Mir Mohammed Ali, Petitioner V. State Of A.P.
And Another, Respondents.
DATE : 18-07-2000
2000-(106)-CRLJ -4058 -AP
JUDGE(S) :
M S Liberhan
V V S Rao
ANDHRA PRADESH HIGH COURT
JUDGMENT
V. V. S. RAO, J. :- These two Public Interest Litigation cases
may conveniently be disposed of by a common order as they involve
same questions of fact and law. An Advocate, who is the President
of A.P. Prison Reforms and Legal Aid Committee, filed W.P. No.
32039 of 1998. He prayed for a direction to the State government
to appoint a High Level Commission headed by a sitting or retired
High Court Judge, to visit and inspect all the prisons in the
State and submit a report concerning the conditions of prisons
and prisoners with suggestions as to remedial measures, and to
direct the State Government to provide proper accommodation and
sufficient vehicles and female police escort to transport female
prisoners for the purpose of production in the trial Courts, and
such other related prayers.
2. W.P. No. 6919 is 1999 is filed by a Journalist and Social Worker
praying for a declaration that the action of the respondents viz.,
Government of Andhra Pradesh, Director General of Police, and
the Inspector General of Prisons, in not producing the various
Under Trial prisoners (UT prisoners for brevity), before the trial
Courts as unconstitutional and for other appropriate directions.
3. In W.P. No. 6919 of 1999, the petitioner states that, as a
journalist, he came to be interested in the UT prisoners, who
remained lodged in prisons without being produced before the concerned
Courts for want of police escort. The cases are being adjourned
from time to time for non-production of the UT prisoners. Therefore,
the petitioner addressed a letter to the 2nd respondent on 30-1-1999
to know the response of the respondents. The 2nd respondent by
letter dated 10-2-1999 informed the petitioner that the State
Level Review Committee for UT prisoners in its meeting held on
21-8-1998 proposed to create additional police force to perform
the escort duty, and that the decision of the Government in that
behalf is awaited, and that for want of police escort, the UT
prisoners could not be produced before the Courts.
4. The Additional Inspector General of Prisons, filed counter-affidavit
on behalf of the 2nd respondent inter alia stating that as on
3-7-1999, there are, 9,797 UT prisoners in the State, constituting
70 to 80% of the total prison population, which are overpopulated.
As per Rule 10(i) of the Andhra Pradesh Prisoners (Attendance
in Courts) Rules, 1977, it is the duty of the Department of Police
to provide escort to the prisoners attending the Courts. As and
when the prisoners are required to be produced before the Court,
the Superintendent of Prisons, requests the District/Local/City
Police to provide police escort. Due to inadequate strength of
police escort, the prisoners could not be produced in the Courts
at all times on the dates of hearing. For the twin cities of Hyderabad-Secunderabad,
the Government sanctioned three platoons of armed police, which
itself is not sufficient to produce all the prisoners in the Central
Prisons and jails in twin cites, resulting in non-production of
the UT prisoners in the Courts. The counter-affidavit of the 2nd
respondent also states that the State level Review Committee for
UT prisoners, consisting of high officials in its meeting held
on 21-8-1998 visualized the problem and recommended to create
seven additional platoons of police, one each at the Central Prisons
of Cuddapah, Rajahmundry, Vijayawada and Warangal and three District
Jails at Guntur, Nellore and Vijayawada. Accordingly, the Department
of Prisons sent proposals to the Government for sanctioning the
said additional platoons at a total cost of Rs. 3.80 crores, and
that orders of the Government in that behalf are awaited.
5. The 1st respondent filed counter-affidavit through its Principal
Secretary to Government in Home Department. While, reiterating
the averments, which were already made by the 2nd respondent,
the 1st respondent states that with a view to reduce the over-crowding
of UT prisoners in the prisons, the matter is being periodically
reviewed by the Government, the Director General of Police, and
Inspector General of Prisons, and concerted efforts are being
made to make available escort personnel for production of UT prisoners
before the Courts. Towards this goal, the Government also sanctioned
three platoons of armed police personnel, exclusively for the
purpose of providing escort to the UT prisoners of Central Prisons
in Hyderabad and Secunderabad. The 1st respondent also states
that in view of the financial position, the State Government is
not able to agree to the proposal/recommendation made by the State
Level Review Committee for UT prisoners on 21-8-1998. However,
detailed instructions were issued on 22-2-1999 to the 2nd respondent
and 3rd respondent to improve the position of provision of escorts.
