Saeed Sohail Sheikh v. State Of Maharashtra

Saeed Sohail Sheikh v. State Of Maharashtra

Bombay High court Judges: Bilal Nazki

Attorney:Shahid Azmi instructed by Ashish Sharma (Cri. W.P No. 1377/08), Wahab Khan (in Cri.

W.P No. 1496/08), Vinod Jadhav (Cri. W.P No. 1773/08)

For Supdt. of Arthur Road Jail: V.T Tulpule, Senior Coupsel with Harshad J. Kandalkar and Ms. Nisha Parab

For State: S.R Borulkar, Public Prosecutor

Facts of the case

1). In this case there have been filed writ petition by the prisoner or the person interested in their welfare of the prisoners before the court. The prisoners are involved in some serious offences and these writ petitions raise same questions and relate to the same incident.

• In this writ petition, which is filed on behalf of Mohd. Sohail Mehmood Sheikh, the son of the prisoner has stated that while in Bombay Central Prison, on several occasions prisoner was pressurized to become an approved by the Anti-Terrorism Squad with the help of Jail Authorities. The prisoner complained to various authorities, he suffered mental agony, physical harm and abuse from Mrs. Swati Sathe, the Superintendent and Jailor Mr. Govind Patil.

• On 28th June, 2008, Sohail and other 27 prisoners were brutally, inhumanly and savagely beaten up by the Jail authorities along with other convicts and gangsters by lathis, batons, belts and stone. Sohail was left unconscious, profusely bleeding, scarred with abrasions and cut wounds. The other prisoners also got seriously injured. Some of them got head injuries and fractures. Later on, Sohail was transferred to Nagpur Central Prison. According to this writ petition, on 28th June, 2008, 40 prisoners were mercilessly beaten in the Arthur Road Prison.

One of the prayers in the writ petition was that the judicial probe be ordered into the incident of alleged assault on the prisoners dated 28th June, 2008.

Issues involved

1) Whether use of force by the Jail Authorities on 28th June, 2008 was necessary?

• If it was necessary, whether minimum force was used?

• Whether the force was used for some extraneous reasons and not for reasons of maintaining discipline?

• Whether the force was used for reasons given in Discipline Rule 163 of the Manual or was used for any extraneous purpose?

• How was it that the prisoners had access to bricks and stones, as claimed by the respondents in the counter affidavit?

Contentions of petitioner

1. About one of the prisoners Tanvir, it is found that he had sustained injury on forearms, shoulder and elbow and he was examined first time after 15 days of the incident and fracture of left elbow and 5th metacarpal right were detected. In addition to these injuries, there were some blunt injuries. The record revealed that in Nagpur Jail, plastering could not be done as plastering material was not supplied by the jail. The record also revealed that there is restriction in movement of elbow of Tanvir and some deformity was caused to Tanvir. It is also found that circumstances showed that Tanvir had resisted and he was not obeying the order of the jail authority but the force was used against him could not be justified. Similar is the case of another prisoner, Kamal, who was examined in Nagpur Jail on 16th July, 2008, that is also the 20 days after the incident and he had swelling at right thumb and fracture of distal phalanx of right thumb. Most of the contusions were on left arm and chest. Kamal was given beating in the open space. He had only complained to the other prisoners that Tanvir was being assaulted.

