Case BriefsHigh Courts

Bombay High Court: The Division Bench of Dipankar Datta, CJ., and G. S. Kulkarni, J. had addressed a suo motu case on the issue of alarming rise in COVID-19 cases in prisons of the State of Maharashtra.

By an earlier order, the Bench had passed several directions to de-congest the correctional homes and to compel adherence to maintenance of COVID-19 protocol in such homes to ensure safety and well-being of the correctional home inmates as well as the staff.

Pursuant to the said order, a report had been submitted by the State asserting that sanitizers had been made available as well as appropriate briefing is given to the authorities for maintaining COVID-19 protocol inside the correctional homes. Additionally, only those staff, who are vaccinated, are being assigned duties and to interact with the inmates. The State had assured that urgent steps would be taken to ensure that the entire prison staff is vaccinated at the earliest.

Another major issue before the Court was, the particulars of medical officers as well as paramedical staff posted in the various central prisons and district prisons present a very dismal picture. In case of both medical officers and para-medical staff, nearly 1/3rd of the vacancies remain unfilled. That though Medical Officers belonging to Classes I, II and III are shown to have been posted at various correctional homes but the principle behind such posting had not been indicated in the brief note submitted by the state. Similarly, the Yerwada Central Prison was found not to have the service of a single Medical Officer Class I. The Bench asked the state how it proposes to deal with the problem of dearth of medical officers and para-medical staff at the various correctional homes. The state was directed to at least make efforts to fill up all the sanctioned posts and ensure zero vacancy qua such posts. The Bench said any omission or failure to deal with the concern at hand by the State in the near future may not be viewed lightly.

While noting the progress made in achieving compliance, the Bench further issued further directions:

  1. The authorities to whom the guidelines/ recommendations are issued by the High Power Committee in furtherance of the avowed object of reducing the problem of overcrowding in the correctional homes shall follow the same in letter and spirit.
  2. The second direction was with regard to devising ways and means to regulate the entry of staff in the correctional homes, since it was apprehended that such staff were the carriers of the virus and contributed to its spread among the inmates.
  3. It is revealed that pulse oximeter reading, temperature reading as well as tests for symptoms common to the infection in issue are required to be undergone by each staff. Such staff also has to wear appropriate masks, properly.
  4. The shall, as far as practicable, have all the prison staff vaccinated as early as possible.
  5. State shall not compel an inmate to obtain release either on interim bail or emergency parole, without his free will/volition.
  6. Ministry of Health and Family Welfare, Government of India has issued Standard Operating Procedure (SOP) on COVID-19 ~ Vaccination of Persons without Prescribed Identity Cards through CoWIN portal which stipulates that if a group of people is found not to have any of the 7 specified identity cards required for vaccination, such group of people may be registered on the CoWIN portal and further steps accordance with the SOP for vaccination. Accordingly, directions were issued to the State as well as the prison authorities not to insist on production of Aadhar Cards by correctional home inmates and to proceed for vaccination of those inmates, not having the specified identity cards, in the manner as laid down in the SOP without any delay.
  7. To ensure that the statutory mandate of the Maharashtra Prison (Prison Hospital) Rules, 2015 framed under the provisions of the Prison Act, 1894 are complied with as early as possible; also, if there be dearth of medical officers, a policy of rotation could be formulated and pressed into service.
  8. Noticing the news report regarding water shortage in Taloja correctional home, the Bench directed the authorities to take immediate steps to restore the water supply.

Lastly, observing the rising number of Covid positive inmates and jail staff, the Bench opined that much is required at the end of the prison authorities to arrest the spread of the pandemic in the correctional homes. Hence, the Court asked the state to take appropriate steps within the limits of its capacity.

[Suo Motu v. State of Maharashtra, 2021 SCC OnLine Bom 715, order dated 12-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Counsel for the State: Deepak Thakare and Akshay Shinde

Counsel for People’s Union for Civil Liberties (Intervenor): Mihir Desai with Vijay Hiremath, Devyani Kulkarni and Mihir Joshi

For Centre for Criminology and Justice (TISS): Professor Vijay Raghavan

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of NV Ramana, CJ and L. Nageswara Rao and Surya Kant, JJ has issued directions to contain the spread of coronavirus in the overcrowded prisons of India.

