUJARAT
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Appearance:
MR HIMANSHU C DESAI(6832) for the Applicant(s) No. 1
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MS MANISHA L.
SHAH, GOVT. PLEADER WITH MR MITESH AMIN, PUBLIC PROSECUTOR
WITH MR DHARMESH DEVNANI, AGP for the RESPONDENT(s) No.
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH
and
HONOURABLE MR. JUSTICE J.B.PARDIWALA
Date : 24/07/2020
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) By this writ application under Article 226 of the Constitution of India filed in public interest, the writ applicant, a practicing advocate appearing in person has prayed for the following reliefs:
"[12.1] Your Lordships may be pleased to formulate guidelines carving out exceptions for not exercising powers by the State Government conferred on them vide Section 432 and 435 of Cr P C for suspending sentence of the convict prisoners in prisons of Gujarat on account of the outbreak of Ciovid-19 and oblige.
[12.2] Your Lordships may be pleased to direct State Government to exercise powers conferred on them vide Section 432 and 435 of the Cr. P.C. and suspend sentence of the convict prisoners in prisons of Gujarat who are not falling in category of exception as stipulated in prayer (a) above till the outbreak of Covid-19 is in control and oblige.Page 1 of 11 Downloaded on : Sun Feb 21 09:34:06 IST 2021
C/WPPIL/80/2020 ORDER
[12.3] Your Lordships may be pleased to pass orders
setting criteria for not extending benefit of temporary bail for under trial prisoners who are in judicial custody in various prisons of Gujarat on account of outbreak of Covid-19 and oblige.
[12.4] Your Lordships may be pleased to pass orders for release of under trial prisoners not falling within criteria set out in terms of prayer (c) above and who are in judicial custody in various prisons of Gujarat on interim bail till the outbreak of Covid-19 is in control and oblige.
[12.5] Your Lordships may as interim relief direct release on temporary bail on self bond for two months of all convict prisoners who are sentenced exceeding seven years if they have completed 25% of the sentence awarded to them and are not falling in category of exception at para 6(III) of minutes of meeting of the High Power Committee.
[12.6] Your Lordships may as an interim relief direct to release on temporary bail on self bond for two months all under trial prisoners who are facing charges for offences attracting more than seven years imprisonment but not falling in exception at paras 6(I)(b) to 6(I)(k) of the minutes of meeting of the High Power Committee and oblige."
The affidavit in reply has been filed on behalf of the respondent No.2, which reads thus:
"AFFIDAVIT-IN-REPLY ON BEHALF OF THE RESPONDENT No.02 I, Dr. S. K. Gadhvi, Deputy Inspector General of Police (Prisons) Gujarat State, Jail Bhawan, Near Subhash Bridge Circle, Sabarmati, Ahmedabad, do hereby state on solemn affirmation as under :
1 Following prayers are made in the captioned petition :
[A] Your Lordship may be pleased to formulate Page 2 of 11 Downloaded on : Sun Feb 21 09:34:06 IST 2021 C/WPPIL/80/2020 ORDER guidelines carving out exceptions in stipulated time line for not exercising powers by the State Government conferred on them vide Section 432 and 435 of Cr. P. C. for suspending sentence of the convict prisoners in prison of Gujarat on account of the outbreak of Covid- 19 is in control and oblige.
[B] Your Lordship may be pleased to direct State government to exercise powers conferred on them vide Section 432 and 435 of Cr. P. C. and suspend sentence of the convict prisoners in prisons of Gujarat who are not falling in category of exception as stipulated in prayer (a) above till the outbreak of Covid-19 is in control and oblige.
[C] Your Lordship may be pleased to pass orders setting criteria for not extending benefit of temporary bail for under trial prisoners who are in judicial custody in various prisons of Gujarat till the outbreak of Covid-19 is in control and oblige.
[D] Your Lordships may be pleased to pass orders for release of under trial prisoners not falling within criteria set out in terms of prayers (c) above and who are in judicial custody in various prisons of Gujarat on interim bail till the outbreak of Covid-19 is in control and oblige.
[E] Your Lordship may be pleased to pass any other and further orders in the facts and circumstances of the current situation which are deemed necessary, proper and fair in the interest of justice and oblige.
2 Considering averments made in the petition, it contain concerns of petitioner with regard to jail inmates in context of pandemic situation arising out of corona virus infection and petitioner while expressing concerns regarding jail inmates has relied upon the order passed by the Hon'ble Supreme Court in Suo Moto Writ Petition (c) No. 1 of 2020 and the order passed in dated 23.03.2020.
