1. The petitioners herein were before the High Court of Judicature at Bombay claiming to be in Public Interest (PILCJ­LD­VC   No.44/2020)   seeking   that   the   decision   of   the High Powered Committee (‘HPC’ for short) dated 25.03.2020 to the extent of Clauses (iii), (iv) and (vii) of paragraph 8, decisions/minutes   of   HPC   meeting   dated   11.05.2020 excluding   certain   categories   of   offences   provided   in paragraph 5(i) and 5(ii) for the purpose of grant of interim bail and corrigendum dated 18.05.2020 of the Minutes of the   Meeting   of   HPC   dated   11.05.2020   to   the   extent   of clarification   that   the   class   and/or   category   of   offences determined by the HPC for temporary release be not read as a direction made by it for mandatory release of prisoners falling in that category or class and a further clarification that the case of every prisoner be considered on case to case basis for deciding the temporary release of such prisoners. The   petitioners   had   also   sought   for   a   direction   to   the respondents   to   release   the   prisoners   convicted   for   life imprisonment   without   insisting   that   they   have   been released in the past at least twice, either on furlough or parole.

4. Though a detailed consideration has been made by the High   Court   whereunder   separate   concurring   reasons   are given by the learned Judges on the Division Bench, it is necessary to notice that the present issue has arisen only on   the   limited   scope   for   grant   of   interim bail/parole/furlough due to the unforeseen circumstance of the pandemic, namely, Novel Coronavirus (Covid­19) which requires decongesting of prisons with the intention of social distancing to be maintained so as to prevent the spread of virus.     It   is   in   that   circumstance,   this   Court   while registering a Suo Moto Writ Petition (Civil) No.1/2020 had taken note of the pandemic and in that context also referred to the decision taken by the Government of India to issue an advisory regarding social distancing…..

6. Pursuant to the direction, a High­Powered Committee was constituted in respect of the prisons in the State of Maharashtra, the State in respect of which the present issue has   arisen.   The   HPC   having   deliberated   has   issued   the guidelines dated 25.03.2020 as formulated in its meeting. The   Home   Department,   Government   of   Maharashtra   has notified the same on 08.05.2020.  As per the guidelines, the Committee has classified the inmates of the prisons, broadly into three categories, viz (i) undertrial prisoners/convicted persons who are facing trial or convicted to the maximum punishment of 7 years or less, (ii) the convicted persons whose sentence is above 7 years and (iii) the undertrial prisoners or convicted persons who are booked for serious economic offences/bank scams and offences under Special Acts such as MCOC, PMLA, MPID, NDPS, UAPA etc. 

7. Thus,   having   classified   the   jail   inmates   to   different categories on such basis, consideration of the ‘nature of the offence’ and the ‘severity of offence’ has been indicated to be adopted as the yardstick while considering their case for grant of interim bail in such situation.  The petitioners while assailing the said guidelines had alleged discrimination in the categorisation and also unreasonableness in imposing the condition of earlier release in respect of the convicted persons for the sentence of more than 7 years. It is relevant to notice that in fact this Court through the order dated 23.03.2020 had permitted such broad classification for the purpose of consideration.

9. While arriving at such conclusion, in addition to the reasons assigned by the High Court we cannot also lose sight of the fact that the entire right to claim such interim bail has arisen in the unprecedented circumstance of the pandemic and the consideration for interim bail is not in the nature of a statutory right for bail based on other legal consideration but is more in the nature of human right to safeguard the health. The provision for bail as otherwise provided in law in any case would be considered by the competent courts if such right for bail is made out before the competent court irrespective of the pandemic or not. The present   option   provided   is   only   as   a   solution   to   help decongestion and to avoid the spread of virus. At the same time the benefit granted in such circumstance cannot be to the detriment of social order by releasing all categories of prisoners   irrespective   of   the   categorisation   to   be   made depending on the severity of the crime etc.  The genesis for the present claim being the order passed by this Court in a Suo Motu Writ Petition, a balance was struck.  As such, as noticed from the extracted portion of the order (supra), this Court had directed the constitution of the HPC consisting of a senior High Court Judge and highly placed officials so that an   appropriate   categorisation   be   made   in   each   State dependant on the circumstance arising therein.   Further, the intention of this Court was not that every undertrial or convicted   prisoner   is   to   be   released   irrespective   of   the nature of offence or severity thereof.  The consideration was for the purpose of decongesting the prisons so that social distancing could be maintained to avoid the spread of virus. In that circumstance the consideration would certainly be different in each State/Union Territory depending on the occupancy   in   the   prison,   the   spread   of   virus,   the infrastructure   available   and   the   need,   if   any,   to   release certain number of prisoners so as to decongest.

