23 March 1982
Supreme Court


Case number: Special Leave Petition (Civil) 8774 of 1980








CITATION:  1982 AIR 1008            1982 SCR  (3) 533  1982 SCC  (2) 195

ACT:      Constitution  of   India  1950,   Art.32-Hobeas  Corpus petition-Respondent a  government official  directed to file affidavit-official suspended  by government-Suspension order whether can be challenged in incidental proceedings.

HEADNOTE:      The second respondent who was the Superintendent of the Bhagalpur Central Jail was suspended by the State Government on the  ground that  he was  negligent in  providing  proper medical aid  to the  blinded undertrial prisoners inside the jail and  that he  had failed  to make  entries in  the jail register as regards the physical condition of the undertrial prisoners.      In a  Miscellaneous Petition  filed by  him he  claimed that his  order of  suspension be  quashed as  it was passed mala fide  with the object of preventing him from filing the affidavit as directed by the Court.      The State  Government contested the petition contending that the  respondent was suspended for his failure to comply with the  requirements of  Rule 474  (1) of  the Bihar  Jail Manual in  that he  did not  scrutinise and sign the entries made in  the Admission  Register maintained  at the  jail to satisfy himself  whether  those  entries  were  correct  and whether the relevant rules in regard to the admission of the prisoners were  complied with.  He did  not also  record any ’special order’  under Rule  474 (2)  regarding the  medical treatment given or to be given to the blinded prisoners with the result  that they  were not  sent for examination to any eye specialist. He did not make a report on the blindings of the prisoners and, he supplied to newspapers his own version of the blindings.      Dismissing the petitions, ^      HELD: ordinarily  an  order  of  suspension  cannot  be challenged in  an incidental  proceeding but  it  was  heard since the  allegation was  that the petitioner was suspended in order to defeat the order passed by this Court. [539 E]      2. The  order of  Suspension  was  not  passed  by  the Government mala  fide as a counter-blast to the order passed by this Court on December 1, 1980 and to defeat it. [540 F]



534      3. The  allegation that the motive behind the order was to frustrate  the purpose  of the  Court’s direction calling upon the  petitioner to file an affidavit is not proved. The evidence on  record  indicates  that  the  State  Government officials were  enquiring into  the blindings  of the under- trial prisoners  and there  is a  report in  the  Government files recommending  that the  petitioner  be  suspended  for dereliction of  duty. It cannot be said that this report was prepared  later  and  antedated  to  justify  the  order  of suspension. [540 G-H; 541 A-B]      4. By placing the petitioner under suspension the State Government could not prevent him from filing an affidavit in Court. He  was free  to file  his affidavit  and in  fact he filed an affidavit after suspension. [541 C]      5. The  petitioner will  be at liberty to challenge the order of suspension in a properly constituted proceedings on such grounds as may be open to him including the ground that the order was passed mala fide. [541 F]

JUDGMENT:      ORIGINAL JURISDICTION:  Criminal Misc.  Petitions  Nos. 8774 of 1980 & 2581 of 1981.                              IN      Writ Petition No. 5352 of 1980.      (Under Article 32 of the Constitution)      B. L. Das Petitioner-in-person.      K  G.  Bhagat  and  D.  Goburdhan  for  the  Respondent      (State).      R.N. Poddar for the Respondent (CBI).      The order of the Court was delivered by      CHANDRCHUD, C.J. These Misc. Petitions are an off-shoot of the blindings of undertrial prisoners at Bhagalpur in the State of  Bihar. Truth  has a  strange  habit  of  revealing itself and  in spite of the veil of secrecy behind which the blindings of  those prisoners  lay concealed  or suppressed, this Court  and the  country awoke one day to the incredible fact that, in Bhagalpur, undertrial prisoners were subjected to the  most inhuman  torture imaginable:  their  eyes  were pierced with  needles and  acid poured  into  them.  Whether these barbarous acts were committed by members of the public after the  prisoners were caught or by the police after they were arrested,  is not a matter directly in issue before us. The greater  probability is  that these  acts may  have been committed mostly by the police. 535 But this  much is  certain, that  six  prisoners  were  thus blinded between October 1979 and May 1980 and twelve between June 11  and July  25, 1980. The petitioner Bachcho Lal Das, who has  filed these  Misc. Petitions, had assumed charge as the Superintendent  of the  Bhagalpur Central  Jail on April 19? 19791      On October  26, 1979  a prisoner  by the  name of Arjun Goswami was  sent to the Bhagalpur Central Jail. On November 20, 1979  he addressed  an application to the Chief Judicial Magistrate, Bhagalpur,  asking that  an inquiry be held into the torture  inflicted upon  him, especially the blinding of his eyes.  That application  was forwarded by the petitioner to the  Chief Judicial  Magistrate. Later,  eleven prisoners made similar  complaints  which  were  for-  warded  by  the petitioner to the learned Sessions Judge, Bhagalpur, On July 30,  1980.   The  complaints   made   by   these   prisoners unquestionable  demanded   the  most   prompt  and   careful