3 Pursuant to above referred order, High power committee is constituted, existing of the senior most Judge of this Hon'ble Court, Additional Chief Secretary (Home, Page 3 of 11 Downloaded on : Sun Feb 21 09:34:06 IST 2021 C/WPPIL/80/2020 ORDER Gujarat State) and ADGP (Prison). I state that after threadbare discussion amongst HPC, it issued minutes of meeting of the High power committee on 28.03.2020, issuing guidelines for granting temporary bail / parole / furlough to certain categories of jail inmates which include under trial prisoners as well as convict prisoners. Petitioner has placed these minutes at annexure - B. I submit that list and category of inmates, who were likely to be benefitted out of committee's recommendation is inclusive in nature and not exhaustive. I state that I rely on it. I further state that these minutes issued on 28.03.2020 are also submitted in the proceedings of Suo Moto Writ Petition (PIL) No. 1 of 2020 before the Hon'ble Supreme Court of India.
4 I state that in the matter of Suo Moto Writ Petition (PIL) No. 1 of 2020, the Hon'ble Supreme Court has passed another order dated 07.04.2020 and the same is annexed herewith and marked as ANNEXURE-R.1. I state that in the referred order, Hon'ble Supreme Court has taken note of framing of guidelines by the High-Power committee as well as release of prisoners pursuant to it.
5 I state that in the referred proceedings of Suo Moto Writ petition (PIL) No. 1 of 2020 before the Hon'ble Supreme Court, another order is also passed on 13.04.2020 and vide this order, the referred petition is disposed of along with all IA applications. I rely on this order dated 13.04.2020 and same is annexed herewith and marked as ANNEXURE-R.2. I submit that relevant part of this order (Page.04) is reproduced herein under :
"we make it clear that we have not directed the States / Union Territories to compulsorily release the prisoners from their respective prisons. The purpose of our aforesaid order was to ensure the States / Union Territories to assess the situation in their prisons having regard to the outbreak of present pandemic in the country and release certain prisoners and for that purpose to determine the category of prisoners to be released."
I submit that our High-Power committee has absolutely abided with the orders of the Hon'ble Supreme Court and above referred reproduced part of the order amply justifies Page 4 of 11 Downloaded on : Sun Feb 21 09:34:06 IST 2021 C/WPPIL/80/2020 ORDER guidelines issued by High power committee.
6 I submit that this Hon'ble Court in Writ Petition (PIL) No. 42 of 2020 and with other allied matters, has passed an order dated 17.04.2020 and paragraphs no. 19 and 19.1 of this order had called upon the High power committee to reconsider issues referred in the order relating to Writ Petition (PIL) No. 57 of 2020 and Writ Petition (PIL) No. 59 of 2020. Pursuant to it, the High power committee met and referred issues as well as representation made were reconsidered in context of the Hon'ble Supreme Court's order dated 23.03.2020 (ANNEXURE-B) and 13.04.2020 passed in Suo Moto Writ (PIL) No. 1 of 2020 by the Hon'ble Supreme Court of India, and thereafter on the basis of it, minutes of meeting of the High power committee were issued on 28.04.2020 and same is annexed herewith and marked as ANNEXURE - R.3. I state that so far as occupancy of jail inmates across the State in all the jails as existing on 28.03.2020 i.e. before guidelines of High power committee is concerned, total capacity of various jails across the State is 13724 and against it, occupancy of jail inmates on that day was 14991 but subsequent to High power committee's guidelines in all 2220 jail inmates were either released on temporary bail / parole / furlough hence as on 28.04.2020, total inmates in the various jails across the state were 12271, which implies, there was no overcrowding in the jails across the State.
7 I state that ADGP (Prison) submitted two letters dated 05.05.2020 and 13.05.2020 stating therein that jail inmates who are granted temporary bail for the period of two months are suppose to surrender themselves before the jail authority for readmission in jail as that period of temporary bail would complete within some days. Considering the pandemic situation and their exposure outside jail, their readmission in the jail was found harmful for the existing jail inmates as they could transmit infection, if any, to the existing jail inmates. Hence, ADGP (Prisons) requested the High power committee for extending their period of temporary bail for further period of 30 days and the request was accepted by the High power committee and appropriate minutes of meeting of the High power committee were issued on 20.05.2020. A copy of the same is annexed hereto and marked ANNEXURE-R.4. Pursuant to it, ADGP (Prisons) Page 5 of 11 Downloaded on : Sun Feb 21 09:34:06 IST 2021 C/WPPIL/80/2020 ORDER submitted appropriate note before this Hon'ble Court which was considered vide order dated 22.05.2020 more particularly in paragraph 73 of the order which is reproduced here under :
'in view of the aforesaid, all the accused who have been released on temporary bail upon recommendation of High-power committee shall continue to remain on bail for the further period of 45 days.' Hence, sufficient care is taken by the High-power committee to prevent existing jail inmates from being infected from corona virus through seeking extension of temporarily released jail inmates from reentering by seeking extension of their temporary bail period.
