17 April 2020

By: Vijay .K. Aggarwal, Advocate, Supreme Court& Shubham Shree, Senior-Partner, Atharva Legal

 Introduction

As part of the continuing efforts to curb the spread of Coronavirus (COVID- 19), the  Hon’ble Supreme    Court[i]  taking suo-moto cognizance of the health crisis arising out of COVID-19 with regard to Prisons and Remand Homes, directed[ii] that each State/Union Territory shall constitute a High-Powered Committee to determine the class of prisoners who can be released on parole or an interim bail for such period as may be deemed appropriate. The Court had observed that the State/Union Territory could consider the release of prisoners who have been convicted or are under-trial for offences for which prescribed punishment is up to 7 years or less. Similar steps have been taken by judicial forums of other countries as well[iii].

Constitution of High Powered Committee by Hon’ble High Court in furtherance of Hon’ble Supreme Court Order

Pursuant to the aforementioned direction by the Hon’ble Supreme Court of India, a High-Powered Committee[iv] was formed by The Hon’ble High Court of Delhi. The concerned committee met via video conferencing on 07^th April, 2020. After deliberating upon  multiple issues and pursuant to the prior decision dated 28/03/2020, the committee  further relaxed the earlier criteria and formulated a fresh category of prisoners who can be released on “interim bail”.

Categories of prisoners who have been considered for the grant of interim bail for 45 days includes Under trial prisoners (UTPs) and Remand Prisoners (pending filing of Charge sheets ) who are in custody for 15 days or more and have been booked under offences which prescribe a maximum sentence of 7 years or less.

The committee directed that following categories of prisoners may now be considered for grant of interim bail for 45 days:

• Under trial prisoners (UTPs), who are senior citizens more than 60 years of age and are in custody for six months or more, facing trial in a case which prescribes a maximum sentence of 10 years or less;
• Under trial prisoners (UTPs), who are less than 60 years of age and are in custody for one year or more, facing trial in a case which prescribes a maximum sentence of 10 years or less;
• Under trial prisoners (UTPs)/Remand Prisoners (with respect to whom, Charge sheets are yet to be filed), who are in custody for 15 days or more, facing trial in a case which prescribes a maximum sentence of 7 years or less[v];

It has further strong-willed that under-mentioned category of UTPs, even if qualifying under the aforementioned criteria, should not be considered:-

1. Inmates who are undergoing trial for intermediary/ large quantity recovery under NDPS Act;
2. Undertrial prisoners who are facing trial under Sections 4 & 6 of POCSO Act;
3. Undertrial prisoners who are facing trial for offences under Sections 376, 376A, 376B, 376C, 376D and 376E and Acid Attack;
4. UTPs who are foreign nationals;
5. Under trial prisoners who are facing trial under Prevention of Corruption Act (PC Act) / PMLA; and
6. Cases investigated by CBI/ED/NIA/Special Cell of Delhi Police, Crime Branch, SFIO, Terror related Cases, cases under Anti-National Activities and Unlawful Activities (Prevention) Act, etc[vi].

Earlier Decision by the Hon'ble High Court of Delhi releasing Under-Trial Prisoners:

 In the year 2011, in a Public Interest Litigation filed by Advocate Vijay Aggarwal before the Hon’ble Delhi High Court and argued by him party-in-person, the Division Bench chaired by the then Acting Chief Justice Sh. A. K. Sikri and Justice Sh. Rajiv Sahai Endlaw vide Order dated  25.04.2012[vii] allowed the release of the following categories of under trial prisoners:

• Prisoners undergoing trial for the offence of kidnapping, theft, cheating, arms act, counterfeiting, customs, under S. 326 IPC, under S. 324 IPC, riots and under S. 354 IPC who are in jail for a period of more than one year and
  • Prisoners undergoing trial for the offence of attempt to murder, who have spent in jail more than two years.

