Patna High Court
Serajuddin Ansari vs The Home Secretary, State Of Bihar on 18 February, 1999
Equivalent citations: 1999(1)BLJR670
Bench: Bisheshwar Prasad Singh, D.P.S. Choudhary
JUDGMENT
1. This writ petition was filed before this Court on 27th November, 1998 as a habeas corpus petition in which a prayer was also made for payment of adequate compensation to the petitioner for his delayed trial on account of the laches on the part of the State resulting in deprivation of his fundamental right to speedy trial. It was submitted at the hearing of this writ petition that the petitioner has ultimately been acquitted by the Trial Court but only after he has suffered incarceration for long fifteen years.
2. The facts of the case are that the petitioner was arrested in connection with a case of murder in which it was alleged that he had committed the murder of his mother. By order dated 16.2.1984 passed by the ACJM, Danapur the petitioner was remanded to judicial custody. It also appears from the record that an order was passed extending to the petitioner the benefit under Section 167(2) of the Code of Criminal Procedure for his release on bail, since the charge-sheet had not been filed within the prescribed period. However, on account of poverty and consequent inability on the part of the petitioner to furnish adequate bail bonds, he was deprived of the benefit to which he was entitled by reason of the charge-sheet not being filed within time. The petitioners therefore, continued to languish in jail.
3. On 21.8.1986 the Superintendent, Phulwari Jail reported to the Court that the petitioner was found to be of unsound mind on 20.8.1986 and therefore, required treatment in a mental asylum. It was, therefore, recommended that he should be sent to mental asylum for treatment. It is not clear from the record as to what action was taken thereafter. But it appears that a letter was written by the Jail Superintendent, Phulwarisharif Camp Jail to the Court on 28.4.1988 that since no escort party was available, it was not possible to send the petitioner to the Mental Asylum at Ranchi. From the letter of the Jail Superintendent, it appears that some directions had been issued earlier to him by the Court to send the petitioner to the Mental Asylum at Ranchi. It, however, appears that on 23.7.1987, the Court had passed an order for sending the petitioner to the Mental Asylum at Ranchi.
4. From the counter-affidavit filed on behalf of the State, it appears that on 11.9.1990 the petitioner was sent to the Ranchi Mental Asylum for treatment. From the order-sheet of the Court below, it appears that on 22.6.1991 the Court noticed the letters written by the Superintendent of Ranchi Mental Asylum on 29.5.1991 and 14.6.1991 that the petitioner had been treated of his mental ailment and as he was now of sound mind, he should be returned to the jail. The Court again noticed in its order dated 24.9.1993 that the Superintendent of Ranchi Mental Asylum had again sent a letter of request on 8th September, 1993 reiterating the request earlier made by him for sending the petitioner to jail from the Mental Asylum since he had been cured of his mental ailment and was of sound mind. It appears from the counter-affidavit of the State that, the petitioner returned to Beur Central Jail on 24.12.1993 though it has been submitted in the writ petition that he was sent to the Beur Central Jail on 17.1.1994. Be that as it may, the petitioner was committed to stand his trial before the Court of session by order dated 22.11.1994.
5. Unfortunately, even after commitment of the case to the Court of Session, the file appears to have moved at a slow pace and ultimately charge was framed in October 1998.
6. On 27.11.1998. this writ petition was filed on behalf of the petitioner. Mrs. Anjana Prakash, Advocate who has appeared on behalf of the petitioner had visited the Beur Central Jail in October 1998 as a member of the State Legal Service Authority and discovered that the petitioner had remained in custody for almost fifteen years without facing the trial. It was in these circumstances that the instant writ petition was filed on 27.11.1998. A report was called for from the 6th Additional Sessions Judge, Patna as also from the Superintendent of Baur Central Jail by order dated 30th November, 1998. A report from the jail was received but report from the 6th Additional Sessions Judge, Patna had not been received as noticed in the order of this Court dated 8.12.1998. On 18.12.1998, this Court again noticed that the report from the 6th Additional Sessions, Judge, Patna had not been received. On 21.12.1998, this Court passed an order in which it has been noticed that the report from the Trial Court had been received on 10.12.1998 but was not placed with the record due to laches on the part of the office, on perusal of the report, the Court found that the petitioner had remained in custody since 16.2.1984. Since the petitioner had remained in custody for more than fourteen years this Court directed his release on personal bond. We are told that the petitioner was so released pursuant to the order of this Court dated 21.12.1998.
7. This writ petition was admitted for hearing on 27.1.1999 since the petitioner claimed that he should be compensated for deprivation of his fundamental right to speedy trial on account of laches on the part of the State. The matter has come up for disposal today. We have heard Counsel for the petitioner as well as the Govt. Advocate for the State.
8. We find that the petitioner was remanded to custody on 16.2.1984 and though he was extended the benefit of Section 167(2). Cr.P.C. on account of his poverty he was unable to furnish bail bond and continued in detention thereafter. The report of the Jail Superintendent dated 21.8.1986 disclosed that the petitioner required treatment since he was found to be of unsound mind. The Court accepting the report directed that the petitioner be removed to the Mental Asylum at Ranchi. Despite the order of the Court dated 23.7.1987, the petitioner was not sent to Ranchi Mental Asylum on the pretext that there was no escort party available to escort him to the Ranchi Mental Asylum. This was the excuse given by the Jail Superintendent. As would appear from the counter-affidavit of the State, the petitioner was sent to Ranchi only on 11.9.1990.
9. It thus appears that for a period of three years and two months approximately, the petitioner was kept in the jail for no good reason and in view of unsoundness of mind, he could not have been put up for trial during this period.
