State
of Maharashtra & Ors Vs. Asha Arun Gawali
& Anr [2004] Insc 328 (27 April 2004)
Doraiswamy
Raju & Arijit Pasayat.
With Crl.A.
Nos. 285 and 286 of 1998 ARIJIT PASAYAT, J.
The
concern for reformation of prisoners and improvement of prison conditions has
been judicially recognised. But the same does not countenance "holding of darbars
in prisons by prisoners", "five star hotel comforts for
prisoners" or "free entry to and exit from jail" as surface in
these cases, that too by statements of admission marked by abashed inefficiency
unbecoming of those who are ordained to strictly carry out their duties and
responsibilities i.e., state of jail authorities and the highly placed
Governmental functionaries. The Bombay High Court while dealing with the legality
of order directing detention of one Arun Gawali (hereinafter referred to as
"detenu") gave certain directions, to be noted hereinafter.
These
three appeals are interlinked and have their matrix to the impugned judgment by
a Division Bench of the Bombay High Court. The High Court in addition to
quashing of order of detention gave the following directions:
"The
State Government is directed to launch prosecution against S/Shri D.M. Jadhav,
M.G. Ghorpade and L.T. Samudrawar and other Jail Officials, in case, if any,
for the offences punishable under sections 120-B, 217 and 218 of the Indian
Penal Code and also under any other relevant provision of law, either
independently or in the prosecution pending against the detenu. Shri P. Subramaniam,
Additional Chief Secretary (Home), Shri S.C. Malhotra, Commissioner of Police
Mumbai and Shri M.G. Narvane, Inspector General of Prisons, Pune shall pay
exemplary costs of Rs.25,000/- each.
S/Shri
D.M. Jadhav, M.G. Ghorpade and L.T. Samudrawar, Superintendents of Jail, shall
pay exemplary costs of Rs.15000/- each.
The
Government of Maharashtra shall deposit the entire exemplary costs payable by
these officers as indicated in this Court within a period of 10 days and the
state Government shall thereafter recover the costs so paid from the respective
officials, in accordance with law.
The
Government shall pay, by way of remuneration, Rs.5000/- to Shri W.G. Charde,
Advocate, who acted as an Amicus Curies, within a period of 10 days." Detenu's
wife Asha Gowali filed a Writ Petition questioning legality of the order of
detention passed under Section 3 of the National Security Act, 1980 (in short
'the Act'). The directions were given while, as noted above quashing the
detention taking note of certain baffling fact situations which came to light
while hearing the writ petition and which should sound as 'nightmares' to any
law abiding citizen and law enforcing authorities. While the State of Maharashtra questions the directions relating
to launching of prosecution, the other two appeals i.e. Criminal Appeal No. 286
of 1998 has been filed by Mr. P. Subramanyam, who was then functioning as Chief
Secretary (Home) and Criminal Appeal No. 285 of 1998 has been filed by Mr. Mahadu
Govindrao Narvane, who was then functioning as Inspector General of Prisons.
Though the judgment has been assailed by the State of Maharashtra no separate appeal has been filed
by Mr. S.C. Malhotra, Commissioner of Police Mumbai, Mr. D.M. Jadhav, Mr. M.G. Ghorpade
and Mr. L.T. Samudrawar, who were acting as Superintendents of Jail, though the
directions given by the High Court also related to them.
The
High Court noticed some startling features of monstrosity found prevailing and
while dealing with the Habeas Corpus application tried to pierce the veils and
noticed the actual distressing as well as disgusting state of affairs. This was
felt necessary because of certain observations in the detention order to the
effect that the detenu while in jail had master-minded killings of certain
persons in connivance with the active participation of certain persons who had
come to meet him in jail.
Certain
registers like the visitors' register etc. were called for verification and
High Court noticed that there was no entry about the alleged visit of so called
co-conspirators and there was no record of their having met the detenu. Certain
officials were asked to file affidavits. Finding many inconsistent and
irreconcilable statements High Court did not give any credence to the
affidavits. In the aforesaid background it was observed that the order of
detention was passed on irrelevant materials and was indefensible. In view of
the sensitive nature of the matter a learned counsel was appointed as Amicus
Curie and his assistance was appreciated by the High Court.
