STATE OF MAHARASHTRA AND ORS.versusASHA ARUN GAWALI AND ANR.

A                    STATE OF MAHARASHRTRA AND ORS.
                                          v.
                         ASHA ARUN QA WALI AND ANR.

                                   APRIL 27, 2004

B                [DORAISWAMYRAJU ANDARIJITPASAYAT,JJ.]


            Jails-Proper maintenance of records and safety of inmates-Need
     for-During proceeding of a case casualness ofjail authorities found by High
C    Court-Direction to initiate criminal proceedings against jail authorities
     and imposition of exemplary cost against them and the responsible
     authorities-On appeal, held: Order of High Court justified-However, further
     detailed enquiry directed-With a view to study the miserable state of affairs
     in jails certain directions issued

D        A Writ Petition was filed in High Court against the detention order of
   detenu. It was observed in the detention or<Jer that the detenu while in jail,
   had master-minded killings of certain persons in connivance with certain
   persons who had come to visit him in jail. High Court, on perusal of visiton'
   register, did not find entry about the alleged visit of the co-conspirators and
  .no record of their having met the detenu. The affidavits filed by certain
E officials were inconsistent High .Court noticed that entry of visitors without
   their names being in the official records would not have been possible without
   connivance of officials; and that in respect of certain officials' misconduct,
   explanations were called for regarding the involvement of jail officials, their
  .negligence and connivance, but after ta!'-ing some initial disciplinary action,
   nothing actually was done. High Court, therefore, held that the order of
F detention was passed on irrelevant materiais and in view of the state of affairs
   in the jail directed to launch prosecution against three jail Superintendents.
   Court also imposed exemplary costs against the Superintendents, Additional
   Chief Secretary (Home), Commissioner of Police and Inspector General of
   Prisons. The State, Additional Chief Secretary (Home) and Inspector General
G Prisons have filed appeal before this Court.
          . Disposing of the appeals, the Court

          HELD: 1.1. High Court was justified in holding that without the active
     cooperation of the officials concerned, such activities would not have been
II                                       708
                ST ATE OF MAHARASHRTRA v. A.A. GAW ALI                          709
possible. The High Court appears to have justifiably felt aghast at such acts          A
of omissions and commissions of the jail officials which per se constituted
offences punishable under various provisions of the IPC and has, therefore,
necessarily directed the launching of criminal prosecution against them,
besides mulcting them with exemplary costs, The concern exhibited by the
High Court as a necessary corollary by imposition of costs cannot at all be
found fault with.                                                                      m
      1.2. In the background of what has beep noticed by the High Court, one
thing is very clear that there is a total casualness by the jail authorities. In
the matter of maintaining records of persons who meet the inmates, the factual
position as admitted in the affidavit filed is that the authorities themselves <C
were conscious of the prevalent position but yet allowed to go scot free with
impuP.ity, except a pretended lip service. The purpose for which the jails are
set up; have been totally destroyed by the manner in which the jail officials
have acted. If the real purpose for setting up jails is to keep criminals out of
circulation in the society and to ensure that their activities are restricted or
curtailed, the same appears to have remained only a pious wish on paper and b
what happens in reality is just the reverse. The jail officials rendered support
to the criminals in their crimes by completely disregarding the mandate of ,
law and this was done with a view to save them and in particular the detenu
from punishment High Court noticed that the Maharashtra Prisons Facilities
to Prisoners Rules, 1962, was notprimafacie observed. [714-B-E; G)
                                                                                       E
       2.1. The officials have exhibited a total lack of seriousness and urgency
but in the peculiar circumstances of the case where the entire system is under
scrutiny, a detailed study of the factual position is necessar:y. W.1at has
happened in the jail to which this case relates, may or may not be different ,
from other jails and that there is no guarantee that such things are now not F
happening. But a doubt lingers about the position being no better in other
jails also. (715-C-D]

      2.2. State Government shall cause enquiry into the matter and take action
departmentally or in accordance with the criminal laws. The directions f~r'
imposition of costs on Addi. Chief Secretary and Inspector General of Prisbns G
are waived for the present. It is open to Government to initiate action against
them, if necessary even if they have retired. Since the other officials in respect
of whom costs were imposed, have not questioned the imposition, the directions
of the High Court in relation to such officers remain unaltered. (715-E-F) ,

     2.3. Judicial officers are directed to go for inspection of jails periodic~\\)'   H
    710                     SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A   and during the same, shall keep in view the disturbing features noticed in
    the present case and appropriate remedial measures and actions shall be taken
    on the basis of their reports; and that the Government may consider the
    appointment of a Commission headed by former Judge of the Supreme Court
    to be assisted by a former Inspector General of Prisons and DG Police to
B   probe into the nature of such lapses and explore the possibilities pr effectively
    curbing their recurrence and devising methods and means to pr~vent them
    by appropriate statutory Provisions or Rules, to sufficiently meet the
    exigencies of the situation. [715-G-H; 716-A-B]

          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 284
C   of 1998.

