1.Volume IIPRISONERS RIGHTSThis Volume of Prisoners Rights comes after a decade and at a time when serious attempts are being made by governments to change the entire criminal justice system with the sole aim that every arrested person should be guilty. These changes in the criminal law are being brought on the pretext of fighting terrorism and to deliver justice to victims. Yet rules of free and fair trial and the basic time tested principles of criminal law are being tampered with and torturous procedures such as the Narco Analysis test and brain mapping are being resorted to without any scientific credibility to those tests. The system of video conferencing for the production of accused in court has been introduced in the various parts of the country. In some states even criminal trials are being conducted through video conferencing. Recently, the government has introduced the Fast Track Court across the country for speedy disposal of criminal trials. Many times criminal trials have been completed in matter of days. This is a dangerous trend. The country has also witnessed media frenzy over criminal cases and has held trials almost through the electronic and the print media. Several bar association passed resolutions appealing to its members to defend the accused in the trial in certain cases. The constitutional right of an accused to be represented by an advocate is ignored. Justice for the victim does not mean the basic principles of criminal justice should be ignored. The thin dividing line between the media campaign and media trial is often breached in number of cases. Armed Forces Special Powers Act, one of the most draconian legislations, continues to imposed on the northeastern states of the country and citizens continue to be tortured and killed in the name of insurgency without any proper investigation or enquiry into this killings. The last decade also saw a huge increase in extra-judicial killings. The prisons in the country continue to be populated with mainly under trials who are poor, literate and also form minority or fringe groups. Nothing much has changed vis--vis the conditions of prisons and prisoners rights since the last Volume of the Prisoners Rights book.ISBN 81-89479-77-69 788189 479770576, Masjid Road, Jangpura, New Delhi 110014, India, Ph: +91-11-24379855/56, E-mail: publications@hrln.orgPRISONERS RIGHTS Volume II

2. PRISONERS' RIGHTS VOLUME IIHuman Rights Law NetworkNew Delhi December 2011 3. Human Rights Law Network Vision n protect fundamental human rights, increase access to basic resources for the To marginalised communities, and eliminate discrimination. n create a justice delivery system that is accessible, accountable, transparent, efficient To and affordable, and works for the underprivileged. Raise the level of pro bono legal expertise for the poor to make the work uniformly competent as well as compassionate. n Professionally train a new generation of public interest lawyers and paralegals who are comfortable in the world of law as well as in social movements, and who learn from social movements to refine legal concepts and strategies. PRISONERS' RIGHTS VOLUME II December 2011 Socio Legal Information Centre* ISBN: 81-89479-77-6 Compilation and text editing: Monica Sakhrani, Annie Fernandes, Sr Suma Jose SD, Ritu Kumar, Sukrit Kapoor Design: Birendra K Gupta Printed at: Shivam Sundaram, E-9, Green Park Extn. New Delhi Published by: Human Rights Law Network (HRLN) (A division of Socio Legal Information Centre) 576, Masjid Road, Jangpura, New Delhi 110014, India Ph: +91-11-24379855/56 E-mail: publications@hrln.org Supported by:European UnionDan Church AidIrish AidDisclaimer The views and opinions expressed in this publication are not necessarily views of the HRLN. Every effort has been made to avoid errors, omissions, and inaccuracies. However, for inadvertent errors or discrepancies that may remain nonetheless, the HRLN takes the sole responsibility. * ny section of this volume may be reproduced without prior permission of the Human Rights A Law Network for public interest purposes with appropriate acknowledgement. 4. Acknowledgements The Human Rights Law Network HRLN would like to extend heartiest thanks to Sukrit Kapoor, a graduate of Gujarat National Law University for compilation, case summaries and for the Introduction and Conclusion of the chapters. The organisation would like to acknowledge Aviral Chauhan, Shreyasi Chakraborthy, Saksham Marwah, Sooraj and Anirudh Soman, students of Gujarat National Law University and Arpit Jain, ILS, Pune for the research on case laws. HRLN would also like to acknowledge Smriti Minocha for coordinating with the persons engaged in this book project and Advocate Ritu Kumar for doing the final text editing. The organisation would like to thank Monica Sakhrani and Annie Fernandes for compiling and editing parts of the volume. 5. Contents Acknowledgements ...........................................................................................................iii General Introduction ........................................................................................................xv COMPENSATION Introduction....................................................................................................................... 2 Supreme Court AIR 1983 SC 1086Rudul Sah vs State of Bihar and Another........................................................................... 7 Supreme Court AIR 1984 SC 1026Sebastian M. Hongray vs Union of India and Others ....................................................... 12 Supreme Court of India AIR 1986 SC 494Bhim Singh, MLA vs State of JammuKashmir .............................................................. 16 Supreme Court of India AIR 1987 SC 355Peoples Union of Democratic Rights vs State of Bihar ................................................... 24 Supreme Court of India 1989 (4) SCC 730People's Union for Democratic Rights and Another vs Police Commissioner, Delhi Police and Another .............................................................. 27 Supreme Court of India AIR 1990 SC 513Saheli, A Womens Resource Centre, Through Ms. Nalini Bhanot and Others vs Commissioner of Police, Delhi and Others ...................................................................... 28 Delhi High Court 1992 Cri. LJ 128P. V. Kapoor and another vs Union of India ..................................................................... 34 Supreme Court of India 1993 (2) SCC 746Smt. Nilabati Behera alias Lalita Behera vs State of Orissa and Others ........................... 56 6. viPRISONERS' RIGHTS VOLUME II Supreme Court of India JT 1994 (6) SC 478Arvinder Singh Bagga vs State of Uttar Pradesh and Others ........................................... 74 Andhra Pradesh High Court 1994 Cri. LJ 1469Prof. S. Seshaiah vs State of Andhra Pradesh and Another ............................................. 77 Gauhati High Court 1995 Cri. LJ 347Nagatangkhui vs State of Nagaland and Others .............................................................. 78 Supreme Court of India 1995 (SU4) SCC 450In Re:death of Sawinder Singh Grover............................................................................. 84 Supreme Court of India 1995 Cri. LJ 2920Smt. Kewal Pati vs State of Uttar Pradesh and Others ..................................................... 86 Supreme Court of India 1997 (7) SCC 725Postsangbam Ningol Thokchom (Smt) and Another vs General Ocer Commanding and Others ....................................................................... 88 Supreme Court of India 1998 (9) SCC 351Malkiat Singh vs State of Uttar Pradesh .......................................................................... 90 Supreme Court of India 1999 (6) SCC 754Kaushalya and Another vs State of Punjab and Others ................................................... 92 Jharkhand High Court 2001 Cri. LJ 3573Mrs. Meena Singh, Petitioner vs State of Bihar and others, Respondents. ..................... 93 Bombay High Court 2004 ALL MR (Cri) 636Prem Bangar Swamy vs State of MaharashtraOthers ................................................. 95 Supreme Court of India AIR, 2000 SC 2083State of AP vs Challa Ramkrisha Reddy ......................................................................... 105 Supreme Court 1991 (2) SCC 373State of Maharashtra and Others vs Ravikant S. Patil .................................................. 115 Conclusion ..................................................................................................................... 117 FAIR PROCEDURE Introduction................................................................................................................... 120 High Court of Karnataka 1975 Cri. LJ 335Abdul Azeez vs The State of Mysore.............................................................................. 123 7. CONTENTS Supreme Court of India AIR 1995 (SC) 980Shivappa vs State of Karnataka ..................................................................................... 126 High Court of Bombay 1993 Mah. LJ 1529Saraswati Mahadeo Jadyal vs State of Maharashtra ..................................................... 132 Bombay High Court 1993 Cri LJ 2984State of Maharashtra vs Dr. B.K. Subbarao and another .............................................. 142 Supreme Court of India 2009 (7) SCC 104 (1)Jayendra Vishnu Thakur vs State of Maharahstra and Another .................................... 172 Supreme Court of India AIR 2000 SC 3203Dadu @ Tulsidas vs State of Maharashtra ..................................................................... 175 Supreme Court of India AIR 2009 SC 628Deepak Bajaj vs State of Maharashtra and Another...................................................... 181 Supreme Court of India 2009 (12) SCR 1093Mohd. Farooq Abdul Gafur and Another vs State of Maharashtra AND State of Maharashtra vs Mohd. Zuber Kasam Sheikh and Others ................................. 186 Conclusion ..................................................................................................................... 194 HUMANE SENTENCING Introduction................................................................................................................... 196 Supreme Court of India 1977 (3) SCC 287Mohammad Giasuddin vs State of Andhra Pradesh ...................................................... 202 Supreme Court of India AIR 1985 SC 1050Bhagirath vs Delhi Administration ................................................................................. 211 Bombay High Court 1993 Mah. LJ 1425Bhupesh Ramchandra More vs State of Maharashtra ................................................... 218 Supreme Court of India 1994 (3) SCC 430Dr. Jacob George vs State of Kerala ............................................................................... 224 Supreme Court of India 1995 (6) SCC 593Baldev SinghAnother vs State of Punjab .................................................................. 