Taking
note of the sad state of affairs in the jail and the total indifference of the
concerned authorities, the High Court felt that there was a need for imposition
of exemplary costs on the erring officials and that is how the directions
quoted above were made.
The legality
of the directions has been questioned in the three appeals. Mr. Mukesh K. Giri,
learned counsel appearing for the appellant-State submitted that the High Court
should not have given direction for launching of prosecution straightaway
without adequate material. Further the order of detention was passed bona fide
and appropriate actions have also been taken against erring officials and,
therefore, the imposition of costs is uncalled for. Similar is the stand taken
by the other learned counsel for the appellants.
Though
the legality of the order quashing the detention order was questioned that was
not very seriously pressed. Mr. M.D. Adkar, learned counsel appearing for the
respondent No.1 - writ petitioner submitted that the High Court has taken note of
the realities and has passed an appropriate order and no interference is called
for.
Certain
baffling features have emerged on a bare reading of the High Court's Order. The
activities in the jail, entry of unauthorised persons and holding of "Darbar"
are part of the defensive stand taken by the State Authorities in the
affidavits filed before the High Court. We are shocked to find that the norms
relating to entry of persons to the jail, maintenance of proper record of
persons who entered the jail have been observed more in breach than observance
and the rules and regulations have been found thrown to winds. The affidavits
filed by the officials amply demonstrate this factor. One used to hear and read
about lavish parties being thrown inside the jail. Doubts at times were
entertained about the authenticity of such news having regard to the normal
good faith to be reposed in the regularity of official activities. But the
admissions made in the affidavits filed by the Jail Authorities and the
officials, accept it as a fact. What is still more shocking is that persons
have entered the jail, met the inmates and if the statements of the officials
are seen hatched conspiracies for committing murders. The High Court was
therefore justified in holding that without the active cooperation of the
officials concerned these things would not have been possible. The High Court
appears to have justifiably felt aghast at such acts of omissions and
commissions of the jail officials which per se constituted offences punishable
under various provisions of the IPC and has, therefore, necessarily directed
the launching of criminal prosecution against them, besides mulcting them with
exemplary costs.
The
High Court noticed and in our view correctly that when the names of visitors who
allegedly were a part of the conspiracy warranting detention of the detenu were
not in the list of visitors during the concerned period, there is a patent
admission about people getting unauthorised entry into the jails without their
names being recorded in the official records something which would be
impossible except with the connivance of those who otherwise should have
prevented such things happening. It was noted by the High Court that there was
no explanation as to how somebody could gain entry in the jail and meet the detenu
and yet no entry would be made therefor. It is not possible unless the jail
officials are themselves a party to the same.
On one
hand the detaining authority was referring to the activities of the detenu
inside the jail and the conspiracies hatched, and at the same time official
records belied their version. In respect of certain officials' misconducts
explanations were called for regarding involvement of jail officials, their
negligence or connivance relating to Yerwada Central Prison. The High Court
noticed that after taking some initial disciplinary action, nothing concrete
was really done. It felt that the Inspector General of Prisons, other high
placed officials and the Chief Secretary acted with unwarranted casualness and
indifference and there was total lack of any seriousness or sensitivity
exhibited in the matter. If the criminal activities of the detenu were to be
prevented and the recurrence of lapses which are serious on the part of those
concerned were to be averted, firm action was necessary which yet was not even
taken for reasons best known to themselves.
In the
aforesaid background the concern exhibited by the High Court as a necessary
corollary by imposition of costs cannot at all be found fault with.