Further, the 3rd respondent issued a Circular on 29-5-1999 instructing
the District Superintendents of Police to entrust to the Superintendent
of Police, the duty of co-ordination of police escort to UT prisoners,
who is to properly utilize the man-power, draw maximum strength
of escort for the prisoners and also decide the cases where escort
is being provided on day to day basis with a view to promptly
produce the UT prisoners before the concerned Courts.
WP No. 32039 of 1998 complains about over-crowding of prisons,
non-provision of lady escort police when women prisoners are produced
before the Courts, and other allegations are the same. The counter-affidavit,
filed by the Assistant Secretary to Government in Home Department,
on behalf of the respondents, denies that the conditions in the
Jails in the twin cities of Hyderabad and Secunderabad and other
prisons in the State are in worst condition. The Government allocated
Rs. 411 lakhs under the 10th Finance Commission, providing for
repairs to the existing buildings, water facilities and sanitation,
and that the works were stated in 1997 and are likely to be completed
by 31-3-2000. In addition to this, the Government sanctioned funds
for construction of more prison buildings, cells and hospitals
wherever necessary, and therefore, after construction of the proposed
buildings, the over-crowding in the jails would be reduced. Proper
medical facilities have been provided in all the jails with regular
Medical Officers, Pharmacists and Male Nursing Officers. As a
measure of reforms of the Government has ordered payment of wages
to the prisoners for the work they do in the prisons, besides
providing T.V., Indoor Games, Library for their recreation. As
per Rule 27 of the Prison Rules, 1979, 'non-official' visitors
are appointed in all the Jails for making suggestions for providing
better facilities to the prisoners. The High Court has also directed
the District and Sessions Judges to visit the jails in their respective
jurisdictions and submit report. After receiving the reports,
the Department has implemented the suggestions made by the District
Judges, and therefore, there is no necessity to appoint any Committee.
6. As the matter is of importance, involving the 'liberty' of
large number of citizens, this Court requested Sri S. Ramachandra
Rao, learned Senior Counsel, and Sri M. S. Ramachandra Rao, a
learned Advocate, to assist the Court as Amicus Curiae. Both the
counsel, who assisted the Court in an admirable manner, submitted
that the detention of the citizens as UT prisoners without producing
them before the Courts for the purpose of trial would result in
violation of fundamental right to speedy trial guaranteed by the
Constitution of India under Article 21. Both the counsel therefore
made a fervent plea to this Court to enlarge the scope of the
writ petition and pass appropriate orders, not only for expeditious
trial of the long pending cases but also issue directions to release
the UT prisoners where they have been kept as such for unduly
long period. Therefore, on 7-2-2000, this Court issued directions
as under :
"...... The learned Government Pleader shall furnish details
regarding the under trial prisoners lodged in various jails in
the State including Central Prisons, Sub-Jails etc., with respect
to their date of detention, date of remand to the judicial custody,
the offence with which they were charged, number of times they
were produced in Court, number of times they were not produced,
the maximum punishment for the offence, the reasons for their
non-production in Courts etc. The information shall be furnished
with respect to all the under trial prisoners lodged in various
jails in the State."
7. The learned Additional Advocate-General submitted the voluminous
statements containing the particulars of UT prisoners in the State.
These details are furnished for a total number of UT prisoners
numbering about 9800. After considering the statement, which is
by all standards, very bulky (about 400 pages), on 18-4-2000 we
passed the following order :
"The learned Additional Advocate-General is directed to come
forward with the following information tomorrow
1. List of under-trial prisoners who are required to be released
fortwith.
2. List of under-trial prisoners in whose cases any medical aid
or specific order is required; and
3. List of under-trial prisoners in whose cases for further detention
specific order by the concerned Sessions Judge is required.
The above information shall be furnished to the Court keeping
in view the nature of offences committed by the under-trial prisoners
lodged in various jails in the State and the maximum sentence
that they have to undergo in case they are convicted."