The following numbers of undertrial prisoners were covered in the above-mentioned order to be released on immediate bail[viii]:-

S. No.	Offence	From 12- 24 months	From 24-60 months	Above 60 months
1.	Attempt to murder	66	25	3
2.	Kidnapping & abduction	52	44	2
3.	Theft	61	17	0
4.	Extortion	3	2	0
5.	Grievous hurt	14	0	0
6.	Criminal breach of trust	12	10	0
7.	Cheating	44	4	0
8.	Counterfeiting	1	30	0
9.	Molestation	1	0	0
10.	Arms act	21	8	0



The Hon’ble Supreme Court of India had also taken note of the plight of the under-trial prisoners in R.D. Upadhyay v. State of A.P. and Ors. wherein[ix]itordered the release of several under-trial prisoners.

Had the directions issued by the Hon’ble Supreme Court of India in the aforementioned case been duly followed, the occupancy rate of prisoners in jails in Delhi would have been significantly lower.  The present COVID-19 situation has once again brought the attention of the nation towards the plight of undertrial prisoners.

Exclusion Of Inmates Facing Trial Under Prevention Of Money Laundering Act, 2002 (PMLA ) And Prevention Of Corruption Act, 1988(PC Act) requires a relook:

Undertrial prisoners facing charges under PMLA and PC Act, have been excluded from the ambit of consideration for release on interim bail during the present pandemic. However, the said decision requires a re-look, in view of the following facts and rationale:

(a)    No distinction and classification of offences should have done on the basis of Statues / Investigating Agencies:

An offence under PMLA, 2002 is punishable with maximum imprisonment of 7 years, and as per the judicial pronouncements in P. Chidambaram Vs. Directorate of Enforcement[x] and Sanjay Chandra vs. CBI[xi], (2012) 1 SCC 40, the gravity of an offence is determined by the severity of punishment.

The Supreme Court in Arnesh Kumar v. the State of Bihar and Another[xii] had laid down guidelines for arrest in an offence punishable with upto 7 years, which judgment had made no distinction between offences under Special Acts and other criminal offences. Court made it clear that the said directions shall apply to all cases where offence punishable with offence less than or up to seven years.

Even various offences under the Prevention of Corruption Act, either as per the pre- amended act or after the amendment to the Act in the year 2018, are punishable with maximum imprisonment of 7 years.

The Supreme Court has time and again held that for the purposes of bail, there can be no classification of offences into different categories. The same has been held in P. Chidambaram Vs. Directorate of Enforcement[xiii], wherein the Court observed:

“One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor, which is in addition to the triple test, or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provides so.”

In Nikesh Tara Chand Shah V. Union of India and Anr[xiv]. the Hon’ble Supreme Court of India reaffirmed as under:

In Emperor vs H.L. Hutchinson[xv] , the purpose of granting bail is set out with great felicity as follows: “The variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes.”

The Hon’ble Delhi High Court in the matter of Anil Mahajan vs Commissioner of Customs & Anr[xvi] has held as under:

(n) For the purpose of granting or refusing bail there is no classification of the offences except the ban under Section 437(1) of the Criminal Procedure Code against grant of bail in the case of offences punishable with death or life imprisonment. Hence there is no statutory support or justification for classifying offences into different categories such as economic offences and for refusing bail on the ground that the offence involved belongs to a particular category. When the Court has been granted discretion in the matter of granting bail and when there is no statute prescribing a special treatment in the case of a particular offence the Court cannot classify the cases and say that in particular classes bail may be granted but not in others. Not only in the case of economic offences but also in the case of other offences the Court will have to consider the larger interest of the public or the State. Hence only the considerations, which should normally weigh with the Court in the case of other non-bailable offences should apply in the case of economic offences also. It cannot be said that bail should invariably be refused in cases involving serious economic offences.

The Hon’ble Supreme Court in Sanjay Chandra vs. CBI[xvii] has also held that:

“… … No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trial or tamper with evidence. … …”

(b)   In ordinary times, a distinction is not to be made, whereas the pandamic situation  of COVID-19 is an extraordinary circumstance, which requires taking extraordinary measures for the safety of all concerned:

From the above, it is clear that while considering an application for bail no separate classification of an offence is to be made in ordinary circumstances; and an offence is classified only in terms of the length of the punishment irrespective of the amount involved, etc.