230 Supreme Court of India 1999 (7) SCC 355State of Haryana vs Balwan ........................................................................................... 233vii 8. viiiPRISONERS' RIGHTS VOLUME II Supreme Court of India 1999 (8) SCC 375Union of India and Others vs Sadha Singh..................................................................... 236 Supreme Court of India 2001 Cri. LJ 2588State of Maharastra vs Najakat alias Mubarak Ali ......................................................... 239 Supreme Court of India 2000 (7) SCC 626Laxman Naskar (Life Convict) vs State of West Bengal and Another ............................. 243 Supreme Court of India 2001 (3) SCC 750Zahid Hussein and Others vs State of West Bengal ....................................................... 247 Supreme Court of India 2003 (3) SCC 1State of Madhya Pradesh and Another vs Bhola @ Bhairon Prasad Raghuvanshi ........ 251 Supreme Court of India 1976 (4) SCC 190Santa Singh vs State of Punjab ...................................................................................... 258 Supreme Court of India 1980 (2) SCC 604Bachan Singh vs State of Punjab.................................................................................... 263 Supreme Court of India AIR 1983 SC 473Mithu Singh vs State of Punjab...................................................................................... 267 Supreme Court of IndiaRajendra Prasad vs State of Uttar Pradesh .................................................................... 282 Supreme Court Cases 1977 (4) SCC 44Hiralal Mallick vs State of Bihar .................................................................................... 285 Supreme Court of India 1994 (3) SCC 394P. Rathinam vs Union of India ........................................................................................ 292 Conclusion ..................................................................................................................... 323 JUVENILE PRISONERS Introduction................................................................................................................... 326 Supreme Court of India AIR 1988 SC 414Sanjay Suri and Another vs Delhi Administration, Delhi and Another........................... 331 Patna High Court AIR 1989 Patna LJR 1024Sanat Kumar Sinha vs State of Bihar and Others ........................................................... 337 9. CONTENTS Patna High Court 1990 BBCJ 357Sanat Kumar Sinha vs The State of Bihar through Chief Secretary and Others .. 340 Supreme Court of India AIR 1982 SC 1297Jaya Mala vs Home Secretary, Government of Jammu and Kashmir and Others .......... 352 Kerala High Court 1993 (3) Cri. 57Cri. Reference no. 3 of 1991 .......................................................................................... 356 Supreme Court of India 1997 (8) SCC 720Bhola Bhagat and Another vs State of Bihar ................................................................. 363 Supreme Court of India 1998 (5) SCC 697Santenu Mitra vs State of W.B. ...................................................................................... 366 Supreme Court of India 2000 (6) SCC 89Umesh Singh and Another vs State of Bihar .................................................................. 368 Supreme Court of India 1982 (3) SCR 583Umesh Chandra vs State of Rajasthan ........................................................................... 370 Supreme Court of India 2001 (7) SCC 657Arnit Das vs State of Bihar ............................................................................................. 378 Supreme Court of India 2005 (3) SCC 551Pratap Singh vs State of Jharkhnad and Another .......................................................... 380 Supreme Court of India 2002 (2) SCC 287Rajinder Chandra vs State of Chhattisgarh and Another ............................................... 389 Supreme Court of India 2008 (13) SCALE 137Babloo Pasi vs State of Jharkhand and Another ............................................................ 391 Supreme Court of India 2009 (6) SCALE 695Hari Ram vs State of Rajasthan and Another ................................................................ 394 Conclusion ..................................................................................................................... 402 PAROLE AND FURLOUGH Introduction................................................................................................................... 404 Supreme Court 2000 (3) SCC 409Sunil Fulchand Shah vs Union of India and Others ........................................................ 407ix 10. xPRISONERS' RIGHTS VOLUME II Supreme Court 2000 (3) SCC 394State of Haryana vs Mohinder Singh ............................................................................. 409 Supreme Court 2002 (3) SCC 18Avtar Singh vs State of Haryana and Another ............................................................... 415 Supreme Court 2000 (3) SCC 514State of Haryana vs Nauratta Singh and Others ............................................................ 418 Supreme Court 2001 (8) SCC 306Joginder Singh vs State of Punjab and Others ............................................................... 424 Bombay High Court 1989 Cri LJ 681Sharad Keshav Mehta vs State of Maharashtra and Others .......................................... 429 Conclusion ..................................................................................................................... 431 PRESS Introduction................................................................................................................... 434 Supreme Court of India AIR 1982 SC 6Smt. Prabha Dutt vs Union of India and Others............................................................. 435 Supreme Court of India 1988 (I) Bom. Cr 58Sheela Barse vs State of Maharashtra..................................................................................................... 438 Supreme Court of India 1999 Cri. LJ 2273State through Superintendent Central Jail, N. Delhi vs Charulata Joshi and Another ... 443 Conclusion ..................................................................................................................... 445 PRISON FACILITIES Introduction................................................................................................................... 448 Bombay High Court 1987 Mah. LJ 68Madhukar Bhagwan Jambhale vs State of Maharashtra and Others ............................ 455 Madhya Pradesh High Court [1988 (16) Reports M.P. 147]Ranchod vs State of M.P. and Others ............................................................................ 465 Bombay High Court 1989 Mah LJ 77Inacio Manuel Miranda and Others vs State ................................................................. 475 11. CONTENTS High Court of Kerala AIR 1983 Ker 261In the Matter of: Prison Reforms Enhancement of Wages of Prisoners O.P. Nos. 6566 and 7472 of 1982 Section D/- 13.4.1983............................................... 481 High Court of Himachal Pradesh AIR 1992 HP 70Gurdev Singh and Others etc. vs State of Himachal Pradesh and Others ...................... 497 Supreme Court of India AIR 1966 SC 424State of Maharashtra vs Prabhakar Pandurang Sangzgiri and Another ......................... 517 Kerala High Court AIR 1973 Ker 97Kunnikkal Narayanan vs State of Kerala and Another ................................................... 521 Bombay High Court AIR 1967 SC 254M.A. Khan vs State and Another ................................................................................... 525 Supreme Court of India AIR 1981 SC 746Francis Coralie Mullin vs The Administrator, Union Territory of Delhi and Others ........ 534 Supreme Court of India AIR 2006 SC 1946R.D. Upadhyay vs State of Andhra Pradesh and Others ................................................ 545 Supreme Court of India AIR 2004 SC 2223State of Maharashtra and Others vs Asha Arun Gawali and Another ........................... 556 Mumbai High Court 2004 Cri LJ 4312Asgar Yusuf Mukadam and Others vs State of Maharashtra and the Suprintendent of Prison .......................................................................................... 561 Supreme Court of India AIR 1997 SC 1739Rama Murthy vs State of Karnataka .............................................................................. 565 Supreme Court of India AIR 1998 SC 3164State of Gujarat and Another vs Honble High Court of Gujarat ................................... 572 Conclusion ..................................................................................................................... 577 SECURITY LEGISLATION Introduction................................................................................................................... 580 Supreme Court of India 1987 (1) SCC 533Balbir Singh vs State of Haryana .................................................................................... 591xi 12. xiiPRISONERS' RIGHTS VOLUME II Bombay High Court 1994 Mah. LJ 1743Anil Vasant Chitnis and Others vs Senior Inspector of Police Alibaug Police Station, Raigad and Others..................................................................... 596 Supreme Court of India 1994 (3) SCC 569Kartar Singh vs State of Punjab ..................................................................................... 603 Supreme Court of India 1994 (4) SCC 602Hitendra Vishnu Thakur vs State of Maharashtra .......................................................... 653 Supreme Court of India 1995 Cri LJ 477Sanjay Dutt vs State Through C.B.I., Bombay ................................................................ 673 Supreme Court of India 1998 (4) SCC 492Khudeswar Dutta vs State of Assam .............................................................................. 699 Supreme Court of India 2001 Cri. LJ 3294Vijay Pal Singh vs State, N.C.T. of Delhi .......................................................................... 701 Supreme Court of India 1995 (6) SCC 447Bonkya Alias Bharat Shivaji Mane and Others vs State of Maharashtra ........................ 704 Supreme Court of India 1999 (5) SCC 682Balbir Singh and Another vs State of Uttar Pradesh ...................................................... 708 Supreme Court of India 1999 (2) SCC 45Kishore Prabhakar Sawant and Others vs State of Maharashtra ................................... 709 Supreme Court of India 1997 (4) SCC 156Paramjit Singh and Others vs State of Punjab and Others ............................................ 712 Supreme Court of India 2000 (4) SCC 454Sagayam vs State of Karnataka ...................................................................................... 716 Supreme Court of India 2003 (4) SCALE 428Yusuf @ Babu Khan vs State of Rajasthan ..................................................................... 719 Supreme Court of India 2003 (6) SCC 641State vs Navjot Sandhu .................................................................................................. 