Unfaithful translation of documents violate rights of an accused: Bombay High Court

cri.wp 1576 20.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1576 OF 2020 CRIMINAL WRIT PETITION ASDB LDVC 243 OF 2020 at present Yerwada Jail Rohit Sidram Khatalby the respondent No.1 the Commissioner of Police Solapur Briefy stated the grounds of detention states that the petitioner detenu is a dangerous person and weapon wielding desperado. The petitioner and his associates move around the various areas within the jurisdiction of Faujdar Chawadi Police Station and commit serious ofences like robbery causing serious hurt stone pelting by making unlawful assembly extortion attempt to commit murder molestation and house trespass holding deadly weapons like knife gupti sura sword hockey stick iron pipe stones and lathi. It is stated that the petitioner cri.wp 1576 20.doc has unleashed a reign of terror and has thereby become a habitual danger to the lives and properties of the people residing and carrying out thier daily business in the areas. The details of as many as 9 criminal cases registered against the petitioner at Faujdar Chawadi Police Station are stated. The details as regards the preventive action taken against the petitioner is also stated In camera statements of Witness ‘A’ and ‘B’ came to be recorded. Considering the materials on record respondent No.1 Detaining Authority was satisfed that the petitioner is a dangerous person within the meaning of sub section 2of the MPDA Act. The detention order is dated 17th March 2020 The petitioner made a representation dated 6th July 2020 which was received by the Superintendent of Jail Yerwada Central Prison Pune on 20th July 2020. On the very same day i.e on 20th July 2020 the representation was forwarded to the State Government vide Outward No.2894 2020 dated 20th July 2020 The representation was considered by the Additional Chief Secretary and was rejected by an order dated 18th August 2020 Though the order of detention is challenged on various grounds as stated in the Petition learned counsel for the petitioner restricted her challenge to the grounds stated in paragraphs(e) andof the Writ Petition cri.wp 1576 20.doc The respondent No.1 detaining authority has fled an afdavit duly afrmed by him dated 26th August 2020 in support of the order of detention. An afdavit has also been fled by Shri Aniruddha Venkatesh Jewlikar on behalf of respondent No.2 the State of Maharashtra dealing with the issue of consideration of the representation made by the detenu and consequent rejection thereof vide order dated 20th August 2020. Shri Umaji Tolaram Pawar Superintendent of Jail Yerwada Central Prison Pune respondent No.3 has fled an afdavit indicating the details of the receipt of the representation of the detention and forwarding the same to the State Government We have heard learned counsel for the parties. We have gone through the Memo of the Petition annexures and the record. We deal with the grounds as urged by the petitioner at GROUNDOF THE PETITION Learned counsel for the petitioner frstly pressed groundof the Constitution of India. According to learned counsel for the petitioner long and unexplained delay in considering and deciding the representation of the detenu would vitiate the order of detention. Learned counsel for the petitioner submitted that the representation is dated 6th July 2020 and the same came to be decided only on 18th August 2020. There is no explanation whatsoever much less a satisfactory explanation for the delay in deciding the representation Learned APP Shri Yagnik invited our attention to the afdavits fled by the respondents. He would submit that there is no delay in deciding the representation. According to him the representation dated 6th July 2020 was received by the respondent No.3 Superintendent of Jail on 20th July 2020. The same is received in the Special Branch 3B Desk on 11th August 2020. Thereafter the remarks were called for of the detaining authority on 11th August 2020. The remarks of the detaining authority were received vide letter dated 17th August 2020. The fle containing the remarks of the detaining authority along with the representation of the detenu was sent to the Deputy Secretaryon 17th August 2020. Upon endorsement cri.wp 1576 20.doc the same was forwarded to the Additional Chief Secretaryof the Constitution of India. These decisions squarely apply in the present case. GROUNDOF THE PETITION The next ground urged on behalf of the petitioner is ground F). According to petitioner he is well versed with Marathi language. The compilation of the documents containing Marathi translation of original Engligh documents running into 152 pages in all are furnished to the petitioner. According to the petitioner wrong translation of the original Engligh version is furnished to the petitioner thereby depriving him of making an efective 1981) 2 SCC 710 2012) 11 SCC 745 cri.wp 1576 20.doc Learned counsel for the petitioner