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PETITIONER: SANJAY SURI & ANR.

       Vs.

RESPONDENT: DELHI ADMINISTRATION, DELHI & ANR.

DATE OF JUDGMENT09/12/1987

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH DUTT, M.M. (J)

CITATION:  1988 AIR  414            1988 SCR  (2) 234  1988 SCC  Supl.  160     JT 1987 (4)   606  1987 SCALE  (2)1257

ACT:      Criminal Procedure Code, 1973: Sections 7, 420-Warrant- Authorising detention  of prisoners-To specify age of person to be  detained-Lawful for  jail authorities  to  refuse  to honour  warrants   without  age  and  to  have  this  defect rectified.      Jail  Administration:  Warders-Necessity  to  shift  at intervals-Juvenile delinquents  and regular prisoners-Not to be assigned  work in  same area-Sessions  judge to  be given acknowledged  position   as  Visitor-Vi  rd-Composition  of- Directions issued.

HEADNOTE: %      The petitioners,  a News  Editor  and  a  trainee  sub- editor, filed  writ petitions  in the Supreme Court pointing out features of maladministration within the Central Jail at Tihar relating  to juvenile undertrial prisoners and praying for appropriate  directions to  the respondents.  The  Court made several orders with reference to juvenile prisoners and undertrials. Under  the orders  of the  Court, the  Sessions Judge visited  the jail  on more  than one occasion and made several reports. Pursuant to the Court’s directions, certain suggestions were  made by  the petitioners  as well  as  the respondents. Disposing of the writ petitions, ^      HELD: 1.1 Those who are incharge of jail administration from bottom to top must generate the proper approach to deal with prisoners  and undertrials.  Whatever may have been the philosophy of punishment in the pas’, today the prison house is looked  upon as a reformatory and the years spent in jail should be  with a  view to  providing rehabilitation  to the prisoner after  the sentence  is over. therefore, the Prison House, in  case the  true purpose  is to be achieved, has to provide  the  proper  atmosphere,  leadership,  environment, situations and  circumstances for the re-generation. Members of the  staff of  the jail  from bottom  to top must be made cognizant of 235 this responsibility  and that awareness must be reflected in

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their conduct.  Judicial notice  can be  taken of prevailing conditions in the jails. [240E-H; 241A]      1.2  The   work  load   of  superintendence  should  be distributed in  a graded  way and  the officers  should have direct  charge  of  such  divided  responsibilities.  It  is necessary that  a  large  dose  of  good  living  should  be introduced in  the jail  life. The jail administration, and, in  particular,   the   Administrator   should   take   into consideration this  aspect and  try to  generate a  sense of humanism in these officers and those in the ranks below them so that  the prisoners  have direct  contact with  them  and benefit by  every contact  with those  officers  in  getting round to the right approach in life. [241C-E]      1.3 Every magistrate or trial Judge authorised to issue warrants for detention of prisoners should ensure that every warrant authorising  detention  specified  the  age  of  the prisoner to  be detained.  Judicial mind  must be applied in cases where  there is  doubt about  age-not necessarily by a trial-and every  warrant must  specify the age of the person to be detained. The authorities in the jail throughout India should not  accept any  warrant of  detention as a valid one unless the  age of  the detenu is shown therein. It shall be open to  the jail  authorities to refuse to honour a warrant if the  age of  the person  remanded to  jail custody is not indicated. It  would be  lawful for  such officers  to refer back the  warrant to  the issuing  court for  rectifying the defect before it is honoured. [241G-H; 242A]      1.4 Due  care  should  be  taken  to  ensure  that  the juvenile delinquents  are not assigned work in the same area where the regular prisoners are made to work. Care should be taken to ensure that there is no scope for their meeting and having contacts.[242D]      1.5 Steps  should be  taken to shift the warders at the end of every three years. This is a principle which has been accepted in  the Punjab  Jail Manual (Chapter VI, Rule 273). [242E]      1.6  The   Visitors’  Board  should  consist  of  cross sections of  society; people  with good  background,  social activists, people connected with the news media, lady social workers, jurists, retired public officers from the Judiciary as also the Executive. The Sessions Judge should be given an acknowledged position as a visitor and his visits should not be routine ones. Full care should be taken by him to have a 236 real picture  of the  defects in  the Administration qua the resident prisoners and undertrials. [242G-H]      Monitoring the  affairs of  a jail  is a  difficult for this Court. On account of the fact that the Tihar jail is in the Capital  of the country and on account of the advantages of publicity   available  through the  media and  otherwise, affairs of  the jail  have received  due publicity  over the last four  years. If a change has to be brought about it has to start  from somewhere  and Tihar  Jail is most suited for that purpose  being under the direct management of the Union of India.[240C; 241B]