721 Supreme Court of India 2003 (8) SCC 50State of Gujarat vs Salimbhai Abdul Gaar Shaikh and Others ..................................... 727 13. CONTENTS Supreme Court of India 1995 (1) SCC 684State of West Bengal and Another vs Mohammed Khalid and Others .......................... 732 Supreme Court of India AIR 1996 SC 2047R.M. Tewari, Advocate vs State (NCT of Delhi) and Others AND Govt. of N.C.T., Delhi vs Judge, Designated Court II (TADA) AND Mohd. Mehfooz vs Chief Secretary and Another .......................................................... 744 Supreme Court of India 1997 (7) SCC 744Rambhai Nathabhai Gadhvi and Others vs State of Gujarat.......................................... 749 Supreme Court of India 1996 Cri. LJ 1986Writ Petn. (CRI.) No. 117 of 1995 D/- 27-2-1996 AND Shaheen Welfare Association vs Union of India and Others ......................................... 753 Supreme Court of India 2001 (3) SCC 221Lal Singh vs State of Gujarat and Another ..................................................................... 760 Supreme Court of India 1999 (5) SCC 253T. Suthenthiraraja, P. Ravichandran, Robert PayasOthers vs State by DSP, CBI, SIT, Chennai ...................................................................................... 772 Supreme Court of India 2000 ( 1 ) SCC 498Gurdeep Singh Alias Deep vs State (Delhi Admn.)......................................................... 805 Supreme Court of India AIR 2002 SC 1661Devender Pal Singh vs State, N.C.T of Delhi and Another .............................................. 809 Supreme Court of India 1997 (8) SCC 732Kalpnath Rai vs State (Through CBI) .............................................................................. 822 Supreme Court of India 1997 (7) SCC 231Sahib Singh vs State of Haryana .................................................................................... 830 Supreme Court of India 1998 (7) SCC 337Suresh Budharmal Kalani Alias Pappu Kalani vs State of Maharashtra.......................... 836 Supreme Court of India 2000 (2) SCC 254S.N. Dube vs N.B. Bhoir and Others............................................................................... 840 Supreme Court of India AIR 2004 SC 588Jameel AhmedAnother vs State of Rajasthan ........................................................... 854xiii 14. xivPRISONERS' RIGHTS VOLUME II Supreme Court of India 2004 (9) SCC 580Peoples Union for Civil LibertiesAnother vs Union of India ..................................... 863 Supreme Court of India 1998 (2) SCC 109Naga Peoples Movement of Human Rights and Others vs Union of India.................... 889 Conclusion ..................................................................................................................... 920 WOMEN Introduction................................................................................................................... 924 Supreme Court of India 1983 (2) SCC 96Sheela Barse vs State of Maharashtra ........................................................................... 928 Supreme Court of India AIR 1990 SC 658State of Maharashtra vs Chandraprakash Kewal Chand Jain AND Stree Atyachar Virodhi Parishad, Maharashtra State vs Chandraprakash Kewalchand Jain, Police Sub-Inspector, Nagpur and Another ............ 935 Bombay High Court 1995 (4) Bom. CR 263Rekha M. Kholkar vs State of Goa and Others .............................................................. 951 Bombay High Court 1996 (1) Bom. CR 70Christian Community Welfare Council of India (Regd.) vs Government of Maharashtra and Another ................................................................... 956 Supreme Court of India AIR 2006 SC 1946R.D. Upadhyay vs State of A.P. and Others .................................................................... 970 Supreme Court of India 2003 (8) SCC 546State of Maharashtra vs Christian Community Welfare Council of India and Another . 989 Andhra Pradesh High Court 2003 (1) ALT 221The Legal Aid Committee, High Court of A.P. vs The Director General and Inspector General of Prisons and Others ............................. 993 High Court of Jammu and Kashmir AIR 2004 JK 6World Human Rights Protection vs Union of India (UOI) and Others .......................... 1001 Conclusion ................................................................................................................... 1010 15. General Introduction The second edition of Prisoners Rights: a compilation of landmark judgements comes after a decade since its rst edition and at a time when serious attempts are being made by governments to change the entire criminal justice system with the sole aim that every arrested person should be guilty. These changes in the criminal law are being brought on the pretext of ghting terrorism and to deliver justice to victims. Yet rules of free and fair trial and the basic time tested principles of criminal law are being tampered with and torturous procedures such as the Narco Analysis test and brain mapping are being resorted to without any scientic credibility to those tests. The system of video conferencing for the production of accused in court has been introduced in the various parts of the country. In some states even criminal trials are being conducted through video conferencing. The system of production and trial through video conferencing is full of aws. The trial conducted not via video conferencing cannot be termed as a free and fair trial with prisoner being in jail where he can be deemed to be free to give instructions to his lawyer. Besides he might be under duress where he may not be able to communicate with the courts freely. The visits to the courts once a fortnight, or a month, are the only times a prisoner can meet his family members. Considering the faulty prison visitation system, the visit to the court by the prisoners is very important as it provides the only chance to meet his family members and speak to them. Recently the government has introduced the Fast Track Court across the country for speedy disposal of criminal trials. Many times criminal trials have been completed in matter of days. This is a dangerous trend as from delayed trials at one point of time, the system is now moving towards ultra quick trial where the notion of justice may be forgotten for the sake of speed. The Bombay High Court while hearing an appeal from one of the Fast Track Courts came down lightly on the functioning of these courts and stated that, We are certainly of the view that though the Fast Track Courts should act fast and justice should be delivered as quickly as possible, decision of a criminal trial cannot be speedily given at the cost of justice. 16. xviPRISONERS' RIGHTS VOLUME IIIn last couple of years the country has only witnessed media frenzy over criminal cases and has held trials almost through the electronic and the print media. Several bar associations passed resolutions appealing to its members to defend the accused in the trial in certain cases. The constitutional right of an accused to be represented by an advocate is ignored. Justice for the victim does not mean the basic principles of criminal justice should be ignored. The thin dividing line between the media campaign and media trial is often breached in number of cases. The Malimath Committee, which was formed for the reforms in the criminal justice system, tried its best to dismantle the minimum protection given to the accused during trials and tried to bring in draconian provisions in the mainstream criminal law. Though the Malimath Committee Report was rejected by the government, eorts are afoot to give it a backdoor entry through the committee formed to draft the criminal policy of the country. The attack on the Parliament ensured Terrorist and Disruptive Activities (Prevention) Act smooth passing of the Prevention of Terrorism Act (POTA). The draconian provision of the earlier TADA were not incorporated in POTA and but there have been reports of its widespread misuse across the country. The Act was ultimately repealed under sustained pressure from the groups ghting civil liberties and human rights but the amendment to the Unlawful Activities Act, resulted in incorporation of some of this provisions. Today almost every state in the country has its own anti terror law and the anti-organised crime act. All these acts have basically draconian provisions, enacted to strengthen the hands of the police and see that convictions happen on a very little, or imsy evidence, or no evidence worth the name. Armed Forces Special Powers Act, one of the most draconian legislations, continues to be imposed on the north eastern states of the country and citizens continue to be tortured and killed in the name of insurgency without any proper investigation or enquiry into these killings. The last decade also saw a huge increase in extra judicial killings. Apart from a few convictions in the cases of custodial violence and the encounter killings many extra judicial killings went unnoticed and unquestioned. In the beginning of the decade courts were initiated across the country for the speedy delivery of justice and disposal of justice. The jail courts were mainly handing out convictions to the accused who were pleading guilty. Many times the accused understanding the 17. GENERAL INTRODUCTIONconsequence of a conviction use to plead guilty only to avoid prolonged cases which took years to nish owing to non production of prisoners in courts. The prisons in the country continue to be populated with mainly under trials who are poor, illiterate and also form minority or fringe groups. These prisons around the country are over crowded with basic amenities like clean drinking water and essential medical facilities missing. The legal aid system remains in shambles resulting in the denial of the basic right of free and fair trial to the poor prisoners. The much hyped Criminal Law Amendment 2005, which the government authorities claimed will almost empty the prisons across the country, has not brought in any major changes vis--vis the prison population as was claimed by the Government. Lakhs of people continue to languish behind bars mainly because they are poor. Nothing much has changed vis--vis the conditions of prisons and prisoners rights since the last edition of the Prisoners Rights Book. There have been few landmark judgements but the implementation of the judgements seems to be a distant possibility. The Mulla Committee report on jail report came out in the early 1980s but it has not been implemented until this day though over two decades have elapsed since the report was submitted to the government. The visitation rights of the prisoners leave much to be desired where the whims and fancies of the jail administration matter most. Prisoners continue to get food which can hardly be termed as t for human consumption and they continue to live under most unhygienic or even hazardous conditions. On the other hand there are instances of prisoners who have stayed in prison for many years beyond their sentence period. The overall conditions of the prisons and the prisoners show that they are the most ignored section of people in this country. The need of the hour is to move towards a genuine reformative system. Changing the name of prisons as Reformation Centres is not going to help as these are just supercial changes and do not in actual terms bring in any reform in the prison and the life of the prisoners. It is high time the voting rights and the conjugal rights of the prisoners in India are recognized. Though in prison it should not be forgotten the prisoner still has the right to live with dignity. This book is divided in two volumes where best eorts have been made to bring in under its covers all the landmark judgements regarding prisons and prisoners passed by courts until this day, or the year 2007, in the fervent hope that it serves as a resource material for lawyers, activists and conscientious citizens and civil society groups.xvii 18. COMPENSATION 19. 