Ehatesham was also examined in the Government Hospital at Kolhapur after 20 days of the incident. He was found with 11 injuries and the grievance against him was that he had raised slogans. He had fracture of fifth metacarpal right. It is found that the nature of injury was such that he did not appear to be aggressor but he appeared to be defender and he was perhaps running away from the assault. Similar is the case of Sayed Asif, who was examined on 19th July, 2008. He had three wheal marks, contusions on shoulder and scapular region. Length of injury was between 7 cm. to 9 cm. There was injury over fifth metacarpal. All these injuries were caused by hard and blunt object like stick. Another prisoner Mohd. Akil was examined on 19th July, 2008 at Kolhapur Government Hospital. He was also having serious injuries and the finding was that excessive force was used against him. Abdul Wahid had also been examined on 19th July, 2008 and he had also serious injuries. Similar was the case with Mohd. Zuber who was also examined on 19th July, 2008. Mushtaq Ahmed was examined on 21st July, 2008. He had contusion over left scapular region, contusion over right scapular region, contusion over supra scapular region, contusion over supra scapular region left, contusion over left forearm; contusion over right shoulder, abrasion over left elbow. These injuries were caused by hard and blunt object. These injuries were such that they could be noted even after 20 days of the incident. Mohd. Zahix, Zameer Ahmed and Riyaz Ahmed also had injuries, which was noticed even after 20 days by the Doctor, who examined them. Similar was the case with Mohd. Amin, Mohd. Zuber and Bilal. So far as the prisoners sent to Ratnagiri Jail are concerned, there was no dispute that they had not sustained any injury. The injuries recorded in the medical certificate of the jail authority were manipulated in order to help the jail authority because the injuries were found by the Government Doctors even after 20 to 23 days after the prisoners were shifted to other jail.

• Learned Counsel for the petitioners has drawn attention to another aspect of the matter contending that even these rules which are in Chapter XXXV of the Maharashtra Prison manual were not followed. He submits that all transfer of all prisoners from jail are being made on Saturdays and Sundays. Even if the rules were applicable, even then the transfer could have not been made on Saturday and Sunday as 28th June, 2008 was the Saturday. He has drawn our attention to Rule 9 of the Chapter XXXV, which lays down, “Prisoners shall not, as far as possible, be removed so as to reach their destination on a Sunday or other prison holiday, or

before the lock up of the prison”. This has not been at all explained as to why the transfer was made on Saturday or Sunday, if it is barred by the Rule. Learned Counsel for the petitioners submits that the transfers are made on Saturdays and Sundays only to avoid Court intervention as it is not possible for the prisoner to contact anybody so that the Court would not be in a position to intervene in such transfer. We have also seen Rule 12(1), which says, “No prisoner shall be removed without first ascertaining whether accommodation is available at the receiving prison to which he is to be removed”. There is nothing on record to show that the prisons where these prisoners were being removed had the accommodation available.

Contentions of respondent

1)Affidavit was filed in reply by Mrs. Swati Madhav Sathe, Superintendent of Mumbai Central Prison. In her reply, she stated that on 17th March, 2008 she submitted a letter to the Special Judge under MCOC Act requesting transfer of accused persons in MCOC Case Nos. 16/2006, 21/2006 and 23/2006 to other jails. The request was made on the basis that the Jail had the capacity to have 804 prisoners, whereas at that point of time it had 2500 prisoners. The Supreme Court had stayed the proceedings of the three cases i.e MCOC Case Nos. 16/2006, 21/2006 and 23/2006 and the prisoners in these cases were not needed to be produced in the Court. The learned Judge granted liberty to transfer the accused as per rules and regulations. The Inspector General of Prisons, thereafter, ordered transfer of 37 under trial prisoners to different prisons as per the Prison Manual by order dated 27th June, 2008. On 27th June, 2008, the Jail Authorities requisitioned a squad from Police Head Quarters and on 28th June, 2008 the Police escorts reached the jail. She stated that on 28th June, 2008, announcements were made requesting 32 under trial prisoners to gather near Lal Gate in the prison premises. At 11.40 hrs. 7 prisoners were transferred to Ratnagiri Special Jail. Other 19 under trial prisoners were sitting outside. Two under trial prisoners, who were lodged in high Security Cell were also sitting there. Two under trial prisoners, namely, Kamal Ahmed Vakil Ansari and Dr. Tanveer Mohd. Ibrahim Ansari refused to leave their Cell. The Jail Authorities tried to explain to the under-trial prisoners that they should leave the Cell. These under trial prisoners refused to listen to the Jail Authorities and started using abusive language and misbehaved with the Jail Authorities. Mr.

