Phoolan
Devi Vs. State of M.P. & Ors [1996] INSC 1515 (27 November 1996)
J.S.
Verma, Sujata V. Manohar J.S. Verma.J.
ACT:
HEAD NOTE:
The
petitioner - Smt. Phoolan Devi was in custody since February 12, 1983 when she claims to have voluntarily surrendered in the
State of Madhya Pradesh with a criminal past. She was in
the Central Jail at Gwalior in Madhya Pradesh In this writ petition filed in
January 1993 under Article 32 of the Constitution she has prayed for a
direction for her release from custody, and an appropriate writ, order or
direction quashing the large number of prosecutions initiated against her by
the State of Uttar Pradesh for commission of heinous a offences, e.g dacoity
and murder. In substance, she claims that her right to speedy trial guaranteed
under Article 21 of the Constitution has been violated and her continued
custody was without any lawful authority. By an order dated February 18,1994 this Court directed release of the
petitioner on parole in view of the fact that the petitioner had been in
custody for a period of eleven years till then. The petitioner is on parole
pursuant to that order.
The
petitioner alleges that atrocities were committed on her and members of her
family by persons belonging to the upper castes and she was also the victim of
gang rape which drove her to adopt a life of crime; this criminal past is the
cause for a large number of criminal cases for offences of dacoity and murder
etc. against her in the State of Uttar Pradesh. She alleges that she had surrendred
certain terms and conditions offered to her by the Government of Madhya
Pradesh; those terms included, inter alia, the assurance that she would be
released from custody after release on parole should be converted into a
direction for her final release.
It may
be mentioned that the petitioner has also filed Transfer Petition (Crl.) No. 36
of 1992 praying for transfer of all the criminal cases against her pending in
the courts of Uttar Pradesh to the Special Court at Gwalior in Madhya Pradesh. That transfer petition
is pending and is to be heard separately. The order disposing of this writ
petition has no bearing on that transfer petition. For the same reason the
arguments of Shri Jethmalani which may have relevance in the transfer petition,
though urged in this writ petition are not being considered in this writ
petition and would remain available for considering e prayer made in the
petitioner's transfer petition.
In our
opinion, the limited scope of this writ petition is the question of the release
of the petitioner from custody on the present facts. The other aspects sought
to he raised by Shri Jethmalani do not require consideration in this writ
petition. The question of the content and effect of the terms of surrender
alleged by the petitioner has to be raised and decided in the criminal cases
pending against the petitioner. The same cannot be raised on the basis of an
omnibus statement in this petition under Article 32 of the Constitution.
We are
informed that the State of Uttar Pradesh
has moved an application in each trial pending in the courts of Uttar Pradesh
seeking leave to withdraw the prosecution.
This
aspect based on the alleged terms of the surrender may have relevance in those
proceedings requiring consideration of the same in the facts of each
prosecution. The question whether the blame for the entire delay in the
prosecution/trial in each of those 4 criminal cases lies on the State alone and
not the petitioner is a question of fact to be considered in each of those
cases. Merely because of the lapse of several years since the commencement of
those prosecutions, to cannot be said that for that reason alone the
continuance of the prosecutions would violate the petitioner right to speedy
trial. Similarly, the cumulative effect of the terms of the alleged surrender
have to be examined, on the same being duly proved in those prosecutions to
decide the merit of the contention that eight years; she would be tried in the
courts in Madhya Pradesh only even for the crimes alleged to have been committed
in the State of Uttar Pradesh; and death penalty would not be imposed in any
case. On this basis it is claimed that the custody for eleven years under gone
by the petitioner is sufficient to satisfy this requirement and all the
prosecutions pending against her in the courts in Uttar Pradesh should be
quashed. According to the petitioner there are about 55 criminal prosecutions
against her in the courts in Uttar Pradesh alleging the commission of heinous
offences like dacoity and murder by her.
Shri
Ram Jethmalani, learned counsel for the peti- tioner, strenuously urged that
there is no justification for continuing the prosecution of the petitioner in
any of the criminal cases pending against her in the courts of Uttar Pradesh,
since the petitioner has already been in custody for a total period of eleven
years when according to the terms of surrender she was undergo imprisinment for
a total period of eight years only. He submitted that to honour this commitment
the petitioner did not challenge the order dated August. 13,1986 passed by the
Government of Madhya Pradesh in the purported exercise of power under Section
268 of the Criminal Procedure Code even though it was invalid for continuing
the petitioner's detention in the Central Jail at Gwalior. He submitted that the petitioner
was required to serve the sentence of three years' imprisonment in the only
case in the State of Madhya Pradesh which term of imprisonment ended on July
25, 1985 and, therefore, the further custody for a period of eight years satisfied
the terms of the surrender Shri Jethmalani submitted that the petitioner did
not challenge the validity of Madhya Pradesh Government's order dated August
13, 1986 because of the moral Justification for continuing her custody for . further
period of eight year under the terms of surrender. Learned counsel submitted
that now there is no justification for continuing any prosecution in Uttar
Pradesh, there being no other criminal case pending in Madhya Pradesh against
her.
On
this basis learned counsel contended, that all the prosecutions pending in the
courts in Uttar Pradesh against the Petitioner should be quashed; end her the
petitioner is not liable for any further punishment as claimed by her. The mere
fact that the alleged terms offer immunity from death penalty and trial of all
cases in Madhya Pradesh even for crimes committed in Uttar Pradesh, indicates
that the question of the punishment to be imposed on the petitioner in each
case depends on the final outcome at the trial, and the imprisonment of eight
years mentioned in one of these terms does not conclude the prosecutions. The
petitioner's contention that the violation of her right to speedy trial is
proved by these facts alone to justify quashing of all the prosecutions is,
therefore, untenable.
The
only question now is of the relief pertaining to petitioner's release from
custody at this juncture. In response to the notice of this petition, it has
been stated clearly on behalf of the State of Madhya Pradesh that the
petitioner has served out the sentence of three years' imprisonment awarded in
the only case against her in Madhya Pradesh; and that there is no other
criminal case in which she has been sentenced or is wanted. This being so, no
authority has been shown to justify continuance of her custody on account of
the commission of any crime in Madhya Pradesh or any judgment of any court in
Madhya Pradesh. On behalf of the State of Uttar Pradesh also, nothing has been shown to indicate that there is any
subsisting order or judgment of any court requiring the continuance of
petitioner in custody. In short, no authority has been shown either by the
state of Madhya Pradesh or by t e State Uttar Pradesh to justify further
custody of the petitioner at this juncture. this is, however, subject to the
requirement of any order made hereafter by any competent court in any of the
pending prosecutions against the petitioner. The petitioner is, therefore,
entitled to release at prevent, unless by any order made hereafter by any
competent court she is required to be taken in custody. The Petitioner is
entitled to the grant of relief only to this extent in this writ petition.
For
the aforesaid reasons we direct that the petitioner, who is on parole by virtue
of order dated February 18, 1994 made in this case, shall continue remain tree,
subject to the requirement of taking her in custody by virtue of any order made
by a competent court/authority in any of the prosecutions pending in the State
of Uttar Pradesh or any other case. The prayer in the writ petition for quashing
the prosecutions pending in the State of Uttar Pradesh is rejected.
The
writ petition is disposed of in this manner.
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