Hussainara Khatton & Ors Vs. Home
Secretary, State of Bihar, Patna [1979] INSC 53 (26 February 1979)
BHAGWATI, P.N.
BHAGWATI, P.N.
PATHAK, R.S.
KOSHAL, A.D.
CITATION: 1979 AIR 1360 1979 SCR (3) 169 1980
SCC (1) 81
CITATOR INFO:
RF 1980 SC1789 (112) RF 1981 SC 746 (3) RF
1981 SC 939 (2) E 1981 SC1675 (1,2) R 1982 SC1167 (1,2) R 1983 SC 361 ((2)19)
RF 1985 SC 231 (2) R 1986 SC 180 (39) RF 1986 SC1773 (12) F 1987 SC 149 (9) RF
1988 SC1531 (87) F 1989 SC1335 (71) RF 1992 SC1701 (1,21,28,29,31,32,35)
ACT:
Constitution of India 1950-Art. 21-Women kept
in jail by way of 'protective custody'-Violation of personal liberty.
Code of Criminal Procedure 1973-Ss. 167(5)
& 468- Release of under-trial prisoner when Magistrate not satisfied with
necessity of continuing investigation or charge-sheet not filed within
limitation.
HEADNOTE:
At the further hearing of the case on release
of under- trials in the State of Bihar,
HELD: (a)(i) The expression 'protective
custody' is an euphemism calculated to disguise what is really and in truth
nothing but imprisonment. It is an expression intended to appease the
conscience. This so-called 'protective custody' is nothing short of a blatant
violation of personal liberty guaranteed under Art. 21 of the Constitution,
because there is no provision of law under which a woman can be kept in jail by
way of 'protective custody' or merely because she is required for the purpose
of giving evidence. [395C-D] (ii) The Government in a social welfare state must
set up rescue and welfare homes for the purpose of taking care of women and
children who have nowhere else to go and who are otherwise uncared for by
society. [395E] (b) The under-trial prisoners against whom charge- sheets have
not been filed by the police within the period of limitation provided for in
sub-section (2) of section 468 cannot be proceeded against at all and they
would be entitled to be released forthwith, as their further detention would be
unlawful and in violation of their fundamental right under Art. 21. [397 G] (c)
The provision of s. 167(5) of the Code of Criminal Procedure 1973 requiring the
investigating officer to satisfy the Magistrate on the necessity of
continuation of the investigation beyond a period of six months has not been
complied with, because there are quite a few cases where the offences charged
against the under-trial prisoners are triable as summons cases and yet they are
languishing in jail for a long number of years far exceeding six months.
[398C] And the Court directed that:- (a) All
women and children in the jails in the State of Bihar under 'protective
custody' should be released and taken forthwith to welfare homes or rescue
homes and should be kept there and properly looked after. [395F] (b) The State
Government should scrutinise the cases of under-trial prisoners and release
such of them who are not liable to be proceeded against by reason of the period
of limitation provided in s. 468 Cr.P.C. having expired. [397H] (c) The State
Govt. should inquire into those cases where the investigation has been going on
for a period of more than six months without the satisfaction 394 of the
Magistrate as envisaged in s. 167(5) and to release the under-trials unless the
necessary orders of the Magistrate are obtained within one month. [398D-E]
ORIGINAL JURISDICTION: Writ Petition No. 57
of 1979.
Mrs. K. Hingorani for the Petitioners.
Lal Narain Sinha, U. P. Singh and S. N. Jha
for the Respondent.
S. V. Gupte, Attorney General, R. N. Sachthey
for the Attorney General.
The Order of the Court was delivered by
BHAGWATI, J.-The Government of Bihar has filed before us a note containing the
proposed clarification of paragraph 2(e) of the Government Order dated 9th
February, 1979, pursuant to the suggestion made by us in our order dated 19th
February, 1979. This clarification states in paragraph one that where the
police investigation in a case has been delayed by over two years, the
Superintendent of Police will see to it that the investigation is completed
expeditiously and final report or charge-sheet is submitted by the police as
quickly as possible and the responsibility to ensure this has been laid
personally on the Superintendent of Police. We are glad to note that the State
Government has responded to our suggestion but we are not at all sure whether
it is enough merely to provide that the investigation would be completed
expeditiously and the final report or charge-sheet submitted as quickly as
possible. We are of the view that a reasonable time limit should be set by the
State Government within which these steps should be taken, so that no further
delay is occasioned in the submission of the final report or charge-sheet. We
fail to see how any police investigation can take so long as two years and if
police investigation cannot be completed within two years, then there must be
something radically wrong with the police force in the State of Bihar. It
appears that there are a number of cases where police investigation has not
been completed for over two years and persons have been in jail as under-trial
prisoners for long periods. This is a shocking state of affairs so far as the
administration of law and order is concerned. We would, therefore, suggest that
in those cases where police investigation has been delayed by over two years,
the final report or charge-sheet must be submitted by the police within a
further period of three months and if that is not done, the State Government
might well withdraw such cases, because if after a period of over two years
plus an additional period of three months, the police is not able to file a
charge-sheet, one can reasonably assume that there is no case against the
arrested persons.