Kamal Ahmed Vakil Ansari snatched the baton from Jail Guard and started assaulting the Jail Officer. She tried to intervene but was abused. These two under trial prisoners started giving anti national and provocative slogans like, “Pakistan Jindabad, Hindustan Murdabad. Hamne Judge Bhatkar Ko Hataya, Giraya To Turn Kya Ho?” After listening to these slogans, 21 under trial prisoners, who had gathered near Lal Gate also started giving similar slogans. Those 21 under trial prisoners charged towards the Jail Officials, Warden and Watchmen and assaulted them with bricks and stones. The said 21 under trial prisoners also tried to approach the High Security Cell and tried to open the gate of High Security Cell. They continued to give slogans. Considering the situation and to avoid further untoward incident at 11.50 hrs. alarm was sounded in the Jail and after using reasonable and required force, the situation was brought under control. Because Page: 289of the assault by the under-trial prisoners, the Jail Guards and Prison Authorities sustained injuries. On 28th June, 2008, seven under trial prisoners were transferred to Ratnagiri Special Jail, fifteen under trial prisoners were transferred to Kolhapur Central Prison and ten under trial prisoners were transferred to Nagpur Central Prison.

Thereafter, on 30th June, 2008 she submitted report of the incident of transfer of prisoners to Deputy Inspector General of Prisons. Copies were given to Court as well. Under trial prisoners, who sustained injuries were forwarded to jail Medical Officer. In view of this reply by the Jail Superintendent, incident of using force against under trial prisoners was admitted.

Legal Provisions

1)Section 29(1) of the Prisoners Act, 1900 2) Section 57 of the Code of Criminal Procedure. Under section 167 of the Crpc

3). Under section 2(c)

provisions of sections 167 and 173 of the Code of Criminal Procedure 4) Article 21A of constitution of India

6)section 173

sub-section (2) or subsection (3)

Legal Reasoning

• Section 29 of Prisoners Act,1894.

Removal of a prisoner

• The State Government may, by general or special order, provide for the removal of any prisoner confined in a person—
  • 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 behavior, to any other prison in the State.

By bare perusal of this section, it becomes clear that prisoner is a person confined (1) under sentence of death, (2) under, or in lieu of, a sentence of imprisonment or transportation, (3) in default of payment of a fine, or (4) in default of giving security for keeping the peace or for maintaining good behavior, to any prison in the State

• Section 57 of CrPC under section 167 of the code,

No police officer shall detain in custody a person arrested without warrant for a longer period than under all circumstances the case is reasonable and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.

• The words in section 167(2) are “the accused in such custody as such Magistrate thinks fit”. So, right from the beginning of custody of an accused, Magistrate in whose control the accused remains and the accused can be detained in such custody as Magistrate thinks fit. If the person is not bailed out then a charge sheet shall be filed against him in terms of section 173 of the Code section 173 requires the police report to disclose whether the accused has been arrested and whether he has been released on his bond and, if so, whether with or without sureties. It does not cast a duty on the police to produce the accused before the Court when the police files the report because it presupposes that if the person is in custody then it is already under the custody of the Magistrate and in case of bail also only particulars of police report are to be given as a person who is on bail is also in the custody of the Court. Once a charge sheet is filed, nobody has authority over the custody of an under trial except the Court.
• Article 21 of constitution of India 1949,

Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.

• Section 173(2) in The Code Of Criminal Procedure, 1973

• (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-

• the names of the parties;

• the nature of the information;
  • the names of the persons who appear to be acquainted with the circumstances of the case; (d)whether any offence appears to have been committed and, if so, by whom;
• whether the accused has been arrested;

• whether he has been released on his bond and, if so, weather with or without sureties; (g)whether he has been forwarded in custody under section 170.

