Ker HC | Directions on important matters such as bail/arrest/recovery/etc. issued taking suo motu cognizance of complete lockdown

Kerala High Court: A Full Court comprising of S. Manikumar, C.J., and C.K. Abdul Rehim and C.T. Ravikumar, JJ. issued certain directions taking suo motu cognizance of the public announcement of imposing a total lockdown in the wake of COVID-19 outbreak resulting in immobilization of public at large.

Notably, on 24th March, the Prime Minister announced a complete lockdown throughout the country and consequently, the Ministry of Home Affairs issue guidelines on the measures to be taken by the Governments and departments for containment of COVID-19.

Directions issued by the High Court in exercise of powers under Articles 226 and 227 of the Constitution are delineated here:

(i) Interim orders granted by District Judiciary and Tribunals: All the interim orders passed by all the Courts/Tribunals upon which High Court exercises supervisory jurisdiction under Article 227, which are due to expire during the lock down period of 21 days, are extended by by one month from 25-3-2020.

Also, if any application is filed for extending/vacating an interim order and pending for orders in this Court, the interim orders will be extended for one month.  

(ii) Recovery proceedings under State laws: In all recovery matters, such as electricity, water, Abkari and other matters, Council of Ministers, Government of Kerala has already taken a decision that payment will be deferred upto 30-4-2020, and therefore, no recovery proceedings would be initiated or recovery proceedings already initiated would not be proceeded further until 30-4-2020.

(iii) Recovery proceedings by Government of India and Public Sector Undertakings: Taking note of the submission of the Government of India before the Supreme Court that a proper mechanism will be evolved, in exercise of the powers under Articles 226 and 227 of the Constitution, the High Court also deemed it fit to state that until such time it hoped that no action would be taken.

(iv) Bail/Anticipatory bail in criminal matters already provided and due to expire during the lockdown period: Orders of bail or anticipatory bail, restricted for a limited period, which may expire in the lock down period, have to be extended. Therefore, the interim orders in such matters will stand extended for one month from 25-3-2020.

(v) Contagion of COVID-19 in prisons: Directions issued by the Supreme Court in its order dated 23-3-2020 passed in Contagion of COVID-19 virus in prisons, In re [Suo Motu WP(C) No. 1 of 2020] were reiterated. Notification dated 25-3-2020 [GO(Rt) No. 970/2020/HOME] issued by the Government of Kerala taken note of, which inter alia states ?

1. A High Powered Committee comprising of (i) Chairman of the State Legal Services Committee, (ii) Additional Chief Secretary (Home & Vigilance), and (iii) Director General of Prison(s), is constituted to determine which class of prisoners can be released on parole or on interim bail.

2. Physical presence of all the undertrial prisoners before the Courts shall be stopped forthwith and recourse to video conferencing for all purposes.

3. The transfer of prisoners from one prison to another for routine reasons must not be resorted except for decongestion to ensure social distancing and medical assistance to an ill prisoner. Also, there should not be any delay in shifting sick person to a Nodal Medical Institution in case of any possibility of infection is seen.

4. The Director General of Prisons & Correctional Services shall develop Prison specific readiness and response plans in consultation with medical experts.

5. The Director General of Prisons and Correctional Services is empowered to grant Ordinary leave to eligible prisoners in a single spell of 60 days, subject to all other conditions of leaves, in relaxation to Rule 397(b) of Kerala Prisons and Correctional Services (Management) Rules, 2014 to reduce the number of prisoners in prisons.

6. Due to the lack of public transport system as the prisoners cannot report back in prison after the expiry of their period of leave in time, such overstayal period upto April 15 shall be considered as bail (shall not be considered as sentence undergone), provided that such prisoners shall report to the police station nearby and the Station House Officer shall report the position to prison authorities concerned.

(vi) Bail applications of convicts and undertrial prisoners: The High Court, on the administrative side, had taken a decision to hear applications seeking bail/anticipatory bails/suspension of sentence, as the case may be, and posted some of the cases for hearing on 26-3-2020. Now, the Supreme Court in Contagion of COVID-19 virus in prisons, In re [Suo Motu WP(C) No. 1 of 2020] has issued directions to the State Governments/Union Territories to constitute a High Powered Committee in respect of bail matters, which has already been done. Hence, the High Court deemed it fit that those applications need not be taken up for hearing and it is left to the High Powered Committee to decide.

(vii) Applications pending for anticipatory bail: Right of personal liberty guaranteed under Article 21 of the Constitution should not, at any rate, be infringed by arresting an accused, except in matters where arrest is inevitable. However, the State is at liberty to take appropriate decision in respect of heinous/serious offences and in rest of the cases, State may act accordingly.  

(viii) Events of arrest: In the event of any arrest, the Constitutional obligation under Article 20(2) shall be followed in letter and spirit. Over-crowding in prisons is one of the issues taken up by the Supreme Court in Contagion of COVID-19 virus in prisons, In re [Suo Motu WP(C) No. 1 of 2020]. Therefore, Magistrates/Judges before whom the accused is produced, depending upon the nature of offence, shall consider as to whether judicial/police custody is required or not. Needless to state that, bail is the rule and jail is an exception. It was made clear that the above said directions stand excluded to subjects relating public order/law and order and any action taken by the State Government to combat the outbreak of COVID-19 and actions taken thereof.

(ix) No coercive action by Local Self Government Institutions: It is sincerely expected that due to the outbreak of COVID-19, State Government, LSG Institutions, Government of India, and Public Sector Undertakings owned and controlled by the State/Central Governments that no coercive action be taken since there is no opportunity to the persons to approach the Courts at present. [Suo motu Writ Petition – COVID-19 – taken up by the High Court,  2020 SCC OnLine Ker 1229, decided on 25-3-2020]

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