1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1377 OF 2008 Mr. Saeed Sohail Sheikh s/o Mr. Sohail ) Mehmood Sheikh, aged 21 years, ) Occupation: Student, R/o. Yakub Driver ) Chawl, Gaonevi, Dongri, Andheri (West) ) Mumbai - 400 058. ).. .. .. Petitioner. Versus 1) The State of Maharashtra ) (Through Department of Home, ) Prison Section, Mantralaya, ) Mumbai). ) 2) The Inspector General of Prisons ) (Maharashtra) ) (Having his office at : ) Inspectorate of Prisons, 2nd Floor, ) Old Central Building, State of ) Maharashtra, Pune - 1) ) 3) The Superintendent, ) (Bombay Central Prison, ) Sane Guruji Marg, Agripada, ) Mumbai - 400 011.) ) 4) The Superintendent, ) (Nagpur Central Prison, Nagpur, ) Maharashtra) ) 5) I/C Anti Terrorism Squad, ) (Traffic Institute Building, ) Byculla, Mumbai.) ).. .. ..Respondents. 2 -: ALONG WITH :- CIVIL APPLICATION NO. 50 OF 2009 IN CRIMINAL WRIT PETITION NO. 1377 OF 2008 Gautam Yashvant Desai, ) Age : 35 years, Occ: ) Residing at Flat No.11/A Wing, ) Model House Society, 3rd Floor, ) Near Robert Money School, Procter ) Road, Grant Road, Mumbai - 7. ).. .. .. Applicant. Versus 1) Mr. Saeed Sohail Sheikh s/o ) Mr. Sohail Mehmood Sheikh, ) aged 21 years, Occupation: Student, ) R/o. Yakub Driver Chawl, Gaonevi, ) Dongri, Andheri (West), Mumbai - ) 400 058. ).. ..(Orig.Petitioner) 2) The State of Maharashtra ) (Through Department of Home, ) Prison Section, Mantralaya, ) Mumbai). ) 3) The Inspector General of Prisons ) (Maharashtra) ) (Having his office at : ) Inspectorate of Prisons, 2nd Floor, ) Old Central Building, State of ) Maharashtra, Pune - 1) ) 4) The Superintendent, ) (Bombay Central Prison, ) Sane Guruji Marg, Agripada, ) Mumbai - 400 011.) ) 3 5) The Superintendent, ) (Nagpur Central Prison, Nagpur, ) Maharashtra) ) 6) I/C Anti Terrorism Squad, ) (Traffic Institute Building, ) Byculla, Mumbai.) ).. .. ..Respondents. -: ALONG WITH :- CRIMINAL WRIT PETITION NO. 1496 OF 2008 1) Sayed Aslam Sayed Jafar ) Age 32 years, Indian Inhabitant, ) Occ: Salesman, Permanent Resident ) of Kamrunnissa Husain Daruwala ) Chawl No.90, Room No.1, Qureshi ) Nagar, Kurla (E), Mumbai No. ) 400 070. ) 2) Sayed Akhtar Sayed Jafar, ) Age 34 years, Indian Inhabitant, ) Occ: Salesman, Permanent Resident ) of Kamrunnissa Husain Daruwala ) Chawl No.90, Room No.1, Qureshi ) Nagar, Kurla (E), Mumbai No. ) 400 070. ) 3) Sunil @ Karan Mahipal Walmiki ) Age 24 years, Indian Inhabitant, ) Occ: Service, Permanent resident ) of New B. M. Chawl No.5, 3rd ) Floor, R. No.77, Naigaon, Dadar, ) Mumbai - 14. ) 4 (Presently all of them lodged at Arthur ) Road Central Prison as an under trial ) prisoner in the C.R. No. 101 of 2003 ) of Respondent No.2. ).. .. ..Petitioners. VERSUS 1) The State of Maharashtra ) 2) The Senior Inspector of Police, ) R.A.K. Marg Police Station vide ) their C.R. No.232 of 2003. ) 3) The Senior Inspector of Police, ) DCB, CID, Mumbai vide their ) C.R. No. 101 of 2003. ) 4) The Superintendent, ) Arthur Road Central Prison, ) Mahalaxmi, Mumbai. ) 5) Mrs. Mira Borwankar, ) the then Joint Commissioner of ) Police (Crime), Crawford Market, ) Mumbai. ).. .. ..Respondents. -: ALONG WITH :- CRIMINAL WRIT PETITION NO. 1773 OF 2008 1) Ehtesham Qutbuddin Siddiqui ) 2) Abdul Wahid Deen Mohd. Shaikh ).. .. ..Petitioners. Versus 1) Smt. Swati Sathe ) (Supdt. of Arthur Road Jail, ) Mumbai.) ) 5 2) The State of Maharashtra ) (At the instance of ATS, Mumbai.) ).. .. ..Respondents. -: ALONG WITH :- CRIMINAL WRIT PETITION NO. 2746 OF 2008 Sayed Aslam Sayed Jaffer. ... .. .. Petitioner. Versus The State of Maharashtra. ... .. .. Respondent. Mr. Shahid Azmi i/by Mr. Ashish Sharma for the Petitioner in Cri. WP 1377/08. Mr. Wahab Khan for petitioner in Cri.WP 1496/08. Mr. Vinod Jadhav, Advocate appointed for the petitioner in Cri. WP 1773/08. Mr. V. T. Tulpule, Sr. Counsel with Mr. Harshad J. Kandalkar and Ms. Nisha Parab for Supdt. of Arthur Road Jail. Mr. S.R.Borulkar, Public Prosecutor for the State. CORAM : BILAL NAZKI and A. R. JOSHI, JJ. RESERVED ON : 24TH MARCH, 2009. DELIVERED ON: 21ST JULY, 2009. JUDGMENT (Per Bilal Nazki, J.) : All these writ petitions raise same questions and relate to the 6 same incident. For the purpose of facts, we are taking Criminal Writ Petition No. 1377 of 2008 as it is more comprehensive than the other petitions. The writ petitions have been filed either by the prisoner or the person interested in their welfare. The prisoners are involved in some serious offences. 