invited our attention to the grounds of detention in Engligh and corresponding Marathi translation. It is contended by her that in paragraph 4 of grounds of detention in English version it is stated “Faujadar Chawadi Police Station” whereas in Marathi ground of detention it is translated as “Salgar Wasti Police Station” 14. With reference to paragraph 4.1 in Engligh version of grounds she submitted that a total of 9 cases are shown to be registered against the petitioner whereas in Marathi translation only 7 cases are shown. Thirdly learned counsel for the petitioner urged that in the column of ‘status’ in the table of cases furnished in paragraph 4.2 there is a variance in the English and Marathi translation. Learned counsel would submit that thus the petitioner is deprived from making efective representation since he has not been furnished true and faithful translation of original Engligh version thereby creating confusion to make efective representation as such his right to make representation under Article 22(5) of the Constitution of India is In support of her submission learned counsel for the petitioner relied upon the decision of this Court in the case of cri.wp 1576 20.doc Shri Noor Mohamed Khan vs. Shri M.N. Singh & ors. 3. She also relied upon the decision of this Court in the case of Yogesh Nandu Pujari vs. Commissioner of Police Thane & ors.4 Learned APP on the other hand submitted that no prejudice whatsoever is caused to the petitioner as the discrepancies pointed out by the petitioner in the Marathi translation are mere typographical errors. He would further submit that the representation was made by the petitioner through his Advocate which did not raise any objection about the said discrepancies additions and omissions. In support of his submission learned APP relied upon the decision of this Court in the case of Amar alias Amarsingh Gulabsingh Rathod vs. State of Maharashtra & anr.5 holding that the grievance of detenu that the documents were not explained to him in his language does not survive as a representation was made through his counsel. In our opinion the discrepancies pointed out by learned counsel for the petitioner in Marathi translation are not mere typographical erros but in fact are substantial mistakes. Mere reading of the order of detention in English language and translations supplied to the detenu in Marathi language would 2001 ALL MR1988 2013 ALL MR1779 2003 ALL MR1671 cri.wp 1576 20.doc indicate that in paragraph 4.1 of the Engligh version of the grounds total of 9 cases are shown to be registered against the detenu whereas in Marathi translation only 7 cases are shown Even in paragraph 4.2 of the grounds of detention so far as the table providing ‘status’ of the 3 cases mentioned therein we fnd that the translated version is at variance with the English version of the grounds of detention. In the ‘status’ in paragraph 4.2 so far as Serial No.2 is concerned we fnd that in the English version the same is mentioned as Police Ofcer Order No. ACP Div 01 u s. 107 of CrPC On 05 02 14 fnal bond has been taken for The translation reads thus iksfyl vf kdkjh lgk iksfyl vk qDr] foHkkx & 1 vkns’k dzekad o 287@13] fn Lkhvkj ih lh dye 107 fn 05@02@2014 jksth d o”kkZdfjrk ‘kkarrk jk[k. klkBh vafre ca ki= ks. kr vkysys gksrs We fnd that the mention of period “one year” in Marathi translation does not fnd place in English version. So far as Serial No.3 of the table in paragraph 4.2 of the grounds of detention is concerned again the period of “one year” mentioned in the Marathi translation is not be found in the English translation cri.wp 1576 20.doc Another noticeable addition in Marathi translation which does not fnd place in the English version of the grounds of detention are the words “for maintenance of peace”. We further fnd that whereas in English version in the grounds of detention it is mentioned that the bond has been taken for good behaviour the same does not fnd a mention in translated version of Marathi We thus notice that there is variance in the copy of the grounds of detention in English and its translation in Marathi apart from there being additions and omissions. We may also note that in paragraph 4 of English version it is stated that “known criminal registered in Gunda register at Faujdar Chawadi Police Station Solapur” whereas in Marathi translation the name of the Police Station is mentioned as “Salgarwasti Police Station”. A cumulative reading of the discrepancies additions and omissions lead us to a conclusion that the detenu has not been furnished with true and faithful translation of the original version and thus deprived from making efective representation as such his right to make representation under Article 22(5) of the Constitution of India is violated In this context we may refer to the decision rendered by the Division Bench of this Court in the case of Shri Noor Mohamed Khanof the Constitution of India and if in a given case the answer is in the