8. When the case was called on 19-4-2000, the learned Addl. Advocate-General,
Sri K. Prakash Reddy, did not submit the information as directed
by this Court, but filed a statement showing the particulars of
647 UT Prisoners remanded from A.P. Prohibition Act, 1995 (378),
A.P. Excise Act, 1968 (196), Motor Vehicles Act, 1988(2), A.P.
(Andhra) Gambling Act, 1930(13), A.P. Prevention of Damage to
Public Property Act (44), Immoral Traffic (Prevention) Act, (20),
A.P. Forest Act, 1967(3) (The number of UT Prisoners remanded
under each Act is shown in the brackets.). The learned Addl. Advocate-General,
prayed for time. As the matter is pending before this Court since
June 1999 we refused adjournment. We heard learned Amicus Curiae
and the learned Additional Advocate-General.
9. After perusing the entire material we ourselves arrived at
the following figures :
Statement showing the number of UT Prisoners detained in various
prisons for offences punishable with imprisonment up to one year,
1-3 years, 4-7 years and more than 7 years. -------------------------------------------------------------------------------
Punishment up to Prison ----------------------------------------------------------
One year 1-3year 4-7 years More than Total 7 yrs. -------------------------------------------------------------------------------
Central Prison 72 1026 357 1618 3073
District Prison 28 524 377 1160 2089
Sub-Jails 230 1025 451 1835 3541 ---------------------------------------------------------
Total 330 2575 1185 4613 8703 -------------------------------------------------------------------------------
Statement showing the number of UT Prisoners detained in various
prisons -------------------------------------------------------------------------------
Detained for Prison ------------------------------------------------------------------------
One year 1-3 year 4-7 years More than Total 7 yrs. -------------------------------------------------------------------------------
Central Prison 2810 186 10 7 2
District Prison 200 81 7 10 3
Sub-Jails 3512 65 10 - - -------------------------------------------------------------------------------
No. of persons detained for the period more than the sentence
: 11
No. of persons detained in all prisons who are involved in Multiple
cases : 250
Statement showing the particulars of UT Prisoners in various jails
not produced in Courts for want of police escort. -------------------------------------------------------------------------------
Prison 0-5 6-10 11-15 16-20 20 times times times times times &
above -------------------------------------------------------------------------------
Central 1077 200 78 34 63
District 117 10 4 - -
Sub-Jails 101 24 2 - 1 -------------------------------------------------------------------------------
10. The learned Amicus Curiae has filed charts showing the particulars
of the maximum punishment prescribed under the law, the date of
arrest of the U.T. prisoner, the total period suffered as U.T.
prisoner and how many times the authorities did not produce them
before the Courts. Based on the statements the learned Senor Counsel
submits that there are large number of instances where the UT
Prisoners were not produced before the Court for want of sufficient
police escort, which in some cases has either resulted in the
UT prisoners being detained for unduly longer period or in detaining
them in excess of the maximum period of sentence, prescribed.
The law recognises that all the prisoners have enforceable fundamental
rights, except that their right to liberty is curtailed. All the
prisoners have right to life with human dignity. It is inhuman
to detain the citizens as under trials without speedy trial and
without the benefit of 'bail'. Therefore, the learned Senior Counsel
would submit that under Art. 226 of the Constitution of India
this Court has ample power and it is the duty of the Court to
pass necessary orders for the speedy trial as well as for release
of such of those UT prisoners who remained in jail for longer
period than the maximum sentence or for longer period which is
substantial period of
sentence. He relied on the various Judgments of the Supreme Court
in Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360 : (1979
Cri LJ 1036), Hussainara Kharoon v. Home State of Bihar, AIR 1979
SC 1369 : (1979 Cri LJ 1045), Hussainara Kharoon v. State of Bihar,
AIR 1979 SC 1377 : (1979 Cri LJ 1052), Hussainara Khatoon v. State
of Bihar, AIR 1979 SC 1819 : 1979 Cri LJ 1134), D. Bhuvan Mohan
Patnaik v. State of A.P., AIR 1974 SC 2092 : 1975 Cri LJ 556,
Sunil Batra v. Delhi Administration, AIR 1978 SC 1675 : 1978 Cri
LJ 1741, Francis Coralie Mullin v. Union Territory of Delhi, AIR
1981 SC 746 : 1981 Cri LJ 306, Rama Murthy v. State of Karnataka,
AIR 1997 SC 1739 : (1997) 2 SCC 642 : (1997 Cri LJ 1508), Common
Cause (I) v. Union of India, (1996) 4 SCC 33 : AIR 1996 SC 1619
: 1996 Cri LJ 2380, Common Cause (II) v. Union of India, (1996)
6 SCC 775 : 1997 Cri LJ 195, Raj Deo Sharma (I) v. State of Bihar,
(1998) 7 SCC 507 : 1998 Cri LJ 4596 and Raj Deo Sharma (II) v.
