Bombay High Court Asks High Power Committee: Whether ‘Not Releasing Prisoners/Undertrials Accused Under Special Enactments Is Discriminatory’

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The High Power Committee of the State of Maharashtra was asked to decide whether the distinction made between prisoners/undertrials accused under IPC and those under special enactments like NDPS, PMLA, UAPA etc…for release on parole due to COVID-19, is discriminatory. The High Power Committee was constituted in the wake of the pandemic to help the High Court decide which prisoners could be released on parole.

Advocate SB Talekar wrote to the Bombay High Court highlighting that the Supreme Court’s order did not distinguish between the two types of prisoners. Earlier, in a press release, the Home Minister Anil Deshmukh informed the general public that the State Government had taken a decision to release under-trial prisoners/prisoners convicted up to 7 years imprisonment. It was stated that approximately up to 11000 prisoners would be released on emergency parole, initially for 45 days by undertaking appropriate medical check, etc. Further, none of the prisoners in Maharashtra tested positive for coronavirus.

In the case of High Court of on its own motion v. the State of Maharashtra, in a criminal suo moto petition at its criminal appellate jurisdiction, the question of whether distinguishing between the two categories of prisoners was heard.

The Supreme Court’s Order

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In the wake of the pandemic, the Supreme Court asked each of the States to constitute a High Power Committee. The Order stated that,

“We direct that each State/Union Territory shall constitute a High Powered Committee comprising of (I) Chairman of the State Legal Services Committee, (ii) the Principal Secretary (Home/Prison) by whatever designation is known as, (ii) Director-General of Prison(s), to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate.  For instance, the State/ Union Territory could consider the release of prisoners who have been convicted or are undertrial for offences for which prescribed punishment is up to 7 years or less, with or without fine and the prisoner has been convicted for a lesser number of years than the maximum.

It is made clear that we leave it open for the High Powered Committee to determine the category of prisoners who should be released as aforesaid, depending upon the nature of the offence, the number of years to which he or she has been sentenced or the severity of the offence with which he/she is charged with and is facing trial or any other relevant factor, which the Committee may consider appropriate.”

Petitioner’s Arguments

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The learned counsel appearing for the petitioners stated that the High Power Committee, constituted by the Supreme Court’s orders discriminated between the categories of prisoners falling under IPC and other statutes.

Mr Thakare, learned P.P, added that in pursuance of the directions of the Supreme Court as also the statement as made by the Hon’ble Home Minister, Government of Maharashtra in the Press Note, as on date, 4060 prisoners are released on bail/interim bail/parole and that the State Government is in the process of releasing the others, as per the Press Release.

Thakare also submitted before the Court a new notice issued by the Supreme Court, clarifying its earlier issue wherein it had asked each State to constitute a High Power Committee to help the High Court decide which prisoners could be released on parole. The new order stated that,

“We make it clear that we have not directed the States/Union Territories to compulsorily release the prisoners from their respective prisons.  The purpose of our aforesaid order was to ensure that States/Union Territories to assess the situation in their prisons having regard to the outbreak of the present pandemic in the country and release certain prisoners and for that purpose to determine the category of prisoners to be released.

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We make it clear that the aforesaid order is intended to be implemented fully in letter and spirits.”

Mr Thakare’s Grievance

Mr Talekar’s grievance is regarding the following contents of the decision taken by the High Power Committee :

“(iv) The aforesaid directions shall not apply to undertrial prisoners or convicted prisoners 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 grant of bail in addition to those under CrPC) AND also presently to foreign nationals and prisoners having their place of residence out of the State of Maharashtra.”

In gist, the issues raised by him are about:

  1. The distinction made between the two categories of prisoners.
  2. The slow action on the State’s part in releasing the prisoners.

Court’s Decision

The learned judge stated:

  1. Since the State is already in the process of releasing a large number of prisoners, further directions need not be issued.
  2. The State Government may expedite such steps which are being taken, so that the orders of the Hon’ble Supreme Court, are implemented in letter and spirit.
  3. The issue raised by Thakare must be addressed immediately.

Further hearing of the petition is scheduled on 30th April 2020.


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