Supreme Court of India
THE STATE OF MAHARASHTRA & ORS. ETC.ETC.versusSAEED SOHAIL SHEIKH ETC. ETC.
- Citation
- 2012 INSC 504
- Decided
- 2 November 2012
- Disposal
- Case Partly allowed
- Bench
- T S THAKUR
Holding
Under Section 29 of the Prisoners Act, 1900, an under‑trial prisoner may be transferred only with the permission of the court that remanded him, and any administrative order of transfer without a judicial hearing is void.
Summary
The State of Maharashtra transferred a group of under‑trial prisoners from Arthur Road Jail in Bombay to other jails, citing overcrowding and security concerns, and the jail authorities later used force to quell a disturbance involving some of those prisoners. The prisoners filed writ petitions alleging that the transfer was illegal and that excessive force was used against them. The High Court held the transfer void for being ordered administratively without notice to the prisoners and directed a departmental inquiry into the alleged excesses. On appeal, the Supreme Court examined whether Section 29 of the Prisoners Act, 1900 permits transfer of under‑trials and whether the power to order such transfer is judicial, not ministerial. It held that Section 29 applies only to sentenced prisoners and that any transfer of an under‑trial requires the permission of the court that remanded him, making the High Court's declaration of void transfer correct. However, the Court found the High Court’s direction for an inquiry premature, as the Sessions Judge’s report was only a preliminary inquiry lacking fair hearing. Consequently, the appeals were partly allowed, directing the government to treat the report as preliminary and decide on any further investigation.
Issues considered
- Whether Section 29 of the Prisoners Act, 1900 authorises the transfer of under‑trial prisoners.
- Whether the power to permit or refuse transfer of a prisoner is judicial or ministerial in nature.
- Whether the High Court was justified in directing a departmental inquiry based on a preliminary report of excessive force.
Legislation cited
Subjects
prisoner transferunder‑trialPrisoners Actjudicial vs ministerial powerexcessive forcedisciplinary inquirynatural justiceArticle 21Article 14Article 19
Judgment
[2012] 11 S.C.R. 916
A THE STATE OF MAHARASHTRA & ORS. ETC.ETC.
v.
SAEED SOHAIL SHEIKH ETC. ETC.
(Criminal Appeal Nos.1735-1739 of 2012)
NOVEMBER 2, 2012
B
rr.s. THAKUR AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
Prisoners Act, 1900 - s.29 - Transfer of prisoners -
C When envisaged - Held: Transfer in terms of sub-section (1)
of s.29 is permissible only in distinct situations covered by
clauses (a) to (d) - The provision does not deal with undertrial
prisoners who do not answer the description given therein -
Transfer under sub-section (2) of s.29 is also permissible only
o if it relates to prisoners confined in circumstances indicated
in sub-section (1) of s.29.
Code of Criminal Procedure, 1973 - ss.167 and 309 -
Transfer of prisoner with permission of the court under whose
warrant the undertrial had been remanded to custody- Power
E exercisable by the court while permitting or refusing transfer
- Nature of the power - Held: Is Judicial' and not 'ministerial'
- It is obligatory for the Court to apply its mind fairly and
objectively to the circumstances in which the transfer is being
prayed for and take a considered view having regard to the
F objections which the prisoner may have to offer - There is in
that process of determination and decision-making an implicit
duty to act fairly, objectively or in other words to act judicially
- Thus any order of transfer passed in any such proceedings
can be nothing but a judicial order or at least a quasi-judicial
G one - In the instant case, inasmuch as the trial court appears
to have treated the matter to be administrative and
accordingly permitted the transfer without issuing notice to the
under-trials or passing an appropriate order in the matter, it
H 916
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED 917
SOHAIL SHEIKH ETC. ETC.
committed a mistake - Communication received from the A
prison authorities was dealt with and disposed of at an
administrative level by sending a communication in reply
without due and proper consideration and without passing a
considered judicial order which alone could justify a transfer
in the case - Such being the position the High Court was right B
in declaring the transfer of respondent- undertrials to be void
and directing their re-transfer back to Bombay jail.