2. In this writ petition, which is filed on behalf of Mohd. Sohail Mehmood Sheikh, the son of the prisoner has stated that while in Bombay Central Prison, on several occasions prisoner was pressurized to become an approver by the Anti Terrorism Squad with the help of Jail Authorities. The prisoner complained to various authorities, he suffered mental agony, physical harm and abuse from Mrs. Swati Sathe, the Superintendent and Jailor Mr. Govind Patil. 3. On 28th June, 2008, Sohail and other 27 prisoners were brutally, inhumanly and savagely beaten up by the Jail authorities along with other convicts and gangsters by lathis, batons, belts and stone. Sohail was left unconscious, profusely bleeding, scarred with abrasions and cut wounds. The other prisoners also got seriously injured. Some of them got head injuries and fractures. Later on, Sohail was transferred to Nagpur Central Prison. According to this writ petition, on 28th June, 2008, 40 prisoners were mercilessly beaten in the Arthur Road Prison. One of the prayers in the writ petition was that the judicial probe be ordered into the 7 incident of alleged assault on the prisoners dated 28th June, 2008. 4. Affidavit was filed in reply by Mrs. Swati Madhav Sathe, Superintendent of Mumbai Central Prison. In her reply, she stated that on 17th March, 2008 she submitted a letter to the Special Judge under MCOC Act requesting transfer of accused persons in MCOC Case Nos. 16/2006, 21/2006 and 23/2006 to other jails. The request was made on the basis that the Jail had the capacity to have 804 prisoners, whereas at that point of time it had 2500 prisoners. The Supreme Court had stayed the proceedings of the three cases i.e. MCOC Case Nos. 16/2006, 21/2006 and 23/2006 and the prisoners in these cases were not needed to be produced in the court. The learned Judge granted liberty to transfer the accused as per rules and regulations. The Inspector General of Prisons, thereafter, ordered transfer of 37 under trial prisoners to different prisons as per the Prison Manual by order dated 27th June, 2008. On 27th June, 2008, the Jail Authorities requisitioned a squad from Police Head Quarters and on 28th June, 2008 the Police escorts reached the jail. She stated that on 28th June, 2008, announcements were made requesting 32 under trial prisoners to gather near Lal Gate in the prison premises. At 11.40 hrs. 7 prisoners were transferred to Ratnagiri Special Jail. Other 19 under trial prisoners were sitting outside. Two under trial prisoners, who were lodged in high Security 8 Cell were also sitting there. Two under trial prisoners, namely, Kamal Ahmed Vakil Ansari and Dr. Tanveer Mohd. Ibrahim Ansari refused to leave their Cell. The Jail Authorities tried to explain to the under trial prisoners that they should leave the Cell. These under trial prisoners refused to listen to the Jail Authorities and started using abusive language and misbehaved with the Jail Authorities. Mr. Kamal Ahmed Vakil Ansari snatched the baton from Jail Guard and started assaulting the Jail Officer. She tried to intervene but was abused. These two under trial prisoners started giving anti national and provocative slogans like, "Pakistan Jindabad, Hindustan Murdabad. Hamne Judge Bhatkar Ko Hataya, Giraya To Tum Kya Ho?" After listening to these slogans, 21 under trial prisoners, who had gathered near Lal Gate also started giving similar slogans. Those 21 under trial prisoners charged towards the Jail Officials, Warden and Watchmen and assaulted them with bricks and stones. The said 21 under trial prisoners also tried to approach the High Security Cell and tried to open the gate of High Security Cell. They continued to give slogans. Considering the situation and to avoid further untoward incident at 11.50 hrs. alarm was sounded in the Jail and after using reasonable and required force, the situation was brought under control. Because of the assault by the under trial prisoners, the Jail Guards and Prison Authorities sustained injuries. On 28th June, 2008, seven under 9 trial prisoners were transferred to Ratnagiri Special Jail, fifteen under trial prisoners were transferred to Kolhapur Central Prison and ten under trial prisoners were transferred to Nagpur Central Prison. Thereafter, on 30th June, 2008 she submitted report of the incident of transfer of prisoners to Deputy Inspector General of Prisons. Copies were given to Court as well. Under trial prisoners, who sustained injuries were forwarded to jail Medical Officer. In view of this reply by the Jail Superintendent, incident of using force against under trial prisoners was admitted. 