Madras High Court
T.Susanth Prathan vs The Additional Director General Of ... on 18 August, 2016
Author: S.Vimala
Bench: S.Vimala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.08.2016
CORAM
THE HON'BLE DR.JUSTICE S.VIMALA
W.P(MD) No.11118 of 2015
T.Susanth Prathan ... Petitioner
-vs-
1. The Additional Director General of Police (Prisons) /
The Inspector General of Prisons,
CMDA Tower-II, No.1, Gandhi Irwin Road,
Egmore, Chennai.
2. The Deputy Inspector General of Prisons,
Madurai Range,
Madurai Central Prison Campus,
Madurai.
3. The Superintendent of Prison,
Madurai Central Prison,
Madurai.
4. State of Odisha,
Rep. by Home Secretary,
Secretariat, Cuttack,
Odisa.
5. The Superintendent of Prison,
Mogalapodah Central Prison,
Kendraporah District,
Odisha State.
6. The Additional Director General of Police-cum-
Inspector General of Prisons, Odisha,
Bhubaneswar, District Khurda,
State of Odisha.
7. Government of Tamil Nadu,
Rep. by the Secretary to Govt.,
(Home Prison Department (IV).
St. George Fort, Chennai ... Respondents
(R6 & R7 impleaded as per orders of this Court dated 16.06.2016
and 11.08.2016)
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for the issuance of Writ of Mandamus, directing the respondents to transfer
the petitioner from the 3rd respondent Central Prison to the 5th respondent
Central Prison within the time stipulated by this Court.
!For Petitioner : Mr.R.Alagumani
^For R1 to R3 & R7 : Mr.D.Muruganandam,
Addl. Govt. Pleader
For R4 to R6 : Mr.J.Katikia,
Govt. Pleader, Odisha
:O R D E R
?In our world prisoners are still laboratories of torture, warehouses in which human commodities are sadistically kept and where spectrums of inmates range from driftwood juveniles to heroic dissenters. ? Justice V.R. Krishna Iyer?
To ensure that such life is not suffered by this prisoner and that a reasonably dignified life is made available to him, a demand has been made that there must be a direction to the respondents to transfer the petitioner from the Central Prison, Madurai (3rd respondent) to the Central Prison, Odisha.
2. The petitioner seeks direction to the respondents to consider the representation dated 25.06.2015, which has been forwarded to the R4 to R6 through the 3rd respondent Brief Facts:
3. The petitioner is the resident of Kendraporah District, Odisha State; that the aged mother, wife, daughter aged 8 years and other family members are residing at Odisha.
3.1. The petitioner was convicted and imposed Life Sentence by the Additional Sessions Judge, Ramanathapuram in respect of a case registered under Section 302 IPC; that conviction and sentence was confirmed by the judgment dated 21.11.2012 by the High Court, Madurai Bench.
3.2. The petitioner has been confined in Central Prison, Madurai for the past six years. The petitioner is known for discipline and well behaviour in the prison. The father of the petitioner died during April, 2016, i.e. just two months prior to the petition; the petitioner was not able to attend the funeral ceremony because of the distance involved. The family members are not able to visit the prisoner because of the same reason.
3.3. The petitioner had given several representations and the last one on 25.06.2015 to the respondents through the 3rd respondent and requested his transfer from the respondent No.3 to the respondent No.5. The language is the greatest barrier for the petitioner to get along with his fellow prisoners. Therefore, compelled by circumstances, this petition has been filed.
3.4. The Superintendent of Prisons, Madurai (R3) has filed a counter affidavit stating, a) that the petitioner as a Life Convict (Convict No.5082) has undergone imprisonment for a period of 7 years 4 days as on 25.06.2016,
b) based on the request of the petitioner, proposal for transfer was submitted to the Additional Director General of Police (R1) and Inspector General of Prisons on 27.06.2016, c) As per Rule 580 of the Prison manual, the Additional Director General of Police / Additional Director General of Prisons addressed the Additional Director General of Police / Prison, Odisha State by letter dated 07.08.2015 in order to get the consent of the Odisha Government and it is under process and d) Consent from the Additional Director General of Police-cum-Inspector General of Prison, Odisha State is expected and on receipt of the same, further decision would be taken.
4. From the counter affidavit of 3rd respondent, it is evident that the legal requirement to be complied with on the part of the 3rd respondent, has been adhered to by the 3rd respondent.
