Personal Liberty vis-a-vis Coronavirus

Apropos the 2018 statistics of the National Crime Records Bureau (NCRB), Indian prisons have over 4.5 lakhs inmates, which is 17.6% more than their actual capacity, making them amongst the most congested prisons in the world.

Addressing the impending threat that COVID-19 poses; the Supreme Court on March 23 directed all states and union territories to constitute High-Powered Committees to consider releasing under-trial prisoners (UTP) on interim bail. Showing much needed alacrity, states constituted their respective Committees and have initiated the process of ‘decongestion’.

Whilst this is a welcome and seemingly requisite step, the rationale behind adopting the present criteria for interim bail has left many questions unanswered.

The resolutions passed by some of the High-Powered Committees are completely perfunctory and issued without ascribing any reason for such classification. On April 7, the High-Powered Committee of the Delhi High Court modified its existing guidelines and permitted senior citizens accused of offences entailing a maximum punishment of 10 years, to avail the benefit of interim bail.

However, it has left out the UTPs incarcerated for economic offences under special legislations. What about the fate of the UTPs accused of violations under the Prevention of Money Laundering Act, 2002 (PMLA), the Prevention of Corruption Act, 1988 (PC Act) or the Companies Act, 2013?

How does one differentiate between the severity of an economic crime u/s 420 of the Indian Penal Code (IPC) and an offence under the PC Act or an offence under the PMLA, when the maximum punishment for the said violations is the same? What about an accused named in an FIR for an offence u/s 420/120B IPC and simultaneously named in an ECIR (equivalent to FIR)? Since 420 and 120B IPC are ‘Scheduled Offences’ under the PMLA, the Enforcement Directorate (ED) is authorized to register an ECIR and initiate proceedings under the Act.

Now, as per the resolution of the High-Powered Committee, the accused will be entitled to secure interim bail in the predicate offence registered by the police (FIR), but he will not get the same concession in the ECIR registered by the ED. Even though the substratum of the offence in both the FIR and ECIR is the same, he will be entitled to interim bail in the former but not the latter.

Such a classification is prima facie violative of Article 14 and 21 of the Constitution. There is a need to promulgate guidelines on the basis of reasonable classification based upon intelligible differentia.

A seven-judge Bench of the Supreme Court in State of West Bengal vs. Anwar Ali Sarkar, while dealing with the Constitutional validity of the West Bengal Special Courts, Act 1950 (which laid down a special procedure for providing speedy trial for only a select class of offences which would be decided as per the discretion of the State Government), held that:

“…Equality of right is a principle of republicanism and article 14 enunciates this equality principle in the administration of justice. In its application to legal proceedings the article assures to everyone the same rules of evidence and modes of procedure. In other words, the same rule must exist for all in similar circumstances…” (M.C Mahajan J.)”

Added burden on the excluded class

The prevailing situation has, in fact, made securing bail for persons falling under the excluded class more difficult. Reports have emerged of difficulties being faced in listing bail and anticipatory bail applications, as some of them were not considered “urgent” enough. What could be more important and urgent than a case involving personal liberty?

Firstly, the High-Powered Committee arbitrarily excludes UTPs under the PC Act, PMLA, and Companies Act from getting the benefit of interim bail. Secondly, the fact that they are excluded becomes the main thrust of the prosecuting agency in demonstrating the severity of the offence. Lastly, bail, anticipatory bail and suspension of sentence applications are not being listed as they fail to satisfy the arbitrary test of ‘urgency’!

The order passed by the Single Judge of the Rajasthan High Court, which was subsequently stayed by the Supreme Court, stands testament to this.

Economic ramifications

Even though loss of human life is of paramount importance, we cannot lose sight of the fact that the world economy is another casualty of this pandemic. We need to be cognizant of the fact that many of the economic offenders are high-ranking officials of their respective companies and businesses. The livelihood of hundreds of employees depends on the health of these businesses.

Desperate times call for desperate measures, and under such circumstances, the experience and acumen of such accused persons would be extremely useful to their businesses. Many of these individuals have deep roots in the society and can be asked to deposit their passports before the concerned courts and should be granted interim bail to look after their businesses, which could further help in recovering the economy.

Investigation during COVID-19

Another important aspect that requires immediate attention is the predicament faced by investigating agencies in ongoing investigations, especially where the accused is in custody. The current pandemic has had a catastrophic impact on the process of investigation. Due to the prevailing lockdown, the investigating agencies have lost out on weeks of precious time in conducting a thorough and comprehensive investigation. Many individuals and witnesses who had been served notices to join investigations are unable to effectively respond.

The investigating officers themselves are facing many impediments due to the restricted infrastructure and movement. In the eventuality that the investigation is not concluded within the stipulated time or an incomplete charge sheet is filed by the prosecuting agency, the accused is entitled to default bail in accordance with Section 167 (2) of the Code of Criminal Procedure (CrPC).

The law on filing the charge sheet in a time-bound manner has been succinctly addressed in Rakesh Kumar Paul v. State of Assam, wherein the Apex Court has clarified that it is mandatory for the prosecuting agency to file the charge sheet within a period of 60 days where the alleged offence attracts a punishment up to 10 years, and 90 days in cases where the prescribed punishment is more than 10 years.

However the real test in the present scenario would be to get default bails listed. Every extra moment spent under pre-trial incarceration (after the stipulated period) would amount to a grave violation of personal liberty.

Conclusion

The need of the hour, therefore, is to reasonably classify and identify UTPs who are most susceptible and vulnerable to contracting the Coronavirus. Underlying medical conditions (especially chronic illnesses such as Diabetes, Asthma, etc.) of the inmate, the age of the inmate, inter alia should form the edifice of such classification and not the punishment prescribed for an alleged offence.

On a positive note, on April 8, the Delhi High Court seems to have taken a step in the right direction. It has granted interim bail to a person accused of a violation under the Companies Act. The Court was cognizant of the fact that the accused is a senior citizen and suffers from Type-2 Diabetes.

Irrespective of the legislation, investigating agency, or the punishment prescribed for the offence, the High Court gave precedence to his age, medical condition, and most importantly, his personal liberty.

The author is an Advocate practicing at the Delhi High Court.