Mumbai: Contrary to the Supreme Court’s order to decongest jails in India and release incarcerated persons on bail or parole to contain the spread of the novel coronavirus in the prisons, the Bombay high court has observed that bail applications cannot be treated as an “urgent judicial matter” at the time of a pandemic.
In an ex-parte hearing of a bail application filed in a case of cheating, the single bench judge Anand Badar on April 3 observed that the term ‘urgent’ is subjective and it doesn’t apply for those in jail and seeking bail.
The observation made before adjourning the case for hearing until after the lockdown is lifted says:
“Because of the lockdown declared by the State, as mentioned in the foregoing paragraph, all offices, including offices of the Court, are virtually closed. By deputation of bare minimum staff extremely urgent business is being transacted. Processing a bail order and consequent release of an accused/convict, as such, virtually amounts breaching the order of complete Lockdown. Putting several employees and officers to work, may put them to the risk of contracting COVID-19.
In this view of the matter, I am of the considered opinion that unless extremely urgent situation for entertaining regular bail application is pointed out, mere fact that the accused is undergoing either pre-trial or post-trial detention does not warrant entertainment of the regular bail application on the occasion of Lockdown declared by the State.”
The 16-page order passed by Judge Badar doesn’t dwell on the nature of the offence the applicant is in prison for, but focuses on the several rounds of work that go into the release of the prisoner – from granting bail to release. “Unless extreme emergent case is made out, they (judicial and jail officials) cannot be asked to spend their time in defending regular bail applications,” the court observed.
A high court passing an ex-parte order on a bail application is very rare. The applicant, Sopan Lanjekar, was not represented by a lawyer and had sought bail in a case registered last year by the MHB police station for cheating (section 420 of the Indian Penal Code) and criminal breach of trust by a public servant (section 409 of the IPC). From the order, it is unclear if any efforts were made to keep Lanjekar present before the court to argue his bail application.
While rejecting the application, Judge Badar has observed that since the state and district borders have been sealed across the country, even if Lanjekar is released on bail, he might not be able to reach his destination. “In this situation, the prisoner by remaining inside till completion of the lockout period will help and save the lives of many others. But in case he is released on bail at this time, he will endanger his own life along with the life of many others.”
This order was issued days after the Supreme Court (on March 23) asked state governments to make arrangements for the release of as many prisoners as they can to ensure the jails don’t remain overcrowded. “Looking into the possible threat of transmission and fatal consequences, it is necessary that prisons must ensure maximum possible distancing among the prisoners including undertrials,” a bench headed by Chief Justice S.A. Bobde and comprising Justices L. Nageswara Rao and Surya Kant had observed.
The apex court had directed every state to constitute a high-level committee comprising of the state home secretary and state legal services authority chairperson to decide on the categories of prisoners to be released on bail and parole. As a matter of example, the court had said that the committee could consider releasing all those who are booked for offences which attract a maximum punishment of seven years or under. The decision, the court said, was entirely the high-level committees’.
Days before the Bombay high court’s order, the Jaipur bench of the Rajasthan high court had passed a similar order observing that, “At the time when there is a complete lockdown the bail applications, Appeals under SC/ST Act, applications for suspension of sentence cannot be considered to be of extreme urgency.”
The Supreme Court on April 3, however, put an interim stay on the Rajasthan high court’s order. “There shall be an interim stay of the directions in paragraphs 15 and 16 of the order dated 31.03.2020,” the Supreme Court’s order passed through video conferencing said. In both para 15 and 16, the Rajasthan high court has issued orders to the court’s registry to not list bail and appeals under the atrocities act as a matter of extreme urgency. The order also directs the registry to not list bail and appeal applications for suspension of sentences under the extremely urgent category.
The same day as the Supreme Court stayed the Rajasthan high court’s order, its counterpart in Bombay passed an identical order.
The high-level committee in Maharashtra set up following the Supreme Court order to decongest prisons have already decided to exclude undertrial prisoners who are 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 bail, in addition to those under the Code of Criminal Procedure) and also presently to foreign nationals and under trial prisoners having their place of residence out of the Maharashtra. This blanket exclusion was made without considering the health condition of the prisoner and also the possible threat to her life at the time of a pandemic.
This decision to exclude those booked under the special acts have been challenged by two undertrial prisoners lodged at the Aurangabad prison. Calling these distinctions “artificial”, the petitioners have claimed that the prisoners are highly vulnerable and staying in the jail during such a pandemic can prove fatal to their lives.
In the petition filed through lawyers Pradnya Talekar and Madhavi Ayyappan, the incarcerated persons have argued that such exclusionary order frustrates the very purpose of the Supreme Court’s order.
The petitioners are booked under the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act and the maximum punishment, if convicted, would be six years. However, according to the high-power committee’s decision, they are not eligible for a parole since they are booked under a special act.
As per the February data, 36,713 persons are lodged at different prisons across the state. Along with the existing inmates, daily arrests have been still continuing and several other persons are getting sent to these prisons under judicial custody.
The Maharashtra government was one of the first ones to declare that it would release around 11,000 prisoners. Over ten days since the order, the state has managed to release less than 3,000 persons from across Maharashtra prisons. Although the high-level committee was directed to safely drop the released prisoners to her home, no such efforts have been made. Several prisoners who have been released were stranded not knowing how to get to their houses outside the district limits.
Judge Badar in the order has observed, “The entire law enforcing machinery is focusing on implementation of the lockdown throughout the state by virtually remaining on the field for 24 hours. This is being done for saving the entire nation from the pandemic. In such a situation, it is not advisable to insist the state to depute police officers for instructing the prosecutors by undertaking travel to the office of the public prosecutor and attending the court by leaving their territorial jurisdiction where their presence in such a situation is a must.”