The State Of Maharashtra And Etc. Etc vs Saeed Sohail Sheikh Etc. Etc

2. These appeals have been filed by the State of Maharashtra and senior officers in the Department of Prisons, Government of Maharashtra against a common judgment and order dated 21st July, 2009 passed by a Division Bench of the High Court of Judicature at Bombay whereby a batch of criminal writ petitions filed by the respondents have been allowed, transfer of the respondents-prisoners from Arthur Road Jail in Bombay to three other jails in the State of Maharashtra held to be illegal and the appellants directed to transfer the prisoners back to the jail at Bombay. The High Court has expressed the view that jail authorities having used force against undertrial prisoners for no fault of theirs and since such force was used for extraneous reasons and was excessive, the Chief Secretary of the State of Maharashtra shall initiate a disciplinary inquiry against all those involved in the incident. The High Court has further held that if need be in addition to departmental inquiry, criminal action be also taken against the concerned officers including an inquiry into the conduct of the jail doctors for dereliction of their duty and alleged fudging of the records.

3. The factual matrix relating to the transfer of the prisoners from Bombay Central Prison to other prisons in the State and use of force causing injuries to some of them has been set out in the order passed by the High Court at some length. We need not, therefore, recount the same over again except to the extent it is necessary to do so for the disposal of these appeals.

4. Superintendent of the Bombay Central Prison appears to have addressed a letter to the Special Judge under The Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as the MCOC Act) requesting for permission to transfer accused persons in three different Bombay blast cases being MCOC cases No.16/2006, 21/2006 and 23/2006. The request for transfer was proceeded on two distinct grounds namely (i) that against a capacity of 840 prisoners, the Bombay jail had as many as 2500 prisoners housed in it resulting in over-crowding and consequent problems of management in the jail and (ii) that proceedings in the on-going cases in question had been stayed with the result that the presence of the accused persons involved in the said cases was no longer required in the near future.

7. On 22nd June, 2008 the jail authorities appear to have sent a requisition for an escort to the police headquarters which police escort was provided and reached the jail premises on 28th June, 2008 at 9.00 a.m. An announcement was then made requesting thirty-two undertrial prisoners to gather near Lal Gate in the prison premises out of whom seven prisoners were transferred to Ratnagiri Special Jail around 11.40 a.m. The other nineteen undertrials were said to be sitting outside while two other undertrial prisoners named Kamal Ahmad Vakil Ansari and Dr. Tanveer Mohd. Ibrahim Ansari refused to leave their cell to join the escort party despite persuasions by the jail authorities. The case of the appellants is that these undertrial prisoners refused to listen to the jail authorities and started abusing and misbehaving with the jail officials including Mrs. Swati Madhav Sathe, the Jail Superintendent. Not only that, the undertrial prisoners started shouting anti-national and provocative slogans. After hearing these slogans from the high security cell, 21 undertrial prisoners who had gathered near the Lal Gate also started giving similar slogans and charged towards the jail officials, Wardens and watchmen and started assaulting them with bricks and stones. The version of the appellants is that these 21 undertrial prisoners also tried to approach the High Security Cell and tried to open its gate while they continued shouting slogans. Apprehending that the situation may go out of hand, the alarm bell was sounded in the jail and force reasonable enough to bring the situation under control used for that purpose. The appellants contend that because of the assault by the undertrial prisoners, the jail guards and prison officers sustained injuries.

9. In the writ petitions filed by the respondents before the High Court, allegations regarding use of excessive force and inhuman treatment were made against the jail officials including the Superintendent of the Central Jail. The respondents alleged that the use of force was without any provocation and justification apart from being inspired by reasons extraneous to the need for maintaining peace and order within the jail. The nature of the allegations made in the writ petitions was found by the High Court to be sufficient to call for an inquiry into the violent incident. This inquiry was assigned to the Sessions Judge, Greater Bombay who was asked to report whether use of force by the jail authorities on 28th June, 2008 was excessive and whether, force was used for any extraneous reasons other than for maintaining discipline in terms of the Discipline Rules, 1963 of the Jail Manual. The Sessions Judge was also asked to enquire into the circumstances in which the prisoners had access to bricks and stones as claimed by jail authorities in the counter- affidavit filed before the High Court.

10. An inquiry pursuant to the directions of the High Court was accordingly conducted by the learned Sessions Judge, Greater Bombay in which the Sessions Judge recorded the statements of the injured as also the jail officials besides some other inmates of the jail. The report submitted by the Sessions Judge concluded that the cause underlying the incident of 28th June, 2008 was the resistance offered by Kamal Ahmad Vakil Ansari and Dr. Tanveer Mohd. Ibrahim Ansari to their transfer from the prison. The Inquiry Officer observed:

43. In the result we allow these appeals but only in part and to the extent that the Government shall treat the report submitted by the Sessions Judge as a preliminary inquiry and take a considered decision whether or not any further inquiry, investigation or proceedings against those allegedly responsible for using excessive force while restoring discipline in the Central Jail at Bombay on 26th June, 2008 needs to be conducted. We make it clear that if the Government decides to hold any further inquiry or investigation into the matter on the basis of the preliminary findings in the report submitted by the Sessions Judge or institute any departmental proceedings against any one of those found guilty in any such further inquiry or investigation, the observations made by the High Court in regard to the use of force or the extent thereof shall not prejudice the parties concerned or the outcome of any such inquiry nor shall any such observation be treated to be a final expression of opinion regarding the guilt or innocence of the concerned. The parties are left to bear their own costs.