SUPREME COURT OF INDIA
State of Maharashtra
Vs.
Asha Arun Gawali
Crl.A.No.284 of 1998
(Doraiswamy Raju and Arijit Pasayat JJ.)
27.04.2004
JUDGMENT
Arijit Pasayat, J.
1. The concern for reformation of prisoners and improvement of prison
conditions has been judicially recognised. But the same does not countenance
"holding of darbars in prisons by prisoners", "five star hotel
comforts for prisoners" or "free entry to and exit from jail" as
surface in these cases, that too by statements of admission marked by abashed
inefficiency unbecoming of those who are ordained to strictly carry out their
duties and responsibilities i.e., state of jail authorities and the highly
placed Governmental functionaries. The Bombay High Court while dealing with the
legality of order directing detention of one Arun Gawali (hereinafter referred
to as "detenu") gave certain directions, to be noted hereinafter.
2. These three appeals are interlinked and have their matrix to the impugned
judgment by a Division Bench of the Bombay High Court. The High Court in
addition to quashing of order of detention gave the following directions:
"The State Government is directed to launch prosecution against S/Shri
D.M. Jadhav, M.G. Ghorpade and L.T. Samudrawar and other Jail Officials, in
case, if any, for the offences punishable under sections 120-B, 217 and 218 of
the Indian Penal Code and also under any other relevant provision of law,
either independently or in the prosecution pending against the detenu.
Shri P. Subramaniam, Additional Chief Secretary (Home), Shri S.C. Malhotra,
Commissioner of Police Mumbai and Shri M.G. Narvane, Inspector General of
Prisons, Pune shall pay exemplary costs of Rs.25, 000/- each.
S/Shri D.M. Jadhav, M.G. Ghorpade and L.T. Samudrawar, Superintendents of Jail,
shall pay exemplary costs of Rs.15000/- each.
The Government of Maharashtra shall deposit the entire exemplary costs payable
by these officers as indicated in this Court within a period of 10 days and the
state Government shall thereafter recover the costs so paid from the respective
officials, in accordance with law.
The Government shall pay, by way of remuneration, Rs.5000/- to Shri W.G.
Charde, Advocate, who acted as an Amicus Curies, within a period of 10
days."
3. Detenu's wife Asha Gowali filed a Writ Petition questioning legality of the
order of detention passed under Section 3 of the National Security Act, 1980
(in short 'the Act'). The directions were given while, as noted above quashing
the detention taking note of certain baffling fact situations which came to
light while hearing the writ petition and which should sound as 'nightmares' to
any law abiding citizen and law enforcing authorities. While the State of
Maharashtra questions the directions relating to launching of prosecution, the
other two appeals i.e. Criminal Appeal No. 286 of 1998 has been filed by Mr. P.
Subramanyam, who was then functioning as Chief Secretary (Home) and Criminal
Appeal No. 285 of 1998 has been filed by Mr. Mahadu Govindrao Narvane, who was
then functioning as Inspector General of Prisons. Though the judgment has been
assailed by the State of Maharashtra no separate appeal has been filed by Mr.
S.C. Malhotra, Commissioner of Police Mumbai, Mr. D.M. Jadhav, Mr. M.G.
Ghorpade and Mr. L.T. Samudrawar, who were acting as Superintendents of Jail,
though the directions given by the High Court also related to them.
4. The High Court noticed some startling features of monstrosity found
prevailing and while dealing with the Habeas Corpus application tried to pierce
the veils and noticed the actual distressing as well as disgusting state of
affairs. This was felt necessary because of certain observations in the
detention order to the effect that the detenu while in jail had master-minded
killings of certain persons in connivance with the active participation of
certain persons who had come to meet him in jail.
5. Certain registers like the visitors' register etc. were called for
verification and High Court noticed that there was no entry about the alleged
visit of so called co-conspirators and there was no record of their having met
the detenu. Certain officials were asked to file affidavits. Finding many
inconsistent and irreconcilable statements High Court did not give any credence
to the affidavits. In the aforesaid background it was observed that the order
of detention was passed on irrelevant materials and was indefensible. In view
of the sensitive nature of the matter a learned counsel was appointed as Amicus
Curie and his assistance was appreciated by the High Court.