State of Bihar, (1999) 7 SCC 604 : 1999 Cri LJ 4541.
11. The learned Amicus Curiae submits that the Court may consider
the following :
1. To hold detention of all Under-trial prisoners without production
before the concerned Court as unconstitutional violating the fundamental
rights guaranteed under Arts. 14, 21 and 22 of the Constitution
of India.
2. To direct release of UT Prisoners who are detained for more
than three months and not produced for two times on bail on execution
of personal bond.
3. To direct release of UT Prisoners who are detained for more
than one year facing charges of offences punishable with death/imprisonment
for life or twenty years under the Narcotics Drugs Act on bail
on execution of personal bond.
4. In respect of those prisoners who do not fall under the categories
(3) and (4), to direct the concerned lower Court to complete the
trial within three months failing which they be released on bail
on executing a personal bond; and
5. To pay compensation to such of those prisoners who are unjustly
detained in the prisons without production before the concerned
Courts.
12. The learned Addl. Advocate-General, Sri K. Prakash Reddy,
submits that the concerned Magistrates may consider those of the
UT Prisoners who are remanded under the various Acts other than
Indian Penal Code for release on bail or discharge. He further
submits that the directions issued by the Supreme Court in Common
Cause and Raj Deo Sharma cases have to be read in the light of
the subsequent Judgment of the Supreme Court in Raj Deo Sharma
(II) and if the principles are applied, all the persons who are
remanded for offences attracting the maximum punishment of 7 years
and above cannot be ordered to be released on bail or discharge.
13. The only point that arises for our consideration is whether
the UT prisoners be ordered to be released on bail or they be
directed to be discharged or acquitted by the concerned Court
of Sessions or Court of Magistrate in the light of various decisions
of the Hon'ble Supreme Court in Common Cause and Raj Deo Sharma.
14. For the purpose of comprehension, we would like to recapitulate
the legal and constitutional aspects of the right to speedy trial.
The International Bill of Human Rights comprising Universal Declaration
of Human Rights, (U.N. Declaration for brevity), International
Covenant on economic, social and cultural rights and International
Covenant on Civil and Political Rights also deal with the rights
of the offenders. India is a signatory to the U.N. Declaration
as well as two International Covenants on social rights and political
rights. Articles 3, 5, 9, 11 and 29 of U.N. Declaration guarantee
humane treatment of persons charged with penal offences and ensures
public trial of the offenders at which an offender will be given
all guarantees necessary for the defence. Articles 7 and 10 of
the International Covenant on Civil and Political Rights obligate
the signatory States to treat the accused and convict with humanity
and respect for inherent dignity of human persons. Article 3 of
European Convention on Human Rights provides that every accused
shall be entitled to be tried within reasonable time. The VI Amendment
to U.S. Constitution treats the right to speedy trial as a fundamental
human right. Be that as it may, the Bill of Rights of Indian polity
entrenched in Part III of the Constitution of India tacitly recognises
enforceable fundamental right to speedy trial. This is no more
'res integra'.
15. Article 21 of the Constitution of India mandates that the
right of life and liberty cannot be taken away except in accordance
with the procedure established by law. The purposive and contextual
interpretation of Article 21 of the Constitution by the Hon'ble
Supreme Court has now established that the procedure, which does
not provide for speedy trial cannot be regarded as reasonable,
fair or just and, therefore, speedy trial is an integral and essential
part of fundamental right to life. (see Hussainara Khatoon (I),
State of Maharashtra v. Champalal Punjaji Shah, (1981) 3 SCC 610
: 1981 Cri LJ 1273, Abdul Rahman Antulay v. R. S. Nayak, (1992)
1 SCC 225 : 1992 Cri LJ 2717 and Kartar Singh v. State of Punjab,
(1994) 3 SCC 569 : 1994 Cri LJ 3139.