2PRISONERS' RIGHTS VOLUME IIIntroduction The Supreme Court of India has advanced the Right to Compensation to prisoners by declaring it to be a fundamental right under Article 21 of the Constitution of India. Hence a prisoner can approach the Supreme Court under Article 32 and claim for compensation for the violation of his rights while in custody of the police or a prison setting. The aspect of compensation to prisoners was acknowledged and introduced world over by the International Covenant on Civil and Political Rights in 1976. The two principles laid down in the covenant are as follows: [I] Article 9, Clause 5 states: Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. [II] Article 14, Clause 6 states: When a person has by a nal decision been convicted of a criminal oence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. The right to compensation further extends to a prisoner if he/she is subjected to unlawful treatment and abuse in any form in the prison. The right extends to undertrials, detainees and other prisoners in custody. The case-laws presented in this chapter highlight the circumstances under which prisoners have been and can be granted compensation. In Rudul Sahs case (AIR 1983 SC 1086), the petitioner was released from Tihar jail 14 years after he was acquitted. The excuse was insanity. The Court noted that no data of any kind was produced to show that the prison authorities had a basis for either declaring the prisoner insane or for detaining him on that account. No measures were taken to cure him. Insanity was clearly alleged as an after thought. The Court observed that if a prisoner was at all insane, it must have been caused by the jail conditions itself. It was shocking that such a case should emerge after the Bhagalpur blinding case. The said case was widely reported all over the world and brought the entire prison system of Bihar into disrepute. It appears that such publicity had no eect on the criminals who run our prison systems. 20. COMPENSATIONThe Supreme Court directed the High Court to call for statistical data from the Home Department in respect of the number of convicts who have been in jail for periods in excess of 10, 12, and 14 years respectively. The interesting part of the judgment relates to compensation. The Court granted compensation of Rs. 35,000/- as a palliative to the petitioner and specically indicated that a suit for compensation over and above this amount would lie in an appropriate Court. Article 21 will be denuded of its signicant content if the powers of the Court were limited to passing orders merely of release. One way in which due compliance with the mandate of Article 21 is secured is to mulct its violators in the payment of monetary compensation. It cannot be corrected by any other method. Interestingly for 14 years of illegal custody the poor prisoner was given compensation of only Rs. 35,000/. Why not 35 lacs? Would not the latter amount be more appropriate for such a violation of the Fundamental Rights of a citizen of India? Sebastian Hongrays case (AIR 1984 SC 1026) was a habeas corpus petition. Sebastian was a Naga Priest who was a Head Master of a school. His school was visited by the army. There the army engaged in certain atrocities and took away certain persons including the petitioner. He was last seen alive in an army camp. A petition for habeas corpus was led, but the State refused to obey. The Court asked What is the appropriate mode of enforcing obedience to a writ of habeas corpus?. Here there was a wilful disobedience of the writ by misleading the Court and by presenting a distorted version of facts. It was a case of civil contempt. In a landmark judgment the Court ordered that the State pay Rs. 1 lac each to the wives of the missing persons. Reiterating the principle laid down in the earlier decisions, the Supreme Court awarded compensation of Rs. 50,000/- in Bhim Singhs case (AIR 1986 SC 494), for imprisonment with mischievous or malicious intent, where an MLA was kept in police custody and remand orders were obtained without his production before a magistrate. In Peoples Union of Democratic Rights vs. State of Bihar (AIR 1987 SC 355), the Supreme Court enhanced the amount of compensation from Rs. 10,000/- to Rs. 20,000/- to be paid to the 21 persons belonging to backward classes who died in indiscriminate ring by the police while holding a peaceful meeting in the District of Gaya, Bihar, and Rs. 5000/each to the persons injured. The Court held that payment of such compensation does not absolve the liability of the wrong-doer but such compensation is being paid as a working principle and for convenience and with a view to rehabilitating the dependants of the deceased.3 21. 4PRISONERS' RIGHTS VOLUME IIIn Peoples Union of Democratic Rights and another vs. Police Commissioner, Delhi Police and another (1989 (4) SCC 730), the Supreme Court directed the payment of Rs. 50,000/to the family of the person killed by the police ocers at the police station for demanding payment for their labour. A woman who was stripped was paid Rs. 500/- and Rs. 25/- to eight others. The amount was ordered to be recovered from the salaries of the ocers found guilty after investigation and inquiry. In Saheli, A Womens Resource Centre Vs. Commissioner of Police, Delhi (AIR 1990 SC 513), the Supreme Court directed that compensation be paid to the mother of a nine year old child who died because of beating and assault by a police ocer. In P.V. Kapoors case (1992 Cri. LJ 128), the Delhi High Court, extending the principle laid down in Nilabati Beheras case, awarded compensation to the victims of police ring on the illegal assemblies during the Mandal agitation. The law regarding strict liability of the State for violation of fundamental rights to which the defence of sovereign immunity is not applicable was laid down by the Supreme Court in Nilabati Beheras case (JT 1993 (2) SC 503). In this case where compensation was awarded to the mother of a victim of custodial death, the Supreme Court expressed the need of the Court to evolve new tools to give relief in public law by moulding it accordingly to the situation with a view to preserveprotect the rule of law. The Supreme Court in Arvinder Singh Baggas case (JT 1994 (6) SC 478), directed that the state pay compensation to persons illegally detained and directed prosecution of the concerned police ocers for the blatant abuse of law. The Andhra Pradesh High Court also awarded compensation in case of illegal detention and quashed the prosecution pending against the detenu led subsequently as being an abuse of the process of Court in S. Seshaiah vs. State of Andhra Pradesh (1994 Cri. LJ 1469). The Gauhati High Court awarded compensation to the father of deceased against whom no case had been registered in Nagantangkhuis case (1995 Cri. LJ 347). In Re: death of Sawinder Singh Grover (1995 (SU4) SCC 450), the Supreme Court directed that a sum of Rs. two lakhs be paid as an interim measure by the Union of India/ Directorate of Enforcement to the widow of the deceased. This direction was based on the report of the Additional Sessions Judge which suggested a strong suspicion of some misfeasance including torture by the ocers of the Directorate who had wrongfully conned the deceased. The Central Bureau of Investigation was asked to conduct the prosecution and further investigation in the matter. 22. COMPENSATIONIn Smt. Kewal Patis case (1995 Cri LJ 2920), the Supreme Court held that the legal heirs of deceased are entitled to compensation from the State if a prisoner is killed in jail by a co-accused. The facts of the case in Postsangbam Ningol Thokchom (Smt) and another vs. General Ocer Commanding and others (1997 (7) SCC 725) being similar to that of the Nilabati Beheras case, the Supreme Court directed the Union of India to deposit an amount of Rs. 1,25,000 in the names of the mothers of the two boys who were not released from custody after being picked up for interrogation by the Army in Imphal, and were suspected to be killed. In another similar case, Kaushalya and another vs. State of Punjab and Others (1999 (6) SCC 754), the Supreme Court awarded a sum of Rs. 2 lakhs to the mother of the deceased Amrik Singh who was killed in police custody. In Malkiat Singh vs. State of Uttar Pradesh (1989 (9) SCC 351), the Supreme Court awarded a compensation of Rs. ve lakhs to the father whose son was killed in an alleged encounter between the police and four sikh youths. The compensation was made based on a similar case, Writ Petition No. 632 of 1992, where the Supreme Court had awarded Rs. 5 lakhs as compensation. In Mrs. Meena Singh vs. State of Bihar and others (2001 Cri. LJ 3573), the High Court of Jharkhand awarded a compensation of Rs. 3 lakhs to the wife of an undertrial prisoner, noting that it was the prime duty of the jail authority to provide security and safety to the life of prisoners while in jail custody. The order was passed based on the principle expounded in Smt. Kewalpatis case. In Prem Bangar Swamy vs. State of Maharashtra and Others (2004 ALL MR (Cri) 636), the High Court of Bombay awarded an amount of Rs. 2 lakhs as compensation for wrongful detention of the petitioner for 2 years 9 months inspite of her acquittal by the Special Court in Mumbai and that order being conrmed in appeal by the High Court. The High Court referred to the apex court judgements in Rudal Sah and D.K. Basus cases for illegal detention, while deciding the amount which was awarded as an interim measure noting that the same was not a punitive compensation. State of Andhra Pradesh vs. Challa Ramkrishna Reddy and Others (AIR 2000 SC 2083) was led against the order of the High Court whereby a sum of Rs. 1,44,000/- was awarded to the son whose father died while in custody for the negligence of the authorities. The case was challenged on two grounds, as being barred due to limitation and that the State would not be liable in damages as it was immune from any legal action in respect of its5 23. 