Disposed

Shailesh Poddar v. State of Jharkhand

Jharkhand HC9 Oct 2020WPC/2371/2020

Case brief

AI extract

What is this about?

A PIL seeking writs for guidelines on prisoner release, inclusion of health factors, and transparency of decisions was disposed. The Court held that as the Supreme Court was already seized with the matter, this Court did not interfere, but directed the petitioner to approach the competent authority for grievance relief regarding virus spread, while ordering disclosure of High Powered Committee dec

What did the court decide?

Liberty granted to petitioner to agitate grievance before Principal Secretary (Home/Prison) for forwarding to High Powered Committee; Home Department directed to upload Committee decisions on website.

Shailesh Poddar Vs State of Jharkhand — Pension and Retirement Benefits | Jharkhand HC (2020)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(PIL) No.2371 of 2020

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------

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Shailesh Poddar, S/o Shri Kishori Lal Poddar, R/o Shaheed Jaswant Singh Marg, Lake Road, P.O. and P.S. Upper Bazar, Ranchi-834001

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.... …. Petitioner

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Versus

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1. State of Jharkhand

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2. Dept. of Home, Jail and Disaster Management (Home) Through its Director P.O. & P.S.-Ranchi, Distt.-Ranchi

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3. High Powered Committee Through its Chairman P.O. & P.S.-Doranda Distt.-Doranda

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4. Inspector General of Prison Through Inspector General P.O.& P.S.Ranchi Distt.-Ranchi

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5. Department of Health, Medical Education and Family Welfare, Through its Secretary Government of Jharkhand, Nepal House, P.O & P.S.Doranda, Distt.-Ranchi

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6. Department of Social Welfare, Women and Child Develop Through its Secretary Jharkhand Mantralaya, Project Building, HEC, P.O. Dhurwa, P.S. Dhurwa, Distt.-Ranchi .... .... Respondents

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CORAM : HON’BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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------ For the Petitioner : In Person For the Respondent-State : Mr. Rajiv Ranjan, Advocate General ------

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ORAL JUDGMENT 04/Dated: 09.10.2020

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The matter has been heard with the consent of learned counsel for

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the parties through video conferencing. None of the parties has raised any complaint regarding audio and visual quality.

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W.P.(PIL) No.2371 of 2020

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The instant writ petition is by way of pro bono publico filed for issuance of following direction:-

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(a) For a Writ in the nature of Mandamus directing upon the Respondent/s

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to form guidelines to determine which class of prisoners in jails/remand

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homes should be released on parole/interim bail for such period as may be appropriate based on the directions issued by Hon’ble Supreme Court of India in Suo Motu Petition (Civil) No.1/2020-In Re: Contagion of COVID-19 Virus in Prisons vide its orders dated 23.03.2020 and 13.04.2020.

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(b) For a Writ in the nature of Mandamus directing upon the Respondent/s to include factors such as age, comorbidity, pregnancy, disability in addition to the guidelines issued by Hon’ble Supreme Court of India in Suo Motu Petition (Civil) No.1/2020- In Re: Contagion of COVID-19 Virus in Prisons to release the prisoners in jails/remand homes on parole/interim bail for such period as may be appropriate.

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(c) For a Writ in the nature of Mandamus directing upon the Respondent/s to release such prisoners as prayed for in the above prayers suomotu by taking the assistance of the District State Legal Service Authority as may prisoners might be unaware due to lack inadequate and effective legal representation of such directions passed by this Hon’ble Court to apply through their own counsel.

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(d) For a Writ in the nature of Mandamus directing upon the Respondent/s to upload the minutes of meeting and final decision arrived on the prayer above and the earlier decisions of the High Powered Committee taken pursuant to the orders of the Hon’ble Supreme Court in the official website of Jharkhand High Court or any other accessible portal.

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(e) For a Writ in the nature of Mandamus directing upon the Respondent/s to increase its testing of Covid-19 in all prisons/remand homes in the State of Jharkhand.

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2. It requires to be referred at the outset that the writ petition has been filed on 21.08.2020 and the same was put up ‘For Orders’ on 03.09.2020.

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The writ petitioner, in person, has mentioned the instant case out of turn showing the urgency.

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This Court has directed the Office to list this case by allowing the motion for mention and in pursuant thereto, the matter was listed on 25.09.2020. On 25.09.2020, the petitioner, in person, has sought for adjournment and accordingly, the Office has been directed to list this case on 09.10.2020 and in pursuant thereto, the case has been listed for hearing.

