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PETITIONER: SHEELA BARSE

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT15/02/1983

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. PATHAK, R.S. SEN, AMARENDRA NATH (J)

CITATION:  1983 AIR  378            1983 SCR  (2) 337  1983 SCC  (2)  96        1983 SCALE  (1)140

ACT:      Legal Aid  to the  poor-Importance of  legal aid to the poor explained-Directions  given to  Prison authorities  and police on providing Legal aid to the poor prisoners.

HEADNOTE:      The petitioner,  a journalist,  in her letter addressed to  this  Court  stated  that  Five  out  of  fifteen  women prisoners interviewed  by her  in the  Bombay  Central  Jail alleged that  they had  been assaulted  by the police in the police lock  up and  two of  them in particular alleged that they had  been  assaulted  and  tortured  in  the  lock  up. Treating the  letter as  a writ  petition the  Court  issued notices to all concerned to show cause why the writ petition should not  be allowed  In the meanwhile the Director of the College of Social Work, Nirmala Niketan, Bombay was directed to interview  the women prisoners without any one else being present and  ascertain whether  the allegations  made to the petitioner were correct. The Director, in her report, stated among other  things that  there was  no adequate arrangement for providing  legal assistance  to women prisoners and that two prisoners  who were  foreign nationals complained that a lawyer duped  and defrauded  them and misappropriated almost half of  their belongings  and jewellery on the plea that he was retaining them for payment of his fees.      Disposing of  the petition the court gave the following directions: F      Legal  assistance   to  a  poor  or  indigent  accused, arrested and  put  in  jeopardy  of  his  life  or  personal liberty, is a constitutional imperative mandated not only by Art. 39A but also by Articles 14 and 21 of the Constitution. It is  a Necessary  sine qua  non of justice and where it is not provided, injustice is likely to result and every act of injustice corrodes  the foundations of democracy and rule of law. It  is possible  that a  prisoner lodged in a jail does not know  to whom  he can  turn for  help  to  indicate  his innocence or  defend his constitutional G or legal rights or to  protect   himself  against  torture  and  ill-treatment, oppression and harassment at the hands of his custodians. It is also  possible that  he or  the members of his family may have other  problems where  legal assistance is required but

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by reason  of his  being incarcerate. it may be difficult if not impossible  for him  or the  members of  his  family  to obtain proper legal advice or aid. It is therefore essential that legal assistance must be made available to prisoners in jails whether they be under-trials or convicted prisoners. 338      The Inspector  General of Prisons in Maharashtra should issue  a   circular  to  all  Superintendents  of  Jails  in Maharashtra  requiring   them  to  send  to  the  Legal  Aid Committee of  each district  in which  the jail is situated: (i) a  list of  all under-trial prisoners giving the date of entry, the nature of the offence showing separately male and female prisoners  and (ii)  a list giving the particulars of persons arrested  on suspicion  under s.  41 of  the Code of Criminal Procedure  who have been in jail beyond a period of 15 days. The Circular should also contain directions: (i) to provide facilities  to lawyers  nominated by  the  concerned district Legal  Aid Committee  to  enter  the  jail  and  to interview the  prisoners who  have expressed their desire to have their  assistance;  (ii)  to  furnish  to  the  lawyers nominated by tho Legal Aid Committee whatever information is required by  them in  regard to the prisoners in jail; (iii) to put  up notices  at prominent  places in  the  jail  that lawyers  nominated  by  the  concerned  District  Legal  Aid Committee would be visiting the jail on particular days arid that prisoners  who wanted  their assistance  could avail of their counselling  services; (iv)  to allow  any prisoner to meet such  lawyers. Such  interview should  be within, sight but out  of hearing of any jail official. [343 D-E, G-H, 344 A-D]      The Maharashtra  State Board of Legal Aid should advise and instruct the District Legal Aid Committees to nominate a few selected  lawyers to  visit the  jail or  jails  in  the district once  in a  fortnight to  ascertain whether the law laid down  by this  Court and the High Court in this respect is  being   properly  and  effectively  implemented  and  to interview the  prisoners who  express their desire to obtain legal assistance.  The State  Board should call for periodic reports from  the district  legal aid  committees to  ensure that these  directions are  being properly carried out. [344 E-H]      The Court has given the following further directions:      (i) Four  or five police lock ups should be selected in reasonably good localities where only female suspects should be kept  and they  should be  guarded. by female constables. Female suspects  should not  be kept  in a police lock up in which male suspects are detained. [345 E-F]      (ii) Interrogation  of females  should be  carried  out only in  the presence  of female police officers/constables. [345 G]      (iii) A person arrested must be immediately informed of the grounds of his arrest. It must immediately be made known to the  arrested person  that he  is entitled  to apply  for bail. The  Maharashtra State  Board of  Legal Aid and Advice should forthwith  get a  pamphlets prepared  setting out the legal rights  of an arrested person. The pamphlets should be in  Marathi,  Hindi  and  English.  Printed  copies  of  the pamphlets in  all these  languages should be affixed in each cell in every police lock up. As soon as the arrested person is brought  to the  police station,  the pamphlet  should be read  out   to  him   in  any  of  the  languages  which  he understands. [345 H, 346 A C]      (iv) Whenever  a person  is arrested  by the police and taken to  the police  lock up, the police should immediately give intimation  of the  fact of  such arrest to the nearest

