Madhya Pradesh HC Issues Notice On Plea Alleging Non-Implementation Of SC Order For Decongestion Of Prisons [Read Order]

The bench of Chief Justice AK Mittal and Justice Vijay Kumar Shukla has issued notice to the MP Government, its Law and Legal Affairs Department, its Health Department, the Director General of Prisons, State Legal Services Authority and the Director General of Police, and has posted the matter for hearing on July 20.

Social activist Madhuri Krishnaswami has filed the plea stating that despite Supreme Court order date March 23, 2020 in In Re: Contagion of COVID-19 Virus in Prisons, individuals continue to be detained in a congested environment at the grave risk of spread of COVID-19 in the prisons in Madhya Pradesh.

Over-occupancy

It is averred that when the above direction was passed, MP's prisons had occupancy of 153% of its capacity and as of May 17, 2020, merely 14.7% of the prisoners had been released.

She further submitted that the situation becomes graver as there is no information publicly available with regards to the health protocol being adopted in prisons or about the provision of PPEs and N-95 masks for medical and other prison staff.

Additional Arrests

Inter alia, it is pointed out that during the course of the lockdown, several additional arrests have also been made, adding to the cumulative prison population, rendering the decongestion orders "fruitless".

"That, the Police has been arresting people under Section 188 of Indian Penal Code for violating the lockdown but given that the said provision is non-bailable in Madhya Pradesh unlike most other states in the country, the accused persons are being detained in the Police Stations before being produced before the Magistrates where conditions are enclosed and unsanitary and there remains the threat of infection to both the accused persons and the police personnel on duty. That the prison statistics reflected above also suggest that persons have also been denied bail for such offences and sent to judicial custody thus increasing the numbers," the plea states.

The Petitioner has submitted that "several dozens" of COVID-19 positive cases have come up in Madhya Pradesh's prisons and the state's (in)action has resulted in violation of their Fundamental Rights guaranteed under Article 14 and 21 of the Constitution.

Unreasonable Classification of prisoner by State's High Power Committee

The Petitioner has submitted that the classification of prisoners to be released on interim bail made by the MP's High Power Committee is unreasonable and non-compliant with the test of reasonable classification outlined by the Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

"The decision of HPC to release under trial prisoners undergoing trials for 5 years or less does not provide any reasoning for leaving out those in pre-trial detention for offences punishable by more than five years and not more than seven years…the classification adopted both lacks any discernible reasoning or determining principle, and does not form a rational nexus with the objective of the exercise, which was to release undertrials incarcerated for offences for which arrest is an exception, towards decongesting prisons," the plea states.

It is submitted that under sections 41 and 41-A of CRPC, the law makes a distinction between offences punishable by imprisonment of seven years or less and those punishable by imprisonment of over seven years.

However, the plea states, "despite available distinction in law whereby in the case of the former, giving a notice of appearance is the exception and arresting is the exception and in the case of the latter, vice versa, the High Powered Committee has restricted the benefit of applying for bail for under trial prisoners undergoing trial for offences punishable by five years or less."

The plea therefore seeks the following reliefs:

• direct the Respondents to make suitable directions to release all convicted prisoners at or over the age of 45 years on emergency parole as well as all prisoners with immune compromising conditions beyond the currently specified narrow set of severe specific heart conditions, including but not limited to those diagnosed with diabetes, HIV, respiratory, kidney, liver conditions and mental illness health conditions;
• direct the Respondents to release of all undertrial/ remanded prisoners on interim bail incarcerated for offences punishable with 7 or less years;
• direct the Respondents to release of all undertrial prisoners on interim bail at or over the age of 45 years, all prisoners with immune compromising conditions beyond the currently specified narrow set of severe specific heart conditions, including but not limited to those diagnosed with diabetes, HIV, respiratory, kidney, liver conditions and mental illness health conditions, including those undertrial prisoners that have been arrested under those for offences punishable by with more than 7 years of imprisonment and under special legislations;
• direct the Respondents to take all other necessary steps to bring the prison population to a level that allows for the implementation of social distancing norms in line with the guidelines issued by the various health agencies but in any case, to below 100% occupancy;
• modify bail terms of all undertrial prisoners modifying the bail orders passed either by this Court or by any court subordinate to it until this day doing away with the condition of furnishing sureties and allowing release on the furnishing of personal bond without sureties;
• direct the Magistrates to hereon strictly implement directions of the Hon'ble Apex Court in Arnesh Kumar to avoid police or judicial custody in cases punishable with 7 years or less;
• direct the Respondents to ensure compliance with the direction of the Hon'ble Apex Court in Arnesh Kumar as well as Section 41 of CRPC and direct their subordinate officers to refrain from arresting any person for minor offences and make arrests only when most pertinent. viii. That, this Hon'ble Court may be pleased to issue the writ of mandamus to direct the Respondents to allow money order services, and allowing families of the prisoners to send clothes, footwear, medicines and other items of personal use to the prisoners that remain incarcerated.
• direct the Respondents to allow telephone and/or video conferencing services on a weekly basis for at least ten minutes to enable inmates to communicate with their families and legal representatives.

Case Details:

Case Title: Madhuri Krishnaswami v. State of Madhya Pradesh & Ors.

Case No.: WP No. 8391/2020

Quorum: Chief Justice AK Mittal and Justice Vijay Kumar Shukla

Appearance: Senior Advocate Chander Uday Singh with Advocates Bhavil Pandey, Nikita Sonwane and Aditi Pradhan (for Petitioner); Deputy Advocate General Swapnil Ganguly (for State)

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