JUDGMENT:      ORIGINAL JURISDlCTION:  Writ Petition  (Crl.) Nos. 2546 47 of 1983.      (Under Article 32 of the Constitution of India).      Parijat Sinha for the Petitioners.      B. Datta, Additional Solicitor General, N.L. Kakkar and Miss A. Subhashini for the Respondents.

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    Ms. Nityaramakrishnan, A.K. Panda. Mrs. M. Karanjawala, Mrs. Urmila Kapoor and Ranjan Dwivedi for the Interveners.      The Judgment of the Court was delivered by      RANGANATH  MISRA,   J.  These  two  applications  under Article 32 of the Constitution are in the nature of a public interest litigation.  A news  reporter and  a  trainee  sub- editor have  moved this  Court for appropriate directions to the Delhi  Administration and the authorities of the Central Jail at  Tihar, pointing  out features  of maladministration within the  jail relating  to juvenile undertrial prisoners. During the  pendency of  the  proceedings,  the  Court  made several orders  with reference  to  juvenile  prisoners  and undertrials. On 8th October, 1983 this Court directed:                "When  these   writ  petitions  came  up  for           hearing before  us we  had certain  hesitation  in           entertaining them  because  another  petition  was           pending in  the High  Court of  Delhi in regard to           juvenile  prisoners   in  Tihar  Jail  where  some           directions had been given by the High Court and we 237           were anxious  to avoid  a  parallel  investigation           particularly since  in matters  of this kind it is           desirable  that   the  High   Courts   should   be           activised.  But   since  no   inquiry   into   the           conditions prevailing in the Tihar Jail, in so far           prisoners in  the juvenile ward are concerned, had           been ordered  and what  was  ordered  was  only  a           limited inquiry relating to medical examination of           7 juvenile  prisoners  who  were  directed  to  be           produced in  court, we  thought that  we would  be           failing in  our constitutional  duty if  we do not           take judicial action and direct the District Judge           to visit  Tihar Jail  for making  inquiry into the           conditions prevailing  in the Tihar Jail in so far           as  the   prisoners  in   the  juvenile  ward  are           concerned. We  decided to entrust this task to the           District  Judge   because  he  is  even  otherwise           visitor at  the Tihar Jail and we thought it would           be better  to sent  an officer  who is  ultimately           responsible for  ensuring proper conditions in the           Tihar Jail  rather than  entrust this  work to  an           outside organisation  or agency.  We are glad that           we made  this order because the Report made by the           District  Judge  discloses  a  shocking  state  of           affairs  in  so  far  as  juvenile  prisoners  are           concerned. The District Judge has interviewed some           of the  juvenile prisoners  in regard  to whom  he           learnt, as  a result  of the  inquiry made by him,           that they  had been subjected to sexual assault by           the adult  prisoners. The  juvenile prisoners  who           made statements  before the  District  Judge  have           expressed apprehension  that they  might get  into           difficulties and  be victimised if their names are           disclosed  and   the  District   Judge  has   also           suggested in  his Report  that  either  the  names           should not  be disclosed  or if the names of these           juvenile   prisoners   are   disclosed,   adequate           protection should  be granted  to them.  We do not           think it  would be right not to disclose the names           of these juvenile prisoners while supplying copies           of  the  Report  of  the  District  Judge  to  the           advocates of  the  parties  but  we  do  think  it           necessary to  provide adequate protection to them.           We would,  therefore, direct  that  the  following           undertrial  juvenile   prisoners,  namely  .......