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Legal Aid Committee which should take immediate steps to 339 provide legal assistance to him at State cost provided he is willing to accept such A legal assistance. [346 D-E]      (v) In  the city  of Bombay,  a  City  Sessions  Judge, nominated by  the principal  Judge of  the City Civil Court, preferably a lady Judge if there is one, shall make surprise visits to  police lock  ups in  the city periodically with a view to providing the arrested persons an opportunity to air their grievances  and for ascertaining the conditions in the police lock  up, whether  the requisite facilities are being provided, whether  the provisions  of law are being observed and that  these directions  are being  carried out. If it is found that  there are  any lapses  on the part of the police authorities, the City Sessions Judge shall bring them to the notice of the Commissioner of Police and if necessary to the notice of  the Home Department. If even this approach fails, then the  City Sessions  Judge may draw the attention of the Chief Justice  of the  High  Court  of  Maharashra  to  such lapses. This  direction in  regard to  police lock up at the district headquarters  shall be  carried out by the Sessions Judge of the district concerned. [346 F-H, 347 A]      (vi) As  soon as  a person is arrested, the police must immediately obtain  from him  the name  of any  relative  or friend whom  he would  like to  be informed about his arrest and the  police should  get in  touch with  such relative or friend and inform him about the arrest. [347 B-C]      (vii) The  magistrate before whom an arrested person is produced shall enquire from him whether he has any complaint of torture  or maltreatment in police custody and inform him that he has a right under section 54 of the Code of Criminal Procedure 1973 to be medically examined. [347 C-D]      The Court made the following observations:      The profession  of law  is a noble profession. A lawyer owes a  duty to  the society to help people in distress more so when  those in  distress are  women 2nd  in jail. Lawyers must positively  reach up  to those sections of humanity who are poor,  illiterate and  ignorant and  who, when  they are placed in  a crisis such as an accusation of crime or arrest or imprisonment, do not know what to do or where to go or to whom to turn. If lawyers, instead of coming to the rescue of persons in  distress, exploit  and prey upon them, the legal profession will  come into disrepute and The large masses of people in  the country  would lose faith in lawyers and that would be  destructive of democracy and the rule of law. [342 F-H, 343 A-B]

JUDGMENT:      ORIGINAL JURISDICTION;  Writ Petition (Crl.) Nos. 1053- 1054 of 1982.      (Under Article 32 of the Constitution of India.      Khursheed Ahmed for the Petitioner.      K.G. Bhagat  Addl. Sol.  General, V.B.  Joshi and  M.N. Shroff for the Respondent. 340      The Judgment of the Court was delivered by      BHAGWATI, J.  This writ  petition is  based on a letter addressed by  Sheela Barse,  a  journalist,  complaining  of custodial violence to women prisoners whilst confined in the police lock  up in the city of Bombay. The petitioner stated in her  letter that  she interviewed fifteen women prisoners in the  Bombay Central  Jail  with  the  permission  of  the Inspector General  of Prisons  between 11 and 17th May, 1982

