Jammu & Kashmir High Court - Srinagar Bench
The J&K High Court Bar Association vs State Of J&K And Ors on 8 February, 2010
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR OWP No. 675 of 2004 The J&K High Court Bar Association Petitioners State of J&K and ors Respondents !Mr. M.A. Qayoom, Advocate ^Mr. M.I. Qadri, Advocate Mr. N.H. Shah, Advocate Shah Aamir, Advocate Honble Mr. Justice Barin Ghosh Chief Justice, Judge Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 08/02/2010 :J U D G M E N T:
A humane cause of those human beings who are segregated from the society in the interest of society and State, and are kept within protective walls in legal phraseology called Jail(s) is projected on the grounds traceable to Article 21 of the Constitution of India. It is projected that this section of society which is entitled to certain rights recognized in law and guaranteed by Article 21 of the Constitution, is allegedly deprived of these rights by action of the State and its authorities. The citizens of the State who are removed from the civil society either under the provisions of J&K Public Safety Act of 1978, (for short Act of 1978), and/or on charges of having committed penal offences, and are facing trial in the courts of law are lodged in the jails under orders of appropriate authority. It is alleged that instead of dealing with them in accordance with the mandate as contained in Article 21 of the Constitution of India, providing, that the trials pending against them must be concluded expeditiously, efforts are made to delay such trials by not producing these under-trial prisoners before the Court of competent jurisdiction for months together. The central theme of the writ petition is based on the deprivation of right to have expeditious trial which is implicit in life and personal liberty as guaranteed under Article 21 of the Constitution of India. It is also projected that appropriate medical treatment is not being provided to the detenus and under-trial prisoners. The cause thus projected and the grounds summarized in the writ petition having been found to be of significant importance resulted in treating of lis as in Public Interest vide order dated 19th Oct. 2006 and that is how the matter has proceeded. Number of directions have been issued and compliance thereof sought from the respondents. Committees constituted at district levels headed by Pr. District and Sessions Judges have also submitted reports about the jail conditions, as also, how many under-trials have not been produced before the Court(s) for months together. The petitioner-association also filed series of reports prepared by them while visiting various jails to indicate that in some cases under-trials have not been produced before the Courts even for months together.
We have heard learned counsel for parties. Considered the matter and the record available with the writ petition(s).
Mr. M.A. Qayoom, ld. counsel for petitioner, while referring to reports of the petitioner- association indicated that while interacting with the under-trials during visits to the Jails, it was noticed that some of the under-trials have not been produced before the courts on many dates of hearing, and some under-trials are allegedly subjected to in-human treatment. Ld. counsel further submitted, that some detenus/under-trial prisoners are not being provided even minimum medical facilities. The learned counsel also submitted, that in order to facilitate production of the under-trials before the Courts where their cases are pending, the under-trial prisoners shall be lodged in the prisons nearer to such Courts. The ld counsel also submitted that the State-authority shall be directed to constitute a special force which shall be exclusively charged with the duty of escorting/transporting the under-trial prisoners from prisons to the Courts where their cases are pending. The ld counsel further submitted that respondents shall be directed to take all steps to provide the proper medical facilities to detenus/under-trials.
Learned counsel in view of the order dated 19th Oct. 2009 also filed report to substantiate his contention that citizens of the State who are within the confines of jails either as detenu and/or under- trials are allegedly denied the constitutional guarantees available to them under Article 21 of the Constitution.
Ld counsel Mr. M.A. Qayoom, also referred to Section 41 of the Prisoners Act of 1977 (for short Act of 1977), and clauses 18.1, 18.32. 18.38, 18.50, 18.52 and 29.53 of the Manual for Superintendence and Management of Jails, ( for short Jail Manual), to indicate as to reliefs which are sought for in the writ petitions are, otherwise, to be provided by the State-authorities in view of the laws made by the State itself.
Mr. M.I. Qadri, ld. Advocate General, of the State submitted, that the respondent-State has all along been taking steps to ensure that under-trial prisoners are produced before the Courts of law where their cases are pending for trial, but aberrations have taken place which are not deliberate or intentional, and it is because of the security scenario prevailing in the State that sometimes under-trials could not be produced before the Courts. Learned Advocate General, referred to the affidavits filed by the authorities of the State-government including the Director General of Police of the J&K State, to indicate that earnest efforts are being made to provide all necessary paraphernalia so as to enable the authorities to comply with the mandate of Article 21 of the Constitution of India, as also that of Act of 1977 and Jail Manual. Learned Advocate General further submitted, that State being governed by rule of law, the authorities are under constitutional and statutory obligation to comply with the mandate contained therein. The ld Advocate General also assured that all earnest efforts are being made to ensure that all facilities permissible are made available to the detnus/under-trial prisoners. The learned Advocate General also referred to the affidavits of the authorities to indicate that substantial amount of money is allotted and spent to provide medical facilities, recreational facilities etc. to the detenus and/or under-trials.