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         shall be released immediately in the course of the           day on  their executing  a  bond  of  Rs.500  each           before the superintendent of Tihar Jail. There are           also three  convicted juvenile  prisoners  in  the           Tihar Jail, namely ..... who have given 238           statements to  the District  Judge They  should be           released forthwith  on parole  for a period of one           month on  their executing  a bond  for Rs.500 each           before the  Superintendent of Tihar Jail that they           will surrender  themselves to the jail authorities           on the  expiration of  the period of one month The           release  of   these   three   convicted   juvenile           prisoners on  parole will  also  be  done  in  the           course of  the day.  We may  make it clear that we           are  making   this  order   for  release   of  the           aforementioned juvenile  prisoners- undertrial  as           well as  convicted-only with  a view to protecting           them and  we  are,  at  the  present  moment,  not           passing upon  the correctness  or otherwise of the           statements made by them.                The learned  Additional Solicitor  General on           behalf  of  the  respondents  states  that  Munshi           Rajinder  Singh   alias  Raju  will  be  forthwith           transferred from  the Tihar  Jail and  that in any           other jail  to which he is transferred, it will be           ensured that  he does  not have  anything to do at           all with  juvenile prisoners.  This transfer shall           also be  carried  out  forthwith.  Meanwhile,  the           Superintendent of  Tihar Jail  will take  steps to           ensure that  Munshi Rajinder  Singh alias  Raju is           not allowed any access to the juvenile ward and is           also not  allowed to  come  into  contact  in  any           manner  what-soever  with  the  prisoners  in  the           juvenile  ward  and  this  will  be  the  personal           responsibility  of  the  Superintendent  of  Tihar           Jail. So  far as  the warder  Onkar Singh (who has           also  been  referred  to  in  the  report  of  the           District  Judge)   is   concerned,   the   learned           Additional Solicitor  General appearing  on behalf           of the  respondents states  that  immediate  steps           will be taken to place him under suspension and in           the meanwhile, he will not be allowed to go inside           the premises  of Tihar Jail. The Superintendent of           Tihar Jail  will  also  ensure  that  no  juvenile           prisoner is  directed to  go to  the cell  of  any           adult prisoner  or prisoners or to do any work for           them including cooking or cleaning.                The  learned   Additional  Solicitor  General           states on behalf of the respondents that there are           a number  of juvenile  undertrial prisoners  whose           cases require  to be considered for the purpose of           releasing them on bail and that he would prepare a           chart setting out the names and 239           particulars  of  these  undertrial  prisoners  and           place such chart before the court on 31st October,           1983 for passing appropriate orders ............. On the 31st October, 1983, the Court made a further order to the following effect:                "............ The  learned  counsel  for  the           respondents will intimate to the Court as to which           of the  131 juvenile  prisoners confined  in Tihar           Jail whose names are mentioned in the Chart handed           over by  the learned  Additional Solicitor General

