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The Supreme Court had directed that all convicts and undertrials, released during the Covid-19 pandemic to decongest jails, should surrender within a fortnight. The top court also dismissed an application filed by a convict for considering the parole granted during the pandemic as part of his actual sentence since it was involuntary.

Legally, it is an unusual case. A high-powered committee was constituted in Delhi in March 2020 to determine the category of prisoners—convicts and undertrials—to be released on emergency parole and interim bail. The Covid-19 pandemic had raised concerns of overcrowding of jails, so a number of convicts and undertrials was released during the pandemic in a move to decongest jails. However, on March 24, 2023, a Division Bench of the Supreme Court, comprising Justices MR Shah and C T Ravikumar directed that all convicts and undertrial prisoners, who were released during the pandemic, must surrender within 15 days. The Bench was reacting to an application filed by the Director General (Prisons), New Delhi, seeking appropriate directions from the Court for surrender of prisoners/inmates who had been released on emergency parole or interim bail, according to the recommendations of the high-powered committee.

In the first phase in 2020, a total of 4,683 (1,184 convicts and 3,499 undertrials) prisoners were released. Later, responding to the unprecedented surge in Covid-19 cases during the second wave, the top court by an order on May 7, 2021 directed the high-powered committee to grant parole of 90 days to all inmates who had been released subject to the imposition of appropriate conditions. The members of the committee had decided the category of prisoners to be considered for grant of interim bail for 45 days on a personal bond, through which approximately 1,500-1,700 undertrial prisoners would benefit, further easing the jail population. The categories were:

  • Undertrial prisoners facing trial for a case under Section 302 IPC and in jail for more than two years with no involvement in any other case.
  • Undertrial prisoners facing trial for offence under Section 304 IPC and in jail for more than one year with no involvement in any other case.
  • Undertrial prisoners facing trial in a case under Section 307 or 308 IPC and in jail for more than six months with no involvement in any other case.
  • Undertrial prisoners facing trial/remand in theft cases and in jail for more than 15 days.
  • Male undertrial prisoners (above 65 years of age) facing trial in a case except the ones excluded hereunder and in jail for more than six months with no involvement in any other case.
  • Female undertrial prisoners (above 60 years of age) facing trial in a case except the ones excluded hereunder and in jail for more than six months with no involvement in any other case.

On July 16, 2021, the Court observed that the prisoners who had already been released from jail should not be asked to surrender before the prison authorities till further orders. Almost a year later in June 2022, the Court granted 15 days time to the prisoners/applicants/petitioners to surrender before the prison authorities. 

The Director General (Prisons) sent a letter, dated September 7, 2022, to the Member Secretary, Delhi State Legal Service Authority (DSLSA), Patiala House Court, New Delhi, seeking clarification regarding surrender of prisoners who were released on the recommendations of the high-powered committee. In its reply, DSLSA stated that no further directions had been issued by the Authority with respect to similar matters pending in Delhi, and therefore, the Authority cannot give any further clarification regarding the fate of undertrial prisoners/convicts released from the Delhi prisons pursuant to the recommendations filed by the high-powered committee.

“It is not in dispute and cannot be disputed that all those undertrial prisoners/convicts were released on interim bail/emergency parole taking into consideration the overcrowding in the prisons and to prevent the spread of COVID-19 virus among prisoners in overcrowded prisons. All those undertrial prisoners/convicts therefore were not released on merits but were released on the aforesaid ground alone. Therefore, now when the COVID-19 situation has now been normalized, all those prisoners/inmates/ undertrial prisoners/convicts who are/were released on emergency parole/interim bail have to surrender before the concerned prison authorities…” the top court said in its order.

The Rajasthan High Court in the case of Manu vs State of Rajasthan (2021) dismissed a public interest litigation petition seeking to extend the benefit of parole to murder convicts, stating that the high-powered committee is to frame the necessary policy for the release of prisoners on parole due to the Covid-19 pandemic in accordance with the Supreme Court directions.

The Bombay High Court in the case of Pintu vs The State of Maharashtra (2020) ruled that a prisoner convicted under the Protection of Children from Sexual Offences Act is not entitled to the benefit of emergency (Covid-19) parole.

In March this year, the Supreme Court dismissed an application filed by a convict for consideration of the parole granted during the pandemic as part of his actual sentence since the same was involuntary. 

According to the Delhi prisons department, 549 undertrial prisoners and 256 convicts returned to all 16 jails of Tihar, Rohini and Mandoli prisons till April 7, 2023.

In a recent decision, the Supreme Court said that for the purpose of considering actual imprisonment, the period of parole is to be excluded. In January this year, a bench of Justice Shah upheld a Bombay High Court order that said that periods of parole availed by a prisoner cannot be counted as part of the duration of sentence while considering the minimum imprisonment of 14 years required for premature release from prison under the 2006 Goa Prison Rules. The Court also made it clear in its order that under Section 55 of the 1984 Prisons Act, release on parole is not counted while computing the sentence period. All convicted persons, except foreigners and those serving a death sentence, may be eligible for emergency parole or custody parole provided in emergency situations for 14 days for reasons like death or marriage of close family members, provided that emergency parole cannot be extended. A prisoner shall not be released on regular or emergency (custody) parole for a period of one year after the expiry of his last emergency or regular parole except in case of death of his nearest relatives. 

The grant of parole in India is administered by the rules made under the Prison Act, 1894, and Prisoner Act, 1900, and each state in India has its own parole rules. There are no sections in the Code of Criminal Procedure, 1973, that deal with parole. 

—By Shivam Sharma and India Legal Bureau

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