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2020 Supreme(J&K) 172
HIGH COURT OF JAMMU AND KASHMIR (SRINAGAR BENCH)
Tashi Rabstan, J.
Ghulam Mohammad Kumar - Appellant
Versus
State Of J&K & Ors. - Respondent
EMG-Crl. M. No. 02-A of 2020 in Crl. A. (S) No. 04 of 2020
Decided On : 03-04-2020
M.S. Latief, Advocate, for the Appellant
Headnote:
Code of Criminal Procedure, 1973 – Section, 432 - Prevention of Corruption Act 0 Section 5(1) read with 5(2) – Jammu and Kashmir Suspension of Sentence Rules, 2020 - FIR - Imprisonment of fine - Petition Contagion of Covid Virus in Prison Supreme Court vide order has directed that physical presence of all under trial prisoners before the Courts must be stopped and recourse to video conferencing must be taken for all purposes - As regards overcrowding of prisons Supreme Court has directed constitution of High Powered Committees by each State/Union Territory comprising of Chairman of State Legal Services Committee Principal Secretary (Home/Prison) by whatever designation is known as and Director General of Prisons for determining which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate - While giving instance qua prisoners to be released in view of COVID Supreme Court has said that such prisoners could be considered for release who have been convicted or are under trial for offense for which prescribed punishment is or less with or without fine and prisoner has been convicted for a lesser number of years than the maximum –Held, Procedure for parole coming forth -It provides for processing application for grant of parole an application is to submitted by the prisoner or his family members to Jail Superintendent who would verify grounds stated in application and make specific recommendations with regard to grounds taken by convict in the nominal role - Jail Superintendent will forward copy of application to police station where FIR was registered and also to police station concerned of the last known address and where prisoner wishes to stay and investigating agency of case for their report - After of requisites as enshrined Rule parole case would be forwarded to competent authority case is concerned it may not be out of place to mention here in compliance to Supreme Court order Union Territory of J & K has constituted a High Powered Committee which deliberated issued several directions for release of prisoners decongest jails procedure laid down by Committee provides that the cases for grant of interim bail would be dealt with either by visiting judges (District & Sessions Judge/Additional District Judge/Chief Judicial Magistrate/Judicial Magistrate First Class in jails on bail applications jail itself or alternatively by devising a mechanism of routing the bail applications through District Legal Service Authority DLSA to courts convened especially for this purpose - All Principal District and Sessions Judges who are Chairman of district UTRCs of their respective district have been requested to comply with directions of High Powered Committee Government of Jammu and Kashmir through Home Department has in exercise of powers conferred Section Code of Criminal Procedure vide Government Order -Home of authorized Director General of Police being competent authority terms Rules grant special parole for eight weeks extendable for another eight weeks if lockdown qua COVID by Government continues with respect to categories of convicts enumerated therein - Order provides that a person who has been convicted one case and has spent more than ten years (eight years in case of woman) in jail except the cases militancy NDPS Act POCSO Act or offence against women or acid attack or foreign national can be considered for grant of special parole cases of persons who have been sentenced to imprisonment three years with or without fine and conviction has been upheld by Appellate Court but revision against judgment by Appellate Court is pending before High Court – Appeal disposed
JUDGMENT
Tashi Rabstan, J. - This is an application, moved by appellant/applicant, seeking his release on parole/interim bail in view of COVID-19 (Coronavirus) outbreak.
2. Main Appeal, being CrlA (S) no. 04/2020, challenging judgment and sentence dated 27th February 2020, passed by the court of First Additional Sessions Judge (Special Judge, Anticorruption) Baramulla in a case titled as State through SHO P/S VOK v. Ghulam Mohammad Kumar bearing FIR no. 39/2006 under Section 5(1) read with 5(2) of Prevention of Corruption Act, and Section 161 RPC, convicting/sentencing him to undergo simple imprisonment of two years and fine of fine of Rs. 10,000/- under each offence.
3. Alongside Appeal, an application for suspension and grant of bail has also been filed by appellant/applicant, which is pending adjudication.
4. Heard and considered.
5. It is submission of learned counsel for appellant/applicant that applicant has been convicted for a period of two years and is presently lodged at District Jail Baramulla. He has also stated that the Supreme Court has observed that in order to avoid possible outbreak of transmission of Coronavirus coupled with the fact that jails in Kashmir are overcrowded, applicant deserves to be released, more particularly when he has been convicted for an offence less than 07 years.
6. Having regard to submissions made by learned counsel for applicant, the case of applicant does not fall under any of the categories given in the guidelines by the Supreme Court in Suo Motu Writ Petition (C) no. 01 of 2020 In Re: Contagion of Covid 19 Virus in Prisons. The Supreme Court vide order dated 23rd March 2020 has directed that physical presence of all undertrial prisoners before the Courts must be stopped and recourse to video conferencing must be taken for all purposes. As regards overcrowding of prisons, the Supreme Court has directed constitution of High Powered Committees by each State/Union Territory, comprising of Chairman of the State Legal Services Committee, Principal Secretary (Home/Prison) by whatever designation is known as, and Director General of Prisons, for determining which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate. While giving instance qua prisoners to be released in view of COVID 19, the Supreme Court has said that such prisoners could be considered for release, who have been convicted or are undertrial for offense 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 than the maximum. Nevertheless, it has been made clear that it has been left open for 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 is charged with and is facing trial or any other relevant factor, which the Committee may consider.
7. Government of J & K through Home Department, by Notification bearing S.O. no. 114 dated 29th March 2020, issued Jammu and Kashmir Suspension of Sentence Rules, 2020 (for brevity "Rules of 2020". It says that competent authority would be Head of Prisons Department and parole means temporary release of a convicted prisoner for a short period to fulfill family/social obligation and responsibility. There shall be, as provided under Rule 5, two types of parole to which a convict would be eligible. They are custody parole or emergency parole and regular parole. Custody parole, as envisaged under Rule 6, can be granted to a convict by an order in writing issued by Jail Superintendent under intimation to Head of Prisons Department and to an undertrial prisoner by the trial court concerned in the event of death of a family member of undertrial prisoner or marriage of a family member or serious illness of a family member or any other emergency with the approval of the range