attention. But,  instead of  directing  a  full  and  proper inquiry  into   the  allegations   made  by  the  undertrial prisoners, the  learned Sessions  Judge, on  August 5, 1980, sent a  cold  and  indifferent  reply  to  the  petitioner’s covering letter,  saying that  "there is no provision in the Cr. P.C. to provide a lawyer to any person for prosecuting a criminal case  as a complaint" and that the petitions of the prisoners were  forwarded to  the Chief Judicial Magistrate, Bhagalpur, "for needful in accordance with law." E      On October  9, 1980,  ten  blinded  prisoners  filed  a Habeas Corpus petition in this Court (Criminal Writ Petition No. 5352  of 1980)  asking that: (I) they should be produced in the  Court, (2)  they should  be examined  by  a  Medical Board, (3)  they should  be paid compensation for the damage done to  their eyes  and that (4) the police officers guilty of  committing  atrocities  upon  them  should  be  suitably punished.  On  October  10,  1980  a  Bench  of  this  Court consisting of  one of  us, (the  Chief Justice), and Justice A.D. Koshal passed the following order in that petition:           "We direct  that the petitioners shall be examined      by the  Jail Doctor  forthwith and  a report  shall  be      submitted to  this Court expeditiously in regard to the      allegation in  the petition  that their  eyes have been      damaged by  certain police  officers  by  putting  acid      therein. The  report shall  be  submitted  within  four      weeks from  today. The W.P, be listed for hearing after      the report is received." 536 By his  letter dated October 31, 1980 the petitioner, who is respondent 2  in the  Habeas Corpus  petition, forwarded  to this Court the report of the Jail Doctor on the condition of the eyes  of the  prisoners. The  remaining 2 prisoners were already released  and could  not therefore  be examined. The report of the Jail Doctor in regard to one of the prisoners, Anil Yadav,  is representative  of the  condition of all the eight of them and may be extracted here:      "(1) Presence  of old burn scar around both the eyelids           of both the eyes and on left cheek.      (2)  Collapse of both the eye balls.      (3)   Perception of light and projection of rays absent           in both the eyes.      (4)  Eye sight of both the eyes lost.           The cause is perforation of eye balls by burn with      some corrosive substance and puncture by some sharp and      pointed weapon.           From the records of Jail Hospital it is known that      he was  admitted in  Jail Hospital on 8.7.1980 for acid      burn injury of both the eyes.’’      On December  1, 1980,  the Court (the Chief Justice and Chinnappa Reddy,  J.), while directing that the prisoners be brought to  Delhi the  following week and be examined at the Dr. Rajendra  Prasad ophthalmic institute, New Delhi, passed the following order:           "The report  of the doctor which we had called for      by our  order dated  October 10,  1980 shows that eight      out of  the ten  petitioners before  us have lost their      eye-sight totally or partially. The report submitted by      Dr. K.S. Roy in each individual case shows that:      (i)    most  of  the  petitioners  are  suffering  from           collapse of one or both of the eye-balls;      (ii) the sight of one or both of their eyes is lost; 537       (iii) there  is perforation of their eye-balls by burn           with  a corrosive substance and that      (iv) their eyes  have been  punctured by some sharp and