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3. Learned counsel for the parties are ready for hearing of the matter today and accordingly, the matter has been heard. 4. The brief facts of the case as has been pleaded by the writ petitioner in the writ petition is for effective implementation of the guidelines formed by the Hon’ble Supreme Court in Suo Moto Writ Petition (Civil) No.1/2020 titled as ‘In Re: Contagion of COVID-19 Virus in Prisons’, wherein the Hon’ble Apex Court vide its order dated 23.03.2020 directed the States/Union Territory to adopt measures to decongest the prisons, which included releasing of under trial prisoners depending upon certain criteria such as ‘nature of offence’, ‘severity of the offence’, or any other relevant factor.

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The Hon’ble Apex Court again vide order dated 13.04.2020 has passed an order making an observation for implementation of the aforesaid guidelines in its letter and spirits.

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According to the writ petitioner, a High Powered Committee has been set up by the State of Jharkhand in pursuant to the order passed by the Hon’ble Supreme Court and has taken decision not to release the prisoners but to transfer them to other jails to decongest the prisons.

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According to the writ petitioner, the aforesaid decision of the Hon’ble

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Supreme Court was passed in the month of March, 2020 during that time, there was no spread of the virus in prisons but as per the newspaper reports, COVID-19(Coronavirus) has spread in some of the jails of the State of Jharkhand i.e., Birsa Munda Central Jail, Hotwar, Ranchi and Jail in the District of Pakur and as such, the instant writ petition has been filed in the present scenario for consideration of release of the prisoners, so that, unaffected prisoners may be saved from the effect of COVID-19 Virus.

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The writ petitioner has submitted, that the High Powered Committee has taken decision not to release the prisoners considering the situation of spread of virus sometime in the month of March, 2020 but due to spread of virus in jails, it is the need of the time to issue direction upon the High Powered Committee to release the prisoners from congested prisons taking into consideration the intent and object of the order passed by the Hon’ble Supreme Court to save the unaffected prisoners from the effect of COVID-19 Virus and as such, the present writ petition has been filed.

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He has demonstrated from the newspapers about the spread of COVID-19 Virus in the different jails situated in the territory of State of Jharkhand.

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5. Learned Advocate General, representing the State of Jharkhand, has submitted that the present Public Interest Litigation may not be entertained since the Hon’ble Supreme Court has already passed an order in Suo Motu Writ Petition (Civil) No.1/2020, wherein the State of Jharkhand is a party and if the writ petitioner has got any grievance, he may make appropriate application before the Hon’ble Supreme Court apprising this fact, as according to him, the writ petition is still pending before the Hon’ble Supreme Court.

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He further submits that High Powered Committee has taken decision for transfer of the prisoners from the jail which is overcrowded to such jails which is less crowded, as such, the intent and object of the order passed by the Hon’ble Supreme Court has been taken into consideration by the High Powered Committee and if any grievance the petitioner is having in the present scenario as has been submitted, he may bring into the notice of the concerned department for onward transmission of the grievance before the High Powered Committee for its consideration but he has not done so rather he has directly approach to this Court for modification of the order passed by the Hon’ble Supreme Court which is not permissible.

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6. We have heard the learned counsel for the parties and perused the order passed by the Hon’ble Supreme Court in Suo Motu Writ Petition (Civil) No.1/2020, wherein on 23.03.2020, the following order has been passed:

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“…….Looking into the possible threat of transmission and fatal consequences, it is necessary that prisons must ensure maximum possible distancing among the prisoners including undertrials.

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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. Also, the transfer of prisoners from one prison to another for routine reasons must not be resorted except for decongestion to ensure social distancing and medical assistance to an ill prisoner. Also, there should not be any delay in shifting sick person to a Nodal Medical Institution in case of any possibility of infection is seen.

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We also direct that prison specific readiness and response plans must be developed in consultation with medical experts. “Interim guidance on Scaling-up COVID-19 outbreak in Readiness and Response Operations in camps and camp like settings” jointly developed by the International Federation of Red cross and Red Crescent (IFRC), International Organisation for Migration (IOM), United Nations High

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Commissioner for Refugees (UNHCR) and World Health Organisation (WHO), published by InterAgency standing Committee of United Nations on 17 March, 2020 may be taken into consideration for similar circumstances. A monitoring team must be set up at the state level to ensure that the directives issued with regard to prison and remand homes are being complied with scrupulously.