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         appearing on  behalf of  the respondents are to be           released on  bail, having  regard to the nature of           the offences  alleged to  have been  committed  by           them and  other relevant  circumstances which have           already been  set out  by this Court in Hussainara           Khaoon’s case.  We would also like to know as what           is the  procedure being  followed by the Courts of           Metropolitan Magistrates  in Delhi  when  a  young           accused is produced before them for the purpose of           ascertaining whether  he is  a child or not within           the meaning of the Children’s Act and if he is not           a child  and is sent to judicial custody then what           is   the   procedure   being   followed   by   the           Superintendent of  the Tihar  Jail for determining           whether he  is juvenile within the meaning of Jail           Manual where  a juvenile  is defined as a prisoner           who has  not attained  the age of 18 years. We are           anxious to ensure that no child within the meaning           of the  Children’s Act is sent to the jail because           otherwise the  whole object  of the Children’s Act           of protecting the child from bad influence of jail           life would  be defeated.  It is  also a  matter of           anxiety for  us to  see that juveniles between the           age of  16 to  18 years  who are put in custody in           the jail  are being  kept in separate ward and are           allowed  to   intermingle  with   adult  prisoners           because  that  would  also  expose  them  to  mal-           influences  which   may   prevent   their   proper           rehabilitation .. " . Several other interlocutory orders and directions were given and the  Sessions Judge  was requested  to visit the jail on more than  one occasion  under order  of the  Court. He made very useful  reports. As  a result  of these exercises taken during the  pendency of  the writ petitions, one substantial achievement has been that Tihar Jail no 240 more accommodates  juvenile delinquents  and their  jail has been separated.  On account  of the repeated directions from this Court  the jail  administrating has now been obliged to undertake erection of a separate jail as an additional place for housing  juvenile  prisoners  and  undertrials  and  the construction is  coming up,  as reported.  On account of the exposure, the  Jail administration has been obliged to place the administrating  of the  jail in  the hands of a superior officer.      Monitoring the affairs of a jail is a difficult job for this Court but on account of the fact that the Tihar Jail is in the  Capital  of  the  country  and  on  account  of  the advantages of  publicity available  through  the  media  and otherwise, affairs  of the  jail have received due publicity over the  last four  years where  these  matters  have  been pending before  this Court  and it  is time  that we  should dispose them of finally.      We had  called upon  counsel for the parties to furnish their suggestion  for improvement of the jail administration and pursuant  to this  direction counsel for the petitioners has given  certain suggestions  on two  instalments. Learned Additional Soliicitor  General has also joined her in making certain suggestions  in that regard. Before we refer to them we think  it appropriate  to emphasise  that those  who  are incharge of  the jail administration from bottom to top must develop the  proper approach  to deal with the prisoners and undertrials. It  is  true  that  a  considerable  number  of hardened prisoners  live in  the jail  and those  who have a longer term  of sentence  to suffer stay on for quite a part

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of their  life behind  the prison  bars. Longer  stay at one place brings  in familiarity  and  familiarity  generates  a number of human reactions. There is no provision in the jail manuals and,  perhaps it  is difficult  as a  rule to adopt, that the  long-term prisoners  should keep  on shifting from jail to  jail. Whatever  may have  been  the  philosophy  of punishment in  the past,  today the  prison house  is looked upon as a reformatory and the years spent in the jail should be with  a view  to providing rehabilitation to the prisoner after the sentence is over. That would not be possible over- night and,  therefore, cannot  be deferred to materialise on the date  of release.  The wrong side has to be given up and the virtuous  way of  living has  to be  acquired. Both  are difficult processes.  Therefore, the  prison house,  in case the true  purpose is  to be  achieved, has  to  provide  the proper atmosphere,  leadership, environment,  situations and circumstances for  the regeneration. Members of the staff of the jail  from bottom to top (we have purposely not said top to bottom) must be made                              SANJAY 241 cognizant of  this responsibility and that awareness must be reflected in  their conduct. Judicial notice can be taken of prevailing conditions  in our  jails and what we have stated above is still utopian. But if a change has to brought about it has  to start  from somewhere  and  Tihar  Jail,  in  our opinion, is  probably most  suited for  that  purpose  being located at  the seat of the national capital and being under the direct  management of  the Union  of India  (through, of course,  the   Delhi  Administration).   This  can   be  the institution to set the move in motion.      The work  load of superintendence should be distributed in a  graded way  and the  officers should  have the  direct charge of  such divided  responsibilities. It  is  necessary that a  large dose  of good living should be introduced into jail life. Ordinarily religious teaching would carry a level of elevation  in that  regard. Ours  being a  Secular  State there  may  perhaps  be  in  immediate  counter-reaction  to religion being  tolerated anywhere  but we  never intend  to speak of  that religion which is enigmatic to the concept of secularism. We  refer to  the  essence  of  all  religions-a factor common  to every  religion humanism-which  is so much necessary for  good living.  We hope and trust that the jail administration and in particular the Administrator take into consideration this  aspect and  try to  generate a  sense of humanism in these officers and those in the ranks below them so that  the prisoners  should have direct contact with them and benefit  by every contact with those officers in getting round to the right approach in life.      It is  time to turn to brass facts. We have come across cases where  the warrant,  be it  for the  undertrial or the prisoner, when  sent by  the court does not indicate the age of the  prisoner authorised to be detained in the jail. This is a  very wrong  practice and is obviously in breach of the direction  issued   by  this   Court.  We  call  upon  every Magistrate or  trial Judge  authorised to issue warrants for detention  of   prisoners  to   ensure  that  every  warrant authorising detention  specifies the age of the person to be detained Judicial  mind must be applied in cases where there is doubt  about the age-not necessarily by a trial-and every warrant must  specify the  age of the person to be detained. We call  upon the  authorities in the jails throughout India not to accept any warrant of detention as a valid one unless the age  of the  detenu is  shown therein.  By this order of ours, we  make it  clear that  it shall  be open to the jail

