Full Judgment Text
2021:DHC:1653-DB
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 19.05.2021
% W.P.(C) 4936/2021 and C.M. Nos.15154/2021 & 16371-73/2021
RK GOSSAIN ..... Petitioner
versus
GOVERMENT OF NCT OF DELHI & ORS. ..... Respondents
+ W.P.(C) 5153/2021
KANHAIYA SINGHAL & ANR. ..... Petitioners
versus
GOVERNMENT OF NATIONAL CAPITAL
TERRITORY DELHI & ORS. ..... Respondents
+ W.P.(C) 5033/2021
SHOBHA GUPTA ..... Petitioner
versus
UNION OF INDIA THROUGH MINISTRY OF
LAW AND JUSTICE AND OTHERS ..... Respondents
+ W.P.(CRL) 7/2021 and CRL.M.A. 45/2021, 6706/2021 & 6987-
88/2021
INDIA UNDERTRIAL PRISONER
SUPPORT FORUM ..... Petitioner
versus
STATE (N.C.T.) OF DELHI ..... Respondent
Through:
W.P.(C.) No.4936/2021 & connected matters. Page 1 of 12
2021:DHC:1653-DB
Mr. Lalit Valecha & Ms. Sadaf Iliyas Khan, Advocates along with
petitioner in person in W.P.(C) 4936/2021.
Petitioners in person in W.P.(C) 5153/2021
Petitioner in person in W.P.(C) 5033/2021
Mr. Mohit Mathur, Senior Advocate with Mr. Anubhav Taneja,
Advocate for the petitioner in W.P.(CRL) 7/2021
Mr. Santosh Kumar Tripathi, Standing Counsel with Mr. Aditya P.
Khanna & Mr. Shashank Tiwari, Advocates for the respondent/
GNCTD in W.P.(C) Nos.4936/2021 & 5153/2021.
Mr. Sanjay Lao, Standing Counsel (Crl.), and Mr. Karanjeet Sharma,
Advocate for respondent/ GNCTD in W.P.(CRL) 7/2021
Mr. Kanwal Jeet Arora, Secretary, Delhi State Legal Services
Authority, in person.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE JASMEET SINGH
VIPIN SANGHI, J. (ORAL)
1. These four writ petitions have been preferred in public interest, which
deal with more or less the same subject matter. We, therefore, propose to
dispose them of by this common order. The respective prayers made in
these writ petitions are the following:
Prayer in W.P.(C) 4936/2021
“i. Issue a writ, order or direction in the nature of Mandamus,
thereby, directing the Director General of Prisons to file a
detailed affidavit apprising this Hon'ble Court regarding exact
Number of Covid-19 positive cases in the three jails in Delhi as
on date;
W.P.(C.) No.4936/2021 & connected matters. Page 2 of 12
2021:DHC:1653-DB
ii. Issue a writ, order or direction in the nature of Mandamus,
for framing guidelines for release of prisoners on interim bail
or special parole in view of the prevailing Covid-19 situation
in the three jails in the capital;
iii. Issue a writ, order or direction in the nature of
Mandamus, thereby, directing the Govt. of National Capital of
Delhi to filed an affidavit to the effect that adequate RT-PCR
testing infrastructure is available for conducting the test and
that no citizen is being denied RT-PCR test in all Govt. and
private recognized laboratories;
iv. Issue a writ, order or direction in the nature of Mandamus,
thereby, directing the Govt. of National Capital of Delhi to
provide test results to the patients who have undergone RT-
PCR test, immediately through Whatsapp and hard copies and
not later than 24-hours without waiting for them to be uploaded
on the ICMR's website;
v. To issue any other appropriate writ, order or direction which
this Hon'b1e Court deems just and proper, in the facts and
circumstances of the present matter.” (emphasis supplied)
Prayer in W.P.(C) 5153/2021
“(a) Issue appropriate writ, order and/or direction/s to
respondent no. 1 & 2 for mandatory RT-PCR test of prisoners/
inmates lodged in Jails of Delhi;
(b) Direct the respondent no. 1 & 2 to set up a non-covid
medical facility with necessary medical equipment and
medical staff for the treatment of non-covid jail patients;
(c) Issue appropriate directions for the de-congestion of Delhi
Prisons in light of submissions made in the present petition;
W.P.(C.) No.4936/2021 & connected matters. Page 3 of 12
2021:DHC:1653-DB
(d) Issue or pass any writ, direction or order, which this
Hon‟ble court may deem fit and proper under the facts and
circumstances of the case.” (emphasis supplied)
Prayer in W.P.(C) 5033/2021
“A. To immediately release all the under trials and convicted
prisoners on interim bail/parole with maximum imprisonment
upto 7 years and fine (i.e. non – heinous crime) in Tihar Jail,
Mandoli Jail and Rohini Jail
B. To direct the police to not arrest the accused persons not
involved in violent crimes without the order of the court.
