Bombay High Court
High Court On Its Own Motion vs The State Of Maharashtra And Ors on 20 April, 2021
Bench: G. S. Kulkarni
901-SMP.1.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
SUO MOTU PUBLIC INTEREST LITIGATION NO. 1 OF 2021
High Court on its Own Motion } Petitioner
versus
State of Maharashtra and Ors. } Respondents
WITH
INTERIM APPLICATION NO. 1300 OF 2021
(Not on Board)
IN
SUO MOTU PUBLIC INTEREST LITIGATION NO. 1 OF 2021
People's Union for Civil Liberties }
and Anr. } Applicants
In the matter between
High Court on its Own Motion } Petitioner
versus
State of Maharashtra and Ors. } Respondents
Mr.A.A.Kumbhakoni-Advocate General with
Mr.Deepak Thakare-APP for State.
Mr.Mihir Desai-Senior Advocate i/b. Mihir Joshi
for the applicants.
CORAM :- DIPANKAR DATTA, CJ &
G. S. KULKARNI, J.
DATE :- APRIL 20, 2021
PC :-
1. The second wave of the pandemic has struck the civil
society hard. The virus, which is the cause of the pandemic,
neither differentiates between men and women, young and
old, nor in respect of private homes or public places. Quite
naturally, COVID-19, has also made its presence felt in the
overcrowded correctional homes of the State. Taking judicial
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901-SMP.1.2021
notice of reports published in the print media of there being
an alarming rise in active cases affecting almost 200
correctional home inmates and 86 staff members, a
coordinate Bench of this Court proceeded to initiate this public
interest litigation, suo motu, and by its order dated 16th April
2021 called for information on the following points:
(i) Status of COVID-19 cases in respect of inmates as
well as staff members of correctional homes in the
State;
(ii) The measures being taken and proposed to be
taken to control the spread of the virus in the
correctional homes; and
(iii) Measures to de-congest the correctional homes.
2. Pursuant to such order, the State has filed an affidavit in
reply through Dr. Chhering Dorje, Special Inspector General of
Police (Prisons), Byculla, Mumbai. To such affidavit is annexed
documents depicting facts and figures pertaining to the
information sought for by the coordinate Bench by the said
order dated 16th April 2021. Indeed, perusal of such
documents raises a picture of concern. However, we record
the submission of Mr. Kumbhakoni, learned Advocate General
for the State of Maharashtra that appropriate steps are being
taken to contain spread of the virus amongst the correctional
home inmates and the staff members and that he would seek
directions from this Court to further the cause of such inmates
and staff members.
J.V.Salunke,PS
901-SMP.1.2021
3. At this stage, Mr. Mihir Desai, learned senior advocate
appears and submits that he had represented People's Union
for Civil Liberties in an earlier petition (PIL-CJ-LD-VC-2 of
2020), which was heard and disposed of by a coordinate
Bench on 2nd July 2020. Taking into consideration the plight of
the correctional home inmates and to ensure that spread of
the pandemic in the correctional homes can be checked, the
Bench had made various directions for the State to comply
with. People's Union for Civil Liberties seeks to intervene in
this public interest litigation and, accordingly, has filed an
application for intervention. It is Mr. Desai's submission that
since this is not an adversarial litigation, People's Union for
Civil Liberties may be allowed to intervene and assist the
Court in securing justice, not only to the inmates of the
correctional homes but also for the employees attached to
such homes.
4. The application for intervention stands allowed, since we
are of the firm view that the presence of People's Union for
Civil Liberties would enable us to deal with the crisis created
by the virus in the correctional homes appropriately.
5. We have perused the affidavit in reply of the State and
have also heard Mr. Kumbhakoni and Mr. Desai at some
length. In our considered opinion, the steps/measures taken
by the State to arrest the spread of the virus in the
correctional homes in terms of the order dated 2 nd July 2020
referred to above notwithstanding, implementation of
additional directions that we propose to pass hereunder could
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901-SMP.1.2021
pave the way for saving the lives of the inmates of
correctional homes and instill in them a sense of confidence
that the State, of which the judiciary is a part, is also
concerned about their well-being. We hasten to make this
observation since it is also reported in the print media today
that a convict serving death sentence in a correctional home
at Nagpur has breathed his last suffering from COVID-19.