6PRISONERS' RIGHTS VOLUME IIsovereign acts. The Supreme Court held that the present case would invoke the provisions of Article 113 and not Article 72 of the Limitation Act, 1963 which prescribed a period of three years, as the action of the ocers was wholly malade, and thus the suit was within limitation. With regards to the second plea relating to the immunity of the State Government, the Court relied on various judgements on deciding the issue of a person being deprived of his personal liberty (Article 21) in accordance with the procedure established by law, and that the same must be reasonable, fair and just as laid down in Maneka Gandhi vs. Union of India (1978 (1) SCC 248), D. Bhuvan Mohan Patnaik vs. State of Andhra Pradesh (AIR 1074 SC 2092), Charles Sobhraj vs. Superintendent, Central Jail, Tihar (AIR 1978 SC 1514), Francis Coralie Mullin vs. The Administrator, Union Territory of Delhi (1981 (1) SCC 608), Sunil Batra vs. Delhi Administration ( AIR 1980 SC 1579), N. Nagendra RaoCo. vs. State of A.P. (AIR 1994 SC 2663), and Common Cause, A Registered Society vs. Union of India and Ors. (1999 (6) SCC 667). The Court rejected the plea of immunity and further held that in the instant case, two vital factors, namely police negligence as also the Sub-Inspector being in conspiracy were established as a fact, therefore the decisions in Nilabati Behera, In Re: Death of Sawinder Singh Grover, and D.K. Basu, would hold so far as fundamental rights and human rights or human dignity are concerned, and that the law has marched ahead like a Pegasus but the Government attitude continues to be conservative and it tries to defend its action or the tortious action of its ocers by raising the plea of immunity for sovereign acts or acts of State, which must fail. In Ravikant Patils case [1991 (2) SCC 373], the Supreme Court rejected the appeal of the State against the decision of the Bombay High Court directing that compensation be paid to the undertrial prisoner for handcung and being taken through the streets as the police ocers were guilty of violating a fundamental right under Article 21. 24. Supreme Court AIR 1983 SC 1086Rudul Sah vs State of Bihar and Another Y.V. Chandrachud, Amarendra Nath Sen, Ranganath Misra, JJ. 1. This writ petition discloses a sordid and disturbing state of aairs. Though the petitioner was acquitted by the Court of Session, Muzaarpur, Bihar, on June 3, 1968 he was released from the jail on October 16,1982, that is to say, more than 14 years after he was acquitted. By this habeas corpus petition, the petitioner asks for his release on the ground that this detention in the jail is unlawful. He has also asked for certain ancillary reliefs like rehabilitation, reimbursement of expenses which he may incur for medical treatment and compensation for the illegal incarceration. 2. This petition came up before us on November 22, 1982 when we were informed by Shri. Goburdhun, counsel for the State of Bihar, that the petitioner was already released from the jail. The relief sought by the petitioner for his release thus became infructuous but despite that, we directed that a Notice to show cause be issued to the State of Bihar regarding prayers 2,3 and 4 of the petition. By prayer No. 2 the petitioner asks for medical treatment at Government expense, by prayer No. 3 he asks for an ex-gratia payment for his rehabilitation, while by prayer No. 4 he asks for compensation for his illegal detention in the jail for over 14 years. 3. We expected a prompt response to the Show Cause Notice from the Bihar Government at least at this late stage, but they oered no explanation for over four months. The writ petition was listed before us on March 31, 1983 when Shri. Goburdhun restated that the petitioner had been already released from the jail. We passed a specic order on that date to the eect that the release of the petitioner cannot be the end of the matter and we called upon the Government of Bihar to submit a written explanation supported by an adavit as to why the petitioner was kept in the jail for over 4 years after his acquittal. On April 16, 1983, Shri. Alakh Deo Singh, Jailor, Muzaarpur Central Jail, led an adavit in pursuance of that order. Shorn of its formal recitals, the adavit reads thus: 25. 8PRISONERS' RIGHTS VOLUME II(2) That the petitioner was received on 25.3.67 from Hazaribaug Central Jail and was being produced regularly before the Additional Sessions Judge, Muzaarpur and on 30.8.68 the learned Judge passed the following order: The accused is acquitted but he should be detained in prison til further order of the State Government and I.G. (Prisons), Bihar. (A true copy of the same is attached as Annexure I). (3) That accused Rudul Sah was of unsound mind at the time of passing the above order. This information was sent to the Law Department in letter No. 1838 dated 10.5.74 of the Superintendent, Central Jail, Muzaarpur through District Magistrate, Muzaarpur. (4) That the Civil Surgeon, Muzaarpur, reported on 18.2.77 that accused Rudul Sah was normal and this information was communicated to the Law Department on 21.2.77. (5) That the petitioner, Rudul Sah was treated well in accordance with the rules in the Jail Manual, Bihar, during the period of his detention. (6) That the petitioner was released on 16.10.82 in compliance with the letter No. 11637 dated 14.10.82 of the Law Department.4. The writ petition came up before us on April 26, 1983 when we adjourned it to the rst week of August 1983 since it was not clear either from the adavit as Annexure I, as to what was the basis on which it was stated in the adavit that the petitioner was of unsound mind or the reason why the learned Additional Sessions Judge directed the detention of the petitioner in jail, until further orders of the State Government and the Inspector General of Prisons. 5. The writ petition has come up for hearing once again before us today. If past experience is any guide, no useful purpose is likely to be served by adjourning the petition in the hope that the State authorities will place before us satisfactory material to explain the continued detention of the petitioner in jail after his acquittal. We apprehend that the present state of aairs, in which we are left to guess whether the petitioner was not released from the prison for the benign reasons that he was insane, is not likely to improve in the near future. 6. The jailors adavit leaves much to be desired. It narrates with an air of candidness what is notorious, for example, that the petitioner was not released from the jail upon his acquittal and that he was reported to be insane. But it discloses no data on the basis of which he was adjudged insane, the specic measures taken to cure him of that aiction and, what is most important, whether it took 14 years to set right his mental imbalance. No medical opinion is produced in support of the diagnosis that he was 26. COMPENSATIONinsane nor indeed is any jail record produced to show what kind of medical treatment was prescribed for and administered to him and for how long. The letter (No. 1838) dated May 10, 1974 which, according to paragraph 3 of the adavit, was sent to the Law Department by the Superintendent of the Central Jail, Muzaarpur, is not produced before us. There is nothing to show that the petitioner was found insane on the very date of his conviction. And, if he was insane when he was convicted, he could neither have been tried nor convicted, for the simple reason that an insane person cannot enter upon his defence. Under the Code of Criminal Procedure, insane persons have certain statutory rights in regard to the procedure governing their trial. According to paragraph 4 of the adavit the Civil Surgeon, Muzaarpur, reported on February 18, 1977 that the petitioner was normal and that this information was communicated to the Law Department on February 21, 1977. Why was the petitioner not released for over 5 1/2 years thereafter? It was on October 14, 1982 that the Law Department of the Government of Bihar directed that the petitioner should be released. Why was the Law Department so insensitive to justice? We are inclined to believe that the story of the petitioners insanity is an afterthought and is exaggerated out of proportion. If indeed he was insane, at least a skeletal medical record could have been produced to show that he was being treated for insanity. In these circumstances, we are driven to the conclusion that, if at all the petitioner was found insane at any point of time, the insanity must have supervened as a consequence of his unlawful detention in jail. A sense of helplessness and frustration can create despondency and persistent despondency can lead to a kind of mental imbalance. 7. The concerned Department of the Government of Bihar could have aorded to show a little more courtesy to this Court and to display a greater awareness of its responsibilities by asking one of its senior ocers to le an adavit in order to explain the callousness which pervades this case. Instead, the jailor has been made a scapegoat to own up vicariously the dereliction of duty on the part of the higher ocers who ought to have known better. This is not an isolated case of its kind and we feel concerned that there is darkness all around in the prison administration of the State of Bihar. The Bhagalpur blindings should have opened the eyes of the Prison Administration of the State. But that bizarre episode has taught no lesson and has failed to evoke any response in the Augean Stables. Perhaps, a Hercules has to be found who will clean them by diverting two rivers through them, not to the breakdown of Prison Administration in the State and rectify the grave injustice which is being perpetrated on helpless persons. The High Court of Patna should itself examine this matter and call for statistical data from the Home Department of the Government of9 27. 10PRISONERS' RIGHTS VOLUME IIBihar on the question of unlawful detentions in the State Jails. A tabular statement from each jail should be called for disclosing how many convicts have been in jail for more than 10 years, 12 years, 14 years and for over 16 years. The High Court will then be in a position to release prisoners who are in unlawful detention in the jails and to ask the State Government to take steps for their rehabilitation by payment of adequate compensation wherever necessary. 