8 Lockdown period across the state remained in force from 25.03.2020 to 31.05.2020 and thereafter unlock period phase 1 began on 01.06.2020 and presently unlock period phase 2 is in existence since 01.07.2020.
9 I state that as on 08.07.2020, following is the situation pursuant to recommendation of the High-power committee.
Serial No. Nature of Liberty. Number of benefited Jail inmates.
1. Temporary Bail 1204 2. Furlough 502
3. Parole 1107 Total. 2813 [i] Considering the above, against the total strength of all the jails across the State of 13724 as on 08.07.2020, there were 12720 total jail inmates, which implies, there is no overcrowding in jails across the State.
[ii] I state that pursuant to the direction passed by this Hon'ble Court in Writ Petition (PIL) No. 42 of 2020, all new entrants in jail are subjected to Covid-19 test. If any new entrant is found positive with Covid-19, he is sent to Civil Hospital for the appropriate treatment and if he is found Page 6 of 11 Downloaded on : Sun Feb 21 09:34:06 IST 2021 C/WPPIL/80/2020 ORDER negative, he is kept in quarantine barrack for 14 days where inmate is subjected to regular health screening and their diet is also regulated according to recommendation of medical officer, which includes fruits, milk etc. and also further regulated by guidelines of Ayush Mantralay for improving the immunity of inmate by providing them Ayurvedik Ukala (Kadha), vitamin C tablet as well as homeopathy medicine. Quarantine barrack is kept neat and clean and is sanitized by sodium hypochlorite.
[iii] Particulars of jail inmates in context of capacity of various jails across the state as on 08.07.2020 is narrated here under :
SR. NAME OF JAIL CAPACITY OF INMATES ACTUAL INMATES No. M F TOTAL M F TOTAL
1. GODHRA SUB 133 32 165 207 19 226 JAIL
2. VADODARA 955 0 955 1253 0 1253 CENTRAL JAIL
3. JUNAGADH 250 15 265 304 19 323 DISTRICT JAIL
4. MODASA SUB 100 5 105 125 0 125 JAIL
5. CHHOTAUDEP 102 5 107 125 2 127 UR SUB JAIL
6. BHAVNAGAR 382 30 412 456 25 481 DISTRICT JAIL
7. SURENDRANA 116 9 125 132 11 143 GAR SUB JAIL
8. AMRELI 248 16 264 280 19 299 DISTRICT JAIL
9. MORBI SUB 143 28 171 181 7 188 JAIL
10. BHARUCH 284 25 309 316 15 331 DISTRICT JAIL
11. RAJKOT 1147 85 1232 1189 88 1277 CENTRAL JAIL
12. GONDAL SUB 120 30 150 155 0 155 JAIL
13. NADIYAD 379 42 421 407 28 435 DISTRICT JAIL
14. PORBANDAR 110 10 120 123 0 123 SPECIAL JAIL
15. GALPADAR 250 40 290 262 18 280 Page 7 of 11 Downloaded on : Sun Feb 21 09:34:06 IST 2021 C/WPPIL/80/2020 ORDER DISTRICT JAIL
16. AHMEDABAD 2646 0 2646 2479 0 2479 CENTRAL JAIL
17. PALANPUR 260 8 268 247 4 251 DISTRICT JAIL
18. PATAN SUB 180 22 202 179 6 185 JAIL
19. LAJPOR 2757 210 2967 2489 87 2576 CENTRAL JAIL
20. NAVSARI SUB 220 10 230 189 0 189 JAIL
21. JAMNAGAR 456 10 466 373 0 373 DISTRICT JAIL
22. MEHSANA 232 12 244 188 0 188 DISTRICT JAIL
23. PALARA 490 40 530 274 14 288 SPECIAL JAIL (BHUJ)
24. HIMMATNAGA 223 20 243 129 0 129 R DISTRICT JAIL
25. AHMEDABAD 0 200 200 0 97 97 MAHILA JAIL
26. RAJPIPLA 325 22 347 117 2 119 DISTRICT JAIL
27. AMRELI OPEN 40 0 40 12 0 12 JAIL
28. VADODARA 0 210 210 0 58 58 WOMEN JAIL
29. JUNAGADH 40 0 40 10 0 10 OPEN JAIL TOTAL 12588 1136 13724 12201 519 12720 10 I state that I rely upon the order of this Hon'ble Court passed in the matter of Criminal Misc. Application (Temporary Bail) No. 03 of 2020 In Criminal Appeal No. 2241 of 2019 with Criminal Misc. Application (For Extension of Temporary Bail) No. 06 of 2020 in Criminal Appeal No. 1197 of 2018, the same is annexed herewith and marked as ANNEXURE - R.5. In both these matters petitioner / accused were seeking extension of their temporary bail on the ground of situation inside the central jail, allegedly being precarious due to pandemic of Covid-19.