5. In the light of the pleadings of parties, which have been referred to above, this Court thought it appropriate to direct the Principal Judge, City Civil and Sessions Court at Mumbai to hold an inquiry into the matter. This Court passed a detailed order on 23rd July, 2008. Five questions were framed by this Court to be looked into by the Principal Judge. These questions are: (1) Whether use of force by the Jail Authorities on 28th June, 2008 was necessary ? (2) If it was necessary, whether minimum force was used ? (3) Whether the force was used for some extraneous reasons and not for reasons of maintaining discipline ? (4) Whether the force was used for reasons given in Discipline Rule 10 163 of the Manual or was used for any extraneous purpose ? (5) How was it that the prisoners had access to bricks and stones, as claimed by the respondents in the counter affidavit ? Thereafter, the learned Sessions Judge took up the inquiry and submitted a report. 6. On 12th January, 2009, the court noted that the copies of the report submitted by the learned Sessions Judge were given to the parties and they were given liberty to file objections to the said report. Thereafter, the objections were also filed and the matter was finally posted for hearing. 7. When the matter came up for hearing on 29th January, 2009, the Court found that Mr. Tulpule, learned Advocate was only appearing for the Jail Superintendent and not the State. Counter had been filed on behalf of the Jail Superintendent. She had also filed objections to the report. The Government had not filed any counter to the writ petition. It had not even filed any objection to the report of the learned Sessions Judge. The Court, therefore, asked the Public Prosecutor to spell out the stand with respect to the incident and also the report filed by the learned Sessions Judge. Thereafter the State also filed the affidavit. 8. Besides factual questions relating to the incident certain legal submissions have also been made by the learned Counsel appearing for the 11 petitioners. We will examine the factual position first. The learned Sessions Judge noted in his report that he received report in respect of the incident from the Jail Authority through Shri Awasarmol, Presiding Officer of the Court where Sessions Case No. 569/2004 was pending and also through Shri Y. D. Shinde, Presiding Officer of MCOCA Court where the two other cases were pending. Reports were sent as the prisoners made allegations to the Presiding Officers also. The statements recorded by the Presiding Officers were sent by them and those statements were also considered by the Inquiry Judge. The Inquiry Judge also collected record like MLC prepared by the various Government hospitals in respect of these prisoners. He conducted inquiry in an open court. The jail staff appointed an advocate and their advocate and some of the jail staff of the jail remained present in the court hall throughout the inquiry. Some under trial prisoners also appointed advocates and they were also allowed to witness the proceedings and on some occasions they were allowed to make submissions. He recorded statements of 15 such prisoners. He preferred to record the statement of those prisoners who appeared to be a leader and who had sustained grievous injuries in the incident. The statements of the Officers of the jail, who wanted to make statement, were also recorded. The Jail staff also examined one API, who was working as Liaison Officer for State 12 Government in the MCOCA cases. The Jail authority had requested to record statement of some other prisoners. The prisoners also wanted the statement of some other prisoners to be recorded. But the Inquiry Judge avoided to record the statement of such persons. The Inquiry Judge also visited the jail and made discreet inquiry in the circles and barracks with many prisoners who included Foreigners, Hindus and Muslims. That was done by the Inquiry Judge to see as to anybody was tutored and as to whether there was truth in the different stories given by both sides. He further noted that the 7 prisoners were sent to Ratnagiri Jail prior to 11.40 am. on 28th June, 2008. The main incident took place after sending of these prisoners to Ratnagiri jail. The incident took place in respect of the prisoners who were sent to Nagpur jail and Kolhapur jail and also in respect of some prisoners of SC No. 569-04. After considering the material, the Inquiry Judge gave the following conclusion and answer to the questions referred to him : Points For prisoners sent to Kolhapur & Nagpur Jails For Prisoners sent to Ratnagiri Jail Against prisoners from SC No. 569-04. 