8. That takes us to the question as to how the grave injustice which has been perpetrated upon the petitioner can be rectied, in so far as it lies within our power to do in the exercise of our writ jurisdiction under Article 32 of the Constitution. That Article confers power on the Supreme Court to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrant and certiorari, whichever may be appropriate, for the enforcement of rights and obligations which can be enforced ecaciously through the ordinary processes of Courts, Civil and Criminal. A money claim has therefore to be agitated in and adjudicated upon in a suit instituted in a Court of lowest grade competent to try it. But the important question for our consideration is whether in the exercise of its jurisdiction under Article 32, this Court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a fundamental right. The instant case is illustrative of such cases. The petitioner was detained illegally in the prison for over 14 years after his acquittal in a full-dressed trial. He led a habeas corpus petition in this Court for his release from illegal detention. He obtained that relief, our nding being that his detention in the prison after his acquittal was wholly unjustied. He contends that he is entitled to be compensated for his illegal detention and that we ought to pass an appropriate order for the payment of compensation in this habeas corpus petition itself. 9. We cannot resist this argument. We see no eective answer to it save the stale and sterile objection that the petitioner may, if so advised, le a suit to recover damages from the State Government. Happily, the States counsel has not raised that objection. The petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense that a Civil Court may or may not have upheld his claim. But we have no doubt that if the petitioner les a suit to recover damages for his illegal detention, a decree for damages, would have to passed in that suit, though it is not possible to predicate in the absence of evidence, the precise amount which would be decreed in his favour. In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner 28. COMPENSATIONwill be doing mere lip-service to his fundamental right to life and liberty be denuded of its signicant content if the power of this Court were limited to passing order of release from illegal detention of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to agrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present others too well-known to suer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its ocers to the petitioners rights. It may have recourse against those ocers. 10. Taking into consideration that great harm done to the petitioner by the Government of Bihar, we are of the opinion that, as an interim measure, the state must pay to the petitioner a further sum of Rs.30,000/- (Rupees thirty thousand) in addition to the sum of Rs.5,000/- (Rupees ve thousand) already paid by it. The amount shall be paid within two weeks from today. The Government of Bihar agrees to make the payment though, we must clarify, our order is not based on their consent. 11. This order will not preclude the petitioner from bringing a suit to recover appropriate damages from the State and its erring ocials. The order of compensation passed by us is, as we said above, in the nature of a palliative. We cannot leave the petitioner penniless until the end of his suit, the many appeals and the execution proceedings. A full-dressed debate on the nice points of fact and law which takes place leisurely in compensation suits will have to await the ling of such a suit by the poor Rudul Sah. The Leviathan will have liberty to raise those points in that suit. Until then, we hope, there will be no more Rudul Sah in Bihar or elsewhere.11 29. Supreme Court AIR 1984 SC 1026Sebastian M. Hongray vs Union of India and Others D.A. DESAI, O. CHINNAPPA REDDY, JJ. 1. On Nov. 24, 1983, the Court by its Judgment and order directed that a writ of habeas corpus be issued. The operative portion of the order reads as under: Accordingly, this petition is allowed and we direct that a writ of habeas corpus be issued to the respondents 1, 2 and 4 commanding them to produce C. Daniel, retired Naik Subedar of Manipur Ries and Headmaster of the Junior High School of Huining Village and C. Paul, Assistant Pastor of Huining Baptist Church, who were taken to Phungrei Camp by the jawans of 21st Sikh Regiment on March 10, 1982 before this Court on Dec. 12, 1983 and le the return. The Registry issued the writ and served the same upon rst respondent-Union of India, second respondent- Secretary, Ministry of Home Aairs and 4th respondentCommandant, 21st Sikh Regiment, Phungrei Camp. Pursuant to the writ, it was obligatory upon respondents 1, 2 and 4 to le the return and to produce C. Daniel and C. Paul. A return on adavit by one Ajai Vikram Singh, Director, Ministry of Defence dated December 9, 1983 was produced in the Court on December 12, 1983 stating therein that with all the will and the best eorts, the respondents are unable to produce S/Shri C. Daniel and C. Paul for the reasons set out in the adavit and crave for indulgence of the Honble Court for their inability to produce the above- named individuals due to circumstances beyond their control. It was reiterated that C. Daniel and C. Paul were not in the custody or control of respondents 1, 2, and 4. To this return several adavits and messages were 547 annexed saying that the Army authorities conducted an extensive search for tracing C. Daniel and C. Paul but nothing fruitful has been achieved. One Surendra Kumar, Deputy Secretary, Ministry of Home Aairs had also led the return stating that C. Daniel and C. Paul are neither in the custody or control of respondent No. 2. It was stated that Central Bureau of Investigation (CBI for short) have been directed to conduct enquiries to locate the aforementioned two persons and to intimate the result thereof. The matter was adjourned to enable the respondents to pursue their eorts. Nothing fruitful came up even though the 30. COMPENSATIONmatter was twice adjourned at the request of learned Attorney General who entered appearance on behalf of respondents Nos. 1, 2 and 4. The writ petition was posted for further hearing and orders on April 19, 1984. On that day, a summary of enquiry made by CBI was submitted to the Court in which it was stated that the eld enquiries made by the CBI and the eorts made to locate the two persons have yielded no results and it has not been possible to locate Sri Daniel and Sri Paul, The report was submitted by the Dy. Inspector General of Police (S). 2. It is now necessary to deal with the failure of respondents 1, 2 and 4 to le the return to the writ of habeas corpus. After a preliminary enquiry and after hearing the respondents and after negativing their contentions that Shri C. Daniel and Shri C. Paul were not seen last alive in the custody of the 4th respondent, the Court directed to issue a writ of habeas corpus. The writ of habeas corpus was issued and was served on respondents 1, 2 and 4. In compliance with the mandatory direction contained in the writ of habeas corpus, the person to whom it is directed is under a legal obligation to produce the body of person alleged to be unlawfully detained before the Court on the day specied and to make a formal return to the writ. (1) Such a writ has been issued and there has been failure to produce the missing persons in respect of whom writ is issued and to le the return as mandated by law. 3. The next question therefore, is: what is the appropriate mode of enforcing obedience to a writ of habeas corpus? 4. The Contempt of Courts Act, 1971 denes contempt of court in Sec. 2(a) to mean civil contempt or criminal contempt. Civil con 548 tempt is dened in Sec. 2(b) to mean wilful disobedience to any judgment decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given to a Court. Wilful disobedience to a writ issued by the Court constitutes civil contempt. The question is: whether this disobedience is wilful? Mere failure to obey the writ may not constitute civil contempt depending upon the facts and circumstances of the case. But wilful disobedience to a writ issued by a Court constitutes civil contempt. Again it is wellsettled that the appropriate mode of enforcing obedience to a writ of habeas corpus is by committal for contempt. A committal order may be made against a person who intentionally makes a false return to a writ of habeas corpus, but an unintentional misrepresentation on a return is not a ground for committal.(ibid para 1497) 5. The view of this Court as expressed in the main judgment clearly indicates that the assertion of respondents 1, 2 and 4 that C.Daniel and C.Paul left Phungrei Camp where13 31. 14PRISONERS' RIGHTS VOLUME II21st Sikh Regiment were stationed is not correct and that to avoid responsibility owing from the mysterious disappearance of C.Daniel and C.Paul an attempt was made to suggest that they had left alive in the company of their compatriots. The Court has rejected this submission as untenable and uncorrected. On that conclusion one can say that there is a wilful disobedience to the writ of habeas corpus by misleading the court by presenting a distorted version of facts not borne out by the record. It is thus established that the respondents 1, 2 and 4 have committed civil contempt by their wilful disobedience to the writ. 6. Civil contempt is punishable with imprisonment as well as ne. In a given case, the court may also penalise the party in contempt by ordering him to pay the costs of the application. (Halsburys Laws of England, Fourth Edition, Vol.9, para 100 at p.61) A ne can also be imposed upon the contemnor. 7. Now in the facts and circumstances of the case, we do not propose to impose imprisonment nor any amount as and by way of ne but keeping in view the torture, the agony and the mental oppression through which Mrs. C. Thingkhuila, wife of Shri C. Daniel and Mrs. C. Vangamla, wife of Shri C. Paul had to pass and they being the proper applicants, the formal application being by Sebastian M. Hongray, we direct that as a measure of exemplary costs as is permissible in such cases, respondents Nos. 1 and 2 shall pay Rs 1 lac to each of the aforementioned two women within a period of four weeks from today. 