16. In Antulay's case a Constitution Bench of the Supreme Court
while reaffirming that fair, just and reasonable procedure implicit
in Art. 21 of the Constitution creates in an accused the right
to speedy trial, emphasized that the said right encompasses all
the stages, namely, the stage of investigation, inquiry, trial,
appeal, revision and retrial and that no restricted view can be
taken by the Court. As the learned Additional Advocate-General
could not and has not disputed the Constitutional position vis-a-vis
right to speedy trial of all the UT prisoners, we need not elucidate
further.
17. After Hussainara Khatoon (I) (supra), there was a spurt of
Public Interest Litigation before the Supreme Court invoking epistolary
jurisdiction of the Court by public-spirited citizens as well
as the prisoners undergoing incarceration. All the subsequent
decisions of the Supreme Court relied on the series of orders
in Hussainara Khatoon. The conspectus of the decisions/orders
in Hussainara case is as under :
i) The right to speedy trial is a fundamental right under Art.
21 of the Constitution.
ii) When the trial is not completed expeditiously within a reasonable
time, it is unconstitutional to keep the untried detenu in the
gaol. Therefore, the UT Prisoners should be informed of their
rights under section 167(2) of the Code of Criminal Procedure,
1973 and should be released on personal bond keeping the amount
of the bond at a reasonable quantity depending on the individual's
socio-economic background.
iii) "The State cannot avoid its constitutional obligation
to provide speedy trial to accused by pleading financial or administrative
inability."
iv) All the UT Prisoners who have been in jail for periods longer
than the maximum term for which they could have been sentenced
if convicted should be released forthwith as "continuance
of their detention is clearly illegal and in violation of their
fundamental right under Art. 21 of the Constitution ".
v) All the UT Prisoners charged with bailable offences but were
not released on bail as no application was made on their behalf,
should be informed of their right to bail, provided with legal
services on next remand dates at the cost of the State and if
any application is made, the bail applications should be disposed
of by taking personal bond for a reasonable amount.
vi) In the case of UT Prisoners who are accused of multiple offences,
if they have been in prison for a maximum term for which they
could have been sentenced on conviction even if the sentences
awarded to them were consecutive and not concurrent, should be
released forthwith. The UT Prisoners who are accused of multiple
offences and who have been in jail for a period longer than the
maximum punishment for which they could be sentenced on conviction,
on the basis of the sentences being concurrent though the sentences
were directed to run consecutively, could not be said to have
exceeded the maximum term and, therefore, on furnishing personal
bond those UT Prisoners accused of multiple offences should be
released unconditionally.
18. Again in Common Cause (I), the Supreme Court issued 'directions
to be valid for all States and Union Territories in India'. These
include directions to release the UT prisoners who have been in
jail exceeding certain period and where trial has not been completed
on furnishing bail or personal bond and to discharge traffic offenders
where the proceedings are pending for more than two years subject
to same conditions. The Supreme Court, however, specifically stated
that the benefit of release on bail or release on discharge shall
not apply to cases of corruption, smuggling, Arms and Explosives,
TADA etc. In Common Cause (II) these directions were modified.
19. In Ramamurthy's case (supra) the Supreme Court treated a letter
addressed by a person of Central Jail, Bangalore as a writ petition
and considered the question of overcrowding in jails, torture
and-illtreatment of prisoners, the basic amenities to be provided
to the prisoners and delay in trial. The Supreme Court referred
to the earlier Judgments of the Court in State of Maharashtra
v. Prabhakar, AIR 1966 SC 424 : (1966 Cri LJ 311); Suresh Chandra
v. State of Gujarat, AIR 1976 SC 2462 : (1976 Cri LJ 1890); D.
B. M. Pattnaik (supra); Charles Sobraj v. Supdt., Central Jail,
Tihar, AIR 1978 SC 1514 : (1978 Cri LJ 1534); Sunil Batra (I)
(supra); Prem Shankar v. Delhi Administration, AIR 1980 SC 1535
: (1980 Cri LJ 930); Sunil Batra (II) v. Delhi Administration,
AIR 1980 SC 1579 : (1980 Cri LJ 1099); Francis Coralie's (supra),
Supreme Court Legal Aid Committee representing UT Prisoners v.