Also, there seems to be an urgent need to safeguard the
interest of the staff deployed at the correctional homes who
must be working under trying circumstances thereat.
6. We have heard Mr. Kumbhakoni to submit that the
recommendations of the High Powered Committee (HPC),
constituted in terms of the order of the Supreme Court dated
23rd March 2020 in Suo Motu Writ Petition (C) No. 1 of 2020,
are in force even today and those inmates, who were released
last year pursuant to such recommendations, have not been
called back. Presently, since 35,124 undertrial prisoners and
convicts are lodged in various correctional homes all over the
State including new inmates who might have been convicted
subsequently or arrested in connection with investigation of
fresh FIRs, such of those new inmates who are covered by the
recommendations of the HPC could be released in terms
thereof and this could lead to decongestion of the correctional
homes. The submission of Mr. Kumbhakoni does not appear to
us to be without substance. Thus, we direct the respondents
to identify such of the inmates (undertrial prisoners/convicts),
who have been lodged in the correctional homes in the not
too distant a past and who are entitled to reap the benefits of
J.V.Salunke,PS
901-SMP.1.2021
the recommendations of the HPC dated 25th March 2020, 10th
May 2020 and 11th May 2020. Upon such identification, the
respondents shall extend fullest co-operation and assist in
arrangements being made so that the prima facie eligible
inmates could apply for bail before the appropriate criminal
courts and if bail were granted, we are sure that
implementation of this direction would help the respondents in
de-congesting the correctional homes.
7. We have further been informed by Mr. Kumbhakoni that
several applications for release on parole are pending before
the relevant department of the State Government and that if
such applications are favourably decided and release on
parole granted, as prayed, the same would go a long way to
reduce the number of inmates in the correctional homes.
Despite representing the State, he has prayed for a direction
to the respondents to process the case of those applicants
deserving release on parole in accordance with law. We
consider the prayer of Mr. Kumbhakoni to be fair and
reasonable and, accordingly, direct the Secretary (Home)
Department, Government of Maharashtra, the Director
General of Police, State of Maharashtra and the Director
General of Police (Prisons), State of Maharashtra to ensure
that the applications for release on parole are considered and
decided in accordance with law by the competent authority
without wasting any further time. Needless to observe, those
of the applicants who succeed should be immediately
released.
J.V.Salunke,PS
901-SMP.1.2021
8. Drawing our attention to the judgment and order dated
2nd July 2020 passed in the earlier writ petition of People's
Union for Civil Liberties, Mr. Kumbhakoni has submitted that
36 educational institution buildings had been taken over and
converted into temporary prisons; however, since the first
wave of the pandemic receded allowing the educational
institutions to open for imparting lessons to the students and
in some of such buildings classes were being held till a few
days back, the State could reclaim only 14 such buildings for
converting them into temporary prisons. According to him,
proposals for reclaiming the remaining 22 buildings are
pending before the respective District Collectors and he has
prayed for a direction for consideration of such proposals so
that the full complement of 36 buildings could be used as
temporary prisons as in the last year. We see no reason not to
accept the prayer of Mr.Kumbhakoni and, accordingly, direct
the Secretary (Home) Department of the Government of
Maharashtra to encourage all the District Collectors to
consider the proposals, if any, that are pending at their end
for converting such buildings of educational institutions for
temporary prisons to cope up with the crises created by the
virus. We also direct in this connection that these temporary
prisons could be converted into COVID Care Centres for
treating inmates suffering from the virus.
9. Mr. Kumbhakoni has next flagged the issue of testing of
the accused, who are remanded by the appropriate courts to
judicial custody. According to him, if such an accused
remanded to judicial custody is a carrier of the virus, the
J.V.Salunke,PS
901-SMP.1.2021
possibility of the infection spreading inside the correctional
homes cannot be ruled out and if spread, would lead to
disastrous consequences. To get rid of such consequences, it
has been submitted that it would be appropriate if only those
accused, who are not carriers of the virus, can be lodged in
the correctional homes upon being remanded to judicial
custody. Having regard to the menace that could possibly be
posed in the correctional homes should a carrier of the virus
be remanded to judicial custody, he submits that it would be
proper to make a direction facilitating lodging of those
accused who test negative in the correctional homes and
those testing positive in the temporary prisons/COVID Care
Centres. To achieve such an end, we direct that henceforth,
immediately upon arrest of an individual on the ground that
his complicity in a crime has transpired, the arresting police
officer and the officer in-charge of the police station to which
such arresting police officer is attached shall arrange for Rapid
Antigen and RT-PCR tests of such arrested accused and if
within a few days of receipt of the report he is remanded to
judicial custody, he shall not be lodged in the correctional
homes unless the report shows that the virus in him was not
detected, or that it is a negative report. In case the arrested
accused tests positive, he shall be lodged in the temporary
prisons/COVID Care Centres. We also direct that any
accused in excess of 45 years of age, upon arrest, shall be
sent for vaccination to the nearest vaccination centre without
fail.
