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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.