Union of India, (1994) 6 SCC 731 : (1994 AIR SCW 5115); Shaheen
Welfare Association v. Union of India, (1996) 2 SCC 616 : (1996
Cri LJ 1866); R. D. Upadhyay v. State of A.P., (1996) 3 SCC 422
and Common Cause case (I) (supra), and observed that "the
journey which commenced in 1966 has thus during the last 30 years
planted many mile-stones. But there are still promises to keep
and miles to go before one can sleep." It was also ordained
that, "the directions issued in Common Cause (I) should be
implemented.
20. The issue of release of UT Prisoners for denying speedy trial
again came up in Raj Devo Sharma (I). In this case, Raj Deo Sharma
prayed quashing an FIR under sections 5(1)(c) and 5(2) of Prevention
of Corruption Act, 1947 on the ground of long delay. A Division
Bench of the Supreme Court after referring to all the relevant
Judgments issued directions, in addition to and without prejudice
to the directions issued by the Supreme Court in Common Cause
(I). It is apposite to extract these directions :
i) In cases where the trial is for an offence punishable with
imprisonment for a period not exceeding seven years, whether the
accused is in jail or not, the Court shall close the prosecution
evidence on completion of a period of two years from the date
of recording the plea of the accused on the charges framed whether
the prosecution has examined all the witnesses or not within the
said period and the Court can proceed to the next step provided
by law for the trial of the case.
ii) In such cases as mentioned above, if the accused has been
in jail for a period of not less than one-half of the maximum
period of punishment prescribed for the offence, the trial Court
shall release the accused on bail forthwith on such conditions
as it deems fit.
iii) If the offence under trial is punishable with imprisonment
for a period exceeding 7 years, whether the accused is in jail
or not, the Court shall close the prosecution evidence on completion
of three years from the date of recording the plea of the accused
on the charge framed, whether the prosecution has examined all
the witnesses or not within the said period and the Court can
proceed to the next step provided by law for the trial of the
case, unless for very exceptional reasons to be recorded and in
the interest of justice the Court considers it necessary to grant
further time to the prosecution to adduce evidence beyond the
aforesaid time-limit.
iv) But if the inability for completing the prosecution within
the aforesaid period is attributable to the conduct of the accused
in protracting the trial, no Court is obliged to close the prosecution
evidence within the aforesaid period in any of the cases covered
by clauses (i) to (iii).
v) Where the trial has been stayed by orders of the Court or by
operation of law, such time during which the stay was in force
shall be excluded from the aforesaid period for closing the prosecution
evidence."
21. In Raj Deo Sharma (II), on a review application made by the
CBI, the Supreme Court clarified that the additional period of
one year may be claimed by the prosecution in respect of prosecutions
which are pending on the date of Judgment in Raj Deo Sharma (I)
and that the Court concerned would be free to grant such extension
if the Court considers necessary in the interests of administration
of criminal justice.
22. We would also like to briefly notice the legal position of
the right of UT prisoners from the point of view of human rights
after coming into force of The Protection of Human Rights Act,
1993. "Human Rights" have not been defined in an objective
manner. The Universal Declaration of Human Rights in 1948 enumerated
at least 27 such broad rights, which are necessary for establishment
of social and international order in which the rights and freedoms
can be realised. In the Indian context, Part III of the Constitution
and Part IV of the Constitution contain quite a number of rights,
which may be termed as human rights. Some of these fundamental
rights are akin to the rights enumerated in other International
Treaties and Charters.
23. The Human Rights Act by Clause (f) of Section 2 defines the
International Covenants as meaning the International Covenant
on Civil and Political Rights and International Covenant on Economic,
Social and Cultural rights adopted by the General Assembly of
the United Nations on 16th December, 1966. The term "Human
Rights" is defined in clause (d) of Section 2 to mean the
rights relating to life, liberty, equality and dignity of the
individual guaranteed by the Constitution or embodied in the International
Covenants and enforceable by Courts in India. In Hussainara Khatoon
(I) supra, the Supreme Court held that "expeditious trial
and freedom from detention are part of human rights and basic
freedoms". Therefore, it should be taken as well settled
that denial of right to speedy trial and lengthy unconvicted detention
violates fundamental right and human right. We, accordingly hold
that denying speedy trial on the ground that the UT prisoners
could not be produced before the Courts for want of adequate and
sufficient police escort, violates the fundamental rights and
human rights of UT prisoners under Articles 14 and 21 of the Constitution
of India.
