Thursday, February 22, 2024

Differentiating Between Crimes Under IPC And Special Laws For Parole? Isn’t It Discriminatory?: Bombay HC

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The Bombay High Court has sought to know from the high powered committee to oversee the release on parole of undertrials due COVID19  the criteria that was adopted to differentiate between undertrials charged under the IPC and those under specific laws like MCOCA, PMLA NDPS and if such differentiation wasn’t discriminatory.  

The High-Power Committee was set up by the state government on the directions of Supreme court for the release of prisoners to prevent overcrowding amid COVID-19. 

One of the Advocate of Bombay High Court has referred to the Supreme court directions issued on 23rd March, 2020 in Suo motu writ petition considering the situation of overcrowding in prisons in the context of the outbreak of Corona Virus, which is stated below: –

“We direct that each State/Union Territory shall constitute a High Powered Committee comprising of (i) Chairman of the State Legal Services Committee, (ii) the Principal Secretary (Home/Prison) by whatever designation is known as, (ii) Director General of Prison(s), to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate. For instance, the State/ Union Territory could consider the release of prisoners who have been convicted or are undertrial for offences for which prescribed punishment is up to 7 years or less, with or without fine and the prisoner has been convicted for a lesser number of years than the maximum. 

It is made clear that we leave it open for the High Powered Committee to determine the category or prisoners who should be released as aforesaid, depending upon the nature of offence, the number of years to which he or she has been sentenced or the severity of the offence with which he/she is charged with and is facing trial or any other relevant factor, which the Committee may consider appropriate.”

The advocate said that the High-Power Committee so constituted in their decision of releasing prisoners has made a distinction between undertrials/convicts under the Indian Penal Code and those falling under the special enactments like MCOCA, PMLA, MPID, NDPS, UAPA, etc and he has made multiple representations to the Committee regarding the same.

Thereafter, in pursuance to the directions of the Supreme Court, the Home Minister, Government of Maharashtra issued a Public Notice/Press Note stating that Sate Government has taken a decision to release under-trial prisoners/prisoners convicted up to 7 years imprisonment and approximately up to 11000 prisoners would be released on emergency parole, initially for 45 days by undertaking appropriate medical check, etc.

Ld. Public Prosecutor has informed the High Court that he received a letter addressed to him by the Additional D.G (Prisons), in which it was mentioned that none of the prisons in the State of Maharashtra, there is a person affected with Corona Virus and so far 4060 prisoners are released on bail/interim bail/parole and the State Government is in the process of releasing the others.

In view of the above-mentioned directions issued by the Supreme court, another order was passed by the Apex court on 13thApril, 2020 for which the relevant paras are: –

“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 that States/Union Territories to assess the situation in their prisons having regard to the outbreak of the present pandemic in the country and release certain prisoners and for that purpose to determine the category of prisoners to be released. 

We make it clear that the aforesaid order is intended to be implemented fully in letter and spirits.”

On the contentions made by the advocate during the proceedings that the High-Power Committee has made a distinction between the prisoners in their decision in spite of no such directions of the Supreme Court in the order passed on 23rd March, 2020 to classify the prisoners by differentiating them on the basis of the enactments, the Bombay High Court had asked the advocate to further submit that the decision of the High-Power Committee is a discrimination qua the prisoners/under-trials, in as much as, two categories of prisoners; one falling under the IPC and others falling under the Special Enactments, is brought about.

The decision of the High-Power Committee: –

“(iv) The aforesaid directions shall not apply to undertrial prisoners or convicted prisoners booked for serious economic offences/bank scams and offences under Special Acts (other than IPC) like MCOCA, PMLA, MPID, NDPS, UAPA, etc. (which provide for additional restrictions on grant of bail in addition to those under CrPC) AND also presently to foreign nationals and prisoners having their place of residence out of the State of Maharashtra.”

Therefore, the High Court asked the High-Power Committee to consider the representation made by the advocate, as early as possible for the said issue.  

“In the aforesaid circumstances, I am of the opinion, that as the State Government is already in the process of releasing 11000 prisoners by following the appropriate procedure, it is not necessary to issue any SQ Pathan 6/7 SMP.ST.1.20.doc immediate directions. However, it is clarified that the State Government may expedite such steps which are being taken, so that the orders of the Hon’ble Supreme Court, are implemented in letter and spirit”, held by the court.

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