          Ftom the Judgment and Order dated 5.5.97 of the Bombay High Court
    in Crl. Writ Petition No. 64/97.

                                         WITH
D         Criminal Appeal Nos. 285 and 286 of I 998.

    Mukesh K. Giri, Manish Saran and Ravi K. Adsure (NP) for the Appellants.

         Dr. M.D. Adkar and Viswajit Singh, Rekha Pande, Ms. Sushma Suri, P.
E   Panneswaran (NP) and D.M. Nargolkar for the Respondents.

          The Judgment of the Court was delivered by

           ARIJIT PASAYA T, J. The concern for reformation of prisoners and
     improvement of prison conditions has been judicially ~ecognised. But the
    same does not countenance "holding of darbars in prisons by prisoners",
F   "five star hotel comforts for prisoners" or "free entry to and exit from jail" as
    surface in these cases, that too by statements of admission marked by abashed
    inefficiency unbecoming of those who are ordained to strictly carry out their
    duties and responsibilities i.e., state of jail authorities and the highly placed
    Governmental functionaries. The Bombay High Court while dealing with the
G   legality of order directing detention of one Arun Gawali (hereinafter referred
    to as "detenu"), gave certain directions, to be noted hereinafter.

          These three appeals are interlinked and have their matrix to the impugned
    judgment by a Division Bench of the Bombay High Court. The High Court
    in addition to quashing of order of detention gave the following directions:
H
        STA TE OF MAHARASHRTRA v. A.A. GAW ALI [PASA YAT, J.]                711

            "The State Government is directed to launch prosecution against          A
       S/Shri D.M. Jadhav, M.G. Ghorpade and L.T. Samudrawar and other
       Jail Officials, in case, if any, for the offences punishable under sections
       120-B, 217 and 218 of the Indian Penal Code and also under any other
       relevant provision of law, either independently or in the prosecution
       pending against the detenu.
                                                                                     B
           Shri P. Subramaniam, Additional Chief Secretary (Home), Shri S.C.
       Malhotra, Commissioner of Police Mumbai and Shri M.G. Narvane,
       Inspector General of Prisons, Pune, shall pay exemplary costs of Rs.
       25,000 each.

          S/Shri D.M. Jadhav, M.G. Ghorpade and L.T. Samudrawar,                     C
       Superintendents of Jail, shall pay exemplary costs of Rs. 15000 each.

           The Government of Maharashtra shall deposit the entire exemplary
       costs payable· by these officers as indicated in this Court within a
       period of l 0 days and the state Government shall thereafter recover
       the costs so paid from the respective officials, in accordance with law.      D
           The Government shall pay, by way of remuneration, Rs. 5000 to
       Shri W.G. Charde, Advocate, who acted as an .Amicus Curies, within
       a period of IO days."

      Detenu's wife Asha Gowali filed a Writ Petition questioning legality of E
the order of detention passed under Section 3 of the National Security Act,
1980 (in short 'the Act'). The directions were given while, as noted above
quashing the detention taking note of certain baffling fact situations which
came to light while hearing the writ petition and which should sound as
'nightmares' to any law abiding citizen and law enforcing authorities. While
the State of Maharashtra questions the directions relating to launching of F
prosecution, the other two appeals, i.e. Criminal Appeal No. 286 of 1998 has
been filed by Mr. P. Subramanyam, who was then functioning as Chief Secretary
(Home) and Criminal Appeal No. 285of1998 has been filed by Mr. Mahadu
Govindrao Narvane, who was then functioning as Inspector General of Prisons.
Though the judgment has been assailed by the State of Maharashtra, no G
separate appeal has been filed by Mr. S.C. Malhotra, Commissioner of Police
Mumbai, Mr. D.M. Jadhav, Mr. M.G. Ghorpade and Mr. L.T. Samudrawar, who
were acting as Superintendents of Jail, though the directions given by the
High Court also related to them.

     The High Court noticed some startling features of monstrosity found             H
    712                      SUPREME COURT REPORTS [2004) SUPP. I S.C.R.