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and five  out of  them told her that they had been assaulted by the  police in  the police  lock up.  Of these  five  who complained of  having been  assaulted  by  the  police,  the petitioner particularly  mentioned the cases of two, namely, Devamma and  Pushpa Paeen  who were  allegedly assaulted and tortured whilst  they were  in the police lock up. It is not necessary for  the purpose  of this writ petition to go into the various allegations in regard to the ill-treatment meted out to  the women  prisoners  in  the  police  lock  up  and particularly the  torture and  beating to  which Devamma and Pushpa Paeen  were said to have been subjected because we do not propose  to investigate  into the  correctness of  these allegations which  have been disputed on behalf of the State of Maharashtra.  But, since  these allegations  were made by the  women  prisoners  interviewed  by  the  petitioner  and particularly by  Devamma and  Pushpa Paeen  and there was no reason to  believe that  a journalist  like  the  petitioner would invent  or fabricate such allegations if they were not made to  her by  the women prisoners, this Court treated the letter of  the petitioner  as a  writ  petition  and  issued notice to  the State  of Maharashtra,  Inspector General  of Prisons, Maharashtra,  Superintendent, Bombay  Central  Jail and the  Inspector General  of Police,  Maharashtra  calling upon them  to show cause why the writ petition should not be allowed. It  appears that on the returnable date of the show cause notice  no affidavit was filed on behalf of any of the parties to  whom show cause notice was issued and this Court therefore adjourned  the hearing  of the  writ  petition  to enable the State of Maharashtra and other parties to file an affidavit in  reply to  the averments  made in the letter of the  petitioner.  This  Court  also  directed  that  in  the meanwhile Dr.  (Miss) A.R.  Desai, Director  of  College  of Social Work,  Nirmala Niketan,  Bombay will visit the Bombay Central Jail  and interview  women  prisoners  lodged  there including Devamma  and Pushpa  Paeen without  any  one  else being present  at the  time of  interview  v  and  ascertain whether they  had been  subjected to  any  torture  or  ill- treatment and  submit a  report to  this Court  on or before 30th August,  1982. The  State Government  and the Inspector General of Prisons were directed to provide all 341 facilities  to  Dr.  Miss  A.R.  Desai  to  carry  out  this assignment entrusted  to her.  The object  of assigning this commission to  Dr. Miss  A.R. Desai was to ascertain whether allegations of  torture and  ill-treatment as set out in the letter of  the petitioner  were, in  fact, made by the women prisoners  including   Devamma  and   Pushpa  Paeen  to  the petitioner  and  what  was  the  truth  in  regard  to  such allegations. Pursuant  to the  order made by this Court, Dr. Miss A.R.  Desai visited  Bombay Central  prison  and  after interviewing women  prisoners lodged  there, made a detailed report to this Court. The Report is a highly interesting and instructive socio-legal  document Which  provides an insight into the  problems and  difficulties facing  women prisoners and we  must express our sense of gratitude to Dr. Miss A.R. Desai for  the trouble  taken by  her in  submitting such  a wonderfully thorough  and  perceptive  report.  We  are  not concerned here  directly with  the conditions  prevailing in the Bombay  Central Jail  or other  jails in  the  State  of Maharashtra because  the primary question which is raised in the letter  of the  petitioner relates  to  the  safety  and security of  women prisoners  in police  lock up  and  their protection against torture and ill-treatment. But even so we would  strongly   recommend  to  the  Inspector  General  of Prisons, Maharashtra  that he may have a look at this Report