The Court said,

“… the requirement of decongestion is a matter concerning health and right to life of both the prison inmates and the police personnel working. Reduction of impact of Covid-19 requires this Court to effectively calibrate concerns of criminal justice system, health hazards and rights of the accused. From limiting arrests to taking care of Covid-19 Patients, there is a requirement for effective management of pandemic from within the prison walls so as to defeat this deadly virus.”

Anticipating the spread of Covid19 virus in overcrowded prisons, on 23.03.2020, the Court had directed the State Governments, Union Territories to constitute High Powered Committees to determine the class of prisoners who can be released on parole or on interim bail for appropriate periods. The High-Powered Committees were constituted in all the States, except a few.

On the basis of recommendations made by the High-Powered Committees, a large number of prisoners were released either on interim bail or on parole. Due to the reduction of the number of active cases, the released prisoners were directed to report back to prisons. Almost 90% of the prisoners who have been released last year have returned to prisons in February and March, 2021.

However, the unprecedented surge in Covid¬19 during the last few weeks has caused a serious concern about the spread of Covid-19 in overcrowded prisons where there is lack of proper sanitation, hygiene and medical facilities.

The Court, hence, directed that,

  1. There should be strict control and limit on the authorities from arresting accused in contravention of guidelines laid down in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, during pandemic.
  2. The rapid proliferation of the virus amongst the inmates of congested prisons is a matter of serious concern. The High-Powered Committees constituted by the State Governments/Union Territories shall consider release of prisoners by adopting the guidelines followed by them last year, at the earliest. Those States which have not constituted High Powered Committees last year need to do so immediately. Commissioner of Police Delhi shall also be a member of the High-Powered Committee, Delhi.
  3. The High Powered Committee, in addition to considering fresh release, should forthwith release all the inmates who had been released earlier pursuant to our order 23.03.2020, by imposing appropriate conditions. Such an exercise is mandated in order to save valuable time.
  4. Those inmates who were granted parole, pursuant to earlier orders, should be again granted a parole for a period of 90 days in order to tide over the pandemic.
  5. Prison occupancy must be updated on websites by all States as is being done in Delhi and should be adopted as good practice. Moreover, all the decisions of High-Powered Committees need to be published on respective State Legal Service Authorities/State Governments/High Courts websites in order to enable effective dissemination of information.

“The fight against the pandemic is greatly benefitted by transparent administration.”

The Court, however asked the authorities to be considerate of the concerns of the prisoners who might not be willing to be released in view of their social background and the fear of becoming victims of the deadly virus.

Further, the authorities are directed to ensure that proper medical facilities are provided to all prisoners who are imprisoned.

The spread of Covid¬19   virus should be controlled in the prisons by regular testing being done of the prisoners but also the jail staff and immediate treatment should be made available to the inmates and the staff. Further, levels of daily hygiene need to be maintained and sanitation required to be improved.

The Court also directed that appropriate steps shall be taken for transportation of the released inmates of the prisons, if necessary, in view of the curfews and lockdown in some States.

[IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS, 2021 SCC OnLine SC 376, order dated 07.05.2021]


Appearances before the Court by:

Attorney General KK Venugopal, Senior Advocate Colin Gonsalves

Case BriefsCOVID 19High Courts

Bombay High Court: The Division Bench of Nitin Jamdar and C.V. Bhadang, JJ., took suo motu cognizance of the rise on COVID-19 cases in the prisons of State of Maharashtra.

Instant Public Interest litigation was a Suo Motu PIL initiated Re: the rise in COVID-19 Virus cases in March-April 2021 in the prisons of the State of Maharashtra.

Newspaper reports, more particularly, Hindustan Times and Free Press Journal have highlighted an alarming rise in the COVID-19 cases in the prisons in the State of Maharashtra. It had been reported that almost two hundred prisoners amongst 47 prisons in the State have been tested positive as of 14th April 2021. For about 86 staff members working in the prisons have been tested positive.

Advocate General informed the Bench that the Court had taken up a similar cause in July 2020 where the measures taken by the State Government were noted and certain directions were issued.

