PHOOLAN DEVI ETC.versusSTATE. OF M.P. AND ORS. ETC.

                          PHOOLAN DEVI ETC.                                        A
                                       v.
                    STATE. OF M.P. AND ORS. ETC.

                           NOVEMBER 27, 1996

           [J.S. VERMA AND SUJATA V. MANOHAR, JJ.]                                 B

       Constitution of India /95<>-""A1ticles 21 and 32:--Speedy Tiial-Writ
Petition filed seeking direction for release and quashing the criminal trial-Ab-
sence of valid order for detention-Held, entitled to be released-Long con-
tinuance of prosecution/trial by itself not enough to quash the same.              c
       The petitioner surrendered before the State of Madhya Pradesh on
certain terms and conditions for her past criminal activities. One of the
conditions that, she was to undergo imprisonment for 8 years only. The
State of Uttar Pradesh filed a number of cases against the petitioner for
alleged offences of dacoity and murder. After 11 years of her surrender,           D
petitioner tiled writ petition under Article 32 of the constitution for her
release from custody and quashing of the criminal trial pending before the
Courts in Uttar Pradesh.

       On behalf of the petitioner, it "as contended that, she was required        E
 to serve the sentence of 3 years imprisonment in the only case pending in
.the State of Madhya Pradesh and further contended that her right to
 speedy trial guaranteed under Article 21 of the Constitution has been
 violated and her continued custody was without any lawful authority, and
 the custody for 11 years was sufficient to satisfy this requirement and all
 the prosecutions pending against her in Uttar Pradesh courts should be            F
 quashed and her release on parole should be converted into direction for
 her final release.

      Disposing of the writ petition, this Court

      HELD : 1.1. The question whether the blame for the entire delay in G
the prosecution trial in each o( those criminal cases lies on the State alone
and not the petitioner is a question of fact to be considered in each of those
cases. Merely because of the lapse of several years since the commence-
ment of those proseeutions it cannot be said that for that reason alone the
continuance of the prosecutions would violate the petitioners' right to H
                                      233
    234                  SUPREME.COURT REPORTS [1996] SUPP. 9 S.C.R.

A speedy trial. That the violation of her right to speedy trial is proved by
    these facts alone to justify quashing of all the prosecution is, therefore
    untenable. [236-H; 237-A; C·Dl

          2.1. No authority has been shown either by the State of Madhya
    Pradesh or by the State of Uttar Pradesh to justify further custody of the
B   petitioner at this juncture. This is however, subject to the requirement of
    any order made hereafter by way of competent courts in any of the pending
    prosecution against the petitioner. The petitioner .is therefore entitled to
    release at present unless by any orders made hereafter by any competent
    court, she is required to be taken in custody. [237-F-GJ
c         3.1. The petitioner, who is on parole by virtue of order dated
    February 18, 1994 made in this case, shall continue to remain free, subject
    to the requirement of taking her in custody by virtue of any order made
    by a competent court/authority in any of the prosecutions pending in the
    State of U.P. [238-A·B)
D
         3.2. The petitioner's prayer in the writ petition for quashing the
    prosecution in the State of Uttar Pradesh is rejected. [238-B)

          CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl} No.
    43 of 1993 etc.
E
          (Under Article 32 of the Constitution of India.)

          Ram Jethmalani, Guiab Gupta, Ms. Kamini Jaiswal, Anil Kumar Jha,
    (NP}, Uma Nath Singh for State of M.P., A.S. Pundir for State of U.P.,
    T.C. Sharma, for C.V. Sobba Rao, for Union of India, A.K. Srivastava and
F   D.S. Mehra for NCT, Delhi, M.A. Krishnamoorthy for the appearing
    parties.

