The Supreme Court bench of Justice Vineet Saran and Justice B.R. Gavai on Friday issued notice in a plea seeking parole for an undertrial due to Covid-19 spread in Uttarakhand prisons.
Advocate Rishi Malhotra appeared on behalf of the petitioner and submitted that to control the spread of coronavirus within the prison a high-powered committee was constituted in Uttarakhand by the order of Apex Court to ensure that if there is overcrowding, then prisoners shall be released on bail to prevent the spread of the disease.
Malhotra argued that the Uttarakhand high-powered committee held a meeting to discuss this issue, but they didn’t have any discussion on undertrials. He argued that undertrials, who are in prison for a less serious offence, should be released on bail.
The bench ordered the petitioner to make representation before the high-powered committee and the bench also directed the committee to dispose of the representation of the petitioner within 10 days.
The plea filed in this matter states that the committee passed an order dated March 26, 2020 wherein it adopted the parameters that except in the following matters, in all other offences relating to convicts/undertrials, the benefit of the Supreme Court orders may be given. However, the exceptional cases were:-
1. POCSO Act
2. Sexual offences committed against Women
3. Rioting and waging war against State.
4. Kidnapping of children
5. Anti-corruption
6. Commercial and economic offences
7. Gangsters Act
8. NDPS if the quantity is more than small quantity.
However, the anomalous situation was created wherein despite the clear direction and concern shown by the Apex Court, the said committee departed from the said exception and directed that such prisoners including undertrials, who do not come within the exceptions mentioned but are convicted or facing trials in offences that carry a sentence of more that 7 years, will not be entitled to parole or interim bail.
The plea pointed out two flaws, firstly, whether the category of undertrials can be equated with convicts, and secondly, the rationale behind the drawing of line of distinction between cases where the punishment prescribed is more than 7 years.
The plea said that the petitioner is an undertrial who is facing trial for alleged offences for which punishment can be awarded for more than 7 years if proved by the prosecution. The fallacy is no one knows what would be the fate of his trial and even if it is to be assumed that petitioner is convicted, then it is still uncertain about the sentence the trial court may award.
“Therefore, to deny the benefit of parole to the petitioner would not only be in total contravention of his Constitutional rights as envisaged under Article 21 of the Constitution but also a clear violation of the basic intent of the Supreme Court orders which was to decongest the prisons to curb spread of Coivd-19 in jails,” the plea reads.