afrmative the detention order would have to be quashed and if in the negative it would be sustained. We have already in paragraph 5 given our reasons as to why the detenu could have been misled in the 19. We therefore have no hesitation in coming to the conclusion that in the light of the infrmity in the translation the detenu could have been misled and confused in the instant case Learned APP relied upon the decision of the Hon’ble Supreme Court in the case of Piyush Kantilal Mehta vs Commissioner of Police Ahmedabad City and another6 to submit that even the Hon’ble Supreme Court has held that the order of detention cannot be held illegal on the ground that detenu was wrongly described in the order in as much as his name is diferent from that as given in the order. In our opinion 1989 SCC Supl.(1) 322 the said decision has no application to the facts of the present cri.wp 1576 20.doc 21. As aforesaid the petitioner has raised other point articulated in ground of the Petition. However we do not intend to dilate on the said ground in view of the favourable fndings recorded on the other two points urged by the petitioner Accordingly we hold that continued detention of the petitioner is illegal and vitiated. It is hit by the vice of Article 22(5) of the Constitution of India of denial of right to make efective representation at the earliest opportunity The present Petition therefore succeeds. Hence the The Writ Petition is allowed The respondents are directed to release the petitioner Rohit Sidram Khatal forthwith who has been detained in connection with the impugned preventive detention order dated 17th March 2020 bearing No.D.O.No.04 CB DP 2020 unless required in connection with some other criminal case Rule is made absolute accordingly cri.wp 1576 20.doc The Writ Petition is disposed of accordingly This judgment will be digitally signed by the Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this judgment M.S.KARNIK J (S.S.SHINDE J

Summary: While translating the detention order of a detune, only typographical errors may be accepted, any kind of factual or substantial error will be in violation of the rights of the accused under Article 22(5) of the Constitution. This remarkable judgement was passed by the division bench of the Bombay High Court, consisting of Justice S.S.Shinde &amp; Justice M.S.Karnik in the matter of Rohit Sidram Khatal (Detenu) v The Commissioner of Police Solapur &amp; Ors. [CRIMINAL WRIT PETITION NO. 1576 OF 2020].  The present petition was filed by an individual who was detained under Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons engaged in Black-marketing of essential Commodities Act, 1981 (MPDA Act), challenging the detention order under article 226 of the Constitution. The petitioner alleged that he has not been provided with true information regarding his detention which has hampered his right under Article 22(5) of the Constitution. The petitioner also alleged that representation was dated 6th July 2020 and the same came to be decided only on 18th August 2020. There was no explanation given whatsoever much less a satisfactory explanation for the delay in deciding the representation. The counsel relied on the decision of the Hon’ble Supreme Court in the case of Harish Pahwa vs. State of Uttar Pradesh, [(1981) 2 SCC 710] and Rashid Kapadia vs. Medha Gadgil and others, [(2012) 11 SCC 745] where Their Lordships considered the question of delay in deciding the representation made by the detenu in the context of violating the valuable right conferred under Article 22 (5) of the Constitution of India. These decisions squarely apply in the present case. Firstly, the alleged wrong translation of the original English version to Marathi, which he is fluent in, it is contended that in paragraph 4 of grounds of detention in the English version it is stated “Faujdar Chawadi Police Station” whereas in Marathi ground of detention it is translated as “Salgar Wasti Police Station”. Further, in the English version of grounds, a total of 9 cases are shown to be registered against the petitioner whereas in the Marathi translation only 7 cases are shown. Lastly, learned counsel for the petitioner urged that in the column of ‘status’ in the table of cases furnished in paragraph 4.2 there is a variance in the English and Marathi translation. The division bench observed that “In our opinion, the discrepancies pointed out by learned counsel for the petitioner in Marathi translation are not mere typographical errors but in fact are substantial mistakes. A cumulative reading of the discrepancies, additions and omissions lead us to a conclusion that the detune has not been furnished with the true and faithful translation of the original version and thus deprived of making an effective representation as such his right to make a representation under Article 22(5) of the Constitution of India is violated”. Accordingly, the Writ Petition has been disposed of. Click here to read the judgement