SCR.A/1044/2005 1/40 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 1044 of 2005 with CRIMINAL MISC. APPLICATION No.12429 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================================== SITABEN GOVABHAI DESAI (RABARI),W/O GOVABHAI NAGJIBHAI RABAR - Applicant(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ============================================================== Appearance : MR MG NAGARKAR for Applicant(s) : 1, PUBLIC PROSECUTOR for Respondent(s) : 1, None for Respondent(s) : 2, MR JB PARDIWALA for Respondent(s) : 3, ================================================================== CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 19/10/2005 ORAL JUDGMENT 1. On 21.9.2005, this Court has passed the following order: SCR.A/1044/2005 2/40 JUDGMENT 1.This Court, on 9.8.2005, had passed the following order: 1.Upon hearing Mr.Nagarkar for the petitioner and Mr.A.D.Oza, Ld.PP for the State, when the matter was called out in the first sitting, the Ld.PP was called upon to submit the report to this court regarding the steps which have been taken by the State in connection with the incident of death of one of the prisoners in jail who was in judicial custody as an undertrial prisoner. In the second sitting, when the matter is taken up, Mr.A.D.Oza, Ld.PP has submitted that the FIR is registered vide C.R.No. 327/05 with the Sabarmati Police Station and the investigation is going on. Mr.Oza also submitted that upon prima facie material, certain officials of the jail are placed under suspension and the further inquiry is under contemplation. Mr.Oza also submitted that the Addl.I.G(Prisons) has passed the order on 8.8.05 whereby the SRP is deployed for protecting the safety of the in-mates of jail and for protection of the husband of the petitioner, namely, Shri Gava Rabari and the SRP is instructed specifically for such purpose. 2.It deserves to be recorded that when the custody of any prisoner is with the State, or the custody of any under-trial prisoner is assigned to the State by the court, as an under-trial prisoner, and is in judicial custody, it is the bounden duty of the State to ensure that proper care of safety of the prisoner is taken. In the incident in question, it, prima facie, appears that norms for basic maintenance of safety of prisoners are ignored which has resulted into the present incident. It, prima facie, appears that unless there is hopelessly callous approach on the part of jail authorities, and also the officials involved therein, the weapon could not have been brought inside the jail, and such an unfortunate incident could not have happened. It also deserves to be recorded that there are other matters pending SCR.A/1044/2005 3/40 JUDGMENT with this court relating to keeping the prisoners practically three times the capacity inside the barrack, and there is also matter pending with this court where the prisoner has lost his life inside the jail, but paid no compensation, whatsoever. 3.Therefore, before this court considers the matter further, it is hereby directed that the investigation in connection with the complaint vide C.R.No.327/05 shall be carried out by the police officer not below the rank of Deputy I.G. The I.G(Prisons) shall pass necessary orders entrusting the investigation within 48 hours. The gist of the outcome of investigation shall be produced before this court in a confidential cover. As and when the custody of the husband of the petitioner is required for investigation the investigating officer shall be at liberty to get the same, but the same shall be intimated to his higher officer prior to taking the custody outside the jail and after the investigation is over as and when the custody is returned same shall also be accordingly written. The aforesaid shall be in addition to the procedure to be followed for interrogation of under-trial prisoner who is in judicial custody. 4.The Secretary, Home Department of the State Govt as well as the Inspector General of Police shall report to this court regarding the measures already taken and to be taken for ensuring the safety of the prisoners inside the jail and also for maintenance of human atmosphere inside the jail with a view to rule out the possibility of exploitation by the prisoners inter se. Such report shall be filed on or before 23.8.05. 5.SO to 24.8.05 for passing further orders. To be listed in the first board. Office to give copy to the Ld.Public Prosecutor for compliance. 