6. Taking note of the sad state of affairs in the jail and the total
indifference of the concerned authorities, the High Court felt that there was a
need for imposition of exemplary costs on the erring officials and that is how the
directions quoted above were made.
7. The legality of the directions has been questioned in the three appeals. Mr.
Mukesh K. Giri, learned counsel appearing for the appellant-State submitted
that the High Court should not have given direction for launching of
prosecution straightaway without adequate material. Further the order of
detention was passed bona fide and appropriate actions have also been taken
against erring officials and, therefore, the imposition of costs is uncalled
for. Similar is the stand taken by the other learned counsel for the
appellants.
8. Though the legality of the order quashing the detention order was questioned
that was not very seriously pressed. Mr. M.D. Adkar, learned counsel appearing
for the respondent No.1 - writ petitioner submitted that the High Court has
taken note of the realities and has passed an appropriate order and no
interference is called for.
9. Certain baffling features have emerged on a bare reading of the High Court's
Order. The activities in the jail, entry of unauthorised persons and holding of
"Darbar" are part of the defensive stand taken by the State
Authorities in the affidavits filed before the High Court. We are shocked to
find that the norms relating to entry of persons to the jail, maintenance of
proper record of persons who entered the jail have been observed more in breach
than observance and the rules and regulations have been found thrown to winds.
The affidavits filed by the officials amply demonstrate this factor. One used
to hear and read about lavish parties being thrown inside the jail. Doubts at
times were entertained about the authenticity of such news having regard to the
normal good faith to be reposed in the regularity of official activities. But
the admissions made in the affidavits filed by the Jail Authorities and the
officials, accept it as a fact. What is still more shocking is that persons
have entered the jail, met the inmates and if the statements of the officials
are seen hatched conspiracies for committing murders. The High Court was
therefore justified in holding that without the active cooperation of the
officials concerned these things would not have been possible. The High Court
appears to have justifiably felt aghast at such acts of omissions and
commissions of the jail officials which per se constituted offences punishable
under various provisions of the IPC and has, therefore, necessarily directed
the launching of criminal prosecution against them, besides mulcting them with
exemplary costs.
10. The High Court noticed and in our view correctly that when the names of
visitors who allegedly were a part of the conspiracy warranting detention of
the detenu were not in the list of visitors during the concerned period, there
is a patent admission about people getting unauthorised entry into the jails
without their names being recorded in the official records something which
would be impossible except with the connivance of those who otherwise should
have prevented such things happening. It was noted by the High Court that there
was no explanation as to how somebody could gain entry in the jail and meet the
detenu and yet no entry would be made therefor. It is not possible unless the
jail officials are themselves a party to the same.
11. On one hand the detaining authority was referring to the activities of the
detenu inside the jail and the conspiracies hatched, and at the same time
official records belied their version. In respect of certain officials'
misconducts explanations were called for regarding involvement of jail
officials, their negligence or connivance relating to Yerwada Central Prison.
The High Court noticed that after taking some initial disciplinary action,
nothing concrete was really done. It felt that the Inspector General of
Prisons, other high placed officials and the Chief Secretary acted with
unwarranted casualness and indifference and there was total lack of any
seriousness or sensitivity exhibited in the matter. If the criminal activities
of the detenu were to be prevented and the recurrence of lapses which are
serious on the part of those concerned were to be averted, firm action was
necessary which yet was not even taken for reasons best known to themselves. In
the aforesaid background the concern exhibited by the High Court as a necessary
corollary by imposition of costs cannot at all be found fault with.
