Muktaram Sitaram Shinde Vs.docx

Muktaram Sitaram Shinde Vs. the State of Maharashtra and Others - Court Judgment LegalCrystal Citation legalcrystal.com/342418 Criminal Subject Mumbai High Court Court Dec-24-1996 Decided On Suo Motu Writ Petition No. 3899 of 1996 Case Number B.N. Srikrishna, J. Judge 1997(4)BomCR418; 1997CriLJ3458 Reported in Muktaram Sitaram Shinde Appellant The State of Maharashtra and Others Respondent Appellant Advocate Sanjay Singhvi (appointed as Amicus Curiae) C.J. Sawant, Advocate General and ;Mrs. V.S. Dighe, Additional Respondent Government Pleader Advocate Excerpt: .....evidences of petitioner and co-witnesses - direction for establishing hospital in jail issued to state government. - - (prisoner muktaram sitaram shinde shall hereinafter be referred to as 'the petitioner'). 2. by the letter dated 16th july, 1995, the petitioner made the following grievances :(a) that on account of lack of medical facilities at kolhapur central jail, kalamba, one prisoner, bhagwan ishwara patil, died on 22nd may, 1995 because he suffered a heart-attack and was not given a prompt medical attention despite his request and that patil's plea for removal to the hospital for urgent treatment failed on the deaf ears of superintendent, rokade, senior jailor, mate, and the jailor, patil, who, instead of sending to the hospital for medical treatment, threatened him against..........petitioner, that the inspector general of prisons, maharashtra state, pune 1, was directed by the state government to cause an enquiry in the complaint made by the petitioner, that one dhanajirao chaudhary, deputy inspector general of prisons (western region) yerawada, pune, conducted an enquiry and after recording the statements of all concerned persons he made a report on 12th august, 1996 and found that there was no substance in the grievances made by the petitioner. along with the affidavit the papers of the enquiry conducted by dhanajirao chaudhary and statements recorded during the so-called enquiry were also filed on the record of this writ petition. after careful perusal of the enquiry documents and the report of dhanajirao chaudhary, this court was not satisfied that there was..... Judgment: ORDER 1. One Muktaram Sitaram Shinde, a life convict undergoing punishment in the Kolhapur Central Jail, Kalamba, addressed, a letter dated 17th July, 1995 to the learned Chief Justice of this Court, which has been treated as a writ petition, and assigned to me for hearing and disposal. (Prisoner Muktaram Sitaram Shinde shall hereinafter be referred to as 'the Petitioner'). 2. By the letter dated 16th July, 1995, the petitioner made the following grievances :

(a) That on account of lack of medical facilities at Kolhapur Central Jail, Kalamba, one Prisoner, Bhagwan Ishwara Patil, died on 22nd May, 1995 because he suffered a heart-attack and was not given a prompt medical attention despite his request and that Patil's plea for removal to the Hospital for urgent treatment failed on the deaf ears of Superintendent, Rokade, Senior Jailor, Mate, and the Jailor, Patil, who, instead of sending to the Hospital for medical treatment, threatened him against making false pleas. (b) The petitioner had addressed a letter drawing attention of this Court to the circumstances under which Bhagwan Ishwara Patil died. This resulted in the petitioner being victimized by the Senior Jailor with threats of his being eliminated in the same manner in which one convict in Sangli Jail was beaten up, died and subsequently shown as having committed suicide. (c) On 15th July, 1995, Jailor Patil gave a threat to the petitioner that he was leaking out information from the jail for which he would be beaten up and taught a lesson. (d) That the petitioner was not given the facility of getting a post card for 5/6 months. (e) That the petitioner was not given the wages which he was entitled to for about seven months despite of his having worked in the Jail Factory. (f) That one Prisoner, Nathu Bapu Mhaskar, was severely beaten for his having conveyed to the Court the unsatisfactory conditions inside the Jail. (g) That the petitioner himself was severely beaten and subjected to indignities and inhuman behaviour. 3. This Court issued Rule in the matter to the respondents and called upon them to file a detailed affidavit. An affidavit of Shankar Yellappa Sonawane, Under Secretary to Government, Home Department, dated 26th August, 1996, was filed in which it was contended that there was no truth in any of the grievances made by the petitioner, that the Inspector General of Prisons, Maharashtra State, Pune 1, was directed by the State Government to cause an enquiry in the complaint made by the petitioner, that one Dhanajirao Chaudhary, Deputy Inspector General of Prisons (Western Region) Yerawada, Pune, conducted an enquiry and after recording the statements of all concerned persons he made a report on 12th August, 1996 and found that there was no substance in the grievances made by the petitioner. Along with the affidavit the papers of the enquiry conducted by Dhanajirao Chaudhary and statements recorded during the so-called enquiry were also filed on the record of this writ petition. After careful perusal of the enquiry documents and the Report of Dhanajirao Chaudhary, this Court was not satisfied that there was no truth in the complaint of the petitioner and, therefore, directed that the petitioner and his coprisoners, named by him, be kept present before this Court for recording their evidence. Accordingly, the petitioner and his co-prisoners were present before this Court on 9th, 10th and 11th Sept. 1996 and I have recorded the evidence of the petitioner, Pavan Varadrajan Chakrapani, Sanatan Baburao Tivde, Dastagir alias Dastu Karamat Khan, Vasant Maruti Koravi, Anthony John Baptist, Aslam Aziz Pathan alias Barkya, Nathu Bapu Mhaskar, Vikas Kundanmal Gupta, Jagannath Pandurang Chavan and Milind Ramchandra, Bodke.