C. Temporarily release prisoners previously released and
those who have surrendered on the basis of good conduct
(under trials as well as convicted) in Tihar Jail, Mandoli Jail
and Rohini Jail convicted of heinous crime with more than
seven years of imprisonment.
D. Release prisoners who are suffering from some or the
ailment in Tihar Jail, Mandoli Jail and Rohini Jail;
E. Segregate and provide proper facility and arrangement for
examination and treatment of prisoners
F. Direct the interim released of prisoners having critical
medical condition.
G. Pass any other order(s) which this court may deem fit and
proper in the interest of justice and the general public of the
NCT of Delhi.” (emphasis supplied)
Prayer in W.P.(CRL) 7/2021
W.P.(C.) No.4936/2021 & connected matters. Page 4 of 12
2021:DHC:1653-DB
“ a) Issue an appropriate writ, order and/or direction in the
nature of „Mandamus‟ thereby directing the release of those
under trial prisoners who are facing trial under and have
spent half of their maximum sentence in lower offences;
b) Issue an appropriate writ, order and/or direction in the
nature of „Mandamus‟ thereby directing the Undertrial
Review Committee and Jail Superintendent to verify the
undertrial prisoners facing trial under multiple charges but
have undergone sentence in lesser charge to be put in the
category of prisoners to be released on bail;
c) Issue an appropriate writ, order and/or direction in the
nature of „Mandamus‟ thereby directing the Undertrial
Review Committee, Jail authorities to provide fresh status of
under trial prisoners on weekly basis who have undergone
sentence in lesser charge to be put in the category of prisoners
who can be considered to be released on bail within a week
from time they are eligible in this category;
d) Issue an appropriate writ, order and/or direction in the
nature of „Mandamus‟ thereby directing the DLSA to provide
statistical information of under trial prisoners in lesser charge
on their website and where bail is applied through DLSA and
its disposal rate.
e) Issue an appropriate writ, order and/or direction in the
nature of „Mandamus‟ thereby directing the release of
Undertrial who have undergone custody of 3 years or more
where trial is conducted by a magistrate.
f) Allow undertrial prisoner who have completed half of lessor
sentence in multiple offence to avail the benefits of S.436 A
and approach concerned courts for bail directly.
W.P.(C.) No.4936/2021 & connected matters. Page 5 of 12
2021:DHC:1653-DB
g) Pass such other or further order/orders as this Hon'ble
Court may deem fit in the larger interest of justice.”
(emphasis supplied)
2. We have highlighted the substantive reliefs sought in these four
petitions, and those not highlighted are primarily to achieve the highlighted
reliefs.
3. We find that practically none of the substantive prayers survive in the
first three petitions i.e. W.P.(C) No. 4936/2021, 5153/2021 & 5033/2021.
To the extent they survive, they are being dealt with by us. The prisoners are
being tested for Covid-19 through Rapid Antigen Test (RAT) as well as the
RT-PCR Test. So far as the reliefs sought for release of the prisoners – both
UTPs and convicts are concerned, they substantially stand addressed in the
light of the decisions of the High Powered Review Committee (HPC), taken
in its meetings held on 04.05.2021 and 11.05.2021 in the light of the
decision rendered by the Supreme Court on 07.05.2021.There is no
challenge to the recommendation of the HPC in these petitions.
4. The grievance raised by Mr. Singhal that the non-Covid patients are
being neglected, does not appear to be correct, since there are Jail Hospitals
in every Jail which are treating such patients, and wherever necessary, they
are being taken to larger referal hospitals for treatment of non-Covid-19
ailments.