8. A query was posed to the learned Attorney General about the further step to be taken. It was made clear that further adjourning the matter to enable the respondents to trace or locate the two missing persons is to shut the eyes to the reality and to pursue a mirage. As we are inclined to direct registration of an oence and an investigation, we express no opinion as to what fate has befallen to Shri C. Daniel and Shri C. Paul, the missing two persons in respect of whom the writ of habeas corpus was issued save and except saying that they have not met their tragic end in an encounter as is usually claimed and the only possible inference that can be drawn from circumstance already discussed is that both of them must have met an unnatural death. Prima facie, it would be an oence of murder. Who is individually or collectively the perpetrator of the crime or is responsible for their disappearance will have to be determined by a proper, thorough and responsible police investigation. It is not necessary to start casting a doubt on anyone or any particular person. But prima facie there is material on record to reach an armative conclusion that both Shri C. Daniel and Shri C. Paul are not alive and have met an unnatural death. And the Union of India cannot disown 32. COMPENSATIONthe responsibility in this behalf. If this inference is permissible which we consider reasonable in the facts and circumstances of the case, we direct that the Registrar (Judicial) shall forward all the papers of the case accompanied by a writ of mandamus to the Superintendent of Police, Ukhrul, Manipur State to be treated as information of a cognizable oence and to commence investigation as prescribed by the relevant provisions of the Code of Criminal Procedure. S.R. Rule made absolute.15 33. Supreme Court of India AIR 1986 SC 494Bhim Singh, MLA vs State of JammuKashmir O. Chinnappa Reddy, V. Khaild, JJ. 1. Shri. Bhim Singh, a Member of the Legislative Assembly of JammuKashmir, incurred the wrath of the powers that be. They were bent upon preventing him from attending the Session of the Legislative Assembly of JammuKashmir, which was to meet on 11th September, 1985. That appears to be the only inference that we can draw from the circumstances of the case to which we shall now refer. On August 17, 1985, the opening day of the Budget Session of the Legislative Assembly. Shri. Bhim Singh was suspended from the Assembly. He questioned the suspension in the High Court of JammuKashmir. The order of suspension was stayed by the High Court on 9th September, 1985. On the intervening night of 9th-10th September, 1985, he was proceeding from Jammu to Srinagar. En route, at about 3.00 A.M. (on 10th), he was arrested at a place called Qazi Kund about 70 kms from Srinagar. He was taken away by the police. As it was not known where he had been taken away and as the eorts to trace him proved futile, his wife Smt. Jayamala, acting on his behalf, led the present application for the issue of a writ to direct the respondents to produce Shri. Bhim Singh before the Court, to declare his detention illegal and to set him at liberty. She impleaded the State of JammuKashmir through the Chief Secretary as the rst respondent, the Chief Minister, the Deputy Chief Minister and the Inspector General of Police, JammuKashmir as respondents 2, 3 and 4. On Sept. 13, 1985, we directed notice to be issued to the respondents and we also directed the Inspector General of Police to inform Smt. Jayamala where Shri. Bhim Singh was kept in custody. On Sept, 16, 1985, Shri. Bhim Singh was released on bail by the learned Additional Sessions Judge of Jammu before whom he was produced. Shri. Bhim Singh led a supplementary adavit on 20th September, 1985 stating more facts in addition to what had already been stated by Smt. Jayamala in the petition. He categorically asserted that he was kept in police lockup from 10th to 14th and that he was produced before a Magistrate for the rst time only on the 14th. Thereafter on 24th Sept. 1985, we issued notice to the Director General of Police, State of JammuKashmir, Mr. Mir, 34. COMPENSATIONSuperintendent of Police, Anantnag, Mohd. Sha Rajguru, Inspector of Police, Amin Amjum, Deputy Superintendent of Police, Udhampur, Gupta, Deputy Superintendent of Police, Jhajar Kolli and the ocer in charge of Police Station, Satwari. A counteradavit has been led on behalf of the State of JammuKashmir by Abdul Qadir Parrey. Adavit have also been led by M. M. Khajuria, Inspector General of Police, M. A. Mir, Superintendent of Police, Anantnag, Mohd. Sha Laigroo, Inspector of Police, District Police Lines, Anantnag, Mohd. Amin Amjum, Deputy Superintendent of Police Headquarters, Udhampur and Rajinder Gupta, Probationary Deputy Superintendent of Police, Udhampur. Shri. Bhim Singh has also led a rejoinder adavit. 2. From the adavits led by the several police ocers, it transpires that an FIR under Section 153A of the Ranbir Penal Code was registered against Shri. Bhim Singh on Sept. 9, 1985 at Police Station, Pacca Danga, Jammu on the allegation that he had delivered an inammatory speech at a public meeting held near Parade Ground, Jammu at 7.00 P.M. on Sept. 8, 1985. The ocer in charge of Police Station, Pacca Danga brought the matter to the notice of the Senior Superintendent of Police, Jammu, who in turn informed the Deputy Inspector General of Police of Jammu range. On 10th Sept. 1985, requisition for the arrest of Shri. Bhim Singh was sent to the Superintendent of Police, Anantnag through the Police Control Room, Srinagar. This fact is sworn to by Shri. M. M. Khajuria, Inspector General of Police, JammuKashmir. Shri. M. A. Mir, Superintendent of Police, Anantnag has, however, stated in his adavit that on Sept. 9, 1985 at about 11.30 P.M. he was informed by the Police Control Room, Srinagar that Shri. Bhim Singh, MLA was required to be apprehended as he was wanted in a case registered under Section 153A of Ranbir Penal Code. According to him, he immediately directed the ocer in charge of Police Station, Qazi Kund that Shri. Bhim Singh may be apprehended as and when he reached his jurisdiction. He further instructed him that he should be brought to the District Headquarters, Anantnag after his arrest. These statements are obviously untrue in view of the adavit of Shri. Khajuria, Inspector General of Police that the information to the Superintendent of Police, Anantnag was conveyed through the Police Control Room, Srinagar on 10th Sept., 1985. Shri. Mir has not chosen to explain why he expected Shri. Bhim Singh to pass through Qazi Kund that night. Quite obviously even before he had received any information from the Police Control Room about the alleged case registered against Shri. Bhim Singh, Shri. Mir had instructed the oce in charge, Police Station, Qazi Kund to arrest Shri. Bhim Singh if he came within his jurisdiction. Whether he did it on his own and if so, for what reason or whether he did it on other instructions received by him is a matter which requires our consideration. At about 3.00 a.m., according to Shri. Mir,17 35. 18PRISONERS' RIGHTS VOLUME IIShri. Bhim Singh was arrested at Qazi Kund by the ocer in charge of Police Station, Qazi Kund and brought to the District Headquarters where it appears Shri. Bhim Singh was provided with facilities for rest, wash, breakfast, etc. It is necessary to mention here that no adavit has been led before us by the ocer in charge of Police Station, Qazi Kund, the ocer who arrested Shri. Bhim Singh. It appears that under the orders of the Superintendent of Police, Anantnag, Shri. Bhim Singh was taken from Anantnag by Sha Laigroo, Inspector of Police, District Police Lines. Anantnag in a Matador at about 7.30 a.m. on 10th September, 1985. They reached, according to Mohd. Sha Laigroo, Batota at 2.00 p.m. where Bhim Singh was provided with lunch. They reached Udhampur at 5.00 p.m. where Bhim Singh was provided with tea and nally they reached Jammu City Police Station at 7.30 p.m. There they learnt that Bhim Singh was wanted in connection with a case registered by the police of Pacca Danga Station. He was, therefore, taken to Pacca Danga Police Station and handed over to the ocer in charge of Pacca Danga Police Station. Mohd. Amin Amjum, Deputy Superintendent of Police Headquarters, Udhampur and Shri. Rajender Gupta, Probationary Deputy Superintendent of Police, Udhampur were directed by the Senior Superintendent of Police, Udhampur to see to the safe passage of Bhim Singh through Udhampur District. They were informed that Bhim Singh was taken from Anantnag to Jammu in a matador. So they followed the matador in which Bhim Singh was being taken from Chenani Police Station to Jammu and thereafter returned to their respective stations. According to the Inspector General of Police, Shri. Bhim Singh was taken to Police Station Pacca Danga at about 9.30 P.M. On 11th Sept. 1985, a remand to police custody for two days was obtained from an Executive Magistrate First Class. A copy of the application for remand made in Urdu with the endorsement of the Executive Magistrate First Class has been led as an annexure to the adavit of Shri. Khazuria. The endorsement says, Remanded for two days with eect from 11th instant. It is signed by the Magistrate and dated 11th Sept., 1985. Neither the application nor the endorsement shows that Shri. Bhim Singh was produced before the Magistrate when remand was sought. Shri. Bhim Singh expressly denied that he was produced before any Magistrate on 11th. With reference to the remand obtained on 11th Sept. 1985, Shri. Khajuria does not state in his adavit that Shri. Bhim Singh was produced before the Executive Magistrate, First Class on 11th Sept., 1985. But in very careful and guarded language the says, A remand to police custody for two days was obtained by Pacca Danga Police Station from Executive Magistrate, First Class on 11th Sept., 1985. The ocer in charge Police Station, Pacca Danga has not led any adavit. It has to be mentioned here that Shri. Bhim Singh moved an application before the 36. COMPENSATIONExecutive Magistrate on 24th Oct. 1985 to be informed as to the time when remand was obtained from the Magistrate. The Magistrate made the following endorsement on the application of Shri. Bhim Singh : Returned in original to the applicant with the remarks that the remand application was moved before me by the SHO Pacca Danga Jammu on 11th September, 1985 after oce hours in the evening at my residence and the (illegible) remanded the applicant in police custody for a period of two days alone. 3. On the expiry of the remand of two days granted by the Executive Magistrate, a further remand was obtained for one day, this time, not from the Executive Magistrate, First Class, but, from the Sub-Judge. It was probably thought not wise to go before the same Magistrate and ask for a second remand. The application made in Urdu to the Sub-Judge with the endorsement of the Sub-Judge has also been led as an annexure to the Adavit of Shri. Khajuria. The endorsement of the Sub-Judge reads : Application for police remand has been moved by Shri. Bansi Lal (illegible), S. H. 0. P/S Pacca Danga with the submission that the accused Shri. Bhim Singh is sick (Medical Certicate attached) and he be removed to the police lockup as the investigation in the case is still in progress. Perused the police diaries with the SHO and also the medical (illegible) examination slip. The accused is authorised to be left in police lockup for one day. The accused be produced in the Court by tomorrow for further necessary remand orders. 4. The endorsement is signed by the Sub-Judge and is dated 13th Sept., 1985. We have again to mention here that Shri. Bhim Singh requested the Magistrate to give him a copy of the medical certicate purported to have been submitted by the S. H. O. Pacca Danga. On this application, the Sub-Judge made the following endorsement : Shri. Bhim Singh has moved an application requesting this Court to certify the time when the police remand application was moved before me by Police P/S Pacca Danga on 13.9.85. The application is also accompanied with a photostat copy of the remand order passed by me on 13.9.85 as a duty Magistrate. The application in original was forwarded to the I/C Police Station Pacca Danga for report and production of case diaries of the case for perusal, but it has been reported that the case diaries are with SHO who is out on law and order duty. From the perusal of the photostat copies of the remand order and from my recollection, it is certied that the remand application was moved before me at my residence after Court hours in the evening. 