         pointed weapon.           The remaining  two petitioners  have been released      and therefore no report could be sent regarding them.           The report of the doctor will shock the conscience      of mankind.  There has been the most flagrant violation      of the safeguards provided by Articles 19 and 21 of the      Constitution. There is nothing that the Court can do to      restore the  physical damage,  which seems irreparable.      But the  offenders must  at all  events be  brought  to      book, at  least in the hope that such brutal atrocities      will not be committed again.           With   that   end   in   view,   we   direct   the      Superintendent D  of the Bhagalpur Central Jail to file      an affidavit in this Court within two weeks from to-day      stating:      (a)  the names  of convicts and undertrial prisoners in           the jail  whose eyes have been damaged or impaired           before or after their lodgement in Jail;      (b)  the names  of policemen,  police officers  and the           members of  the jail  staff who  were in charge of           those prisoners at the relevant time;      (c)  the names  of doctors  who were  in charge  of the           jail dispensary  or hospital at the relevant time;           and      (d)  the names  of doctors who have examined, from time           to time, the petitioners and other prisoners whose           eyes have  been damaged  or impaired  after  their           lodgement in jail.           We direct  that the Registrar of the Supreme Court      and one  other officer  of the  Court shall  visit  the      Bhagalpur Central  Jail during  this  week  and  obtain      first-hand the  version of  the petitioners  and  other      prisoners similarly  situated as regards the impairment      or blinding  of their  eyes. The  two officers  of  the      court shall be granted every facility 538      to meet  the prisoners, to talk them beyond the hearing      of any jail officer or police officer and to record the      statements  of   the  prisoners.  We  direct  the  Jail      Superintendent to  ensure due  and full compliance with      these directions.           Issue notice  to the  State of  Bihar asking it to      show cause  on the  petition as  also  as  to  why  the      petitioners should  not be  released on  bail on  their      personal recognizance."      Shri R.  Narasimhan, Registrar  (Judicial) and  Shri Y. Lal, Assistant Registrar of this Court visited the Bhagalpur Central Jail  on December  3 and  4, 1980  and recorded  the statements  of   17  prisoners   who  were   blinded.  These statements show that 15 out of the 17 prisoners were blinded by the  police and  the remaining  2, whose  names appear at Serial Nos.  14 and  15 of the report of the Registrar, were blinded by the members of the public. The method adopted for blinding the  undertrial  prisoners,  as  described  by  the prisoners themselves, was that a ’takwa’ (a long needle used for stitching  gunny bags)  or a  barber’s nail-cutter  or a cycle spoke  was poked  into their  eyes and acid was poured into the  eyes,  sometimes  with  the  help  of  a  dropper, sometimes with  a syringe  and  sometimes  directly  from  a bottle. It is alleged that the prisoners were held firmly on the ground  by policemen who either pulled the ropes tied to their feet or sat upon their feet.      The Registrar  questioned the  Petitioner, Bachcho  Lal Das, in  Delhi. The petitioner stated to him that as many as 31 blinded  prisoners were  brought to the Jail under orders



of remand  issued by the Magistrate and that they were given medical treatment  by the  Jail  Doctor.  According  to  the petitioner, he  got a  blinded prisoner Umesh Yadav examined by the  Jail Doctor,  since the  report of  the  doctor  was required  by   the  learned  District  and  Sessions  Judge, Bhagalpur, in  connection with  a bail  application filed by the prisoner. The petitioner disclosed to the Registrar that he had  made inquiries  from Umesh  Yadav, who told him that V.K. Sharma, D.S.P., had thrust a long needle in both of his eyes and  had poured  acid into  the eyes. The other blinded persons appear  to have  taken a  cue from  Umesh Yadav  and submitted similar  petitions  for  being  forwarded  to  the District and Sessions Judge. The petitioner disclosed to the Registrar the names of the police officers who 539 were involved  by the  prisoners as  being  responsible  for their blindings.      It may  be recalled  that this Court by its order dated December 1,  1980 had  directed the petitioner, who was then the Superintendent of the Bhagalpur Central Jail, to file an affidavit within two weeks on Points (a) to (d) mentioned in that order.  On that  very day, the petitioner was suspended by the  Government  of  Bihar  on  the  ground  the  he  was negligent in  providing proper  medical aid  to the  blinded undertrial prisoners  inside the Jail and that he had failed to make  proper entries  in the Jail Register as regards the physical condition  of the undertrial prisoners. On December 10, 1980  the petitioner  filed the  main Misc.  Petition in this Court  in  the  Writ  Petition  filed  by  the  blinded prisoners. He  prays that  the  order  of  suspension  dated December 1,  1980 be  quashed, since  at was  passed by  the State of  Bihar mala  fide with the object of preventing him from filing  an affidavit  in  pursuance  of  the  direction issued by this Court on December 1, 1980. D      We would not have entertained a petition of this nature in the  normal circumstances, because an order of suspension cannot  be  challenged  in  this  manner  in  an  incidental proceeding. We, however, decided to hear the Misc. Petitions filed  by   the  petitioner   for  quashing   the  order  of suspension, since  he alleged  which, at first blush, seemed plausible, that  he was  suspended in  order to  defeat  the order passed by this Court on December 1, 1980.      The petitioner  appeared in person before us and argued his case  at  great  length.  We  gave  him  all  reasonable facilities to  substantiate his  contentions, which  he  did with the  help of  the voluminous  record prepared  by  him. Having considered  the submissions  of  the  petitioner  and those of  Shri K.G.  Bhagat, who  appeared on  behalf of the State of Bihar, we are of the opinion that there is no merit in the  complaint of the petitioner that he was suspended on December 1, 1980 in order to prevent him from complying with the order  passed by  this Court  on that  day and  with the ulterior object of defeating that order. .,      Shri Ambika  Prasad Poddar, Assistant Inspector General of Prisons,  Bihar, has  filed an  affidavit in  this Court, setting out  the circumstances  in which and the reasons for which the  petitioner was  suspended by  the  Government  of Bihar, The case made out in that 540 affidavit is  that the  petitioner failed  to discharge  his official functions  enjoined upon him by Rule 474 (1) of the Bihar Jail  Manual, in  that he  did not scrutinise and sign the entries made in the Admission Register maintained at the Central Jail,  in order  to satisfy  himself  whether  those entries were  correct and  whether  the  relevant  rules  in



