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CASE NO.:

Appeal (crl.) 284 of 1998

PETITIONER:

State of Maharashtra & Ors.

RESPONDENT:

Asha Arun Gawali & Anr.

DATE OF JUDGMENT: 27/04/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

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

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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.

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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

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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

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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

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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.