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authorities to  refuse to honour a warrant if the age of the person remanded to jail custody is not indicated. It 242 would be  lawful for such officers to refer back the warrant to the  issuing court for ractifying the defect before it is honoured. Since  it will  create  problems  in  keeping  the undertrial or  the prisoner  during the  intervening period, the judicial  officer should  realise his  responsibility in accepting this  direction and  giving full  effect to it. In exceptional cases,  when the  warrant is  referred back  for rectification, the person covered by the warrant may be kept at the  most for  a week  pending rectification,  and taking responsibility of  the situation.  On the  basis of  the age indicated in  the warrant, it shall be the obligation of the jail authorities  to find out, so far as Delhi is concerned, whether the  prisoner  covered  by  the  warrant  should  be detained in the Tihar Jail or in the Juvenile Jail.      Though the place of stay has now been segregated, there is possibility of contact between the hardened criminals and the juvenile  delinquents if  there is no proper segregation in assignment  of work.  We direct  that due  care shall  be taken to  ensure  that  the  juvenile  delinquents  are  not assigned work  in the  same area where regular prisoners are made to  work. Care  should be taken to ensure that there is no scope for their meeting and having contacts.      We direct  that steps  should be  taken  to  shift  the warders at the end of every three years. This is a principle which had  been accepted  in the Punjab Jail Manual (Chapter VI, Rule 273) Delhi Administration has a difficulty in doing so in  a real  way because it has only one jail and may have one more  when the  other jail  under construction comes up, but there  is  no  other  place  to  which  warders  can  be transferred. The  Administration should  take  note  of  the situation; the  rules should  be changed and the warders may either by  inter-changed with some other category of service working outside the jail or a common Union Territory service could be  set up  to permit  the same.  Such  transfer  will indeed be helpful in restoring discipline in the jail.      The Visitors’ Board should consist of cross sections of society; people  with  good  background,  social  activists, people connected  with the  news media, lady social workers, jurists, retired  public officers from the Judiciary as also the  Executive.  The  Sessions  Judge  should  be  given  an acknowledged position as a visitor and his visits should not routine ones.  Full care  should be  taken by  him to have a real picture  of the  defects in  the administration qua the resident prisoners and undertrials. 243      Over-crowding in jails is a regular feature. As against a  sanctioned  capacity  of  2,023,  on  the  average  4,000 prisoners are  lodged in  the Tihar  Jail. We hope and trust that this  aspect will  be  kept  in  view,  though  from  a practical point  over-crowding may  to a  reasonable aspect, have to  be tolerated. We hope with the commissioning of the new jail,  pressure in  this regard  to some extent would be reduced.      The  writ   petitions  are   disposed  of   with  these directions. There would be no order for costs.      We place  on record  our appreciation  of the  services rendered by  the petitioners  by bringing  the matter before the Court. N .P.V.                               Petitions Disposed of. 244

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