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made by Dr. Miss A.R. Deasai and consider what further steps are necessary to be taken in order to improve the conditions in the  Bombay Central  Jail and other jails in the State of Maharashtra and  to make  life for  the women prisoners more easily bearable  by them.  There is  only one  matter  about which we would like to give directions in this writ petition and  that  is  in  regard  to  the  need  to  provide  legal assistance not  only to women prisoners but to all prisoners lodged in  the jails  in the State of Maharashtra. We have p already had occasion to point out in several decisions given by this  Court that  legal assistance  to a poor or indigent accused who  is arrested  and put in jeopardy of his life or personal liberty is a constitutional imperative mandated not only by  Article 39  but also  by Articles  14 and 21 of the Constitution. It  is a necessary sine qua non of justice and where it  is not provided, injustice is likely to result and undeniably every  act of  injustice corrodes the foundations of democracy  and rule  of law, because nothing rankles more in the human heart than a feeling of injustice and those who suffer and cannot get justice because they are priced out of the legal  system, lose  faith in  the legal  process and  a feeling begins  to overtake  them that democracy and rule of law are  merely slogans  or myths intended to perpetuate the domination of the rich and the powerful 342 and to  protect the  establishment and the vested interests. Imagine the  helpless condition  of a prisoner who is lodged in a  jail who does not know to whom he can turn for help in order   to   vindicate   his   innocence   or   defend   his constitutional or legal rights or to protect himself against torture and  ill-treatment or  oppression and  harassment at the hands  of his custodians. lt is also possible that he or the members  of his  family may  have other  problems  where legal assistance  is required  but by  reason of  his  being incarcerated, it  may be difficult if not impossible for him or the  members of  his family to obtain proper legal advice or aid.  It is  therefore absolutely  essential  that  legal assistance must  be made  available to prisoners in C: jails whether they be under-trial or convicted prisoners.      The Report  of Dr.  Miss A.R. Desai shows that there is no adequate  arrangement for  providing legal  assistance to women prisoners and we dare say the situation which prevails in the  matter of  providing legal assistance in the case of women prisoners  must also  be the  same m  regard  to  male prisoners. It  is pointed out in the Report of Dr. Miss A.R. Desai that  two prisoners  in the Bombay Central Jail, one a German national and the other a Thai national were duped and defrauded   by    a   lawyer,   named   Mohan   Ajwani   who misappropriated almost  half the  belongings of  the  German national and  the jewellery of the Thai national on the plea that he  was retaining  such belongings  and  jewellery  for payment of  his fees. We do not know whether this allegation made by these two German and Thai women prisoners is true or not but,  if true,  it is  a matter  of great  shame for the legal  profession   and   it   needs   to   be   thoroughly. investigated. The  profession of  law is-a  noble profession which has  always regarded  itself as  a  branch  of  social service and  a lawyer  owes a  duty to  the society  to help people in  distress and  more so  when those in distress are women and  in jail.  Lawyers must  realise that law is not a pleasant  retreat   where  we   are  concerned  merely  with mechanical interpretation  of rules  made by the legislature but it  is a teeming open ended avenue through which most of the traffic  of  human  existence  passes.  There  are  many casualities of  this traffic  and it  is the function of the

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legal profession  to help  these casualities  in a spirit of dedication and  service. It  is for  the lawyers to minimise the numbers  of those casualities who still go without legal assistance. The  lawyers must  positively reach out to those sections of  humanity who  are poor, illiterate and ignorant and who,  when they  are placed  in  a  crisis  such  as  an accusation of  crime or  arrest or imprisonment, do not know what 343 to do or where to go or to whom to turn. If lawyers, instead of A  coming to  the rescue  of persons in distress, exploit and prey  upon them,  the legal  profession will  come  into disrepute and  large masses  of people  in the country would lose faith  in lawyers  and that  would  be  destructive  of democracy and  rule of  law. If  it is  true-that these  two German and Thai women prisoners were treated by Mohan Ajwani in the  manner alleged  by them-and  this is  a question  on which we  do not  wish to  express any  opinion ex  parte-it deserves the  strongest  condemnation.  We  would  therefore direct that  the allegations made by the two German and Thai women prisoners as set out in paragraph 9.2 of the Report of Dr. Miss A.R. Desai be referred to the Maharashtra State Bar Council for taking such action as may be deemed fit.      But, this incident highlights the need for setting up a machinery for  providing legal  assistance to  prisoners  in jails. There  is fortunately a legal aid organisation in the State of  Maharashtra headed  by the Maharashtra State Board of Legal  Aid and  Advice which has set up committees at the High Court  and district  levels. We  would therefore direct the Inspector  General of  Prisons in Maharashtra to issue a circular to  all Superintendents  of Police  in  Maharashtra requiring them-      (1)  to send a list of all under-trial prisoners to the           Legal Aid  Committee of  the district in which the           jail is  situate giving particulars of the date of           entry of the under-trial prisoners in the jail and           to the extent possible, of the offences with which           they  are  charged  and  showing  separately  male           prisoners and female prisoners.      (2)  to furnish  to the  concerned District  Legal  Aid           Committee a list giving particulars of the persons           arrested on suspicion under section 41 of the Code           of Criminal Procedure who have been in jail beyond           a period of 15 days.      (3)  to provide  facilities to the lawyers nominated by           the concerned  District  Legal  Aid  Committee  to           enter the  jail and to interview the prisoners who           have  expressed   their  desire   to  have   their           assistance. 344      (4)  to  furnish   to  the  lawyers  nominated  by  the           concerned District  Legal Aid  Committee  whatever           information is  required by  them in regard to the           prisoners in jail.      (5)  to put  up notices at prominent places in the jail           that lawyers  nominated by  the concerned District           Legal Aid  Committee would be visiting the jail on           particular days  and that any prisoner who desires           to have  their assistance  can meet them aud avail           of their counselling services; and      (6)  to allow  any prisoner  who desires  to  meet  the           lawyers nominated  by the concerned District Legal           Aid Committee  to interview  and meet such lawyers           regarding any  matter for  which he requires legal           assistance and  such interview  should  be  within