5. The respondent nos.4 to 6 have filed their counter affidavit, in which the respondents have relied upon Section 3 of Transfer of Prisoners Act, 1950, which reads as under:
?3. Removal of prisoners from one State to another. ? (1) Where any person is confined in a prison in a State ?
under sentence of death, or under, or in lieu of, a sentence of imprisonment or transportation, or in default of payment of a fine, or in default of giving security for keeping the peace or for maintaining good behaviour: the Government of that State may, with the consent of the Government of any other State, by order, provide for the removal of the prisoner from that prison to any prison in the other State.
(2) The officer in charge of the prison to which any person is removed under sub-section (1) shall receive and detain him, so far as may be, according to the exigency of any writ, warrant or order of the Court by which such person has been committed, or until such person is discharged or removed in due course of law.?
5.1. Based on this provision, it is contended that even though the proposal for transfer of the petitioner has been sent by the Tamil Nadu Government, consent of the Odisha Government is yet to be obtained and therefore, the petition is premature and not maintainable.
5.2. It is further submitted that the Tamil nadu Government did not give any justification for the transfer of the convict to the prison at Odisha.
5.3. The learned Government Pleader representing Odisha Government has contended that as the consent of the Odisha Government is not obtained, this petition is not maintainable. This contention cannot be accepted for two reasons, a) it is specifically stated in para-8 of the affidavit, which is filed on behalf of Senior Superintendent, Circle Jail, Cuttack, Choudwar that the deponent has no objection if the petitioner is ready and willing to be confined at Circle Jail, Cuttack at Choudwar in view of the facilities being provided and in view of the non availability of the facilities at Sub-Jail, Kendraporah, b) when the proposal has been forwarded by the Government of Tamil Nadu and when there is no reply giving reasons as to why the prisoner should not be transferred to Odisha, then the inference is that there is a deemed consent in the transfer of the prisoner.
6. Learned counsel for the petitioner relied upon the following decisions in support of his contention that the petition for transfer deserves to be considered not only on legal basis but also on humanitarian basis:
i) Om Prakash vs. State of Haryana, reported in 1980 SCC (Cri) 694;
?It is represented by counsel for the appellant that the convict may be kept in the District Jail, Gurgaon so that his wife and child may be able to meet him occasionally. We think that in such cases humane considerations are important and family ties must be preserved instead of dehumanising attitudes and distances being inflicted.?
ii) Rama Murthy vs. State of Karnataka, reported in (1997) 2 SCC 642; ?42. While in jail, communication with outside world gets snapped with a result that the inmate does not know what is happening even to his near and dear ones. This causes additional trauma. A liberalised view relating to communication with kith and kin specially is desirable. It is hoped that the model All India Jail Manual, about the need of which we have already adverted, would make necessary provision in this regard.....
45. Dr. Mir Mehraj-ud-din in his book `Crime and Criminal Justice System in India' has dealt with different aspects of prison visits in Chapter VI headed `Resocialization : Search for Goals'. The learned author has said that frequent jail visits by family members go a long way in acceptance of the prisoner by his family and small friendly group after his release from jail finally, as the visits continue the personal relationship during the term of imprisonment, which brings about a psychological communion between him and other members of the family.?
7. Justifying his contention that consent of the transferee is essential, learned Government Pleader appearing for R4 to R6 relied upon a judgment of this Court in the case of Nagammal vs. State of Puducherry Rep. by its Secretary, Department of Home and Others, reported in MANU/TN/2711/2013, wherein it has been held as under:
?8. The State is given authority to transfer a prisoner from a prison within the State to another prison in another State. The Government of the transferee State must given its consent for such transfer. In case the proposal made by the transferor State is accepted by the transferee State, Section 3 of Act 29 of 1950 would permit such transfer, notwithstanding the distance involved between two prisons.?
8. In the light of the decisions and contentions, this Court has to decide whether the demand made by the petitioner herein has to be ordered.
8.1. It is a human life that demands human rights. Human rights are those minimal rights which every individual must have against the State or other public authority by virtue of his being a member of human family (Hon'ble Justice Durgadas Basu). The Universal Declaration of Human Rights, 1948 declares ?no one shall be subjected to torture or cruel, inhumane or degrading treatment or punishment.?
9. The prisoners are also entitled to all fundamental rights except those that are taken away in the legitimate process of prosecution and consequent incarceration. They cannot be denuded of the fundamental rights just because they are prisoners.