4. A perusal of the evidence recorded before me shows that the so-called enquiry held by Deputy Inspector General, Dhanajirao Chaudhary, hardly complied with the principles of natural justice. The enquiry was held on a complaint made by the petitioner about inhuman indignities and illtreatment to which he was subjected inside the Jail and about the lack of basic medical facilities leading to the death of one co-prisoner Bhagwan Ishwara Patil on 22nd May, 1995. It is seen from evidence of the petitioner before this Court that before he entered the chamber of Deputy Inspector General, Dhanajirao Chaudhary, where he was conducting enquiry, he was threatened by Superintendent Rokade that he would be finished. The statement made by the petitioner at the enquiry bears his signature and is countersigned by Dhanajirao Chaudhary and the Superintendent Rokade. When the statement was put to him in Court, the petitioner refuted several substantial imputations made therein to him. The other witnesses examined at the enquiry by Dhanajirao Chaudhary have also denied the correctness of the alleged statements during the enquiry. A scrutiny of the evidence recorded before me leads me to the conclusion that the witnesses were not freely allowed to give their statements during the enquiry by the Deputy Inspector General. The witnesses were threatened or were required to sign statements prepared without being read out of them. In my view, this is wholly inconsistent with the principles of natural justice. The enquiry made by Dhananjirao Chowdhary could hardly be excepted to establish to correctness or otherwise, the serious allegations made by the petitioner. 5. Considering the petitioner's allegation about contravention of his fundamental right under Art. 21 of the Constitution of India, instead of remitting the matter to the District and Sessions Judge for making an enquiry, I decided to record the evidence of the material witnesses in order to see whether there was any contravention of the fundamental right under Art. 21 of the Constitution of India as alleged. A perusal of the evidence on record, more than prima facie indicates such a situation. In fact, I am satisfied that there is a prima facie case for registering cognizable offences under the Indian Penal Code. No evidence has been led by any of the respondents including Superintendent Rokade. I have also refrained from making any specific findings arising out of the evidence, since this would cause prejudice to Superintendent Rokade against whom serious allegations were made. For the present, it would suffice to state for the purpose of this petition that I am of the view that a prima facie case exists for registering cognizable offences under the provisions of the Indian Penal Code and for investigation thereof by the concerned local Police. I am, therefore, inclined to give such a direction to the concerned local Police. It has become necessary to do so because the petitioner is not a free citizen and in respect of his complaint of physical assault and subjection to inhuman indignities by the authorities he has no other means of ventilating his grievances. Since he is not free to go to the concerned Police Station and lodge a complaint, it is essential that the concerned Police be directed to register appropriate offences under the Indian Penal Code, cause investigation there into and proceed according to law. 6. So far as to the grievance of lack of medical facilities is concerned, even Dhanajirao Chaudhary found in his report that there were no adequate facilities available at the Kalamba Prison and recommended provision of medical facilities. The learned Advocate General, who appeared on my request, has assured the Court that an appropriate Prison Hospital as prescribed in the Maharashtra Prisons (Prison Hospital) Rules, 1970, shall be forthwith established at the Kolhapur Central Prison, Kalamba, and, a Resident Medical Officer Class II would be attached to the said Hospital to deal with matters concerning the health of the Prisoners, in the said Prison and that in respect of complicated cases they would be referred to C.P.R. Hospital, Kolhapur.