2.Thereafter, as the investigation was ordered, Shri P.K.Jha, Additional Commissioner of Police, who SCR.A/1044/2005 4/40 JUDGMENT was entrusted with the investigation has placed on record the report and after considering the said report, on 24.8.2005, this Court had passed the following order: 1.In pursuance of the order passed by this Court on 9.8.2005, Mr.Kogje, learned APP has placed on record the report by Shri P.K.Jha, Additional Commissioner of Police, who was entrusted with the investigation. The perusal of the report, more particularly after para 12 onwards, from sub-para 1 to 6, prima facie shows very serious infirmities and unexpected and undesired atmosphere prevailing inside the jail. The affidavit filed on behalf of the jail authority, more particularly the details showing measures already taken and are to be taken for ensuring the safety of the prisoners inside the jail and also for maintenance of humane atmosphere inside the jail, prima facie appears to be a rosy picture as against the report of the Investigating Officer. 2.As observed earlier, while enforcement of law this Court is equally concerned with the safety of the prisoners inside the jail, including by exclusion of illegal or undesired harassment and the humane atmosphere. The Registrar of the High Court shall keep the report in sealed cover until the investigation is completed. However, the copy of the report of the Additional Commissioner of Police dated 24.8.2005 and more particularly the gist stated after para 12 onwards shall be forwarded by him to the Secretary, Home Department of the State. It is further directed that the Secretary, Home Department of the State, may be in consultation with I.G. (Prison) or independently, may place on record by way of affidavit stating the positive steps, which the State Government is contemplating to cure the infirmities shown in the jail administration in the report of the aforesaid officer. If the explanation is not found to be satisfactory or if this Court finds that no proper steps are being taken by the State Government itself through its on department, SCR.A/1044/2005 5/40 JUDGMENT the Court may also consider the matter for appointing a committee or other such modalities for removal of such infirmities and also for the other aspects pertaining to the safety and the humane atmosphere inside the jail. Such report shall be submitted within a period of two weeks from today. If the affidavit as indicated earlier is not filed, then in that case Secretary, Home Department shall personally remain present on the next date i.e. 14.9.2005 at 2.15 p.m. 3.It is clarified that as the major portion of the investigation is over and conducted by the Officer himself, in case of necessity, it would be open to such Officer to take assistance of any other Police Officer, but not below the rank of IPS cadre. 4.The learned Counsel appearing for the petitioner as well as the learned APP for the State have prayed and consented for treating the matter as part-heard as substantial time is invested. I find that without there being specific order by the Hon'ble the Chief Justice on administrative side, such prayer may not be granted. Hence, office to place the matter before the Bench as may be ordered by the Hon'ble the Chief Justice on administrative side. 5.Office to give copy of this order to Mr.Kogje, learned APP for compliance. 3.The pertinent aspect is that in the report, at para 12 onwards, it was stated by the Additional Commissioner of Police, who investigated into the matter as under: “12. Accused of Bank Fraud offence are holding property running to crores of rupees and such property is being transferred in the name of other person by the accused by remaining in jail. And the work of transferring this property is being carried SCR.A/1044/2005 6/40 JUDGMENT out by Gova Rabari, the investigation of which is going on. And till date huge amount of Rupees Fifty Lakhs seems to be taken by Gova Rabari gang for these sale and purchase of land deals. The above irregularities was going on in the jail seems to get necessary support from the jail staff and jail authority by their active connivance and getting a cut in the money guaranteed by there activities. Apart from this, the following irregularities has also been revealed and found to be going on in the central jail during investigation. For that also deep and detailed investigation is required to be carried out. 1. In the jail there are different notorious gangs. They carry out criminal activities in and outside the jail e.g. Gentia Gang, Gova Gang, Wahab Gang, Bhai Thakur Gang, Godhra carnage Gang also due to the inefficiency of the jail staff and activity of the prisoners and the attitude of the jail authority to ignore such criminal activities being SCR.A/1044/2005 7/40 JUDGMENT carried out by the prisoners in the jail and in the absence of putting these activities on record or staking of stringent steps against the prisoners, the authority of the jail administration seems to be non-existent. This scenario may lead to intara and inter gang feuds in the jail premises. This may also lead to clashes between the gangs on the communal basis and may lead to large scale violence in near future. There is likelihood of riots being broken out in the jail between separate gangs with regard to the extortion and protection money and there is all likelihood of communal riots taking place broken out in the jail between the Hindu and Muslim gangs. 