In the
background of what has been noticed by the High Court, one thing is very clear
that there is a total casualness by the jail authorities. In the matter of
maintaining records of persons who meet the inmates, the factual position as
admitted in the affidavit filed is that the authorities themselves were
conscious of the prevalent position but yet allowed to go scot free with
impunity, except a pretended lip service. The purpose for which the jails are
set-up have been totally destroyed by the manner in which the jail officials
have acted. If the real purpose for setting up jails is to keep criminals out
of circulation in the society and to ensure that their activities are
restricted or curtailed, the same appears to have remained only a pious wish on
paper and what happens in reality is just the reverse. High sounding words like
"Writ of police runs beyond stone wall and iron bar", used in the
affidavits have not been reflected in the action of the authorities and does
not do real justice to the situation which only apparently necessitated, a hardline
of action by the High Court. On the contrary the High Court came to hold on the
basis of indisputable material placed before it that the jail officials
rendered support to the criminals in their crimes by completely disregarding
the mandate of law and this was done with a view to save them and in particular
the detenu from punishment. An officer is supposed to act for protection of
people, and prevent their criminal activities. Such activities are not merely
lapses or omissions but more dangerous than the crimes and criminals who commit
them for insulation it officially provides as alibi for avoiding and escaping
from actual liability, under law, for those crimes . If they themselves become
a party to the crimes by directly or indirectly helping the criminals to carry
out their criminal activities using their incarceration as a protective shield
to go scot free for their crimes , the credentials of the police officials are
bound to suffer severe beating beyond repair and redemption. That is precisely
what the High Court has observed and attempted to activate and rectify.
The
High Court noticed that the Maharashtra Prisons Facilities to Prisoners Rules,
1962 prescribed the modes of interview of relatives etc. It was noticed that
these provisions were not prima facie observed. The under- trial detenues and
prisoners locked in different prisons are in the custody of the jail officials,
and they are responsible for the safety of the prisoners, maintenance of the
prisons and the enforcement of discipline amongst the prisoners. In the
affidavit dated 2.5.1997 the common plea of the Jail Superintendents was in the
following words:
"That
absence of entry in the gate register is not conclusive proof to establish that
the so called persons have entered the jail. The statement before the Police
during investigation is not admissible. It is further stated that First
Information Reports in the respective crimes were recorded after long
time." If what is stated in the affidavit is the reality one need not
probe further to find out the nature and extent of infractions.
But we
feel a further detailed enquiry was necessary in the matter. Therefore, the
matter should be elaborately enquired into by the State Government. We are
conscious that the officials have exhibited a total lack of seriousness and
urgency but in the peculiar circumstances of the case where the entire system
is under scrutiny, a detailed study of the factual position is necessary. What
has happened in the jail to which this case relates, may or may not be
different from other jails and that there is no guarantee that such things are
now not happening. But a doubt lingers about the position being no better in
other jails also.
We,
therefore, dispose of the appeals with the following directions:
(1)
The State Government shall cause enquiry into the matter in depth and whatever
action has to be taken departmentally or in accordance with the criminal laws
shall be taken within six months from today. The directions for imposition of
costs on the appellants - Mahadu Govindrao Narvane and P.Subramanyam personally
are waived for the present.
(2)
Since the other officials in respect of whom costs were imposed have not
questioned the imposition, the directions of the High Court in relation to such
officers remain unaltered.
(3) So
far as the two appellants before this Court i.e. P.Subramanyam and Mahadu Govindrao
Narvane are concerned, it shall be open to the Government to initiate actions
against them if felt necessary even if they have retired on the basis of
enquiry as directed.
(4)
Judicial officers go for inspection of jails periodically. The disturbing
features noticed in the case at hand shall be kept in view by them while they
make the inspections and appropriate remedial measures and actions shall be
taken on the basis of the reports, if any, submitted by the concerned officers.
5. The
Government may consider the appointment of a Commission headed by former Judge
of the Supreme Court to be assisted by a former Inspector General of Prisons
and DG Police to probe into the nature of such lapses and explore the
possibilities of effectively curbing their recurrence and devising methods and
means to prevent them by appropriate statutory Provisions or Rules, to
sufficiently meet the exigencies of the situation.
The
appeals are disposed of on the aforesaid terms.
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