395 The Government of Bihar has also filed a
counter- affidavit made by Mr. Mrinmaya Choudhry, Assistant Inspector General
of Prisons (1), Bihar setting out the particulars in regard to 18 under-trial
who have been ordered to be released by us on their personal bond. The
particulars given in this counter-affidavit make very distressing reading. It
appears from this counter-affidavit that there are quite a few women prisoners
who are in jail without even being accused of any offence, merely because they
happen to be victims of an offence or they are required for the purpose of
giving evidence or they are in "protective custody". The expression
'protective custody' is a euphemism calculated to disguise what is really and
in truth nothing but imprisonment. It is an expression intended to appease the
conscience. It cannot be gainsaid that women who have been kept in jail under
the guise of 'protective custody' have suffered involuntary deprivation of
liberty for long periods without any fault on their part. We may point out that
this so-called 'protective custody' is nothing short of a blatant violation of
personal liberty guaranteed under Article 21 of the Constitution, because we
are not aware of any provision of law under which a woman can be kept in jail
by way of "protective custody" or merely because she is required for
the purpose of giving evidence. The Government in a social welfare state must
set up rescue and welfare homes for the purpose of taking care of women and
children who have nowhere else to go and who are otherwise uncared for by the
society. It is the duty of government to protect women and children who are
homeless or destitute and it is surprising that the Government of Bihar should
have come forward with the explanation that they were constrained to keep women
in 'protective custody' in jail because a welfare home maintained by the State
was shut down. We direct that all women and children who are in the jails in
the State of Bihar under 'protective custody' or who are in jail because their
presence is required for giving evidence or who are victims of offence should
be released and taken forthwith to welfare homes or rescue homes and should be
kept there and properly looked after.
We also find from the counter-affidavit that
Bhola Mahto was in jail from 23rd November, 1968 until 16th February, 1979 when
he was released on his personal bond pursuant to the directions given by us by
our order dated 5th February, 1979. He is accused in a case under Section 363
& 368 of the Indian Penal Code and he was committed to the court of
Sessions on 13th September, 1972 but his sessions trial has not yet commenced.
It is amazing that a sessions 396 trial of a person committed to the court of
sessions as far back as 13th September 1972 should not have been commenced for
about seven years. We direct that the Sessions Judge, Patna should forward to
this Court through the High Court of Patna an explanation as to why the
sessions trial of Bhola Mahto has not yet commenced. This is also a matter to
which we would invite the attention of the High Court of Patna.
The same may be said also of Ram Sagar Mistry
who was admitted in jail on 28th March, 1971 and committed to the Court of
Sessions on 28th June, 1972 on a charge under section 395 of the Indian Penal
Code but whose trial has not yet commenced before the Court of Sessions though
a period of more than six years has elapsed since the date of his commitment
and a period of eight years since the date of his imprisonment.
The counter-affidavit shows that Babloo Rai
who is reported to be a Naxalite is in jail since 15th May, 1975.
He is alleged to be involved in five cases
which are set out in the counter-affidavit. So far as he is concerned, it will
be open to him to make an application to the Magistrate before whom he is
produced, for being released on bail or on his personal bond and the Magistrate
will deal with his application in accordance with broad guidelines laid down by
us in our judgment dated 12th February, 1979.