However, the present situation of COVID-19 required consideration of only interim bail for a specific period, during which extraordinary situation, extraordinary measures are taken across the country. In such a situation, separating certain undertrials merely on the basis of the offence alleged them, irrespective of the length of the punishment requires a relook.

(c)    An offence under Prevention of Money Laundering Act (PMLA), 2002 is based on the foundation of a “scheduled offence”, in which offence an Accused may already have been granted bail:

An offences under PMLA is based on the foundation of a “scheduled offence” and a situation may arise wherein  a person may be entitled to be released on interim bail in the Scheduled Offence (say for instance, the offence of cheating under Section 420 of Indian Penal Code, 1860) but at the same timebe disentitled to be released on bail for the PMLA, 2002 offence.

Another situation may arise wherein an offence on bail in a Scheduled Offence punishable with higher imprisonment than 7 years may be kept behind bars in the PMLA, 2002 offence.

A third situation may arise as well where an old-aged accused person is  not considered for release on interim bail even though they could have secured the bail under Scheduled Offences  

(d)  Furthermore, geriatric or sick undertrial prisoners, who are otherwise eligible to be released on interim bail, shall be denied the said right in view of the classification of offence:

Another situation may arise wherein geriatric or sick undertrial prisoners who are otherwise eligible for release on interim bail, would be deprived of the right to bail, as the Courts would be dissuaded from releasing them due to their exclusion  by the High Powered Committee.

There cases ought to be considered on case of case basis, despite their exclusion from the general category.

(e)    An offence under PMLA, 2002 and PC Act, 1988 is not a heinous offence, and cannot be equated with the offences against body:

The offence under Prevention of Money laundering Act, 2002 and Prevention of Corruption Act, 1988, is not a heinous offence against the human body, unlike offences such as murder, rape, etc.

Considering that inmates are released on bail due to the COVID-19 situation, it is clear that offences punishable with seven years imprisonment deserves to be released on bail. On a lighter note, COVID-19 does not certainly distinguish an inmate in terms of the offence committed by them.

(f)    The Supreme Court had never intended for distinguishing an accused on the basis of the Investigating Agency investigating the offence:

While considering cases for release on interim bail, accused persons being investigated by CBI/ED/NIA/Special Cell of Delhi Police, Crime Branch, SFIO, etc. have been excluded from consideration. However, with respect, it is clear that the Supreme Court never intended to distinguish an accused on the basis of the Investigating Agency investigating the offence, irrespective of the length of punishment prescribed for the alleged offence.

(g)   Even Convicted Persons are released on Parole, but undertrial prisoners who have the presumption of innocence are being distinguished:

Apart from considering undertrials for interim bails, even convicted persons have been considered for release on parole, who, hold no presumption of innocence in their favor.

Compared to convicted persons, the undertrial prisoners have a presumption of innocence in their favor. Considjustify-textering the same, undertrial prisoners who are not alleged to have committed a heinous offence deserve to be released on an interim bail during the present situation.

(h)   The risk that the prisoner will Flee Or Attempt to obstruct investigation or to influence witnesses or tamper with evidence is Minimal during the COVID-19 situation:

The offence of PMLA, 2002 requires three steps, that is, placement, layering and integration. However, as the whole country is facing lockdown, the banking system is not functioning normally and the movement in person is restricted. Hence there is minimal chances of the person released to repeat any offence while being on interim bail, as are the chances with respect to under-trial prisoners behind bars in relation to offences of rape or murder or of repeating the alleged offence or of influencing witnesses or tampering with record.

As the whole country is facing lockdown and in a quarantine stage for an indefinite period possibly,  there is no chance of repeating of the offence by the alleged accused, if released on emergency / interim bail. The risk to health in a confined space like prison is significantly higher when compared to being sequestered at home. Even otherwise, any apprehension of influencing witnesses or tampering with evidence can be taken care of by putting necessary restrictions and conditions.

(i)     Right to Speedy Trial in this Calamitous Time is virtually taken away and yet, inmates are not released on bail, though they are not alleged to have committed a heinous offence:

The Lockdown caused by the COVID 19, have led to a situation wherein only the most urgent matters are being considered by the Courts. In such a situation, the trials of undertrial prisoners is delayed and no evidence is being recorded. Effective implementation of right to speedy trial is rendered truly impossible in the current circumstances.