5. Mr. Singhal has drawn our attention to one instance where in Case
FIR No.811/2016, PS-New Usmanpur, Delhi, the learned Trial Court was
informed by the State in its status report, that Pulmonary Function Test
W.P.(C.) No.4936/2021 & connected matters. Page 6 of 12
2021:DHC:1653-DB
(PFT), which was required to be conducted on the accused, could not be
conducted since that test was not available in the CJ-10 Dispensary, and Dr.
Baba Saheb Ambedkar Hospital, along with Lok Nayak Hospital and Deen
Dayal Upadhyay Hospital have all been converted into 100% Covid Facility.
Therefore, the PFT on the accused could not be done at present. He submits
that in all such cases, the State should take the responsibility of getting the
requisite test conducted in some other hospital, which may not be a fully
Covid-19 dedicated facility. The report submitted by the Medical Officer
in-charge in the said case further went on to state that “ At present the
medical condition of the inmate is stable and satisfactory ” and that
prescribed medications are being provided to him by the Jail Dispensary.
On our query, Mr. Singhal states that the said inmate was granted interim
bail by the Trial Court. Mr. Singhal submits that in every case, it may not be
possible for the Jail inmate to approach the Court, and in all such cases,
where the referral hospital is a 100% Covid facility, the Jail Authorities
should get the relevant test/ investigation and treatment conducted at another
hospital, which may not be 100% Covid facility.
6. We may observe that whenever such a position is placed before the
Court dealing with bail applications, invariably, the Courts pass directions
for medical examination/ treatment of the accused by a non-Covid facility,
in case the referral hospital is a 100% Covid facility. It can never be that the
accused is left unattended, and denied the investigation/ treatment that he/
she may require. We agree with the submission of Mr. Singhal that the
accused cannot be told that the referral hospital is a 100% Covid facility
and, hence, his treatment/ investigation cannot be undertaken. To that
W.P.(C.) No.4936/2021 & connected matters. Page 7 of 12
2021:DHC:1653-DB
extent, we direct the State to ensure that whatever investigation/ treatment
is required by the accused, should be provided to him/ her by approaching
another hospital which may offer the investigation/ treatment and which is
not a 100% Covid facility, in case the referral hospital is a 100% Covid
facility.
7. Mr. Mathur, learned senior counsel who appears in W.P.(Crl.)
No.7/2021 has raised a grievance with regard to non-consideration of the
cases entitled to be considered for release under Section 436A of the Cr.P.C.
Mr. Mathur submits that the Under-Trial Review Committee (UTRC) which
has been constituted for consideration of cases falling under Section 436A
Cr.P.C. has not been meeting and conducting review of the cases.
8. Mr. Kanwal Jeet Arora, Secretary, Delhi State Legal Services
Authority, has joined the proceedings and he states that the said Committee
is holding review of cases falling under Section 436A Cr.P.C. on a weekly
basis. He states that he has already issued requisite directions for this
purpose vide letter dated 13.05.2021. He further informs that the National
Legal Services Authority (NALSA) has scheduled a Webinar to sensitise all
the District Level Committees for holding regular meetings for examination
of cases falling under Section 436A Cr.P.C.