2. As per the instruction issued by Additional D.G. (Prison) to jail staff not to keep any weapon by them have led to no control over the prisoners. 3. It has been found that Charas, Wine, Tablets of Nitrous-10 (a type of SCR.A/1044/2005 8/40 JUDGMENT drug used for medicinal purpose), Brown Sugar and other intoxicating items are easily available , sold and are being consumed in the jail. 4. For different types of illegal facilities to the prisoners the prices are being openly quoted and charged, as illegal gratification. It has been revealed that following was the going rates for some of these facilities to be paid by the prisoners (1) for shaving Rs.200 per month; (2) For allowing to eat their own Milk and Bread Rs.100 to 300 per month; (3) Rs.500 for getting admitted in the dispensary of the jail; (4) Rs.1,200 to Rs.1,500 to the Jail Doctor for sending the prisoner to Civil Hospital; (5) Rs.10,000/- to Rs.15,000/- to the Civil Doctor for admitting the prisoner in the Civil. 5. The activity of gambling is constantly going on in the jail by giving “Haftas” to the officers in the jail. If the Jail Staff try to stop any SCR.A/1044/2005 9/40 JUDGMENT of the above activity, then the prisoners have beaten up the jail staff. Such beating of Jail Staff was reported in the recent past and are on the police record. As a result of which the staff got fed up and demand immediate transfer and want to be shifted to other jails. 6. The Sabarmati Jail is very crowded and more than three times more than its capacity about four thousand prisoners are lodged in this jail which makes it impossible to keep the jail administration under control. This is only few facts which was revealed during the course of investigation of the murder. But a separate inquiry by competent authority can reveal the full facts of the situation in the Jail. The I.O., has only concentrated on the investigation of the murder, and supplementary facts which came to his knowledge has been put here without any extra effort to find out the irregularity in the jail SCR.A/1044/2005 10/40 JUDGMENT and has not tried to fix any responsibility on individual staff as it was not his charter of job assigned to an Investigating Officer of a crime of murder.” 4.It appears that thereafter since this Court directed the Secretary, Home Department of the State, may be in consultation with the I.G. (Prison) or independently calling upon the State for the proposed positive steps which the State Government is contemplating to cure the infirmities shown in the jail administration. Mr.I.P.Gautam, Secretary, Government of Gujarat filed affidavit dated 9.9.2005. The said affidavit of the Secretary, Home Department was considered by this Court and on 14.9.2005, the following order was passed: 1.The affidavit was submitted by the Secretary (Transport & Jail), Home Department, State of Gujarat, which is taken on record and considered. Prima facie the explanation or the steps which are proposed or taken in response to the report of the Additional Commissioner of Police, Ahmedabad are not satisfactory. I would have considered the matter for giving further direction. 2.However, Mr.Kogje, learned APP submits that some time may be granted to apprise the concerned Officer and the Government may SCR.A/1044/2005 11/40 JUDGMENT itself come out with some positive suggestion. 3.Hence, S.O. To 21.9.2005. 5.When the matter is taken up today, no suggestion has come forward from the State Government taking positive view of the matter, except the letter by the Under Secretary of the Government of Gujarat that the matter is under active consideration of the Government for constitution of a high-level Committee. It deserves to be recorded that there is no constitution of State Human Rights Commission for Gujarat State. 