A person who is detained under provisions of the Act of 1978, is so detained on the presumptuous conclusion drawn from his past activities that his remaining at large will cause damage to the public order and/or to security of the State. The truth or otherwise of the allegations on which a citizen is deprived of his liberty under the Act of 1978, are not being tested during a regular trial. The person who is detained, is neither under-trial nor a convict. He is removed from the society for a temporary period in the interest of society. Likewise, a person who is charged with commission of penal offences, which charges are to be proved beyond all shadow of doubt, in a regular trial in accordance with the settled principles of law, before a court of law, is also deprived of his liberty temporarily in view of the nature of allegations levelled against him to ensure that he faces the trial and allows the court of law to pronounce a verdict at the conclusion of the trial about his innocence or guilt. These two types of persons when lodged in a prison are called prisoners. These prisoners, though deprived of their liberty in accordance with mandate of law are still entitled to basic human rights.
It is said that human rights are special sort of inalienable moral entitlement. They attach to all persons equally, by virtue of their humanity, irrespective of race, nationality or the membership of any particular social group. They specify minimum conditions of human dignity and tolerable life.
It is further said that in civilized nation, attempts are made to define and buttress human rights. The core of the concept is same everywhere. Human rights, are the rights that one has simply because one is human. They are universal and equal. They may be suspended, rightly and wrongly, at various places and times, but the idea of inherent rights cannot be taken away.
Whatever is in universe, human being is central to it all and forms nucleus of rationale activities. The human rights come into existence at the time of birth of a person.
In and around 1948, when the Constitution of India was in the process of drafting, a statement of Universal Declaration of Human Rights was made by International Community. Our country in the year 1979 acceded to International Covenant of Civil and Political Rights An, increasing respect for rights contributes to a States International Legitimacy and Reputation. The Article 21 of the Constitution of India on which entire thrust is made in the petition(s) is reproduced as under:-
Art. 21.-
Protection of life and personal liberty._ No person shall be deprived of his life or personal liberty except according to procedure established by law. In a democratic State, governed by rule of law and in view of the fact that a human being is catapulted to focused position in this universe, he cannot be deprived of his life and personal liberty. In a civilized society governed by rule of law, in the overall interest of society, an individual cannot be deprived of his life and personal liberty save in accordance with the procedure established by law. In absence of Article 21 of the Constitution, the State governed by rule of law, would be powerless to deprive an individual of his life and personal liberty. Article 21 of the Constitution confers power upon State to deprive an individual of his life and personal liberty, but this power is to be exercised in accordance with the law made by the State. The life and personal liberty of an individual is of paramount importance in human existence. But for a bigger cause of the society a person can be deprived of his life and personal liberty, however, in accordance with procedure established by law.
Deprivation of life and personal liberty of an individual by the authority of law, would not mean that such an individual is denuded of his basic human rights. It is not only a detenu and/or under-trial but even a convict is entitled to certain basic human rights and it is State governed by rule of law which is under an obligation to respect those human rights.
Article 21 of the Constitution has the potential of conferring a drastic power on the State. But before depriving an individual of his life and personal liberty the State has to follow the mandate of law in achieving such goal. The Constitution given by the people of this country to themselves is the Supreme Law of Land and is the repository of basic rights of the individual. The action of the individual, which necessitates for depriving him of his life and/or personal liberty is to be adjudged in accordance with the procedure established by law. The Article 21 on the one hand confers power on the State to deprive an individual of his life and/or personal liberty, on the other hand confers an indefensible right on the individual to live his life and enjoy the freedom, which came into existence with his very birth. A person who is sought to be deprived of his life and/or personal liberty, cannot be kept in confines of the jails, for arriving at a conclusion, for un-necessarily long period.
The right to have expeditious trial has nexus with the personal liberty of an individual and to achieve this purpose the State is under constitutional obligation to ensure that the trial concludes against an individual at the earliest. It is, in this back ground, that a person who is ordered to be kept in confines of the jail under lawful orders of competent authority to face the trial, has a right inherent in him to seek conclusion of the trial at the earliest. The State and its authorities are duty bound to assure that all possible steps are taken to ensure speedy trial more particularly in the case of a person who is lodged in the prison.
The provisions contained in the Act of 1977, more particularly Section 41 provides that the under-trial is brought before the court by the jail authorities. The clauses of the Jail Manual also ordain that the under-trials are to be produced before the court on every date of hearing.
Some of the under-trial prisoners have not been produced before the courts where the trial is pending against them on many consecutive dates of hearings. The reports of Pr. District and Sessions Judges do show such instances. The right of having speedy trial which has been held to be implicit in right to life and liberty guaranteed under Article 21 of the Constitution is thus, infringed. The reason put- forth by the respondents is that escort/transport facilities could not be made available at occasions for production of under-trials before Court(s) because of law and order problem, VIP movement and in some cases intelligence in puts advising against the movement of detenus. Barring the plea of intelligence in puts advising against the movement of detenu on the particular date for the safety of life and liberty of the under-trial prisoners, other two grounds projected cannot be countenanced in law. It is the duty of the State to ensure production of the under-trials before the court of competent jurisdiction where the trial is pending. Escort/transport facilities are to be provided by the respondent- State to the Jail authorities to ensure production of under-trials before the court(s) of competent jurisdiction on every date of hearing. The delay which is caused in the trial of the under-trials is mainly attributable to non availability of escort/transport facilities to the jail authorities.
