"Can't Equate Undertrials With Convicts": Uttarakhand Prisoner Moves Supreme Court Against State HPC's Decision

The plea has been moved by one Anil Saini through Advocate Rishi Malhotra and it goes on to challenge the decision of the State High Powered Committee (HPC) stating that it denies the benefit of parole to undertrial prisoners who are charged with offences punishable with more than 7 years' imprisonment and thus, violates Article 21 of the Constitution.

Background

Saini, who is undertrial and is in judicial custody since September 29 and till date, he has already undergone 1.5 years of the actual sentence and his plea refers to Apex Court's May 7 decision, wherein a slew of directions were passed to de-congest prisons.

In its order, the Supreme Court had directed the High­ Powered Committees constituted by the State Governments/Union Territories to consider the release of prisoners by adopting the guidelines (such as inter alia, SOP laid down by NALSA) followed by them last year.

Such of those States which have not constituted High Powered Committees last year were directed to do so immediately.

Further, the plea avers that based on the Supreme Court directions, the HPC, Uttarakhand constituted to pass appropriate directions regarding the release of prisoners from Uttrakhand Jails on Parole or Interim bails.

However, the plea states that the HPC adopted the parameters that except in few matters, in all other offences relating to convicts/undertrials, the benefit of the Supreme court orders may be given.

However, the exceptional cases were: - POCSO Act, Sexual offences committed against Women, Rioting and waging war against State, Counterfeit currency, Kidnapping of children, Anti competition, Commercial and economic offences, Gangsters Act, NDPS.

Averments in the plea

The plea avers that despite the clear directions and concern shown by the Apex court, the UK HPC departed from the said exceptions and further directed that such prisoners including undertrials who though do not come within the exceptions abovementioned but are convicted or facing trials for offences that carries sentence for more than 7 years will not be entitled for parole or interim bail.

The plea pointed out two basic flaws in the HPC order:

• Whether the category of undertrials can be equated with convicts and
• The rationale behind the drawing of the line of the distinction between cases where the punishment prescribed is more than 7 years.

Submitting that he happens to be an undertrial who is facing trial for the alleged offences for which punishment can be awarded for more than 7 years if proved by the prosecution, the plea states,

"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 still it is uncertain about how many sentences the trial court may award."

Therefore, the plea further states,

"To deny the benefit of parole to the petitioner would not only be in total contravention of his Constitutional rights as envisaged under Art.21 of the Constitution but also a clear violation of the basic intent of the Supreme Court orders which was to decongest the prisons in order to curb the spread of covid-19 in jails."

Lastly, the plea prays that direction be given to UK State to pass immediate necessary orders for releasing the petitioner on Parole as directed by the Apex Court.