10. Imprisonment itself has an element of rehabilitation. The incarceration should provide an opportunity for the prisoners to correct themselves and they should find out alternative behaviour to curb their deviant life style. The rehabilitative model postulate that the purpose of incarceration is to reform the criminals through education, training and counselling. If these programmes are to be successful, then the disturbing conditions in the prison should be eliminated. Depriving the pleasure of communication with fellow prisoners and with the family members would only bring counter productive results and the petitioner is not likely to respond any measure which is taken towards rehabilitation. Barriers behind the bar:
11. Sapir in The Status of Linguistics as a Science, said ?Human beings do not live in the objective world alone, nor alone in the world of social activity as ordinarily understood, but are very much at the mercy of the particular language which has become the medium of expression for their society.?
12. Language is speech. Language and life are insepareable. Language is the divine gift of the God. It is language that distinguish man form animals. Language is man?s finest asset. As language is the medium of expression and medium of communication, in order to achieve adaptation, assimilation and accommodation in any society, sharing of knowledge / sharing of information / sharing of emotions through language is essential and thus language becomes indispensable. But for the language, there is no emotional, social and intellectual development. Without development, human life becomes meaningless.
12.1. Krech explained the major function of language thus:
1.Language is the primary vehicle of communication
2.Language reflects both the personality of the individual and the culture of the society.
3.Languages make possible the growth and transmission of culture, and the continuity of societies, and the effective functioning and control of social group.
13. Having said about the importance of the language, then the question is the communication between the inmates around the petitioner and the family members far away from the petitioner.
14. It is said that distance makes the heart grow fonder. How does love grow in a vacuum? Distance makes the heart wander. For without communication, without companionship, the distance long enough and the love will cease to grow.
15. The poor communication always destroys the relationship. In fact, lack of communication is the number one relationship killer. The best person to talk to, with regard to any problem, is the person with whom anybody is intimate and maintain relationship. When that important person is distanced from the petitioner, then there is no possibility for him to communicate.
16. Existing is different from living. With two greatest barriers, one preventing his access to his fellow inmates and other preventing his access to his relatives, would have made his living miserable and meaningless. Under such circumstances, the jail authorities instead of functioning as Key Keepers should have functioned as facilitators of Key Factor, i.e. facilitating communication for the petitioner.
17. The Hon'ble Supreme Court of India in the case of Menaka Gandhi, provided for procedural fairness and now the question raised is whether it is procedurally fair to keep a person, deprived of liberty, accustomed only to Odisha language to be confined in Tamil Nadu prison. Invoking the concept of procedural fairness, the rights of the prisoners in various area have been resolved by the Courts.
18. The Hon'ble Indian Supreme Court, National Legal Services Authorities and State Legal Services Authorities have been proactive in responding to the silent cries of prisoners and helped the prisoners in restoring, establishing their human rights.
19. Like this prisoner, who is lamenting that he was not even able to attend his father's funeral ceremony, there might be many other prisoners, languishing in various prisons throughout the country. They may not have the facility of filing such petitions. Under such circumstances, there is a need to identify the requirements of those prisoners and to give them the needed relief.
?The moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; and those who are in the shadows of life, the sick, the needy and the handicapped. -
Hubert Humphrey?
19.1. This saying applies to judiciary also.
20. In the result, this petition is ordered, directing the 3rd respondent to transfer the petitioner from the Central Prison, Madurai to the Circle Jail, Cuttack at Choudwar forthwith.
21. The Additional Director General of Police-cum-Inspector General of Prisons of each State are suo motu impleaded as party respondents and they are directed to furnish a list of prisoners, who belong to other State than the Home State to this Court by 26.08.2016.
To
1. The Additional Director General of Police (Prisons) / The Inspector General of Prisons, CMDA Tower-II, No.1, Gandhi Irwin Road, Egmore, Chennai.
2. The Deputy Inspector General of Prisons, Madurai Range, Madurai Central Prison Campus, Madurai.
3. The Superintendent of Prison, Madurai Central Prison, Madurai.
4. The Home Secretary, State of Odisha, Secretariat, Cuttack, Odisha.
5. The Superintendent of Prison, Mogalapodah Central Prison, Kendraporah District, Odisha State.
6. The Additional Director General of Police-cum-
Inspector General of Prisons, Odisha, Bhubaneswar, District Khurda, State of Odisha.
7. The Secretary to Government (Home Prison Department (IV), State of Tamil Nadu, St. George Fort, Chennai..