A   prevailing and while dealing with the Habeas Corpus application, tried to
    pierce the veils and noticed the actual distressing as well as disgusting state
    of affairs. This was felt necessary because of certain observations in the
    detention order to the effect that the detenu while in jail had master-minded
    killings of certain persons in connivance with the active participation of
    certain persons who had come to meet him in jail.
B
          Certain registers like the visitors' register etc. were called for verification
    and High Court noticed that there was no entry about the alleged visit of so
    called co-conspirators and there was no record of their having met the detenu.
    Certain officials were asked to file affidavits. Finding many inconsistent and
C   irreconcilable statements High Court did not give any credence to tt.e affidavit&.
    In the aforesaid background it was observed that the order of detention was
    passed on irrelevant materials and was indefensible. In view' of the sensitive
    nature of the matter, a learned counsel was appointed as Amicus Curie and
    his assistance was appreciated by the _High Court.

D         Taking note of the sad state of affairs in the jail and the total indifference
    of the concerned authorities, the High Court felt that there was a need for
    imposition of exemplary costs on the erring officials and that is how the
    directions quoted above were made.

         The legality of the directions has been questioned in the three appeals.
E Mr. Mukesh K. Giri, learned counsel, appearing for the appellant-State,
   submitted that the High Court should not have given direction for launching
   of prosecution straightaway without adequate material. Further, the order of
   detention was passed bona fide and appropriate actions have also betn taken
   against erring officials and, therefore, the imposition of costs is uncalled for.
F •Similar is the stand taken by the other learned counsel for the appellants.
          Though the legality of the order quashing the detention order was
    questioned, that was not very seriously pressed. Mr. M.D. Adkar, learned
    counsel, appearing for the respondent No. I - writ petitioner, submitted that
    the High Court has taken note of the realities and has passed an appropriate
G   order and no interference is called for.

          Certain baffling features have emerged on a bare reading of the High
    Court's Order. The activities in the jail, entry of unauthorised persons and
    holding of "Darbar" are part of the defensive stand taken by the State
    Authorities in the affidavits filed before the High Court .. We are shocked to
H   find that the norms relating to entry of persons to the jail, maintenance of
         ST ATE OF MAHARASHRTRA v. A.A. GAW ALI (PASA YAT, J.]              713

proper record of persons who entered the jail, have been observed more in           A
breach than observance and the rules and regulations have been found
thrown to winds. The affidavits filed by the officials amply demonstrate this
factor. One used to hear and read about lavish parties b'!ing thrown inside
the jail. Doubts at times were entertained about the authenticity of such news
having regard to the normal good faith to be reposed in the regularity of
official activities. But the admissions made in the affidavits filed by the Jail    B
Authorities and the officials, accept it as a fact. What is still more shocking,
is, that persons have entered the jail, met the inmates and if the statements
of the officials are seen, hatched conspiracies for committing murders. The
High Court was therefore, justified in holding that without the active
cooperation of the officials concerned, these things ~ould not have been            C
possible. The High Court appears to have justifiably felt aghast at such acts
of omissions and commissions of the jail officials which per se constituted
offences punishable under various provisions of the IPC and has, therefore,
necessarily directed the launching of criminal prosecution against them, besides
mulcting them with exemplary costs.
                                                                                    D
       The High Court noticed and in our view correctly that when the names
of visitors who allegedly were a part of the conspiracy warranting detention
of the detenu, were not in the list of visitors during the concerned period,
there is a patent admission about people getting unauthorised entry into the
jails without their names being recorded in the official records something
which would be impossible except with the connivance of those who otherwise
                                                                                    E
should have prevented such things happening. It was noted by the High
Court that there was no explanation as to how somebody could gain entry
in the jail and meet the detenu and yet no entry would be made therefor. It
is not possible unless the jail officials are themselves a party to the same. On
one hand, the detai.1ing authority was referring to the activities of the detenu    F
inside the jail and the conspiracies hatched, and at the same time official
records belied their version. In respect of certain officials' misconducts,
explanations were called for regarding involvement of jail officials and their
negligence or connivance relating to Yerwada Central Prison. The High Court
noticed that after taking some initial disciplinary action, nothing concrete was    G
really done. It felt that the Inspector General of Prisons, other high placed
officials and the Chief Secretary acted with unwarranted casualness and
indifference and there was total lack of any se~iousness or sensitivity exhibited
in the matter. If the criminal activities of the detenu were to be prevented and
the recurrence of lapses which are serious on the part of those concerned
were to be averted, firm action was necessary which yet was not even taken          H
    714                     SUPREME COURT REPORTS (2004] SUPP. I S.C.R.

A for reasons best known to themselves. In· the aforesaid background the
    concern exhibited by the High Court as a necessary corollary by imposition
    of costs cannot at all be found fault with.