          The Judgment/Order of the Court was delivered by :

           J.S. VERMA, J. The petitioner - Smt. Phoolan Devi was in custody
G   since February 12, 1983 when she claims to have voluntarily surrendered
    in the State of Madhya Pradesh with a criminal past. She was in the Central
    Jail at Gwalior in Madhya Pradesh. In this writ Petition filed in January,
    1993 under Article 32 of the Constitution she has prayed for a direction
    for her release from custody; and an appropriate writ, order or direction
H   quashing the large number of prosecutions initiated against her by the State
                PHOOLAN DEVI v. STATE [J.S. VERMA, J.]                    235

of Uttar Pradesh for commission of heinous offences, e.g. dacoity and            A
murder. In substance, she claims that her right to speedy trial guaranteed
under Article 21 of the Constitution has been violated and her continued
custody was without any lawful authority. By an order dated February 18,
1994 this Court directed release of the petitioner on parole in view of the
fact that the petitioner had been in custody for a peri9d of eleven years till
                                                                                 B
then. The petitioner is on parole pursuant to that order.

        The petitioner alleges that atrocities were committed on her and
members of her family by persons belonging to the upper castes and she
was also the victim of gang rape which drove her to adopt a life of crime;
this criminal past is the cause for a large number of criminal cases for C
offences of dacoity and murder etc. against her in the State of Uttar
Pradesh. She alleges that she had surrendered on certain terms and con-
ditions offered to her by the Government of Madhya Pradesh; those terms
included, inter alia, the assurance that she would be released from custody
after eight years; she would be tried in the courts in Madhya Pradesh only D
even for the crimes alleged to have been committed in the State of Uttar
Pradesh; and death penalty would not be imposed in any case. On this basis
it is claimed that the custody for eleven years undergone by the petitioner
is sufficient to satisfy this requirement and all the prosecutions pending
against her in the courts in Uttar Pradesh should be quashed. According
to the petitioner there are about 55 criminal prosecutions against her in E
the courts in U ttar Pradesh alleging the commission of heinous offences
like dacoity and murder by her.

       Shri Ram Jethmalani, learned counsel for the petitioner, strenuously
urged that there· is no justification for continuing the prosecution of the      F
petitioner in any of the criminal cases pending against her in the courts of
Uttar Pradesh, since the petitioner has already been in custody for a total
period of eleven years when according to the terms of surrender she was
required to undergo imprisonment for a total period of eight years only.
He submitted that to honour this commitment the petitioner did not               G
challenge the order dated August 13, 1986 passed by th·e Government of
Madhya Pradesh in the purported exercise of power under Section 268 of
the Criminal Procedure Code even though it was invalid for continuing the
pttitioner's detention in the Central Jail at Gwalior. He submitted that the
petitioner was required to serve the senterice of three years' imprisonment
in the only case in the State of Madhya Pradesh which term of imprison- H
    236                   SUPREME COURT REPORTS (1996] SUPP. 9 S.C.R.

A ll)ent ended 9n July 25, 1985 and, therefore, the fnrther custody for a
    period of eight years sati.sfied the terms .of.the surrender. Shri Jethrnalani
    submitted that the peti.tioner did not challenge the validity of Madhya
    Pradesh Government's order dated August 13, 1986 because of the moral
    justifi.catioil for continuing her custody for a further period of eight years
    under the terms of surrender. Learned counsel submitted .that now there
B
    is no justification for continuing any prosecution in Uttar Pradesh, there
  . being no other criminal case pending in Madhya Pradesh against her. On
    this basis learned counse.1· conterided, that alt the prosecutions pending in
    the courts in Uttar Pradesh against the petiti.on('.r should be quashed; and
    her release on parole should be converted into a direction for her final
C release.

           It may be menti,oned that. the petitioner has also filed Transfer
    Petition (Cr!.) No. 36 of 1992 praying for transfer of all the criminal cases
    against her, pending in the courts of Uttar Pradesh to the Special Court at
    Gwalior in Madhya Pradesh. That transfer petition is pending and is to be
D   heard separately. The. order disposing of this writ petition has no bearing
    on that transfer petition. For the same reason the arguments of Shri
    Jethmalani which may have relevance in the transfer petition, though urged
    in this writ petition are not being considered in this ·writ petition and would
    remain available for considering the prayer made in the petitioner's trans-
E   fer petition.