7. During the course of the hearing it came to light that the requirements of the Maharashtra Visitors of Prisons Rules, 1962, were not being complied with inasmuch as no non-official visitors as required by Rules 5 and 6 had been appointed in respect of the Kolhapur Central Prison, Kalamba. Since the matter was a serious one pertaining in general to the Administration of all prisons, I directed the respondent State of Maharashtra to give particulars of the different Prisons and as to whether non-official visitors were appointed in the prisons. By an affidavit filed by P.M.A. Hakeem, Secretary to the Government of Maharashtra, Home Department, dated 18th Oct. 1996 it was pointed out that non-official visitors have been appointed only from Oct. 1996. Perhaps, the hearing of this writ petition and the Court's pointedly drawing attention of the State Government's failure to appoint non-official visitors to different Prisons might have catalysed the State of act. 8. Apart from the ex-officio visitors, the appointment of non-official visitors interested in or likely to take interest in the welfare of Prisoners acts as a check on mal-administration of Prisons. In fact, I suggested to the learned Advocate General that it would be in the fitness of things that a nominee of the National Human Rights Commission should be appointed either as an ex-officio visitor by amending the concerned Rules or at least as a non-official visitor, since it would ensure continuous monitoring of the conditions inside the prisons, particularly with regard to human rights. I am happy that my suggestion was immediately conveyed to the State Government and the learned Advocate General informs me that the State Government has accepted the suggestion and would be implementing immediately. 9. Though the basic grievance made by the petitioner in his letter addressed to the learned Chief Justice, both concerning him and generally affecting all prisoners, have been broadly resolved, there are a few other issues, which to Mr. Singhvi, learned counsel appearing as Amicus Curie, need attention. Mr. Singhvi submits that, in view of the serious complaint of physical assault and inhuman and undignified torture alleged against Superintendent Rokade, apart from the legal action which the Court is inclined to direct under the provisions of the Criminal Procedure Code, there should also be a direction for a Departmental Enquiry against Superintendent Rokade so that it would send proper signals to the Officers of Prisons all over the State. I am inclined to agree. Though Mr. Singhvi strongly pleaded that the concerned Superintendent should be directed to be immediately transferred, I am not inclined to agree with this suggestion. It is expected that the State Government will hold an impartial Departmental Enquiry, exercise its powers under the applicable Rules and take action as warranted by law and the findings of the Departmental Enquiry. 10. Mr. Singhvi submitted that inasmuch as a prison has a close and cloistered atmosphere, it would not be possible for the Court to continuously monitor the happenings inside the prison, nor the day to day administration of the prison. Nonetheless, he submits that it is not unlikely that the petitioner and co-prisoners whom he cited as witnesses are likely to be subjected to victimization for having come and given before the Court a graphic account of the happenings inside the Kolhapur Central Prison, Kalamba. Though it is not possible to rule out this eventuality, the Court expects that there shall be no victimization of the petitioner or any of the witnesses cited by him, nor shall they be subjected to any discrimination or punishment merely for the said reason. The State Government shall ensure that this is complied with strictly and any complaint

of victimization of the petitioner for having petitioned this Court or any of his co-prisoners for having deposed before this Court, is bound to be seriously taken notice of by this Court. 11. During the course of their submissions, the learned Advocate General and the Additional Government Pleader, pointed out a number of instances wherein punishments proposed to be imposed on prisoners are put before the District and Sessions Judge for his concurrence. However, I noticed one lacuna therein which needs to be cured. I am informed by Mr. Singhvi, without contest by the learned Additional Government Pleader, that at the time when the papers are sent for concurrence of the District and Sessions Judge, the Prisoner concerned is not produced before him. It is trite to say that no one should be punished unless he is heard in the matter. The learned District and Sessions Judge would do well to call for the concerned Prisoner and give him an opportunity of saying whatever he desires to say against the punishment before giving his concurrence to the proposed punishment. 12. Mr. Singhvi then made a serious complaint that the wages to the Prisoners were much less than the minimum wages and therefore, it was not only a breach of the statutory obligation under the Minimum Wages Act, 1948, but also a flagrant breach of Art. 23 of the Constitution of India. Mr. Singhvi replied upon the judgments of the Supreme Court in his support and submitted that this Court should lay down the principle that the provisions of Minimum Wages Act, 1948 and the obligation thereunder to comply with the statutory notifications of Minimum Wages would apply equally to the Government when the Government takes labour from the Prisoners inside a Prison. I, however, decline to go into this question in the present writ petition. In my view, several conflicting principles need to be harmonised for a satisfactory resolution of this issue and the material on record of this writ petition is inadequate to satisfactorily adjudicate this issue. This issue is kept open to be decided in any other appropriate case as and when it arises. 13. Mr. Singhvi strongly, contended that the petitioner is entitled to special remission under Rule 14(e) of the Maharashtra Prisons (Remission System) Rules, 1962. He points out that under Rule 14 of the said Rules Special remission on the scale prescribed in Rule 16 may be granted to prisoners 'for assisting in preventing or detecting serious breach of prison regulation'. Mr. Singhvi contends that the present writ petitioner has moved this Court and brought to the notice of this Court certain infirmities and serious breaches of the Prison regulations. For example, the failure of the State Government to maintain a Prison Hospital as required under the Maharashtra Prisons (Prison Hospital) Rules 1970 and the serious breach or failure on the part of the State Government to nominate non-official visitors to the Board of Visitors as required under Rules 4 and 5(b) the Maharashtra Visitors of Prisons Rules, 1962. Consequently, Mr. Singhvi contends that the provisions of Rule 14(e) of the Maharashtra Prisons (Remission System) Rules, 1962, would be clearly attracted to the petitioner's case and the petitioner should be given benefit thereof. I think, there is substance in the contention. I hold that the petitioner is entitled to the special remission under Rule 14(e) of the Maharashtra Prisons (Remission System) Rules, 1962, which shall be worked out and granted to him. 14. Mr. Singhvi then contended that though the legal heirs of the deceased Bhagwan Ishwara Patil have not come before the Court, the Court cannot shun its duty, nor stifle its conscience when the facts that the circumstances brought before it indicate that Bhagwan Ishwara Patil's death was hastened, if not caused, on account of the failure of the State Government to maintain