regard to the admission of the prisoners were complied with. It is stated in the affidavit that contrary to Rule 474 (2), the  petitioner   failed  to   record  any  ’special  order’ regarding the  medical treatment given or to be given to the blinded prisoners,  with the  result that they were not sent for examination  to any eye specialist either in the Jail or at  the  Bhagalpur  Medical  College  Hospital.  Though  the District Magistrate,  Bhagalpur, had  given his  approval on October 21,  1980 to  the proposal  for sending  the blinded prisoners for specialised treatment at the Bhagalpur Medical College Hospital,  the petitioner;  it is alleged, neglected to discharge  his duty  and sent  the prisoners  for medical treatment to  the Hospital  ten days  later on  October  31, 1980.  According   to  Shri   Ambika  Prasad,   Poddar,  the petitioner omitted  to make  a report  on the  blindings  of prisoners lodged-in  the Jail which was under his charge, he did not  hold a  parade of the prisoners nor did he make the weekly inspection  of the Jail, and on the top of it all, he supplied to  newspapermen his  own one-sided version. Of the blindings. The  suspension order,  according to Shri Poddar, was  passed   on  the   basis  of   the  various  rules  and notifications governing  the conditions  of the petitioner’s service and  was not  passed in order to frustrate or defeat the order passed by this Court on December 1, 1980.      On a  careful consideration  of the aforesaid affidavit and the arguments advanced before us by the parties, we find it difficult  to accept the petitioner’s contention that the order of  suspension was  passed by  the Government of Bihar mala fide,  that is  to say, as a counter blast to the order passed by  this Court  on December 1, 1980 and to defeat it. The question  for. inquiry  in these Miscellaneous Petitions is very narrow and limited. The question is not even whether the order  of suspension is mala fide in a broad and general sense, covering  the entire  gamut  of  extraneousness.  The question before  us is  whether the  motive behind the order was to  frustrate the  purpose of our direction calling upon the petitioner  to file  an affidavit,  That charge  is  not substantiated and  is difficult  to accept.  It appears that officers of  the State  Government were  enquiring into  the blindings of the undertrial prisoners at least from November 27, 1980.  There is  a report  dated December 1. 1980 in the Government 541 files, which  was produced before us by Shri K.G. Bhagat, by which Shri  L.V. Singh, Deputy I.G.P. (Prisons), recommended that for  reasons of  dereliction  of  duty  the  petitioner should be  suspended. We  find it  quite difficult to accept the petitioner’s  contention that  the report  of Shri Singh was prepared later and was antedated in order to justify the order of suspension.      We  are   also  unable  to  appreciate  how  the  State government could  prevent  the  petitioner  from  filing  an affidavit as  directed by  this Court,  by placing him under suspension.  The  petitioner  would  be  free  to  file  his affidavit in spite of the order of suspension and in fact he has filed an affidavit in this Court after he was suspended. During the  course  of  arguments  before  us,  he  produced photostat copies  of quite a few documents, which also show: that the  order of suspension is not calculated to interfere with  the   direction  given   by  this  Court,  asking  the petitioner to  file his  affidavit. If  we had found that by reason  of  the  order  of  suspension  the  petitioner  was prevented from  filing his  affidavit,  we  would  not  have hesitated to ask the Government of Bihar to supply copies of necessary documents to the petitioner in order to enable him



to file a full and complete affidavit in compliance with our order.      The  Miscellaneous   petitions  have  therefore  to  be dismissed. We  would, however, like to state that we are not called upon to consider in these incidental proceedings, and we have in fact not considered, the question of the validity of the  order  of  suspension  dated  December  1,1980.  The petitioner will be at liberty to challenge that order, if so advised, in  a properly  constituted  proceedings,  on  such grounds as  may be open to him including the ground that the order was  passed mala  fide. We  have only  dealt with  the narrow question  as to  whether the  order of suspension was passed with  the object  of preventing  the petitioner  from filing an  affidavit in  this Court  and on that question we have rejected  the petitioner’s contention that the order of suspension was passed for that purpose. We have not inquired into  the  question  whether  the  order  of  suspension  is vitiated by mala fides for any other reason.      It  is   desirable  and   but  proper  that  the  State Government ought  not  to  visit  the  petitioner  with  any penalty or punishment for app 542 roaching this  Court or  for having  attempted to lay before this Court,  what according to the petitioner, was the truth of the  matter in  regard to  the bizarre  blindings of  the under trial prisoners.      Order accordingly. N.V.K.                                  Petitions dismissed. 543