1) Whether use of force by the Jail Authorities on 28th June, 2008 was necessary ? Yes Yes No 2) If it was necessary, whether minimum force was used ? No Yes No 3) Whether the force was used for some extraneous reasons for maintaining discipline ? Yes, against some prisoners. No Yes 13 4) Whether the force was used for reasons given in Discipline Rules, 1963 or the Manual or was used for any extraneous purpose ? Against some prisoners force used for extraneous purpose. No Force used for extraneous purpose. 5) How was it that the prisoners had access to bricks and stones, as claimed by the Respondents in the counter-affidavit. Bricks & stones were not available. Story of Jail authority not true. Not relevant. Not relevant In view of the report, the learned Judge found that the force was used against some persons for extraneous reasons. He also found that the bricks and stones were not available as contended by the jail authority and story of jail authority was not true. So factually, the learned Judge came to the conclusion that the force was not used for maintaining discipline but it was used for extraneous purpose, at least against some prisoners. 9. About one of the prisoner Tanvir, the Inquiry Judge found that he had sustained injury on forearms, shoulder and elbow and he was examined first time after 15 days of the incident and fracture of left elbow and 5th metacarpal right were detected. In addition to these injuries, there were some blunt injuries. The record reveled that in Nagpur Jail, plastering could not be done as plastering material was not supplied by the jail. The record also reveled that there is restriction in movement of elbow of Tanvir and some deformity was caused to Tanvir. The learned Judge also said that circumstances showed that Tanvir had resisted and he was not obeying the order of the jail authority but the force was used against him could not be justified. Similar is the case of the another prisoner, Kamal, who was 14 examined in Nagpur Jail on 16th July, 2008, that is also the 20 days after the incident and he had swelling at right thumb and fracture of distal phalynx of right thumb. Most of the contusions were on left arm and chest. Kamal was given beating in the open space. He had only complained to the other prisoners that Tanvir was being assaulted. Ehatesham was also examined in the Government Hospital at Kolhapur after 20 days of the incident. He was found with 11 injuries and the grievance against him was that he had raised slogans. He had fracture of fifth metacarpal right. The finding of the Judge is that the nature of injury was such that he did not appear to be aggressor but he appeared to be defender and he was perhaps running away from the assault. Similar is the case of Sayed Asif, who was examined on 19th July, 2008. He had three wheal marks, contusions on shoulder and scapular region. Length of injury was between 7 cm. to 9 cm. There was injury over fifth metacarpal. All these injuries were caused by hard and blunt object like stick. Another prisoner Mohd. Akil was examined on 19th July, 2008 at Kolhapur Government Hospital. He was also having serious injuries and the finding was that excessive force was used against him. Abdul Wahid had also been examined on 19th July, 2008 and he had also serious injuries. Similar was the case with Mohd. Zuber who was also examined on 19th July, 2008. Mushtaq Ahmed was examined on 21st July, 15 2008. He had contusion over left scapular region, contusion over right scapular region, contusion over supra scapular region, contusion over supra scapular region left, contusion over left forearm; contusion over right shoulder, abrasion over left elbow. These injuries were caused by hard and blunt object. These injuries were such that they could be noted even after 20 days of the incident. Mohd. Zahix, Zameer Ahmed and Riyaz Ahmed also had injuries, which was noticed even after 20 days by the Doctor, who examined them. Similar was the case with Mohd. Amin, Mohd. Zuber and Bilal. So far as the prisoners sent to Ratnagiri Jail are concerned, there was no dispute that they had not sustained any injury. The injuries recorded in the medical certificate of the jail authority were manipulated in order to help the jail authority because the injuries were found by the Government Doctors even after 20 to 23 days after the prisoners were shifted to other jail. 10. The Jail Superintendent filed her objections to this report. She has not in fact disputed the findings of the learned Judge. But has quoted some Lesson Eighteen from "Prisons and Detention Centers if an indictment is issued and the trial begins, the brother has to pay attention to the following." This extract she has taken from Internet, but she has not even stated that this material allegedly issued by Al-Queda was even known to the prisoners. 