10. Drawing our attention to para 23 of the affidavit-in-reply,
J.V.Salunke,PS
901-SMP.1.2021
Mr. Kumbhakoni has appealed to the Court to ensure that the
undertrial prisoners are not required to appear before the
criminal courts in person and that since most of the
correctional homes are connected with the courts through
video conferencing facility, such facility must be put to
optimum use. We record Mr. Kumbhakoni's submission that
most of the criminal courts and the correctional homes are
duly connected with video conferencing facility. We are not
unmindful that ensuring personal presence of an undertrial
prisoner before the relevant court would require handing over
of such prisoner by the jail authorities to the police authorities
for production and after such production, handing him over to
the jail authorities by the police authorities and that the
process involves substantial risk to the undertrial prisoner
being infected with the virus. The Supreme Court in Suo Motu
Writ Petition (C) No. 1 of 2020 by its order dated 23 rd March
2020 had duly sounded caution in the following words:
"Taking into consideration the possibility of
outside transmission, we direct that the
physical presence of all the undertrial
prisoners before the Courts must be stopped
forthwith and recourse to video conferencing
must be taken for all purposes."
We, accordingly, direct that the aforesaid direction shall be
implemented by all concerned until further orders.
11. Responding to our query, Mr. Kumbhakoni submitted on
instructions from Dr. Chhering Dorje, who is personally
present in Court, that in the last year during the pandemic the
inmates of the correctional homes were allowed to interact
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901-SMP.1.2021
with their family members/relatives once a week through
telephone calls and that the duration of each such call lasted 5
to 10 minutes. In view of our direction as above restricting
undertrial prisoners' personal presence in court, we direct the
prison authorities to consider the desirability of increasing the
frequency of interaction between the inmates and their family
members/relatives by allowing such facility twice a week.
12. Finally, we have been informed by Mr. Kumbhakoni by
referring to paragraph 18 of the affidavit-in-reply that
proposals of the prison authorities for creation of new prisons
in the State are pending and that the appropriate department
in the State Government may be directed to expedite its
decision. The facts and figures as made available through the
affidavit-in-reply sufficiently point to insufficiency and
inadequacy of the operational correctional homes to
accommodate all the undertrial prisoners/convicts. Even after
release of many inmates in terms of the recommendations of
the HPC, the current population is 35,124 as against the
capacity of 23,217. It is, therefore, high time that the
appropriate department of the Government looks into the
proposals as early as possible and conveys the green signal
for setting up new prisons considering the fact that the
present setup is woefully short of the requirements. It is
ordered accordingly.
13. Lastly, we also direct the State Government to
implement the directions contained in the judgment and order
dated 2nd July 2020 passed on the writ petition of People's
Union for Civil Liberties on adherence to all safety protocols to
J.V.Salunke,PS
901-SMP.1.2021
ward off the virus and to make sure, to the extent possible
within its means, that no life of an inmate or a staff member
is lost in the battle against COVID-19.
14. This public interest litigation shall be listed once again
on Thursday next (22nd April 2021) when Mr. Kumbhakoni
shall place before us particulars of the crime rate in the State
since the Government Order dated 13th April 2021 titled
"Break the Chain" was issued. We also call upon the
respondents to file an additional affidavit to support the
statements made in paragraph 24 of the affidavit-in-reply.
15. A copy of the affidavit-in-reply shall be made over to Mr.
Desai's advocate on record in course of the day. Any
suggestion that the People's Union for Civil Liberties wishes to
make on perusal of such affidavit shall be placed before us on
Thursday next.
(G. S. KULKARNI, J.) (CHIEF JUSTICE)
J.V.Salunke,PS