           In the background of what has been noticed by the High Court, one
    thing is very clear that there is a total casualness by the jail authorities. In
B   the matter of maintaining records of persons who meet the inmates, the factual
    position as admitted in the affidavit filed is that the authorities themselves
    were conscious of the prevalent position but yet allowed to go scot free with
    impunity, except a pretended lip service. The purpose for which the jails are1
    set up, have been totally destroyed by the manner in which the jail officials
C   have acted. If the real purpose for setting up jails is to keep criminals out of
    circulation in the society and to ensure that their activities are restricted or
    curtailed, the same appears to have remained only a pious wish on paper and
    what happens in reality, is just the reverse. High sounding words like "Writ
    of police runs beyond stone wall and iron bar", used in the affidavits have
    not been reflected in the action of the authorities and do not do real justice
D   to the situation which only apparently necessitated, a hardline of/action by
    the High Court. On the contrary the. High Court came to hold on the ba5is
    of indisputable material placed before it that the jail officials rendered support
    to the criminals in their crimes by completely disregarding the mandate of law
    and this was done with a view to save them and in particular the detenu from
E   punishment. An officer is supposed to act for protection of people and
    prevent their criminal activities. Such activities are not merely lap~es or
    omissions but more dangerous than the crimes and criminals who 'commit
    them for insulation it officially provides as alibi for avoiding and escaping
    from actual liability, under law, for those crimes . If they themselves become
    a party to the crimes by directly or indirectly helping the criminals to carry
F   out their criminal activities using their incarceration as a protective shield to
    go scot free for their crimes, the credentials of the police officials are bound
    to suffer severe beating beyond repair and redemption. That is precisely what
    the High Court has observed and attempted to activate and rectify.

          The High Court noticed that the Maharashtra Prisons Facilities to
G Prisoners Rules, 1962, prescribed the modes of interview of relatives etc. It
    was noticed that these provisions were not prima fade observed. The under-
    trial detenues and prisoners locked in different prisons, are in the custody of
    the jail officials, and they are responsible for the safety of the prisoners,
    maintenance of the prisons and the enforcement of discipline amongst the
H   prisoners. In the affidavit dated 2.5.1997 the common plea of the Jail
         STATE OF MAHARASHRTRA v. A.A. GAW ALI [PASAYAT, J.]                 715
Superintendents was in the following words:                                          A
             "That absence of entry in'the gate register is not conclusive proof
        to establish that the so called persons have entered the jail. The
        statement before the Police during investigation is not admissible. It
        is further stated that First Information Reports in the respective crimes
        were recorded after long time."                                              B
      If what is stated in the affidavit is the reality one need not probe further
to find out the nature and extent of infractions.

      But we feel a further detailed enquiry was necessary in the matter.
Therefore, the matter should be elaborately enquired into by the State               C
Government. We are conscious that the officials have exhibited a total lack
of seriousness and urgency but in the peculiar circumstances of the case
where the entire system is under scrutiny, a detai~ed study of the factual
position is necessary. What has happened in the jail to which this case
relates, may or may not be different from other jails and that there is no
guarantee that such things are now not happening. But a doubt lingers about
                                                                                     D
the position being no better in other jails also.

      We, therefore, dispose of the appeals with the following directions:

       (I)   The State Government shall cause enquiry into the matter in
             depth and whatever action has to be taken departmentally or in          E
             accordance with the criminal laws, shall be taken within six months
             from today. The directions for imposition of costs on the appellants
             - Mahadu Govindrao Narvane and P. Subramanyam personally
             are waived for the present.

       (2)   Since the other officials in respect of whom costs were imposed,        F
             have not questioned the imposition, the directions of the High
             Court in relation to such officers remain unaltered.

       (3)   So far as the two appellants before this Court i.e. P. Subramanyam
             and Mahadu Govindrao Narvane are concerned, it shall be open
             to the Government to initiate actions against them if felt necessary    G
             even if they have retired on the basis of enquiry as directed.

        (4) Judicial officers go for inspection of jails periodically. The
            disturbing features noticed in the case at hand shall be kept in
            view by them while they make the inspections and appropriate
            remedial measures and actions shall be taken on the basis of the         H
    716                      SUPREME COURT REPORTS [2004] SUPP. I S.CR.

A                 reports, if any, submitted by the concerned officers.
             5.   The Government may consider the appointment of a Commission
                  headed by fonner Judge of the Supreme Court to be assisted by
                  a fonner Inspector General of Prisons and DG Police to 11robe into
                  the nature of such lapses and explore the possibilities of effectively
B                 curbing their recurrence and devising methods and means to
                  prevent them by appropriate statutory Provisions or Rules, to
                  sufficiently meet the exigencies of the situation.

          The appeals are disposed of on the aforesaid tenns.

    K.K.T.                                                      Appeals disposed of.