16 However, there is one incident mentioned by the Jail Superintendent was that the learned Sessions Judge had indicted Mr. Karkar. Mr. Karkar was the Jailor attached to Arthur Road Central Prison. A specific allegation was made that Mr. Karkar assaulted some of the prisoners, when in fact Mr. Karkar was not attached to Arthur Road Jail at that time as he was transferred to Chandigarh for training and certain certificates have been annexed to show that he was on an official trip. However, we have not found any indictment of Mr. Karkar by the Inquiry Judge. The prisoners might have leveled charges against Mr. Karkar although Mr. Karkar was not at the place of occurrence. But there is no finding about his presence at the time of incident in the report of the learned Judge. 11. Another objection taken is that the learned Judge did not allow examination of the eye witnesses. The learned Judge has already explained in his report that he did not allow some of the witnesses, whom the Jail Authorities wanted to produce as witnesses and similarly he did not also allow the examination of the witnesses whom the prisoners wanted to examine. Certain findings of the Inquiry Judge go unrebutted, which are as under: "34. From the hand-sketch-map, it can be seen that it was virtually impossible for prisoners from Circle No.8/barrack No.2 to come out from that barrack and then from the circle. They were required to pass first the grill gate which is on the first floor 17 and which is kept ordinarily in locked condition when there is barrack-bandi. A constable is posted at this gate. After this gate, there is another gate of circle itself and it always remains in closed condition. It is required to be opened by the constable posted at this gate of the circle. It does not look probable that after ordering barrack-bandi, these two gates were kept open or that prisoners from barrack No.2 of Circle No.8 could come out to overpower the constable. Further, when one comes out of Circle No.8, there is another gate between the portion of the jail where Circle No.8 is situated and the portion of the jail where Circle No.2, which is High Security Zone, is situated. It does not look probable that during barrack-bandi, this gate was kept open or that no constable was kept at this gate. The aforesaid statements show that prisoners from other circles were already brought to the open space and only prisoners from the High Security Zone (Circle No.2) who were four in number, were to be taken out. Thus, there was no question of keeping the aforesaid gates open by the jail authority This circumstance also falsifies the story given by the jail staff that prisoners from Circle No.8/barrack No.2 had come out to the open space by breaking barrack-bandi and by over powering the jail staff. In discreet inquiry also, most of the prisoners from both the barracks 1 and 2 of this circle categorically stated that during the main incident, nobody from these barracks could leave the barrack. Only one prisoner who appeared to be tutored by jail authority came forward and that circumstance I am discussing at other place. 35. There is report sent by the Presiding Officer of Sewree Court. There is copy of the order passed by the P.O. on 4- 8-08 in SC No.569-04. This record shows that both Walmiki and Sayed Jafar made complaints to the P.O. when they came to be produced before the court first time after the incident. They have made allegations against the jail staff that they were beaten in jail on 28-6-08. The P.O. had examined their person and P.O. found some injuries and so the prisoners were referred to Government hospital. Even after six days of the incident, the P.O. could notice swellings and other injuries on the person of these two under-trials. The report and MLC dated 3-7-08 show that Sayed Jafar had sustained injury on right thigh, foot, chest, elbow and there was excessive swelling on the chest. Sunil 18 Walmiki had sustained injury on his back of the size 8 cm x 3 cm caused by stick. There was also injury on his left leg & left toe. When enquiry was made by the P.O. in the said sessions case, the Superintendent gave explanation and the Superintendent also produced copies of MLC prepared by jail doctor. This MLC shows that Sayed Jafar and Sunil Walmiki were examined at 5.10 pm and 5.20 pm respectively. These MLCs show that injuries like swelling on thigh, on right arm, left elbow were found on the person of Sayed Jafar and on left foot toe only of Sunil swelling was present as per the doctor of the jail. The doctor from jail gave history as sustained in scuffle and assault for controlling