We are not at all sure on reading the
counter-affidavit whether the under-trial prisoners whose particulars are given
there, are being produced periodically before the Magistrate as required by the
proviso to Section 167(2) of the Code of Criminal Procedure, 1973. We should
like to know from the Government in a proper affidavit to be filed before us on
or before 3rd March, 1979 whether these under-trial prisoners were periodically
produced before the Magistrate in compliance with the requirement of the
proviso to Section 167(2). The proviso to Section 167(2) says that the
Magistrate may authorise the detention of the accused person beyond the period
of 15 days if he is satisfied that adequate grounds exist for doing so. We hope
and trust that in these cases the Magistrates concerned did not act
mechanically but applied their mind and satisfied themselves that adequate
grounds existed for remanding these persons to judicial custody from time to
time over a period varying from two to ten years, though we fail to see how the
Magistrates could possibly have been satisfied about the existence of adequate
grounds for remanding these persons to judicial custody for such long periods
of time ranging from two to ten years for the purpose of police investigation.
This is also a matter which we would like the
High Court of Patna to consider after making a detailed inquiry.
397 The Government of Bihar has also filed
before us a list giving particulars of the under-trial prisoners who are
confined in 17 jails in Bihar for more than 18 months as on 1st February, 1979.
The chart shows that there are under- trial prisoners confined in these jails
for long periods of time and sometimes even exceeding the maximum punishment
which could be awarded to them even if they are found guilty of the offences
charged against them. To take an example, we find at Item 30 one Lambodar
Gorain has been in Ranchi Jail since 18th June, 1970 for an offence under Section
25 of the Arms Act for which the maximum punishment is two years, with the
result that he has been in jail as an under-trial prisoner for 8 1/2 years for
an offence for which even if convicted, he could not have been awarded more
than two years' imprisonment. There are many such cases in the chart, but it is
not possible to identify them easily from the chart because the chart contains
a large number of names of under-trial prisoners. We would, therefore, direct
the Government of Bihar to submit to us on or before 3rd March, 1979 a revised
chart showing yearwise break-up of the particulars of the under-trial prisoners
in these jails after dividing them broadly into two categories, one of minor
offences and the other of major offences.
Our attention has also been drawn to Section
468 of the Code of Criminal Procedure 1973 which in sub-section (1) provides
that except as otherwise provided elsewhere in the Code, no court shall take
cognizance of an offence of the category specified in sub-section (2) after the
expiry of the period of limitation and under sub-section (2) the period of
limitation provided is six months, if the offence is punishable with fine only,
one year if the offence is punishable with imprisonment for a term not
exceeding one year and three years if the offence is punishable with
imprisonment for a term exceeding one year but not exceeding three years. It
would, therefore, be seen that the under- trial prisoners against whom
charge-sheets have not been filed by the police within the period of limitation
provided in sub-section (2) of Section 468 cannot be proceeded against at all
and they would be entitled to be released forthwith, as their further detention
would be unlawful and in violation of their fundamental right under Article 21.
We, therefore, direct the Government of Bihar
to scrutinise the cases of under-trial prisoners charged with offences which
are punishable with fine only or punishable with imprisonment for a term not
exceeding one year or punishable with imprisonment for a term exceeding one
year but not exceeding three years and release such of them who are not liable
to be proceeded against by reason of the period of limitation having expired.
This direction shall be carried out by the Government of Bihar within a 398 period
of six weeks from today and compliance reports containing particulars shall be
submitted to this Court, first at the end of four weeks and then at the end of
the next two weeks.
We also find from section 167(5) of the Code
of Criminal Procedure, 1973 that if in any case triable by a Magistrate as a
summons case, the investigation is not concluded within a period of six months
from the date on which the accused was arrested, the Magistrate shall make an
order stopping further investigation into the offence, unless the officer
making the investigation satisfies the Magistrate that for special reasons and
in the interest of justice the continuation of the investigation beyond the
period of six months is necessary. We are not at all sure whether this provision
has been complied with, because there are quite a few cases where the offences
charged against the under-trial prisoners are triable as summons cases and yet
they are languishing in jail for a long number of years far exceeding six
months. We, therefore, direct the Government of Bihar to inquire into these
cases and where it is found that the investigation has been going on for a
period of more than six months without satisfying the Magistrate that for
special reasons and in the interest of justice the continuation of the
investigation beyond the period of six months is necessary, the Government of
Bihar will release the under-trial prisoners, unless the necessary orders of
the Magistrate are obtained within a period of one month from today. We would
also request the High Court to look into this matter and satisfy itself whether
the Magistrates in Bihar have been complying with the provisions of section
167(5).
We adjourn the hearing of the Writ Petition
to 5th March, 1979 and on that date, we shall proceed to hear and dispose of
the Writ Petition on merits on the various questions arising for determination.
N.V.K.
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