Decongestion of jails to contain COVID-19 outbreak
*J&K Suspension of Sentence Rules framed under CrPC
Mohinder Verma
JAMMU, Mar 30: In compliance to the directives of the Supreme Court, the Government of Union Territory of Jammu and Kashmir has constituted a High-Powered Committee to determine the category/class of the prisoners, who may be considered for release on parole or interim bail to decongest the prisons in an attempt to contain the COVID-19 outbreak.
Moreover, Government has framed Jammu and Kashmir Suspension of Sentence Rules, 2020 whereby grounds, eligibility and procedure for grant of parole and furlough have been clearly defined to guide the High-Powered Committee in taking decisions.
On March 23, 2020, a bench of Supreme Court headed by Chief Justice of India S A Bobde ordered all States and Union Territories to set up high-level panels which would consider releasing all convicts who have been jailed for up to seven years on parole to decongest jails in an attempt to contain the COVID-19 outbreak.
The bench even suggested that under-trials awaiting trial for offences entailing maximum sentence of seven years may also be extended a similar benefit and the under-trial review committee must meet every week.
In compliance to these directions of the Apex Court of the country, Government of Union Territory of Jammu and Kashmir has constituted a High-Powered Committee headed by Executive Chairman, State Legal Services Authority and comprised Principal Secretary to the Government, Home Department and Director General of Police (Prisons) J&K.
The High-Powered Committee has been asked to determine the category/class of prisoners who may be considered for release on parole or interim bail for such period as may be thought appropriate, depending upon the nature of offence, the number of years to which he or she has been sentenced or severity of the offence with which he/she is charged with and is facing trial or any other relevant factor.
“The committee, which considering the cases of the prisoners for parole or interim bail, shall take into account the directions contained in the order passed in Arnesh Kumar Versus State of Bihar. Moreover, the committee may devise an appropriate mechanism for fulfilling its objectives”, read the order issued by the Home Department.
Moreover, in exercise of powers conferred by Sub-Section 5 of Section 432 of Code of Criminal Procedure, 1973, the Government has framed Jammu and Kashmir Suspension of Sentence Rules, 2020, which have come into force with immediate effect.
As per these Rules, there will be two kinds of parole—-custody parole/emergency parole and regular parole– to which a convict would be eligible. The custody parole may be granted to a convict by an order in writing issued by the Jail Superintendent under intimation to the Head of Prisons Department and to an under-trial prisoner by the trial court concerned for a period not more than 48 hours excluding the journey time in the eventualities of death of a family member, marriage of a family member, serious illness of a family member or any other emergency with the approval of the Range DIG Prisons.
As far as regular parole is concerned, the applications will be considered on the grounds of serious illness of a family member; critical conditions in the family on account of accident or death of a family member; marriage of any member of the family of the convict; delivery of a child by the legally wedded wife of the convict; serious damage to life or property of the family of the convict including damage caused by natural calamities; sowing and harvesting of crops etc.
As far as eligibility for parole is concerned, a convict must have served at least the period of one year in prison excluding under-trial period and any period covered by remission. However, in exceptional cases where the prisoner has spent more than three years as under-trial period or half of the sentence of the punishment awarded as under-trial then his parole application may be considered if he has spent at least six months in prison as convict.
Under the eligibility clause, it has also been mentioned that the conduct of the prisoner who has been awarded major punishment for any prison offence should have been uniformly good for last two years from the date of application and the conduct of prisoner who has been awarded minor punishment or no punishment for any prison offence in prison should have been uniformly good for last one year from the date of application.
“During the period of released on parole or furlough, if granted earlier, the convict should not have committed any crime; the convict should not have violated any terms and conditions of the parole or furlough granted previously and a minimum of six months ought to have elapsed from the date of surrender on the conclusion of the previous parole availed”, the eligibility clause further reads.
It adds: In emergency, parole may be considered even if minimum period of six months has not elapsed from the date of termination of previous parole and the emergency may include delivery of a child by the wife of convict, death of a family member, marriage of child, terminal illness of family members and natural calamities.
As per the Rules, prisoner eligible for the grant of regular parole should not get it for a period of more than 30 days at a time and not more than two times in a calendar year. However, in exceptional circumstances such parole can be extended up to a maximum period of 45 days by the competent authority but in no case such parole should be extended further.
However, there will be restrictions on release on regular parole of those prisoners, who have been convicted under sedition, terrorist activities and NDPS Act; prisoners whose immediate presence in the society may be considered dangerous or otherwise prejudicial to public peace and order by the District Magistrate of his home district or there exists any other reasonable ground such as a pending investigation in a case involving serious crime.
Moreover, prisoners who are considered dangerous or have been involved in serious prison violence or who have been found to be instigating serious violation of prison discipline; prisoners convicted of murder after rape; prisoner convicted under POSCO and prisoner convicted for murder after kidnapping for ransom would not be considered for release on parole.
As far as furlough is concerned, a prisoner may be granted 21 days of furlough twice in one conviction year. “If the prisoner commits an offence during the period he is released on furlough then the period will not be counted as sentence undergone”, Rules said, adding a prisoner who is sentenced to five years or more of rigorous imprisonment and must have undergone two years imprisonment after conviction with unblemished record; a prisoner having good conduct in the prison and the prisoner who is not a habitual offender would be eligible for furlough.
It has explicitly been mentioned in the Rules that at the time of sanction of parole or furlough the District Magistrate and the Superintendent of Police of the home district of the prisoner as well as DM and SSP of the district where the prisoner proposes to spend release period other than the home district will be informed.
“If the prisoner doesn’t surrender himself within one week from the date on which he should have so surrendered he may be arrested by the police without a warrant on the complaint of the Jail Superintendent and shall be remanded to undergo un-expired portion of his sentence”, the Rules state.
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