Section 41 of the Act of 1977, and Clauses 18.32 and 18.33 read with 18.38 of Jail Manual casts an obligation on State for providing adequate police personnel with sufficient transport facility for escorting under-trial prisoners for their production before courts, for treatment outside jails in the hospitals or for transporting them from one institution to another. Provisions are also made for production of prisoners before the court of competent jurisdiction every fortnightly. Provisions are also made for providing adequate medical facility to the detenus/under-trials. Further provisions are made for confinement of detenus/under-trials separately and away from convicted prisoners. The State and its authorities are duty bound to comply with their own laws. No cause, not recognized by law, can be entertained to deny all these rights to the detenus/under-trials and the performance of these obligations is a duty cast on the State and its authorities.
The reports filed by the petitioner-association, Pr District and Sessions Judges, affidavits by the State authorities in pursuance of orders of the Court have swelled the file. What is needed and required is fulfillment of and the compliance of the constitutional and statutory obligation, cast on the State and its authorities and translating the promise made in the affidavits into reality on ground level.
In the factual and legal scenario appearing in this case, we, accordingly, issue the following directions to the State and its authorities including the jail authorities:-
a) To consider and take a decision about constituting a special force exclusively kept at the disposal of the jail officers for transportation and escorting the detenus and under-trials from jail to court of law, from jail to outside hospital, and from jail to other institutions.
b) Till such time decision in respect of (a) is taken and is carried out on the ground level, every Senior Superintendent of Police of the district where the detenu/ under-trial is lodged in a jail should ensure on requisition received by him, either from the court where the trial is going on or from the jail authorities where the detenu/under-trial is lodged to provide necessary escort/transport facilities for carrying the under-trial(s) to the court of law on the date of hearing fixed by the court and for their/his transportation back to the jail under the orders of the court.
(c) The court(s) of law where the cases of under-trials are pending, shall ensure that the concerned SSP is intimated of the date of hearing of the case on the day it is adjourned, about the next date on which the under-trial is to be produced before Court for facing the trial. Besides Public Prosecutor/Prosecuting officer attached to the court, the Chief Prosecuting Officer of the district(s) shall be under obligation to communicate the next date of hearing on which the under-trial is to be brought before the court, to the concerned SSP preferably on the same day on which the case is adjourned for next date. The concerned SSP, immediately on receipt of such information shall take steps and make advance arrangements of keeping available escort/transport facility to ensure that without any default the under-trial is produced before the court on the appointed date of hearing.
(d) In case for any valid and just reason, it becomes difficult/impossible for the SSP to ensure the production of the under-trial before the trial court, it shall be the duty of the said SSP to record reasons therefor, and forward the same to the concerned court at least one week before the date under-
trial is required to be produced. The trial court shall consider the request of the SSP on the basis of reasons recorded therein for non production of under-trial before the court on the appointed date. In case the trail Judge is satisfied about the cause and reason for proposed non production of the under-trial on the appointed date before the court and same is found to be plausible and genuine, the trial judge shall convey his approval to the request made. The trial judge shall then and there fix another date in the case and requisite information thereof shall be conveyed to the concerned SSP for production of under-trial on that particular date before the trial Court. The trial court shall also ask the prosecution to produce the prosecution witnesses on that adjourned date, where-ever prosecution is directed to produce the evidence for the date on which under-trial will not be produced.
(e) The concerned SSP shall ensure that all necessary paraphernalia is made available to the jail authorities for production of under-trial before the court of law on the date case is fixed. The concerned SSP, in terms of direction (d) is not permitted to commit a default more than once in production of the under-trial before the trial court.
(f) The trial judge shall ensure that where-ever charge is framed, the prosecution witnesses appear before the court, and as far as practicable, their statements be recorded on day to day basis, which otherwise, is mandate of the Criminal Procedure Code.
(g) The respondent-State and its authorities shall take all the steps to have a Medical Officer and necessary sub-ordinate staff permanently posted in every jail of the State. It shall be duty of the respondent-State and its authorities to make available medicines which would be urgently required in all the jails of the State at the disposal of the Medical Officer of the Jail(s).
(h) The State government shall take steps for keeping Ambulance available in every jail of the State, with necessary paraphernalia for keeping Ambulance in operational condition.
(i) The trial judges where-ever they are satisfied, for the reasons to be recorded in writing, that the under-trials are not being brought before court on appointed date either deliberately or intentionally, they shall be under obligation to initiate action in accordance with the law against the authorities responsible for committing such default.
(j) The respondents to consider lodgment of the under-trials in the jail(s), as far as practicable, nearer to the courts where their cases are pending.
These directions are in addition to the directions which have been already passed in writ petition at interlocutory stage unless they overlap, and those directions shall be deemed to be part of this judgment.
(Muzaffar Hussain Attar) (Barin Ghosh)
Judge Chief Justice
Srinagar
08.02.2010
ayaz