12. In the background of what has been noticed by the High Court, one thing is
very clear that there is a total casualness by the jail authorities. In the
matter of maintaining records of persons who meet the inmates, the factual
position as admitted in the affidavit filed is that the authorities themselves
were conscious of the prevalent position but yet allowed to go scot free with
impunity, except a pretended lip service. The purpose for which the jails are
set-up have been totally destroyed by the manner in which the jail officials
have acted. If the real purpose for setting up jails is to keep criminals out
of circulation in the society and to ensure that their activities are
restricted or curtailed, the same appears to have remained only a pious wish on
paper and what happens in reality is just the reverse. High sounding words like
"Writ of police runs beyond stone wall and iron bar", used in the
affidavits have not been reflected in the action of the authorities and does
not do real justice to the situation which only apparently necessitated, a
hardline of action by the High Court. On the contrary the High Court came to
hold on the basis of indisputable material placed before it that the jail
officials rendered support to the criminals in their crimes by completely
disregarding the mandate of law and this was done with a view to save them and
in particular the detenu from punishment. An officer is supposed to act for
protection of people, and prevent their criminal activities. Such activities
are not merely lapses or omissions but more dangerous than the crimes and
criminals who commit them for insulation it officially provides as alibi for
avoiding and escaping from actual liability, under law, for those crimes . If
they themselves become a party to the crimes by directly or indirectly helping
the criminals to carry out their criminal activities using their incarceration
as a protective shield to go scot free for their crimes , the credentials of
the police officials are bound to suffer severe beating beyond repair and
redemption. That is precisely what the High Court has observed and attempted to
activate and rectify.
13. The High Court noticed that the Maharashtra Prisons Facilities to Prisoners
Rules, 1962 prescribed the modes of interview of relatives etc. It was noticed
that these provisions were not prima facie observed. The under- trial detenues
and prisoners locked in different prisons are in the custody of the jail
officials, and they are responsible for the safety of the prisoners,
maintenance of the prisons and the enforcement of discipline amongst the
prisoners. In the affidavit dated 2.5.1997 the common plea of the Jail
Superintendents was in the following words:
"That absence of entry in the gate register is not conclusive proof to
establish that the so called persons have entered the jail. The statement
before the Police during investigation is not admissible. It is further stated
that First Information Reports in the respective crimes were recorded after
long time."
14. If what is stated in the affidavit is the reality one need not probe
further to find out the nature and extent of infractions.
15. But we feel a further detailed enquiry was necessary in the matter.
Therefore, the matter should be elaborately enquired into by the State
Government. We are conscious that the officials have exhibited a total lack of
seriousness and urgency but in the peculiar circumstances of the case where the
entire system is under scrutiny, a detailed study of the factual position is necessary.
What has happened in the jail to which this case relates, may or may not be
different from other jails and that there is no guarantee that such things are
now not happening . But a doubt lingers about the position being no better in
other jails also.
16. We, therefore, dispose of the appeals with the following directions:
“(1) The State Government shall cause enquiry into the matter in depth and
whatever action has to be taken departmentally or in accordance with the
criminal laws shall be taken within six months from today. The directions for
imposition of costs on the appellants - Mahadu Govindrao Narvane and
P.Subramanyam personally are waived for the present.
(2) Since the other officials in respect of whom costs were imposed have not
questioned the imposition, the directions of the High Court in relation to such
officers remain unaltered.
(3) So far as the two appellants before this Court i.e. P.Subramanyam and
Mahadu Govindrao Narvane are concerned, it shall be open to the Government to
initiate actions against them if felt necessary even if they have retired on
the basis of enquiry as directed.
(4) Judicial officers go for inspection of jails periodically. The disturbing
features noticed in the case at hand shall be kept in view by them while they
make the inspections and appropriate remedial measures and actions shall be
taken on the basis of the reports, if any, submitted by the concerned officers.
(5) The Government may consider the appointment of a Commission headed by
former Judge of the Supreme Court to be assisted by a former Inspector General
of Prisons and DG Police to probe into the nature of such lapses and explore
the possibilities of effectively curbing their recurrence and devising methods
and means to prevent them by appropriate statutory Provisions or Rules, to
sufficiently meet the exigencies of the situation.”
17. The appeals are disposed of on the aforesaid terms.