Yet, accused persons who are not alleged to have committed a heinous offence, are denied the relief of interim bail. Urgency has to balance the need for getting these prisoners out of jail and at the same time to protect the community.

(j)     An undertrial prisoner in jail during the lockdown phase doesn’t have any access to legal help nor can meet his family members  is also not having any legal access nor having access to family members:

The Lockdown caused by the COVID 19, has also created a situation wherein an undertrial prisoners is neither having access of lawyers nor having any access to family members. Meaning thereby that neither is an undertrial prisoner in a position to defend himself legally nor in a position to contact his family members, leading to situations to fear and anxiety.

(k)   An undertrial prisoner ought not to be kept behind bars as a taste of imprisonement for allegedly committing a separate category of offence, though he posing no other risk and though he is not having his right to a speedy trial

From the above, it is clear that an undertrial prisoner, if released on an Interim Bail does not pose any risk, of:

1. Repeating the offence;
   1. Absconding (Flight Risk);
   1. Tampering with evidence;
   1. Influence witnesses;

         Nor the undertrial prisoner is having his rights to  (i) speedy trial / investigation or (ii) access tolegal aid or (iii) access to family members / friends;

It has been stated from time to time by The Hon’ble  Supreme Court and various High Courts that a person should not be kept behind bars just to be given the taste of imprisonment. However, separating undertrials, who despite meeting the criteria of release on an interim bail have been denied the same merely because they fall under a separate category of offence conveys a message that they are given the taste of imprisonment for allegedly committing a separate category of offence.

(l)     Keeping a person behind bars additionally puts pressure on the Public Exchequer:

Another factor requiring consideration is that the economy has been hit very badly due to the extreme measures required to be taken by the Governments, both Central and State, and thus, there are requirement of funds during these times.

At the same time, it is to be noted that keeping a person behind bars puts pressure on the government exchequer. In Sanjay Chandra (supra), the Court observed that:

“The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible consideration. Equally important is the deplorable condition, verging on the inhuman, of our sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible.”

Similar view has also been taken in Gudikanti Narasimhulu and Others Vs. Public Prosecutor, High Court of Andhra Pradesh[xviii] ,

Undertrial prisoners who are not a flight risk nor pose a risk of tampering with evidence or influencing witnesses nor are alleged to have committed a heinous offence nor alleged to have committed an offence of maximum life imprisonment should be reconsidered for released on interim bail.

Since the Supreme Court did not make any distinction between the offences punishable under IPC and the Special Acts, such a classification made by the Committee requires a re-look, especially in light of the present critical circumstance, where right to life and health of vast numbers of under-trial prisoners is at stake.

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[i] https://www.scconline.com/blog/post/2020/03/23/coronavirus-covid-19-overcrowding-of-prisons-is-serious-concern- consider-releasing-prisoners-on-parole-bail-sc-to-states-uts/

[ii] In Re: Contagion of COVID 19 Virus in Prisons, Suo Motu Writ Petition (C) No. 1/2020, Order dated 23.03.2020

[iii] https://www.mercurynews.com/2020/04/06/state-courts-eliminate-bail-for-low-level-offenses-as-part-of-covid-19- response

[iv] https://www.livelaw.in/news-updates/high-powered-committee-headed-by-justice-hima-kohli-further-relaxes-criteria-for- emergency-bail-for-delhi-prisoners-154941

[v] ibid

[vi] ibid

[vii] Vijay Aggarwal Vs. UOI& anrs. ( Pet.in person) order dated 25.04.2012

[viii]   ibid

[ix] (1996) 3 SCC 422 in Para 3

[x] Criminal Appeal No. 1831/2019 in Para 21

[xi] (2012) 1 SCC 40

[xii] (2014) 8 SCC 273

[xiii] supra note 10

[xiv] 2018 (11) SCC (1)

[xv] AIR 1931 All 356 in Para 9

[xvi] 2000 CriLJ 2094,

[xvii] (2012) 1 SCC 40

[xviii] 1978 [1] SCC 240

This article was published at Live Law.in on 17 April 2020.