RK Gossain v. Government of NCT of Delhi

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 3 of12 ii. Issue a writ, order or direction in the nature of Mandamus, for framing guidelinesfor 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 appropriatewrit,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

(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

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-PCRTest. 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 7 of12 (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 8 of12 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-TrialReview 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 9 of12 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 detentionfor a period extending up to onehalf of the maximum periodof imprisonment specified for that W.P.(C.) No.4936/2021 &connected matters. Page 10 of12 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 duringthe period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law. Explanation.—In computingthe 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 11 of12 law, the UTRC should conduct the review after half the sentence of the lesser offence is undergone by the under trial prisoner.