11.   Therefore, the very purpose of directing each of the States/Union   Territories   to   constitute   a   High ­Powered Committee is that the HPC taking note of the subsisting position in such State will take a decision in the matter as the HPC will have the wherewithal to secure all details and take a decision.   If the said aspect is kept in view, it is noticed   that   by   the   guideline dated 25.03.2020 the Committee in question has categorized the undertrials/convicted persons by the nature of the crime and the length of the punishment which will take care of the severity in the process of consideration.   In that regard, insofar as the undertrial/convicted persons charged under the common law, namely, the Indian Penal Code; they are classified into two categories i.e. category­(i) as punishment below 7 years and category­(ii) as punishment above 7 years so that the consideration could be in that manner.   The Committee   has   thought   it   fit   to   separately   classify   the undertrials/convicted persons who are charged under the Special   Enactments   irrespective   of   the   duration   of imprisonment notwithstanding the fact that the punishment imposed could be less than 7 years.  In that regard, what has weighed with the HPC is that such enactments provide for additional restrictions on grant of bail in addition to those   under   the   Criminal   Procedure   Code.   The   said categorisation   in   our   view   cannot   be   considered   as unreasonable   since   at   the   first   instance,   based   on   the categorisation made a consideration is required by the Court for grant of interim bail if such undertrial/convicted person is seeking bail purely on taking benefit of the notification issued pursuant to such decision taken by the HPC.   The exclusion   made   has   a   reasonable   basis   and   cannot   be termed arbitrary.

12. As already indicated the present methodology for grant of   the   interim   bail   is   with   the   intention   to   avoid overcrowding in the unprecedented circumstance and the grant of bail in the present circumstances is an additional benefit to such persons.   In that circumstance what has been curtailed by the HPC by excluding certain categories is only with a view to deny the benefit to certain category of jail inmates who are charged with serious offences which has an adverse effect on the society at large though the length of the punishment that can be imposed may be lesser.  Such of those persons charged under the special enactments or convicted for a period,   more than 7 years in any event if they   are   not   otherwise   disentitled   to   bail   in   a   normal circumstance could still seek for bail in accordance with law and cannot treat the pandemic as fortuitous circumstance to secure bail to which they were otherwise not entitled to in law by claiming equal treatment.  All that the HPC has denied them is the benefit of seeking interim bail only on the ground that they are entitled to be released on bail in view of the Covid­19 situation and no other legal right has been   denied.     Therefore,   in   the   circumstance   where   the present   consideration   for   bail   is   not   provided   under   a statute but is made available based on the order passed by his Court and further, when a known criteria is formulated by   the   HPC,   which   had   all   materials   before   it,   an interference   with   the   same   in   a   petition   of   the   present nature in any event would not have arisen and the High Court was accordingly justified in its conclusion.

13. That   apart,   keeping   in   perspective   the   object   with which the interim bail was ordered to be considered for the purpose of avoiding overcrowding, the High Court has taken note of the factual position that as on 24.07.2020, as per details furnished, 10338 prisoners were released on interim bail/parole and presently 26,279 prisoners are in prison. Since it was contended on behalf of the petitioners that the official capacity is only 23,217, the State Government had indicated that temporary prisons have been set up in 36 locations and about 2597 prisoners are occupying the same as of now and more will be shifted to avoid overcrowding in the existing prisons, which indicates that appropriate steps are being taken to achieve the object.

14.  Having stated so it is necessary to indicate that the cause   for   grievance   may   arise   for   an   individual undertrial/convicted prisoner only if such person has been discriminated as against the prisoner in the same category for   which   the   benefit   has   been   provided   by   the categorisation made by the HPC.  That apart the intention being to decongest the prisons, as a first step the release of the prisoners based on the impugned guidelines, held to be unflawed would be made.   If, despite the release of the undertrial/convicted prisoners in the categories presently made   does   not   achieve   the   purpose   and   the   fact   that additional prisons are set up also does not suffice and in that context if any modification with regard to the categories made by HPC is necessary; certainly it would be open for the HPC to take note of the same and apply their mind to modify its guidelines in that regard.

15. Therefore, it would still be open for the petitioners to obtain necessary statistics and if any modification of the guidelines is necessary in future, they will be at liberty to submit   an   appropriate   representation   to   the   HPC   which would in that circumstance look into the same and arrive at a conclusion at its discretion depending on the need or otherwise to modify its guidelines.  In that view, we are of the opinion that when such factual consideration to achieve the object alone is necessary and the HPC is constituted for the very purpose, interference in a judicial proceeding of the present nature to alter the criteria would not arise unless it is shown to be so arbitrary that no reasonable person can accept. But in circumstances   where   there   is   any individuous discrimination amongst the prisoners in same category   and   similarly   placed,   it   would   be   open   for   the competent Court to examine the same to that limited extent when grievance is raised by the person who is denied the benefit if he/she is entitled to such benefit.