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         sight but out of hearing of and jail official.      We would also direct that in order to effectively carry out these  directions which  are being  given by  us to  the Inspector General of Prisons, the Maharashtra State Board of Legal Aid  and Advice  will instruct  the District Legal Aid Committees of  the districts  in which  jails are situate to nominate a  couple of  selected lawyers  practising  in  the district court  to visit  the jail  or jails in the district atleast once  in a  fortnight with  a view  to  ascertaining whether the  law laid down by the Supreme Court and the High Court of  Maharashtra in  regard to  the rights of prisoners including the right to apply for bail and the right to legal aid is  being properly  and effectively  implemented and  to interview the  prisoners who  have expressed their desire to obtain legal  assistance and  to  provide  them  such  legal assistance as  may be  necessary for the purpose of applying for release  on bail  or parole  and ensuring  them adequate legal  representation   in  courts,   including  filing   or preparation of  appeals  or  revision  applications  against convictions and  legal aid and advice in regard to any other problems which  may be  facing them  or the members of their families. The  Maharashtra State Board of Legal Aid & Advice will call  for periodic  reports from the district legal aid committees with  a view  to ensuring  that these  directions given by  us are  being properly  carried out. We would also direct the  Maharashtra State  Board of Legal Aid and Advice to pay  an honorarium of Rs. 25/- per lawyer for every visit to the  jail together  with reasonable  travelling  expenses from the court house to jail and back. These directions 345 in so  far as  the city  of Bombay  is concerned,  shall  be carried  out  by  substituting  the  High  Court  Legal  Aid Committee for  the District Legal Aid Committee, since there is no District Legal aid committee in the city of Bombay but the Legal  Aid Programme  is carried  out by  the High Court Legal Aid Committee. We may point out that this procedure is being followed  with immense  benefit to  the  prisoners  in jails by the Tamil Nadu State Legal Aid & Advice Board.      We may  DOW take  up the  question as to how protection can be  accorded to  the women prisoners in police lock ups. We put  forward several  suggestions to the learned advocate appearing on  behalf of  the petitioner  and  the  State  of Maharashtra in  the course  of the  hearing and  there was a meaningful and  constructive debate  in court.  The State of Maharashtra offered  its full  co-operation to  the Court in laying down  the guidelines  which should be followed so far as women prisoners in police lock ups are concerned and most of the  as suggestions  made by  us were readily accepted by the State  of Maharashtra.  We propose to give the following directions as a result of meaningful and constructive debate in court in regard to various aspects of the question argued before us.      (i)   We would direct that four or five police lock ups           should be  selected in  reasonably good localities           where only female suspects should be kept and they           should be  guarded by  female  constables.  Female           suspects should  not be  kept in police lock up in           which male  suspects are  detained. The  State  of           Maharashtra has  intimated to  us that  there  are           already three cells where female suspects are kept           and are  guarded  by  female  constables  and  has           assured the Court that two more cells with similar           arrangements  will  be  provided  exclusively  for           female suspects.      (ii) We  would further  direct  that  interrogation  of