6. It appears that with a view to consider the question for corrective measures in jail administration, keeping in view the past incident which is referred to in the petition as well as the report of the Officer who has investigated into the matter, it would be proper to refer to certain abstracts of the Authors of certain books and certain material published after undertaking the study of jail administration instead of appointing the Committee for such purpose. In the book titled “Administration of Criminal Justice – the Correctional Services”, edited by Shri N.K.Chakrabarti, while considering the question of SCR.A/1044/2005 12/40 JUDGMENT corrections under the Prisons Act and the evaluation of corrections under the Prisons Act, at page 39, the learned Author has mentioned as under: “Segregation and correction of prisoners happen to be the main objective of the contemporary prison administration. Hence there should be initial classification of prisoners by a committee of experts comprising of the psychologist, psychiatrist sociologist as well as the custodial and correctional officers of the district. The Committee may follow the broad classification pattern by separating the prisoners to be socially conditioned and individualised criminals. Both the types should be strictly separated from each other. This is to be followed by treatment programmes. Under trials prisoners in no way should be allowed to stay with convicts. (Emphasis supplied). 7.In the book titled “Criminal Law and Criminology” by K.D. Gaur at page 373, under the head of Prison Reforms the relevant comment of the Author is as under: SCR.A/1044/2005 13/40 JUDGMENT “Grievance Deposit Box be kept in all jails and access to it should be allowed to all prisoners. District Magistrates and Sessions Judges should visit jails periodically within their respective court jurisdiction and afford effective opportunities for ventilating grievances and take suitable remedial measures.” 8.In the book titled “Criminal Justice” by K.I. Vibhute at page 148, under the head of Current Correctional Philosophy, at item No.9 the Author has commented as under: “9. Implementation of human rights initiatives in prisons, as enumerated by Justice V.R. Krishna Iyer in Sunil Batra (1) v. Delhi Administration, are based on three principles, namely, maintaining human dignity (a person in prison does not become a non-person); rights of prisoners, and needs of special categories of prisoners (like, women, juveniles, and undertrials).” 9.It further appears that all prisoners may be SCR.A/1044/2005 14/40 JUDGMENT convict or under trial prisoners, deserve to be classified separately considering the gravity of the punishment already imposed or may be imposed. There is general opinion of the experts that under no circumstances under trial prisoners should be allowed to be kept with the prisoners who are convicts. The same can be achieved only if there is separate hierarchy for supervision of the area/jail for the under trial prisoners and for the convict prisoners. The appropriate mechanism also deserves to be devised for maintenance of the complaint box and attending to the complaints. It is also required that the jails are periodically checked by the Judicial Officer with a view to see that not only the Rules are properly observed for maintenance of the jails and the conditions of the prisoners, but a surprise check is also called for. It also appears that the access by the Press/media to the jail should be permitted with a view to see that the truth may come out, in case there is any covering up operations either by the Jail Administration itself or by the prisoners SCR.A/1044/2005 15/40 JUDGMENT themselves, but such access by the Press deserves to be regulated/controlled in a manner which may not hamper the smooth functioning of the jail administration. At the same time care is required to be taken to see that there is no misuse of any information which may be derived or received by the Press resulting into creating law and order problem inside the jail. In any case, if the Press is to act with all responsibility with a view to trace the truth inside the jail, more particularly for observance of the strict rule of discipline and the maintenance of human atmosphere inside the jail, the same would be encouraged in a country where the democracy is prevailing. 10. In view of the aforesaid observations, it deserves to be recorded that this Court is inclined to issue following directions: (a) After classification of the prisoners into separate categories of male, female and juvenile, there will be general classification of all prisoners into two categories; one category of the convicted prisoners and the another of SCR.A/1044/2005 16/40 JUDGMENT the under-trial prisoners. (b) Under no circumstances, the under- trial prisoners shall be kept with the convicted prisoners and there will be absolute separation of under-trial prisoners and convicted prisoners; (c) The State shall set up two separate hierarchies for supervision of the jails/areas for the under-trial prisoners and for convicted prisoners. The staff of jail authority, its management and functioning shall altogether be separated; (d) Even amongst the under-trial prisoners and convicted prisoners, there will be inter se classification on the basis of punishment for the alleged offence or offence committed as the case may be, as under: (i) where