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The issue of overcrowding of prisons is a matter of serious concern particularly in the present context of the pandemic of corona virus (COVID-19).

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Having regard to the provisions of Article 21 of the Constitution of India, it has become imperative to ensure that the spread of the Corona Virus with the prisons is controlled.

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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, (iii) 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 that the maximum.

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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 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.

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The Undertrial Review Committee contemplated by this court IN re Inhuman Conditions in 1382 Prisons, (2016) 3 SCC 700, shall meet every week and take such decision in consultation with the concerned authority as per the said judgment.

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The High Powered Committee shall take into account the directions contained in para no.11 in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

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Some States/Union Territories who have not filed responses may file the same within three weeks from today.

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List the matter after three weeks.”

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It is evident from the aforesaid order passed by the Hon’ble Supreme Court in Suo Motu Writ Petition (Civil) No.1/2020 that the State

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of Jharkhand has put its appearance and presented its case. Upon the direction of the Hon’ble Supreme Court, steps were taken in order to restrict the spread of COVID-19 Virus.

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Further, it appears from the order that steps have been taken by the State of Jharkhand to decongest the prison by transferring prisoners from the congested prisons to other prisons where the number of prisoners is low.

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The Hon’ble Supreme Court, after taking into consideration the different stand put-forth by the States including the State of Jharkhand has issued direction upon the State/Union Territory to 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, (iii) 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.

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It has been left open to the High Powered Committee to determine the category of prisoners who should be released depending upon the nature of offence, the number of years to which he or she has been sentenced or the severity of the offence with which he/she has been charged with and is facing trial or any other relevant factor, which the committee may consider appropriately.

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Further, it has been directed for implementation of the aforesaid order in its letter and spirit vide order dated 13.04.2020. 7. It is admitted fact herein that pursuant to the direction of the Hon’ble Supreme Court in Suo Motu Writ Petition (Civil) No.1/2020, High Powered Committee has been constituted as also steps have been taken in terms of the order by convening meetings.

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At the moment, the grievance of the writ petitioner is that COVID-19 Virus has spread in some of the jails, therefore, the High Powered Committee is to consider this aspect of the matter and take decision for release of the prisoners from the congested prisons but such action has not been taken, therefore, the present writ petition has been filed.

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Admittedly, before approaching to this Court, the writ petitioner has not approached any authority in order to bring subsequent situation, as has been pleaded herein, to be placed before the High Powered Committee for its consideration in accordance with law rather has directly approached to this Court by invoking the jurisdiction conferred under Article 226 of the constitution of India.

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9. According to our considered view, when the Hon’ble Supreme Court is already in seisin of the matter and directions have been issued to restrict the spread of COVID-19 Virus in the prisons and for that purpose, a High Powered Committee has been constituted by the State of Jharkhand, wherein decision has been taken for transferring the prisoners from the congested prisons to the decongested prisons, it would not be proper for this Court to issue direction upon the High Powered Committee, rather it was incumbent upon the writ petitioner to approach before the competent authority of the State Government by putting forth the aforesaid grievance which is the subject matter of the instant Public Interest Litigation for its consideration.

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10. This Court, after taking into consideration the aforesaid aspect of the matter, deem it fit and proper to dispose of the writ petition by giving liberty to the writ petitioner to agitate the aforesaid grievance before the Principal Secretary (Home/Prison), one of the member of the High Powered Committee and if such grievance is raised before the Principal

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Secretary (Home/Prison), the said grievance will be forwarded forthwith before the High Powered Committee for its consideration, in accordance with Law.

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11. It is made clear that this Court has not expressed its mind on the merit of the issue.

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12. At this juncture, the writ petitioner has submitted that the direction may be issued upon the Home Department of the State of Jharkhand to upload the decision of the High Powered Committee for knowing the people at large.

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13. Learned Advocate General has submitted that any decision which is to be taken by the High Powered Committee in future, shall be uploaded on the website.

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14. In view of such assertion, we hereby direct the Home Department of the State of Jharkhand to upload the decision which is being taken by the High Powered Committee time to time on its website for the knowledge of the people in general.

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15. With the aforesaid observation and direction, the instant writ petition stands disposed of.

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(Dr. Ravi Ranjan, C.J . )

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(Sujit Narayan Prasad, J.)

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Rohit/N.A.F.R.

Shailesh Poddar v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

Shailesh Poddar v. State of Jharkhand

Case brief

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