10. After the petitioner was sent to the Ranchi Mental Asylum for treatment, it appears that he was cured of his ailment and by two letters written by the Superintendent of Ranchi Mental Asylum dated 29.5.1991 and 14.6.1991, it was reported that the petitioner had been treated of his ailment and that he had regained the normal state of mind and could be returned to the jail. Another request to the same effect was made by the Superintendent of the Mental Asylum by his letter dated 8.9.1993. Despite several requests of the Superintendent of the Mental Asylum, the petitioner was not brought to the Beur Central Jail or the Camp Jail at Phulwarisharif so that he could be put up for trial. The State is, therefore, guilty of delay and laches in shifting the petitioner from the Mental Asylum to the jail for almost two-and-a-half years, i.e., from 14.6.1991 to 4.12.1993, the date of which, according to the State, the petitioner was returned to the Beur Central Jail. Thereafter, the petitioner was committed to stand his trial before a Court of Session and it is unfortunate that the file moved slowly and it took almost three years and nine months to frame the charge in his case. No doubt, thereafter the Court machinery worked efficiently and the petitioner was acquitted of the charge by judgment and order dated 12.1.1999.
11. The petitioner has thus suffered incarceration for a period of almost fifteen years. His misfortune is partly on account of his poverty, as he was unable to engage a Counsel, and was also unable to furnish bail bonds which he required to furnish when his release was ordered under Section 167(2) Cr.P.C. Barring the delay on account of legal procedures and pendency of large number of cases, we find that the State is also responsible for delaying the trial of the petitioner.
12. When the petitioner was found to be of unsound mind and the Court had ordered for his removal to. the Mental Asylum on 23.7.1987, there appears to be no good reason why he was not shifted to the mental asylum till 11.9.1990 i.e., for a period of approximately three years and two months. The reason furnished by the Jail Superintendent is frivolous and unconvincing. We fail to understand why it was not possible for the State to provide an escort party to escort an under trial prisoner from a jail to a mental asylum within the State of Bihar. We notice that almost every person who holds any office, either as a member of the Legislative Assembly or any other high office, and even ordinary politicians, have been provided with home guards and personal body guards which has become a matter of status. On the other hand, police constables are not available for performing law and order duties and duties in connection with regulation of traffic. If the State Government has chosen to provide home guards and personal body guards to all and sundry, it cannot set up as an excuse shortage of hands to provide an escort party to escord an undertrail prisoner from jail to the mental asylum. Equally unconvincing is the submission of the Government Advocate that the petitioner was charged of a heinous offence and therefore, was not entitled to any sympathetic consideration. It is not for the State to give a judgment on the guilt or otherwise of, an undertrial prisoner. That is the function of the Court. So far as the State is concerned, it has to treat an undertrail prisoner as an undertrail prisoner, and in a Welfare State it is also enjoined upon the State to provide reasonable facilities to the undertrail prisoners. In case they require medical attention, that Is to be promptly provided by the State. In the performance of its obligations, the State cannot but acquire a humanitarian approach, because in a democracy, the State cannot act in an inhuman manner in breach of human rights. Rather than providing prompt medical attention to an undertrail prisoner who was suffering from mental undoundness, the State chose to keep him in the jail where no medical attention could be given to him for the ailment from which he was suffering. At the same time, being of unsound mind, his trial could not commence.
13. Even after the petitioner was cured of his ailment, his story was no different, and the attitude of the State also remained the same. Despite several reminders by the Superintendent of Ranchi Mental Asylum, the petitioner was not brought to the Jail and not put up for trial from 29.5.1991 to 4.12.1993 when he was ultimately shifted to the Beur Central Jail. For almost two and-a-half years, the petitioner continued to stay in the mental system, even though that was not necessary since he was cured of his ailment. One can well imagine the trauma and misery of a person of sound mind compelled to live in the environment of a mental asylum. The petitioner was lucky that there was no relapse of his ailment which he has suffered. For this period as well, no satisfactory explanation is forthcoming from the State.
14. We thus find that from 23.7.1987 to 11.9.1990 and again from 29.5.1991 to 4.12.1993, the petitioner was kept confined in Jail and Ranchi Mental Asylum, respectively, for no good reason with the result that the case pending against him could make no progress. The State is, therefore, responsible for causing the delay of about five years and eight months and, in our opinion, is obliged to compensate the petitioner for the trauma and mental agony suffered by the petitioner. We are told that the petitioner is a poor person and manages to make his ends meet by working on daily wage basis. The minimum wages payable today to an unskilled labour is over Rs. 60/- per day. But, during the relevant period the minimum wages might have been less. Even if we take an average of Rs. 40/- per day, only on account of loss of wages the petitioner has suffered a loss of about Rs. 81,600/- during the period of five years and nine months when he was unnecessarily kept in jail and the Ranchi Mental Asylum. The petitioner must also be compensated for the trauma suffered by him which we quantify at Rs. 20,000/-. On a careful considerations of all aspects of the matter, the petitioner should be compensated by the State which shall pay to the petitioner a sum of Rs. 1,00,000/- (Rupees One lakh) only by way of compensation for his unnecessary detention in jail from 23.7.1987 to 11.9.1990 and for his unnecessary detention in the Ranchi Mental Asylum from 27.5.1991 to 4.12.1993. We direct the State to pay the said compensation to the petitioner within a period of three weeks from today.
15. To avoid any dispute in future with regard to the payment, we direct Mrs. Anjana Prakash to write to the petitioner and request him to come to Court so that on her identification the payment may be made to him by the State. She will keep the Govt. Advocate informed so that he may instruct the competent authority in the Government to come to this Court with the amount which may be paid in presence of the counsel for the petitioner.
16. Before parting with the judgment we must record our appreciation of the efforts made by Mrs. Anjana Prakash, Advocate of this Court in espousing the cause of the petitioner who really deserved the legal aid and sympathy which she extended to him.