(||)The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given

• Section 173(3) in The Code Of Criminal Procedure, 1973

Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation,

Judgement

These appeals have been filed by the State of Maharashtra and senior officers in the Department of Prisons, Government of Maharashtra against a common judgment and order dated 21st July, 2009 passed by a Division Bench of the High Court of Judicature at Bombay whereby a batch of criminal writ petitions filed by the respondents have been allowed, transfer of the respondents-prisoners from Arthur Road Jail in Bombay to three other jails in the State of Maharashtra held to be illegal and the appellants directed to transfer the prisoners back to the jail at Bombay. The High Court has expressed the view that jail authorities having used force against undertrial prisoners for no fault of theirs and since such force was used for extraneous reasons and was excessive, the Chief Secretary of the State of Maharashtra shall initiate a disciplinary inquiry against all those involved in the incident. The High Court has further held that if need be in addition to departmental inquiry, criminal action be also taken against the concerned officers including an inquiry into the conduct of the jail doctors for dereliction of their duty and alleged fudging of the records.

Administrative approval for the transfer of 37 undertrial prisoners involved in the above three cases was also obtained from the Inspector General of Prisons who directed the Superintendent, Bombay Central Prison, to keep in mind the criminal background of the prisoners while allocating them to different jails in the State.

On 22nd June, 2008 the jail authorities appear to have sent a requisition for an escort to the police headquarters which police escort was provided and reached the jail premises on 28th June, 2008 at 9.00 a.m. An announcement was then made requesting thirty-two undertrial prisoners to gather near Lal Gate in the prison premises out of whom seven prisoners were transferred to Ratnagiri Special Jail around 11.40 a.m. The other nineteen undertrials were said to be sitting outside while two other undertrial prisoners named Kamal Ahmad Vakil Ansari and Dr. Tanveer Mohd. Ibrahim Ansari refused to leave their cell to join the escort party despite persuasions by the jail authorities. The case of the appellants is that these undertrial prisoners refused to listen to the jail authorities and started abusing and misbehaving with the jail officials including Mrs. Swati Madhav Sathe, the Jail Superintendent. Not only that, the undertrial prisoners started shouting anti-national and provocative slogans. After hearing these slogans from the high security cell, 21 undertrial prisoners who had gathered near the Lal Gate also started giving similar slogans and charged towards the jail officials, Wardens and watchmen and started assaulting them with bricks and stones. The version of the appellants is that these 21 undertrial prisoners also tried to approach the High Security Cell and tried to open its gate while they continued shouting slogans. Apprehending that the situation may go out of hand, the alarm bell was sounded in the jail and force reasonable enough to bring the situation under control used for that purpose. The appellants contend that because of the assault by the undertrial prisoners, the jail guards and prison officers sustained injuries.On a consideration of the report received from the Sessions Judge, the High Court found it necessary to direct the Government to hold a departmental inquiry against the officials who had used excessive force in bringing the situation in the jail under control. The High Court found that the order transferring the respondents-undertrial prisoners from Bombay Central Jail to other jails in the State was illegal and unacceptable inasmuch as the request for transfer had been dealt with at an administrative level without affording an opportunity to the undertrials to oppose the same. The High Court

rejected the contention urged on behalf of the appellants that Section 29 of the Prisoners Act, 1900 empowers the State Government or the Inspector General of Prisons to transfer the undertrials. The power to transfer the undertrials was, according to the High Court, exercisable only by the Court under whose orders the prisoners were remanded to judicial custody in a given jail. Inasmuch as the court concerned had faltered in taking appropriate action on the request for transfer by treating the request to be only an administrative matter, the sanction for transfer of the undertrials to other jails was vitiated. Appearing for the appellants Mr. Shekhar Naphade, learned senior counsel, made a three-fold submission before us. Firstly, it was contended that the undertrial prisoners had no enforceable right to demand that they should be detained in a prison of their choice or to resist their transfer from one jail to the other if the court under whose orders they were remanded to such custody permitted such transfer. He argued that although Section 29(2) of the Prisoners Act, 1900 permitted the Inspector General of Prisons to remove any prisoner from one prison to another in the State even if that power was not available qua undertrial prisoners, there was no impediment in such removal after the court under whose orders the prisoners were committed to jail had permitted such a transfer.

Conclusion

In this case with the help of the factual evidence and material evidence the court made the conclusion the jailer and jail superintendent had misused the powers and 40 if the prisoners were brutally harassed in the jail premises

These are serious issues made by them conflicting the article21 of constitution of India

written by Sherin Moidu C intern under legal vidhiya