appropriate type of Hospital in the Prison. Fortunately, it has become unnecessary for me to adjudicate the issue on the basis of the evidence on record, because the learned Advocate General agreed that any ex-gratia compensation suggested by the Court would be paid by the State Government. I am of that in the peculiar facts of the case, a sum of Rs. 20,000/- (Rupees twenty thousand only) should be paid to the legal heirs of Bhawandas Ishwara Patil las ex-gratia amount. It may be reiterated that the amount paid is not compensation awarded by the Court, but only an ad hoc ex-gratia amount suggested which has been gracefully agreed to by the State Government. 15. Mr. Singhvi prays that the costs of this writ petition be paid by the State Government. In my view, this is a reasonable request. The State Government shall pay a sum of Rs. 10,000/(Rupees ten Thousand only) as costs of this writ petition, out of which a sum of Rs. 5,000/(Rupees five thousand only) shall be paid to Mr. Singhvi for the assistance he has rendered to this Court in adjudicating this writ petition, which the Court gratefully acknowledges. 16. In the result, the following order is made : (a) The concerned Police Station, in whose jurisdiction the Kolhapur Central Prison, Kalamba, falls, shall forthwith register appropriate cognizable offences on the basis of the evidence of the petitioner and his co-witnesses recorded by this Court. The Registrar to forthwith forward one set of the statements recorded by this Court to the concerned Police Station. (b) The State Government shall cause to be held a Departmental Enquiry into the conduct of Superintendent Rokade, respondent No. 2, and other Officers as disclosed in the evidence recorded by this Court and take action in accordance with law. (c) The State Government shall ensure that at all times non-official visitors are appointed to the Board of Visitors of the Prisons in accordance with 4 and 5(b) of the Maharashtra Visitors of Prisons Rules, 1962. As agreed, the State Government shall appoint a nominee of the National Human Rights Commission as an ex-officio or non-official visitor. The State Government shall within a period of two months from today, obtain a nomination from the National Human Rights Commission and appoint the person nominated as an ex-officio or non-official visitors. (d) The State Government shall establish and continue to maintain a Prison Hospital as required under the Maharashtra Prisons (Prison Hospital) Rules 1970, which shall be manned by a Medical Officer, Class II. (e) The learned District and Sessions Judge, Kolhapur, shall ensure that, as and when the Prison Authorities forward any papers pertaining punishments for this confirmation, the concerned Prisoner is kept present before him and given an opportunity of making representation against the proposed punishment of which confirmation is sought. (f) The State Government shall ensure that neither the petitioner, nor of his co-prisoners who have given evidence before this court, are discriminated against or victimized in any manner for the said reason.

(g) The State Government shall pay an ex-gratia amount of Rs. 20,000/- (Rupees twenty thousand only) to the legal heirs of deceased Bhagwan Ishwara Patil. (h) The State Government shall pay a sum of Rs. 10,000/- (Rupees ten thousand only) as costs of this writ petition out of which Rs. 5,000/- (Rupees five thousand only) shall be paid to Mr. Singhvi, Advocate, for rendering assistance as Amicus Curie. 17. The respondents are at liberty to re-transfer to the Kolhapur Central Prison, Kalamba, the Prisoners kept in Thane Central Prison under the Orders of this Court. 18. Mrs. Dighe, learned Additional Government Pleader applies for stay of this order for a period of eight weeks. The directions with regard to granting of remission and holding of Department Enquiry shall be complied with by the First Respondent by 31st March, 1997. Since, time is granted till 31st March, 1997, and other directions are agreed to, application for stay of the order is unnecessary. Hence, rejected. 19. Rule made absolute in the aforegoing terms. Certified copy expedited. 20. Order accordingly.