“…reports show a sudden rise of the COVID-19 cases in the State prisons, indicating a need for the Court’s intervention to revisit the measures.”

Bench directed the Registry to register the Suo Motu (Criminal) Public Interest Litigation under Rule 4 of the Bombay High Court Public Interest Litigation Rules, 2010.

The petition will be taken up today.

Court directed respondents to place the following information on record:

  • Status of the COVID-19 cases, both the staff members and the inmates in the prisons in the State of Maharashtra.
  • Measures being taken and proposed to be taken to control the spread of the Virus in the prisons
  • Measures to de-congest the jails in the State of Maharashtra.

[High Court on its own motion v. State of Maharashtra, Suo Motu Public Interest Litigation No. 1 of 2021, decided on 16-04-2021]


Advocates before the Court:

Mr A.A. Kumbhakoni, Advocate General a/w. Mr Deepak Thakare, Govt. Pleader for the Respondent – State

Case BriefsHigh Courts

Delhi High Court: Anup Jairam Bhambhani, J., while addressing a bail application of a person alleged to have been involved in burning the shop during the Delhi Riots, stated that:

“..ordinarily this court would not have entered upon any discussion on the evidence at the stage of considering bail, however here is a case where a purported unlawful assembly of some 250-300 persons is alleged to have committed offences; of which the police have picked-up only two.”

What transpired the bail application?

Present bail application has been filed by a person who has been taken into custody under Sections 147, 148, 149, 427 and 436 of Penal Code, 1860, though he sought bail on the grounds that neither has he been named in the FIR nor is there any allegation in the FIR nor any other material collected during investigation which would have identified him as one of the perpetrators in the offences alleged.

Supplementary Statement of Complainant

The first statement of the complainant has not been filed on record. Though APP submitted that the same has been extracted in-extenso in the FIR itself.

Senior Counsel, Rebecca John — for the applicant

Submissions:

  • Complainant’s supplementary statement on which the State sought to rely did not in any manner identify or connect the applicant to the alleged offences.
  • No test identification parade was conducted of the applicant to get the complainant to identify him
  • Applicant is a resides 15-minutes away from the complainant’s shop; and therefore the applicant’s presence in the vicinity of the shop cannot be assumed, unless there is evidence to that effect, which there isn’t.

Another point that is to be taken note of is that the co-accused with the applicant has already been admitted to bail by Additional Sessions Judge.

APP, Hirein Sharma for the State — Opposing Bail

While opposing the bail he submitted that applicant had been identified by complainant; Constable Vikas and the CCTV footage of Rajdhani School also identifies the applicant — these hold a sufficient basis to hold him in judicial custody. Overall there were around 250 to 300 rioters in the area at the relevant time.

Complainant’s supplementary statement

Complainant only submitted that in the video and photos shown to him in the police officer’s cellphone, he had identified 2 persons who set fire to his shop and, if confronted, he will be able to identify other persons who were present.

According to the State’s status report dated 23rd may, 2020, no footage of the incident is available and the cameras installed by PWD in various parts of the area are still awaited.

Ct. Vikas in his statement submitted two names including the applicant’s name.

It is extremely important to note however, that in the complainant’s statement upon which the FIR was recorded, the complainant says that when the rioters vandalised his shop, he tele- phoned the police but the police telephones were going busy ; and that therefore he ran away to save his life. In the teeth of this statement of the complainant that there was no police help on hand, Ct. Vikas claims that he was present at the scene of the offence and in- ter-alia saw the applicant commit the offences.

Now another point with regard to CCTV footage that is to be noted is that the Rajdhani School and applicant’s shop are at a 400 meters distance with a 5 minute walk but on 2 different sides of a turn in the road. Therefore, it appears incredible that camera/s installed in the school would be able to ‘see’ the complainant’s shop.

Additional Status report of the State says that:

“…. Granting of bail at this early stage may send an ad- verse message in the society and such crimes should not be allowed to happen in the national capital. ….”.

(Emphasis supplied)

Decision of the Bench

“Prison is primarily for punishing convicts; not fo detaining undertrials in order to send any ‘message’ to society.”

Further the Court observed that remit of the Court is to dispense justice in accordance with law, not to send messages to society.

