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PETITIONER: HUSSAINARA KHATTON & ORS.

       Vs.

RESPONDENT: HOME SECRETARY, STATE OF BIHAR, PATNA

DATE OF JUDGMENT26/02/1979

BENCH: BHAGWATI, P.N. BENCH: 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-

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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]

JUDGMENT:      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

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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

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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

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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).

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    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. 399