The High court of Andhra Pradesh recently issued a writ petition directing the prisoners and under trial convicts to be released on bail or on parole in view of the ongoing pandemic and by taking into consideration the overcrowding in prisons and the conditions.
The supreme court of India, in a Suo moto writ petition issued certain guidelines to curb overcrowding in jails and to prevent the spread of corona virus. For the purpose of this writ petition, the court referred to the constitution of a High- powered committee by the state government/ union territories. And this committee shall consider the release of some prisoners by adopting certain guidelines followed in a previous judgement.
FACTS OF THE CASE
A petition was put forward under article 226 of the Indian constitution for the Hon’ble court to issue a writ in the nature of Writ of Mandamus calling for the record of convicts and under trial prisoners in the state of Andhra Pradesh and to direct all the officials and judicial officers to release all the prisoners on interim bail as per the resolutions of the High- power committee. The committee, consisting of the senior officials held a meeting on 12.5.21 via Blue jeans app and resolved the issue.
A total of 13 resolutions consisting of various elements of prison upkeeping and with respect to the ongoing novel corona pandemic was put forward by the committee and it was brought to the notice of the Hon’ble chief justice through a letter by the member secretary, Andhra Pradesh state legal services authority. It is to be noted that the supreme court in Suo moto petition directed the state governments/ union territories to constitute a high- powered committee to determine the class of persons to be released on parole or on interim bail for a limited period.
The committee, before getting details of number of prisoners in the state, the committee has resolved to give a proposal to the Hon’ble chief justice for constituting a bench for issuance of general direction to all the Jail Superintendents regarding release of prisoners provisionally for a period of four (4) weeks on bail to those prisoners who are either convict or under trial for offences in which maximum sentence prescribed is not more than seven (7) years. However, this benefit can be given to only those under trials/prisoners who are not accused in more than one case and also are not accused in cases relating to offence under Section 376 IPC or offences under the POCSO Act. Regarding inmates of juvenile remand homes, information was furnished by the Director, Social Welfare, Ms. Krithika Shukla, that considering the limited number of such inmates and available space, social distancing can be maintained in the remand homes itself in view of such information furnished by the Government, the Committee presently resolved not to issue any direction in this line.
CONTENTION OF THE PARTIES
The petition was filed in view and concern of the ongoing pandemic. The lives and living conditions of the prisoners in the state of Andhra Pradesh were brought to light and court was moved to constitute a separate committee to decide upon releasing of prisoners in interim bail for a limited period of time in order to prevent overcrowding in the prisons and to curb the spread of the virus. The committee, by taking the living conditions of prisoners moved the court for the following:
- to implement the judgment of the Supreme Court in Arnesh Kumar vs. State of Bihar (supra) in its letter and spirit;
- To take steps for releasing under trial prisoners in view of the provision contained in Section 436-A of Cr.P.C;
- To give instructions to the Member Secretary, State Legal Services Authority, Andhra Pradesh, to implement all the directions/recommendations made by the committee in consultation with the Secretaries of different District Legal Services Committees and encourage panel lawyers/para legal volunteers to be in touch with the concerned Jail Superintendents/Jailors.
The learned Public Prosecutor for the State of Andhra Pradesh submits that nearly 114 out of 422 prisoners who were released earlier did not surrender till date. He further submits that while actual strength of jail in State of Andhra Pradesh is 8372, there are only 6905 persons and as such there is no congestion in the jails. He, however, submits that the Police are strictly following the guidelines laid down in Arnesh Kumar’s case.
OBSERVATION OF THE COURT AND JUDGEMENT
Taking into consideration the recommendations made by the High Powered Committee in its meeting held on 12.05.2021 and the order passed by the Division Bench, the Principal Secretary, Home Department were ordered to issue directions to the Director General of Police and to Station House Officers of State of Andhra Pradesh to scrupulously follow the directions of the Hon’ble Supreme Court in Arnesh Kumar vs. State of Bihar (supra) referred to above while arresting offenders in relation to the offences punishable with imprisonment for a term which may extend up to 7 years or less, but also direct release on interim bail all convicts and under trial prisoners who have been released on interim bail earlier pursuant to resolutions of the High Powered Committee on 26.03.2020 and 28.03.2020 and have been re-admitted to the prison, unless otherwise they are disqualified.
They were also directed towards the release of other convicts and under trial prisoners who are in custody in connection with offences punishable for a term which may extend up to 7 years or less with or without fine and qualified for such release as per the resolutions of the High-Powered Committee dated 26.03.2020 i.e., except those who either second offender or convicted or facing trial for the offence punishable under Section 376 I.P.C. and POCSO Act. Having regard to the difficulty expressed by learned Public Prosecutor in tracing out inter-state dacoits after their release, the accused who are either convicted or facing trial for the offence punishable under Section 395 I.P.C. (dacoity) or Section 397 dacoity with murder, shall not also be given the benefit of interim bail.
It was further decided by the court that the Principal District Judges should ensure that the Magistrates of the concerned areas shall make themselves available on being asked by the Superintendent of Jails of that areas for accepting the bail bonds of those who are entitled for release, which shall be to the satisfaction of the said Magistrates. It was further directed that the interim bail granted pursuant to this order, shall be for a period of 90 days. Further, an undertaking shall be taken before the release of the convict or under trial prisoner that he/she shall remain in home quarantine, for a period of 14 days in his home under the surveillance of the Doctor or the Police, as the case may be, and in case of any violation, the interim bail granted may be cancelled. Basing on the resolutions of the committee, the Court also requested the Principal Secretary, Home, and the Director General of Prisons to ensure adequate transport facilities to the convicts released, enabling them to return to their respective native places keeping in view of the covid guidelines and the restrictions imposed on the movement by the Government. In case of prisoners who are not willing to get themselves released, having regard to the social background and fear of becoming victims of virus, the jail authorities were directed to ensure that proper medical facilities are provided to all prisoners in case of they getting infected with covid. Further, the authorities were directed to take all possible steps to maintain hygiene and also the covid protocols in the prisons so as to prevent transmission of deadly virus amongst the inmates of the prison.
Social distancing was ordered to be maintained between Juvenile Remand Homes and the general public. The Director General of Prisons was instructed upload the prison capacity and occupancy in all the jails in the State of Andhra Pradesh. And it was decided that the above directions shall be remain in force for a period of eight weeks from today and the authorities concerned, including the Principal District Judges, shall forthwith take steps in implementing the directions given above. The list was to be released after six weeks.