It is this sentiment, whereby the State demands that undertrials be kept in prison inordinately without any purpose, that leads to overcrowding of jails ; and leaves undertrials with the inevitable impression that they are being punished even before trial and therefore being treated unfairly by the system.

In regard to the present matter, Court cannot but notice that the offences under Sections 147/148/149 IPC arise in the context of an ‘unlawful assembly’, which Section 141 IPC defines as an assembly of 5 or more persons acting with unlawful purposes as defined in that provision ; while in the present case only 2 persons appear to have been charged.

On perusal of the above, Court admits the applicant to regular bail on following conditions:

  • Rs 50,000 Personal Bond; 2 sureties of the like amount from blood-relatives
  • Cannot leave NCR without Court’s permission
  • Shall present himself on every alternate Wednesday between 11 am and 11.30 am before the investigation officer.
  • Passport to be surrendered
  • applicant shall not contact nor visit nor threaten nor offer any inducement to the first informant/complainant or any of the prosecution witnesses. The applicant shall not tamper with evidence.

Court added to its observation that,

In this peculiar circumstance, this court was compelled to sift the evidence only prima-facie and limited to cursorily assessing how the police have identified the applicant from that large assembly of persons.

In view of the above discussion, bail application is allowed. [Firoz Khan v. State (NCT of Delhi), Bail Application No. 945 of 2020, decided on 29-05-2020]

Case BriefsCOVID 19Supreme Court

Supreme Court: A bench of SA Bobe, CJ and LN Rao, J has taken suo moto cognisance of overcrowding and infrastructure of prisons across the country in the wake of the coronavirus pandemic and has issued a notice to the Director General, Prison, and chief secretary of all states and union territories seeking their response by March 20 on steps taken for prevention of COVID-19. The court also asked all states and union territories to depute an officer on March 23 who could assist the court in the matter.

The bench also took suo moto cognisance of conditions in remand homes where juveniles in conflict with law are lodged. It observed that some states have taken steps for the pandemic but there are some states which have not taken appropriate measures.

The court also cautioned that mass gathering is a big problem and it can become a centre for the spread of coronavirus. The court also said it will issue reasons on why it has taken suo moto cognisance of the matter.

“there is an imminent need to take steps on an urgent basis to prevent the contagion of COVID-19 virus in our prisons. If prisoners are tested positive for the COVID-19 virus, immediate measures have to be taken for their quarantining and medical treatment.”

Stating that prisons can become fertile breeding grounds for incubation of COVID-19, the Court noticed that it was difficult to maintain social distancing as advised in places like prisons that are overcrowded. It said,

“Like most other viral diseases, the susceptibility of COVID-19 is greater in over-crowded places, mass gatherings, etc. Studies indicate that contagious viruses such as COVID-19 virus proliferate in closed spaces such as prisons. Studies also establish that prison inmates are highly prone to contagious viruses. The rate of ingress and egress in prisons is very high, especially since persons (accused, convicts, detenues etc.) are brought to the prisons on a daily basis. Apart from them, several correctional officers and other prison staff enter the prisons regularly, and so do visitors (kith and kin of prisoners) and lawyers. Therefore, there is a high risk of transmission of COVID-19 virus to the prison inmates.”

The Court also took note of the measures being taken by some States like Kerala and Delhi, where isolation cells have been set up to admit all the new prisoners before moving them to regular prison. Any prisoners suffering from COVID-19 symptoms will also be moved to these cells.

The Court, hence, issued notice in order to deal with the present health crisis arising out of Coronavirus (COVID 19) in the country, and further to suggest immediate measures which should be adopted for the medical assistance to the prisioners in all jails and the juveniles lodged in the Remand Homes and for protection of their health and welfare.

There are 1339 prisons in India, and approximately 4,66,084 inmates inhabit such prisons. According to the National Crime Records Bureau, the occupancy rate of Indian prisons is at 117.6%, and in states such as Uttar Pradesh and Sikkim, the occupancy rate is as high as 176.5% and 157.3% respectively.

According to the Union Health Ministry, there are 114 cases in India so far, including two people who died in Delhi and Karnataka and 17 foreigners. Ten patients have been discharged.

[IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS,  2020 SCC OnLine SC 320, order dated 16.03.2020]