10.1 Following aspects / observations of the order relied upon are reproduced here as under :
Page 8 of 11 Downloaded on : Sun Feb 21 09:34:06 IST 2021C/WPPIL/80/2020 ORDER "14.1. - Noticing that the report of High power committee is implemented and all necessaries like masks, sanitizers, soaps, hand soaps, gloves are provided, it is to be directed that let a mechanism be created for anyone to avail these easily once utilized and social distancing is also maintained inside the barrack.
It is also taken note of that periodical sanitization of rooms and fumigation are regular processes in isolation and quarantine facilities created inside the jails.
Due care is being taken, while drawing sample in the jail and an elaborate arrangement also have been made by calling the team at Jail every morning for those who enter the jail first time or for those who return from their release. For all those who return, facility of quarantine, till the report of the prisoner concerned comes, also is extensively made. The details, which have been furnished by the jail authorities, make it apparent on record that drawing the sample of the prisoners, who have returned after completing the period of their release on parole, furlough or temporary bail, is being taken at the jail premises, itself. Therefore, a prisoner does not need to have any brush with the civil hospital as apprehended by the applicant.
Under the circumstances, the only direction which is necessary, is vigilance of Jail administration and matching response of inmates for whose right to life, these arrangements are elaborately made. A word of caution that requires is that there could be no inertia or laxity on either side so far as implementation of directives / guidelines issued by the Apex Court, this Court, Central and the state Government are concerned.
14.2 - additionally, AYUSH ministry has come out with guidelines and the directions for every citizens to follow during the lockdown. It is essential to enhance their resistance power and what is far more important Page 9 of 11 Downloaded on : Sun Feb 21 09:34:06 IST 2021 C/WPPIL/80/2020 ORDER is immunity of an individual, body's natural defence system, which alone is a shield, which can provide protection in this pandemic against Covid-19 virus. Although, the inmates are being given vitamin 'C' and Homeopathic medicines and the herbal drinks prescribes i.e. 'Kadha' as stated in the affidavit. We suggest additional of milk with turmeric powder, as prescribed by AYUSH ministry along with the Ayurvedic medicines prescribed by it, like Neem Giloy (Samsan Vati etc.) In its publication as mentioned in the communication dated 03.04.2020 Government of India, Ministry of Human Resources Development. (Annexed with the order for ready reference.) Some of the recommendations and measures prescribed by the Central Government is forming the part of this order, let the same be considered for the purpose of boosting the immunity if the jail inmates along with regular Yoga, Pranayam, Nasal application and other physical exercise as well as applications necessary for their holistic health i.e. physical mental, emotional and psychological health.
14.3 - Noticing that by and large, all the required measures for safeguarding the health and immunity of the inmates are being followed, some of the additional measures, as prescribed by AAYUSH Ministry for promoting immunity by self care be followed by the jail authorities.
14.4 - We express a word of caution while parting that right to freedom of expression brings with it corresponding and unfailing duty cum responsibility for all those who profess the same as a profession or as a crusade towards the informed citizenry. And therefore, in the present time of pandemic which comes in hundred years, psyche of average man when is already filled with fearfulness and apprehension when it concerns the news relating to COVID-19 virus, anything expressed or circulated without any verification would surely and unfailingly generate negative response. Therefore, all concerned are expected to exercise requisite care and caution before publication or circulation, of verifying the details from the Authority concerned which is also expected and Page 10 of 11 Downloaded on : Sun Feb 21 09:34:06 IST 2021 C/WPPIL/80/2020 ORDER has obligation to reveal absolute truth.
11 I state that considering the above, sufficient care is taken by respondents to prevent overcrowding in the jails, also taking sufficient measures are taken to protect existing jail inmates from being infected from Corona Virus and also have taken sufficient protective measures for new jail entrants as stated herein above.
12 I state that captioned petition is signed by the petitioner on 02.04.2020 but as it appears from the status report, the captioned petition is submitted on 20.05.2020, be that as it may, considering the protective measures taken by respondents and the prevailing unlock period phase 2 etc, considering the prayer of seeking direction against respondent no.1 to exercise its power under section 432 along with 435 of Code of Criminal Procedure Code, 1973 which relates to power to suspend or remit sentences by granting bail to the certain categories of jail inmates as stated in captioned petition is not required, unwarranted, unsustainable as well as illegal".
By and large this issue has been taken care of by this Court in various other orders passed in the course of the hearing of the main matter i.e. Writ Petition (PIL) No.42 of 2020.
In view of the above, we need not adjudicate this writ application any further. Accordingly, the same stands disposed of.
(VIKRAM NATH, CJ) (J. B. PARDIWALA, J) M.A. SAIYED Page 11 of 11 Downloaded on : Sun Feb 21 09:34:06 IST 2021