24. Nextly, we may dispose of the plea taken by the State, that
the financial constraints of the State do not permit provision
of adequate and sufficient police escort to take the prisoners
to the Criminal Courts. A convicted person or an unconvicted remandee
is deprived of liberty by the State's action. Therefore, it is
the duty of the State to justify such deprivation because pre-trial
"prison inmates depend upon the State for all aspects of
their life". In the case of a convict, there is justification
if the prisoner is detained for the required length of sentence
period, but in the case of an unconvicted under-trial detention,
which is of unfairly a longer period, cannot satisfy the 'reasonable
and rational procedure established by law'. Therefore, it is the
duty of the State to see that UT prisoners are brought to trial.
Over-crowded Courts, inadequate human resources to run the justice
delivery system and fiscal deficiency cannot be justifiable reasons
when a person is deprived of his liberty. Larger societal interest
is involved in the speedy trial, for the UT prisoner is deprived
of his job, his family ties, emotional well-being, and his right
to effectively defend the charge.
25. In Ratlam Municipality v. Vardhichand, AIR 1980 SC 1622 :
(1980 Cri LJ 1075), the Hon'ble Supreme Court ruled that "the
State cannot escape its public responsibility by pleading financial
bankruptcy ". In Hussainara Khatoon (II), (order dated 9-3-1979),
the Hon'ble Supreme Court held that Part III and Part IV of the
Constitution do not permit the Government of the day to deprive
its citizens of human right to liberty on the plea of penury and
poverty. The Hon'ble Supreme Court after referring to various
American decisions held as follows
"The State cannot avoid its constitutional obligation to
provide speedy trial to the accused by pleading financial or administrative
ability. The State is under a constitutional mandate to ensure
speedy trial and whatever is necessary for this purpose has to
be done by the State. It is also the constitutional obligation
of this Court, as the guardian of the fundamental rights of the
people, as a sentinel on the qui vive, to enforce the fundamental
right of the accused to speedy trial by issuing the necessary
directions to the State which may include taking of positive action,
such as augmenting and strengthening the investigative machinery,
setting up new Courts, building new Court houses, providing more
staff and equipment to the Courts, appointment of additional Judges
and other measures calculated to ensure speedy trial .......".
26. We respectfully follow the above binding observations and
reject the defence taken by the State.
27. Another submission made by the amicus curiae pertains to awarding
of compensation for the unconstitutional pre-trial detention suffered
by the UT prisoners. In Nilabati Behera v. State of Orissa, AIR
1993 SC 1960 : 1993 Cri LJ 2899 and D. K. Basu v. State of West
Bengal, AIR 1997 SC 610 1997 Cri LJ 743, the Supreme Court held
that the claim in public law for compensation for contravention
of human rights is an acknowledged remedy for enforcement of fundamental
rights, and that the said remedy in public law jurisdiction is
without prejudice to any other action like civil suit for damages
with respect to same matter for the tortious act committed by
the fuctionaries of the State. Thus the relief to redress the
wrong for violation of fundamental rights by awarding compensation
under public law jurisdiction is in addition to the conventional
remedies. The legal position is well-settled in this branch of
public law. However, for the purpose of this case, in the absence
of all details, by way of affidavit evidence or otherwise, we
leave the question open, to be agitated by any individual UT Prisoner,
if so advised, either by way of suit or Writ Petition.
28. In W.P. No. 32039 of 1998, the petitioner complained of over-crowding
in prisons and also prayed for providing facilities. We only hope
that the respondents would implement the various guidelines given
by the Supreme Court in Ramamurthy's case (supra), as it dealt
with all the aspects raised by the petitioner.