           In our opinion, the limited scope of this writ petition is the question
    of the release of the petitioner from custody on the present facts. The other
    aspects sought to be raised by Shri Jethmalani do not require consideration
F   in this writ petition. The question of the content and effect of the terms
    of surrender alleged by the petitioner has to be raised and decided in the
    criminal cases pending against the petitioner. The same cannot be raised
    on the basis of an omnibus statement in this petition under Article 32 of
    the Constitution.

G         We are informed that the State of Uttar Pradesh has moved an
    application in each trial pending in the courts of Uttar Pradesh seeking
    leave to withdraw the prosecution. This aspect based on the alleged terms
    of the surrender may have relevance in those proceedings requiring con-
    sideration of the same in the facts of each prosecution. The question
H   whether the blame for the entire delay in the prosecution/trial in each of
                      PHOOLANDEVIv. STATE[J.S. VERMA,J.]                       237
      those criminal cases lies on the State alone and not the petitioner is a A
      question of fact to be considered in each of those cases. Merely because
      of the lapse of several years since the commencement of those prosecu-
      tions,· it cannot be said that for that reason alone the continuance of the
      prosecutions would violate the petitioner's right to speedy trial. Similarly,
      the cumulative effect of the terms of the alleged surrender have to be
                                                                                    B
      examined, on the same being duly proved in those prosecutions to decide
    . the merit of the contention that the petitioner is not liable for any further
      punishment as claimed by her. The mere fact thatthe alleged terms offer
      immunity from death penalty and trial of all cases in Madhya Pradesh even
      for crimes committed in Uttar Pradesh, indicates that the question of the
      punishment to be imposed on the petitioner in each case depends on the          c
      final outcome at the trial, and the imprisonment of eight years mentioned
      in one of these terms does not conclude the prosecutions. The petitioner's
      contention that the violation of her right to speedy trial is proved by these
      facts alone to justify quashing of all the prosecutions is, therefore, un-
      tenable.
                                                                                      D
            The only question now is of the relief pertaining to petitioner's
     release from custody at this juncture. In response to the notice of this
     petition, it has been stated clearly on behalf of the State of Madhya Pradesh

-    that the petitioner has served out the sentence of three years' imprisonment
     awarded in the only case against her in Madhya Pradesh; and that there is
     no other criminal case in which she has been sentenced or is wanted. This
                                                                                      E

     being so, no authority has been shown to justify continuance of her custody
     on account of the commission of any crime in Madhya Pradesh or any
     judgment of any court in Madhya Pradesh. On behalf of the State of Uttar
     Pradesh also, nothing has been shown to indicate that there is any subsist·      F
     ing order or judgment of any court requiring the continuance of petitioner
     in custody. In short, no authority has been shown either by the State of
     Madhya Pradesh or by the State of Uttar Pradesh to justify further custody
     of petitioner at this juncture. This is, however, subject to the requirement
     of any order made hereafter by any competent court in any of the pending
     prosecutions against the petitioner. The petitioner is, therefore, entitled to   G
     release at present, unless by any order made hereafter by any competent
     court she is required to be taken in custody. The petitioner is entitled to
     the grant of relief only to this extent in this writ petition.

           For the aforesaid reasons we direct that the petitioner, who is on H
    238                    SUPREME COURT REPORTS [1996) SUPP. 9 S.C.R.
A parole by virtue of order dated February 18, 1994 made in this case, shall
  continue to remain free, subject to the requirement of taking her in
  custody by virtue of any order made by a competent court/authority in any
  of the prosecutions pending in the State of Uttar Pradesh or any other case.
  The prayer in the writ petition for quashing the prosecutions pending in
B the State of Uttar Pradesh is rejected.
           The writ petition is disposed of in this manner.

    Writ Petition (Cr/.) No. 509 of 1995

           In view of the order made today disposing of Writ Petition No. 43 of
C 1993, Phoolan Devi v. State of M.P. & Ors. this writ petition has become
    infructuous.

           It is, accordingly, dismissed.

    P.T.                                                      Petition disposed of.




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