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         females should be carried out only in the presence           of female police officers/constables.      (ii) Whenever  a  person  is  arrested  by  the  police           without warrant,  he must  be immediately informed           of the  the grounds  of his  arrest and in case of           every arrest  it must immediately be made known to           the arrested 346           person that  he is entitled to apply for bail. The           Maharashtra State Board of Legal Aid & Advice will           forthwith get  a pamphlet prepared setting out the           legal rights  of an  arrested person and the State           of Maharashtra will bring out sufficient number of           printed copies of the pamphlet in Marathi which is           the  language  of  the  people  in  the  State  of           Maharashtra as  also  in  Hindi  and  English  and           printed copies  of the  pamphlet in  all the three           languages shall  be affixed  in each cell in every           police lock  up and  shall  be  read  out  to  the           arrested person  in any  of  the  three  languages           which he  understands as  soon as he is brought to           the police station.      (iv) We  would also  direct that  whenever a  person is           arrested by  the police  and taken  to the  police           lock up,  the  police  will  immediately  give  an           intimation of  the fact  of  such  arrest  to  the           nearest Legal  Aid Committee  and such  Legal  Aid           Committee  will   take  immediate  steps  far  the           purpose  of  providing  legal  assistance  to  the           arrested person  at  State  cost  provided  he  is           willing  to  accept  such  legal  assistance.  The           State Government  will provide  necessary funds to           the concerned Legal Aid Committee for carrying out           this direction.      (v)  We would direct that in the city of Bombay, a City           Sessions Judge,  to be  nominated by the principal           Judge of  the City  Civil Court, preferably a lady           Judge, if there is one, shall make surprise visits           to police lock ups in the city periodically with a           view  to   providing  the   arrested  persons   an           opportunity   to    air   their   grievances   and           ascertaining what are the conditions in the police           lock ups  and whether the requisite facilities are           being provided and the provisions of law are being           observed and  the directions given by us are being           carried out.  If  it  is  found  as  a  result  of           inspection that  there are  any lapses on the part           of the police authorities, the City Sessions Judge           shall bring them to the notice of the Commissioner           of Police  and if  necessary to  the notice of the           Home Department  and if  even this approach fails,           the City  Sessions Judge may draw the attention of           the Chief  Justice of the High Court of Mahrashtra           to such lapses. This direc- 347           tion in regard to police lock ups at the districts           head  quarters,   shall  be  carried  out  by  the           Sessions Judge of the district concerned.      (vi) We  would direct  that as  soon  as  a  person  is           arrested, the  police must immediately obtain from           him the  name of  any relative  or friend  whom he           would like to be informed about his arrest and the           police should  get in  touch with such relative or           friend and inform him about the arrest; and lastly      (vii) We  would direct  that the magistrate before whom

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         an arrested  person is produced shall enquire from           the arrested  person whether  he has any complaint           of torture  or maltreatment  in police custody and           inform him  that he  has right under section 54 of           the  Code   of  Criminal   Procedure  1973  to  be           medically examined.  We are  aware that section 54           of the Code of Criminal Procedure 1973 undoubtedly           provides for  examination of an arrested person by           a medical  practitioner  at  the  request  of  the           arrested person and it is a right conferred on the           arrested  person.  But  very  often  the  arrested           person is  not aware  of this right and on account           of his  ignorance, he  is unable  to exercise this           right even  though he  may have  been tortured  or           malterated by  the police in police lock up. It is           for this  reason that  we are  giving  a  specific           direction requiring  the magistrate  to inform the           arrested  person   about  this  right  of  medical           examination  in  case  he  has  any  complaint  of           torture or mal-treatment in police custody.      We have  no doubt  that if  these directions  which are being given by us are carried out both in letter and spirit, they will  afford considerable  protection to  prisoners  in police lock  ups and save them from possible torture or ill- treatment. The writ petition will stand disposed of in terms of this order. P.B.R. 348