5. Shri. Bhim Singh swears in his rejoinder adavit that he was not produced before the Sub-Judge on 13th nor was he examined at any time by any doctor. Shri. Khajuria in his19 37. 20PRISONERS' RIGHTS VOLUME IIadavit again uses very careful language and says, On the expiry of this remand, an application for further remand was submitted before the Sub-Judge (Judicial Magistrate First Class) on 13th Sept., 1985, who extended the remand by one day. Shri. Khajuria does not say a word about Shri. Bhim Singh having been examined by any doctor. He makes no reference to the production of any medical certicate before the Sub-Judge. As already mentioned, the ocer in charge of the Pacca Danga Police Station has not led any adavit before us. Thereafter on 14th Sept., 1985, Shri. Bhim Singh was produced before the Sub-Judge and was remanded to judicial custody for two days with a direction to produce him before the Sessions Judge, Jammu on 16th Sept., 1985. He was accordingly taken to the Court of the Sessions Judge on 16th Sept., 1985, but as the Sessions Judge was absent, he was produced before the Additional Sessions Judge. He was released on bail on his personal bond by the Additional Sessions Judge. That he was produced before the Magistrate on 14th, remanded to judicial custody for two days, produced before the Additional Sessions Judge on 16th and released on bail are facts which are not disputed by Shri. Bhim Singh. In his adavit when he refers to the events of 14th and 16th September, 1985, Shri. Khajuria takes good care to use the words produced before the Sub-Judge and produced before the Additional Sessions Judge. As mentioned by us earlier, with reference to the events on 11th and 13th Sept., 1985, Shri. Khajuria very carefully refrained from using the word produced. He merely said remand was obtained. Shri. Bhim Singh in his supplemental and rejoinder adavits has stated certain facts relating to alleged further harassment by the police. We are not concerned with those further facts for the purposes of this case. We are only concerned with the detention of Shri. Bhim Singh from 3.00 a.m. on 10th Sept., 1985 until he was produced before the SubJudge on 14th Sept., 1985. The two remand orders said to have been made by the Executive Magistrate First Class and Sub-Judge on 11th and 13th Sept., 1985 respectively do not contain any statement that Shri. Bhim Singh was produced either before the Executive Magistrate First Class or before the Sub-Judge. The applications for remand also do not contain any statement that Shri. Bhim Singh was being produced before the Magistrate or the Sub-Judge. Shri Khajuria, the Inspector General of Police has very carefully chosen his words and stated in the adavit that remand orders were obtained. He refrained from stating that Shri. Bhim Singh was produced before the Magistrate or the Sub-Judge on 11th and 13th. The Medical Certicate referred to in the application dated 13th Sept., 1985 has also not been produced and Shri. Khajuria makes no reference to it in his adavit. In addition we have the important circumstance that no adavit of the ocer in charge of the Police Station 38. COMPENSATIONPacca Danga has been led before us. Nor has the adavit of the ocer, who arrested Shri. Bhim Singh has been led before us. At the time of hearing the petition on 19th Nov. 1985, Shri. E. C. Aggarwal stated to us that the adavit of the two police ocers had been got ready but were mislaid. He tried to show us some photostat copies of the alleged adavits and prayed that the case might be adjourned for ling the adavits of the two police ocers. We refused to accede to the request. There was ample time for the respondents to le the adavits of the two police ocers after we issued notice to the respondents. It is not disputed that right from the beginning, they were aware of the writ petition led in this Court. The adavits of Shri. Khajuria and others were led as far back as 16th Oct., 1985 and there was no reason whatsoever for not ling the adavits of the two police ocers at that time. When the complaint was of illegal arrest and detention, the least one would expect the respondents to do is to le the adavits of the ocer who arrested the petitioner and the ocer who produced him before the Magistrate for the purpose of obtaining orders of remand. Instead of ling their adavits, several inconsequential adavits were led perhaps only to confuse the issue. Shri. Khajuria, the Inspector General of Police led a lengthy adavit containing statements of fact, most of which he could not be personally aware. However, he chose to use careful language, as pointed out by us, whenever he referred to the remand of Shri. Bhim Singh or his production before a Magistrate or Sub-Judge. We are convinced that the failure to le the adavits of the ocers, who arrested Shri. Bhim Singh and the Sub-Inspector, in charge of Pacca Danga Police Station was deliberate. They were to be kept back until there was dire necessity. We do not have the slightest hesitation in holding that Shri. Bhim Singh was not produced before the Executive Magistrate First Class on 11th and was not produced before the Sub-Judge on 13th. Orders of remand were obtained from the Executive Magistrate and the Sub-Judge on the applications of the police ocers without the production of Shri. Bhim Singh before them. The manner in which the orders were obtained, i.e. at the residence of the Magistrate and the Sub-Judge after oce hours, indicates the surreptitious nature of the conduct of the police. The Executive Magistrate and the Sub-Judge do not at all seem to have been concerned that the person whom they were remanding to custody had not been produced before them. They acted in a very casual way and we consider it a great pity that they acted without any sense of responsibility or genuine concern for the liberty of the subject. The police ocers, of course, acted deliberately and malade and the Magistrate and the Sub-Judge aided them either by colluding with them or by their casual attitude. We do not have any doubt that Shri. Bhim Singh was not produced either before the Magistrate on 11th or21 39. 22PRISONERS' RIGHTS VOLUME IIbefore the Sub-Judge on 13th, though he was arrested in the early hours of the morning of 10th. There certainly was a gross violation of Shri. Bhim Singhs constitutional rights under Articles 21 and 22(2). Earlier we referred to the circumstance that though Shri. Khajuria, Inspector General of Police stated that information was sent to Superintendent of Police. Anantnag through the Police Control Room, Srinagar on 10th Sept., 1985, Shri. Mir, the Superintendent of Police, Anantnag stated that on 9th Sept., 1985 at 11.30 P.M., he was informed by the Police Control Room, Srinagar that Shri. Bhim Singh was required to be apprehended as he was wanted in a case registered under Section 153A of the Ranbir Penal Code. Nobody cared to explain why it was thought that Bhim Singh would pass through Qazi Kund in Anantnag District on the night of September 9-10. Nobody thought t to explain how and why the Senior Superintendent of Police, Udhampur came to direct his ocers to escort Bhim Singh. It has not been explained how and when the Senior Superintendent of Police, Udhampur came to know of the arrest of Bhim Singh and who required him to arrange for the safe passage of Bhim Singh through Udhampur District. To our minds, it appears as if it was expected that Bhim Singh would proceed from Jammu to Srinagar on the intervening night of 9-10 September, 1985 as there was a meeting of the Assembly on 11th September and the police were alerted to arrest him when sighted en route to Srinagar and take him back to prevent him from proceeding to Srinagar to attend the Session of the Legislative Assembly. We can only say that the police ocers acted in a most highhanded way. We do not wish to use stronger words to condemn the authoritarian acts of the police. If the personal liberty of a Member of the Legislative Assembly is to be played with in this fashion, one can only wonder what may happen to lesser mortals! police ocers who are the custodians of law and order should have the greatest respect for the personal liberty of citizens and should not out the laws by stooping to such bizarre acts of lawlessness. Custodians of law and order should not become depredators of civil liberties. Their duty is to protect and not to abduct. 6. However the two police ocers, the one who arrested him and the one who obtained the orders of remand, are but minions, in the lower rungs of the ladder. We do not have the slightest doubt that the responsibility lies elsewhere and with the higher echelons of the Government of Jammu and Kashmir but it is not possible to say precisely where and with whom, on the material now before us. We have no doubt that the constitutional rights of Shri Bhim Singh were violated with impunity. Since he is now not in detention, there is no need to make any order to set him at liberty, but 40. COMPENSATIONsuitably and adequately compensated, he must be. That we have the right to award monetary compensation by way of exemplary costs or otherwise is now established by the decisions of this Court in Rudul Sah vs. State of Bihar, (1983) 3 SCR 508: (AIR 1983 SC 1086) and Sebastian M. Hongray Vs. Union of India, AIR 1984 SC 1026. When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation. We consider this an appropriate case. We direct the rst respondent, the State of Jammu and Kashmir to pay to Shri Bhim Singh a sum of Rs. 50,000/- within two months from today. The amount will be deposited with the Registrar of this Court and paid to Shri. Bhim Singh. 7. Order accordingly.23 41. Supreme Court of India AIR 1987 SC 355Peoples Union of Democratic Rights vs State of Bihar Ranganath Misra and M.M. Dutt, JJ. 1. Peoples Union for Democratic Rights, an organization said to be committed to the upholding of fundamental rights of citizens has led this application under Article 32 of the Constitution. It is alleged that on 19th April,1986, 600 to 700 poor peasants and landless people mostly belonging to backward classes had collected for holding a peaceful meeting within the compound of Gandhi Library in Arwal, a place within the District of Gaya in the State of Bihar. Without any previous warning by the police or any provocation on the part of the people who had so collected, the Superintendent of Police, Respondent No.3 herein, reached the spot with police force, surrounded the gathering and opened re as a result of which several people were injured and at least 21 persons including children died. The petitioner alleged that separate unocial inquiries have been held into the atrocity and the reports indicated that the number of deaths wa