29. Keeping in view the various judgments of the Hon'ble Supreme
Court, dealing with the problem of UT prisoners, especially the
judgments in Hussainara Khatoon, Common Cause and Raj Deo Sharma
cases we issued the following directions :
1. All the UT prisoners, who have been remanded for offences under
A.P. Prohibition Act, 1995, A.P. Excise Act, 1968, Motor Vehicles
Act, A.P. (Andhra) Gambling Act, 1930, A.P. Prevention of Damage
to Public Property Act, Prevention of Immoral Traffic Act, A.P.
Forest Act, 1967 shall be released (discharged or acquitted) forthwith,
if they have been in jail for periods longer than the maximum
term for which they could have been sentenced if convicted;
2. All the UT prisoners, who have been in remand for offences
other than the offences under the various Acts mentioned in Clause
(1) above, including the offences under IPC, shall be released
(discharged or acquitted) forthwith if they have been in jail
for periods longer than the maximum term for which they could
have been sentenced if convicted;
3. All UT prisoners other than those referred to in Clauses (1)
and (2) above, who have been in jail for a period of not less
than one half of the maximum period of punishment prescribed for
the offence shall be released on bail forthwith in accordance
with the directions issued by the Supreme Court in Common Cause
v. Union of India (1994) 4 SCC 33, as modified in (1996) 6 SCC
775 and Raj Deo Sharma v. State of Bihar, (1998) 7 SCC 507;
4. All the Criminal Courts, including the Sessions Courts, shall
try the offences where the UT prisoners cannot be released, as
directed by the Supreme Court in Common Cause case on priority
basis by following the provisions of Section 309 of the Code of
Criminal Procedure, 1973;
5. All the UT prisoners who are accused of multiple offences and
who have been in jail for maximum term for which they could be
sentenced on conviction, even if the sentences awarded to them
were consecutive and not concurrent, shall be released/discharged
forthwith;
6. Other UT prisoners accused of multiple offences, shall be released
on bail on furnishing a personal bond in an appropriate amount;
7. For the purpose of above directions for release on bail, all
the Criminal Courts on the next date fixed for extension of remand
or otherwise shall suo motu on the authority of this order shall
consider the bail cases and grant bail on the UT prisoners furnishing
personal bond for appropriate amount and in appropriate cases
sureties also;
8. We direct the High Level Committee, constituted in terms of
G.O. Ms. No. 317, dated 16-10-1999 to monitor the cases of UT
prisoners regularly and take all necessary steps for production
in the concerned criminal Court;
9. All the mentally challenged/mentally retarded UT prisoners,
including three UT prisoners, who have been under detention for
18 years, 15 years and 6 years, shall be dealt with in accordance
with the provisions of Chapter XXV of the Code of Criminal Procedure,
1973. If the Medical Officer of the State Government certifies
that the UT prisoner is mentally healthy, all such UT prisoners
who completed maximum sentence period shall be released forthwith;
and all such persons of unsound mind shall forthwith be shifted
to any Government Institute of Mental Health pending necessary
orders from the competent Criminal Court for release of such persons.
10. The directions issued in this order shall be complied with
within a period of two weeks by all the authorities and Courts
viz., Sessions Courts, the Courts of Magistrates of I Class, Superintendents
of Central Jails, District Jails, Sub-Jails, and the respondents
herein;
11. We also direct all the District Judges to regularly visit
the Central Jails, District Jails and Sub-Jails within their respective
jurisdictions and take appropriate action as per the provisions
of the Code of Criminal Procedure, 1973, the Prisons Act and Jail
Manual.
12. All the Superintendents of Central Prisons, District Jails
and Sub-Jails, shall take all necessary steps to bring the directions
given hereinabove to the notice of all the UT prisoners in their
custody. Inspector General of Prisons and Director General of
Correctional Services, Government of Andhra Pradesh, shall send
a copy of this order to all the jail authorities with specific
instructions to bring this to the notice of all the UT prisoners
by supplying translated copies, displaying on notice board, and
by announcing the directions during daily/weekly prison assembly
meetings.
30. The effort put by Sri S. Ramachandra Rao, learned Senior Counsel,
the amicus curaie, is stupendous. We are grateful to the amicus
curaie for the able assistance given to the Court. We also record
our appreciation for the assistance rendered by Sri M. S. Ramachandra
Rao, learned amicus curaie.
31. We accordingly dispose of the writ petitions with the above
directions. There shall be no order as to costs.
Order accordingly.
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