the punishment is upto three years or the actual punishment imposed of three years. (ii) where the punishment is for SCR.A/1044/2005 17/40 JUDGMENT 3 (three) to 7 (seven) years of the alleged offence/offence committed. (iii) where the punishment is for 7 (seven) to 10 (ten) years for the alleged offence/offence committed. (iv) where the punishment is for more than 10 (ten) years but upto 14 (fourteen) years for the alleged offence/offence committed. (v) where the punishment is for more than 14 (fourteen) years for the alleged offence/offence committed. (e) The efforts shall be made by the Jail Administration to see that as far as possible the under-trial prisoners or the convict, as the case may be, shall be kept with the prisoner of the same class separately, as referred to hereinabove and in case of non- availability of space such under-trial prisoners or the convict, as the case may be, shall be kept with the prisoners SCR.A/1044/2005 18/40 JUDGMENT in the next inter se class, in the serial order as referred to above. (f) Two separate, one for administration and another for physical harassment, complaint boxes shall be kept inside the common place of all jails, where the prisoners can have easy access. Just below the complaint box, the stationery/paper and pen shall also be made available to all prisoners. (g) The complaint box for maintenance of the administration as well as for the complaint box for physical harassments, both shall be under the direct control and lock and key of the learned District Judge of the area in which the jail is situated. (h)In case the administrative complaint is received, the same shall be forwarded by the learned District Judge to the concerned Officer of the State Government not below the rank of Dy. Secretary and after receipt of the said complaint, corrective measures shall be SCR.A/1044/2005 19/40 JUDGMENT taken and the report shall accordingly be made to the learned District Judge within a period of two months from the date of receipt of the said complaint. In absence of any report, it would be open to the learned District Judge to take appropriate action against the concerned Officer of the Jail whose action is complained about inside the jail. (i) So far as the complaints for physical harassment are concerned, the learned District Judge shall get the inquiry conducted by the Officer not below the rank of Chief Judicial Magistrate and the report shall be called for by the learned District Judge within a period of three months from the date of entrusting such inquiry. Copy of such complaint shall also be forwarded to District Legal Aid Authority for participation at the stage of inquiry, if it is so desired by the concerned prisoner, may be convict or SCR.A/1044/2005 20/40 JUDGMENT under-trial prisoner. In the matter of complaint for custodial death inside the jail, immediate action shall be directed by the learned District Judge within 48 hours from the date of receipt of such complaint. It would also be open to the learned District Judge to entrust the inquiry to the Officer whom he may find suitable for such purpose. (j) After the report is received by the learned District Judge, the same shall be forwarded to the Committee which is appointed due to non- availability of the Human Rights Commission in the State or the State Human Rights Commission, as the case may be, for appropriate action. (k) Minimum one routine check up and one surprise check of each jail within the District shall be made by the learned District Judge and it would also be open to the learned District Judge to entrust such checking to the Officer not below the rank of Joint District Judge SCR.A/1044/2005 21/40 JUDGMENT in case the jail is situated at a place other than the District Head Quarters. (l) Lenient access by the Press/media to the jail shall be permitted after taking formal permission on administrative side from the learned District Judge of the concerned District. In a matter where during the visit by Press any serious infirmities are detected by the Press, the reporting thereof shall be made by the Press to the learned District Judge and after getting formal permission on administrative side, the Press shall be at liberty to publish the said material. 11. The respondent State Government shall report to this Court as to why the aforesaid directions should not be finally issued and its compliance be ordered by this Court, on or before 5.10.2005. 12. The presence of the Registrar General, High Court of Gujarat may also be required for SCR.A/1044/2005 22/40 JUDGMENT proper implementation of above referred directions or other directions which may be issued by this Court, since certain directions pertain to the concerned District Judge, where the jail is situated. Hence, Registrar General,