9. Mr. Mathur has placed reliance on the judgment of the Supreme Court
in Re: Inhuman conditions in 1382 prisons dated 24.04.2015. By placing
reliance on the observations made by the Supreme Court in paragraph 4 of
the said decision, Mr. Mathur submits that all cases, including cases in
which the offence under the law is one for which punishment of death is
W.P.(C.) No.4936/2021 & connected matters. Page 8 of 12
2021:DHC:1653-DB
specified as one of the punishments, should be placed before the UTRC for
consideration under Section 436A Cr.P.C, and wherever, there are more
offences than one alleged against the accused, the punishment prescribed for
the lesser offence should be made the basis for deciding the applicability of
Section 436 A Cr.P.C. Paragraph 4 of the said decision reads as follows:
“4. In the meeting to be held on or about 30th June, 2015,
the Under Trial Review Committee should consider the cases of
all under trial prisoners who are entitled to the benefit of
Section 436A of the Code. The Ministry of Home Affairs has
indicated that in case of multiple offences having different
periods of incarceration, a prisoner should be released after
half the period of incarceration is undergone for the offence
with the greater punishment. In our opinion, while this may be
the requirement of Section 436A of the Code, it will be
appropriate if in a case of multiple offences, a review is
conducted after half the sentence of the lesser offence is
completed by the under trial prisoner. It is not necessary or
compulsory that an under trial prisoner must remain in
custody for at least half the period of his maximum sentence
only because the trial has not been completed in
time.” (emphasis supplied)
10. At this stage itself, we may also extract Section 436A Cr.P.C., which
reads as follows:
“436A Where a person has, during the period of
investigation, inquiry or trial under this Code of an offence
under any law ( not being an offence for which the punishment
of death has been specified as one of the punishments under
that law ) undergone detention for a period extending up to one-
half of the maximum period of imprisonment specified for that
W.P.(C.) No.4936/2021 & connected matters. Page 9 of 12
2021:DHC:1653-DB
offence under that law, he shall be released by the Court on his
personal bond with or without sureties:
Provided that the Court may, after hearing the Public
Prosecutor and for reasons to be recorded by it in writing,
order the continued detention of such person for a period
longer than one-half of the said period or release him on bail
instead of the personal bond with or without sureties:
Provided further that no such person shall in any case be
detained during the period of investigation, inquiry or trial for
more than the maximum period of imprisonment provided for
the said offence under that law.
Explanation.—In computing the period of detention under this
section for granting bail, the period of detention passed due to
delay in proceeding caused by the accused shall be
excluded.” (emphasis supplied)
11. In our view, the submission of Mr. Mathur is misplaced and is
premised on a wrong reading of the decision of the Supreme Court. While
observing that it would be appropriate, if in a case of multiple offences, a
review is conducted after half the sentence of the lesser offence is completed
by the UTP, in our view, the Supreme Court did not intend to read down or
dilute the requirements of Section 436A, which clearly exclude
consideration of cases which involve an offence for which punishment of
death has been specified as one of the punishments. The only meaningful
way in which the observations made by the Supreme Court can be
understood is that, within the category of cases which can be considered by
the UTRC – which would exclude cases involving the offence for which
punishment of death has been specified as one of the punishments under the
W.P.(C.) No.4936/2021 & connected matters. Page 10 of 12
2021:DHC:1653-DB
law, the UTRC should conduct the review after half the sentence of the
lesser offence is undergone by the under trial prisoner.
12. Mr. Mathur has submitted that it should be left to the UTRC to
appreciate and evaluate whether the offence – which has one of the
punishments as death under the law, has been committed. We reject this
submission. It is not for the UTRC to evaluate and appreciate the merits of
the case while examining the case under Section 436A Cr.P.C. That is the
preserve of the Court dealing with the case. Therefore, in all such cases,
which involve an offence for which punishment of death has been prescribed
as one of the punishments under the law, cannot even be placed before the
UTRC under Section 436A Cr.P.C. and there is no question of the
Committee undertaking any review under Section 436A Cr.P.C. in such like
cases.
13. Even in respect of such cases, the UTRC is not bound to take a
decision to direct release of the Under Trial Prisoner (UTP) merely because
the UTP has undergone one half of the maximum sentence specified for the
lesser, or least offence. The use of the words “ It is not necessary or
compulsory ” that an UTP must remain in custody for at least half the
period of his maximum sentence , show that it is not mandatory that soon
upon the UTP undergoing incarceration for half the punishment for the
lesser or least offence, the UTP gets vested with a right to be released under
Section 436A Cr.P.C. In terms of the order passed by the Supreme Court,
such a UTP only gets a right to have his case considered by the UTRC
which may, or may not, direct release of the UTP under Section 436A at that
stage.
W.P.(C.) No.4936/2021 & connected matters. Page 11 of 12
2021:DHC:1653-DB
14. We, accordingly, dispose of these petitions in the aforesaid terms.
VIPIN SANGHI, J
JASMEET SINGH, J
MAY 19, 2021
B.S. Rohella
W.P.(C.) No.4936/2021 & connected matters. Page 12 of 12