After the spread of novel coronavirus was declared as pandemic, the top court on March 23 had taken note of the necessity of maintaining social distancing in prisons and had directed states to constitute High Powered Committee (HPCs) so as to release prisoners on interim bail or emergency parole considering the seriousness, gravity and length of term of sentence and any other similar factor.
A bench of Chief Justice S A Bobde and Justices A S Bopanna and V Ramasubramanian Monday took note of the plea of the NGO, National Alliance for People''s Movements (NAPM), that several prisoners despite the HPC''s orders have not been released from prisons in Maharashtra.
It also considered the submissions against the Bombay High Court''s order which had upheld the classification of offences and imposition of additional conditions by HPC for releasing prisoners.
"Now we will make an observation that high powered committee can order release depending on the situations," said the bench during the hearing conducted through video conferencing.
It said that a detailed order would be passed.
The NGO, through its National Convener Medha Patkar, has sought reconsideration of the cases of 17, 642 undertrial prisoners lodged in jails in Maharashtra for temporary release on interim bail.
The plea, filed through lawyer Vipin Nair, said the HPC had classified prisoners in the light of the recommendations of the Additional Director General of Police and Inspector General of Prisons and Correctional Homes in the meeting on May 11 and had suggested the releasw of 17,642 undertrial prisoners.
The NGO alleged spread of the pandemic in various prisons and as many as 10 prisoners have died of the COVID-19 and sought interim release or prisoners in the state who are charged under Special Acts NDPS and UAPA.
"Reconsider the cases of 11,000 convicted prisoners for temporary release on emergency parole pending the final hearing of the matter as per the classification of the prisoners done by HPC and pursuant to the decision of the Government of Maharashtra as announced by the Home Minister by way of press release dated March 26, if they are yet to be released," the plea said.
The NGO said the top court should seek a report from state authorities "as to whether the prisons in Maharashtra are able to maintain social distancing as per the norms prescribed by WHO".
It also sought a direction to the state "to conduct swab testing of all the prisoners and prison staff in those prisons in the state of Maharashtra where COVID-19 is detected."
In its appeal, the NGO said it was restricting the challenge to the High Court''s order only to the extent that it upheld the "classification for the prisoners for temporary release on emergency parole as well as interim bail" and the conditions for the release.
The Maharashtra government, in pursuance of the apex court''s order, had set up the High Powered Committee (HPC) which later directed that all persons, who are accused or convicted of offences punishable with imprisonment of 7 years or less, shall be released on interim bail or emergency parole as the case may be.
"However, the HPC held that the said directions shall not apply to the prisoners who are accused of offences under the Special Acts or the serious economic offences. The HPC further directed the jail authorities to favourably consider the release of the convicts who are undergoing imprisonment for offences punishable with less than 7 years imprisonment, on emergency parole," the plea said.
It said the HPC was required to modify its earlier decision in the light of the recommendations in the report submitted by Additional Director General of Police and others and direct temporary release undertrial prisoners who were accused of offences punishable with more than 7 years imprisonment, on a case to case basis.
"However, the HPC once again excluded certain offences under IPC as well as the offences under special Acts...," the plea said.
Exclusion of prisoners, being tried under special laws, from interim benefit of bails due to COVID-19 was arbitrary, it said.
"Moreover, a mere prescription of additional safeguards while granting bail cannot be a ground for total exclusion of all such prisoners who were accused of offences under the special Acts, particularly when almost the Central prisons and few district prisons in Maharashtra were overcrowded and, therefore, have become a cause of spread of coronavirus," it said.
The benefit of emergency parole is also denied to the prisoners convicted for serious economic offences, bank scams or offences under the special Acts like MCOC, PMLA, MPID, NDPS, UAPA etc. on the ground that those special Acts provide for additional restrictions on grant of bail in addition to those under CrPC, it said.
The HPC had expected, temporary release of 17,642 prisoners on accepting the recommendations in the report submitted by the empowered police officers and the a Maharashtra minister also announced decision of the Government to release 11,000 prisoners on emergency parole pursuant to the decision of the HPC, it said.
"However, out of 28,642 prisoners to be released, only 10467 prisoners are released till date, due to the additional conditions imposed by the HPC," it said. PTI MNL SJK ABA