Custodial torture - Report submitted by Sessions Judge
- Consequent direction issued by High Court to the
Government to hold inquiry against those responsible for C
using excessive force against the undertrial prisoners and for
dereliction of duty by jail doctors - Challenge to - Held: Said
direction of the High Court was issued entirely on the basis
of the report submitted by the Sessions Judge - However, that
report besides being preliminary was flawed in many respects D
including the fact that the same did not comply with the basic
requirement of a fair opportunity of hearing being given to
those likely to be affected - It was at any rate not for the High
Court to record a final and authoritative finding that the force
used by the jail authorities was excessive or that it was used E
for any extraneous purpose - It was a matter that could be
determined only after a proper inquiry was conducted and an
opportunity afforded to those who were accused of using such
excessive force or abusing the power vested in them -
Consequential directions issued by the High Court in directing F
the State Government to initiate disciplinary inquiry against
all the officers involved in the incident were, therefore,
premature - Government directed to treat the report submitted
by the Sessions Judge as a preliminary inquiry and take a
considered decision whether or not any further inquiry, G
investigation or proceedings needs to be conducted against
those allegedly responsible for using excessive force against
fhe under-trials.
The instant appeals were filed by the State of H
918 SUPREME COURT REPORTS [2012] 11 S.C.R.
A Maharashtra and senior officers in the Department of
Prisons, Government of Maharashtra against a common
judgment passed by the High Court whereby a batch of
criminal wri_t petitions filed by the respondents were
allowed, transfer of the respondents-prisoners from
B Arthur Road Jail in Bombay to three other jails in the
State of Mahanishtra held to be illegal and the appellants
directed to transfer the prisoners back to the jail at
Bombay.
Earlier, in the writ petitions filed by the respondents
C before the Higtii Court, allegations regarding use of
excessive force and inhuman treatment were made
against the jaH officials including the Superintendent of
the Central Jail. The respondents alleged that the use of
force was without any provocation and justification apart
D from being inspired by reasons extraneous to the need
for maintaining peace and order within the jail. The nature ·
of the allegations made in the writ petitions was found by
the High Court to be sufficient to call for an inquiry into
the violent incident. This inquiry was assigned to a
E Sessions Judge who came to the conclusion on the basis
of the medical records of the injured that the use of force
by the jail authorities was excessive and further that the
injured were not given medical aid and they were not
properly examined by the doctors from the Bombay
F Central Police.
On a consideration of the report received from the
Sessions Judge, the High Court found it necessary to
direct the Government to hold a departmental inquiry
against the officials who had used excessive force in
G bringing the situation in the jail under control. The High
Court found that the order transferring the respondents-
undertrial prisoners from Bombay Central Jail to other
jails in the State was illegal and unacceptable inasmuch
H as the request for transfer had been dealt with at an
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED919
SOHAIL SHEIKH ETC. ETC.
· administrative level without affording an opportunity to A
the undertrials to oppose the same. The High Court
rejected the contention urged on behalf of the appellants
that Section 29 of the Prisoners Act, 1900 empowers the
State Government or.the Inspector General of Prisons to
transfer the undertrials. The power to transfer the B
undertrials was, according to the High Court, exercisable
only by the Court under whose orders the prisoners were
remanded to judicial custody in a given jail and that
inasmuch as the court concerned had faltered in taking
appropriate action on the request for transfer by treating c
the request to be only an administrative matter, the
sanction for transfer of the undertrials to other jails was
vitiated.
Partly allowing the appeals, the Court
D
HELD:1.1. Removal of any prisoner under Section 29
of the Prisoners Act, 1900 is envisaged only at the
instance of the State Government in cases where the
prisoner is under a sentence of death or under or in lieu
of a sentence of·imprisonment or transportation or is E
undergoing in default of payment of fine or imprisonment
in default of security for keeping the peace or for
maintaining good behaviour. Transfer in terms of sub-
section (1) of Section 29 is thus permissible only in
distinct situations covered by clauses (a) to (d). The F
provision does not, it is manifest, deal with undertrial
prisoners who do not answer the description given
therein. [Para 20) (935-A-C]
1.2. Though sub-section (2) of section 29 no doubt
empowers the Inspector General of Prisons to direct a G
transfer but what is important is that any such transfer
is of a prisoner who is confined in circumstances
mentioned in sub-section (1) of Section 29. That is evident
from the use of words "any prisoner confined as
aforesaid in a prison". The expression leaves no manner H
920 SUPREME COURT REPORTS [2012] 11 S.C.R.
A of doubt that a transfer under sub-section (2) is also
permissible only if it relates to prisoners who were
confined in circumstances indicated in sub-section (1) of
Section 29. The respondents in the present case were
undertrials who could not have been transferred In tenns
B of the orders of the Inspector General of Prisons under
Section 29. [Para 21) [935-D·FJ
Whether undertrials can be transferred to any prison with
the permission of the court under whose orders he has
been committed to the prison
c
2.1. Section 167(2) CrPC empowers the Magistrate to
whom an accused is forwarded whether or not he has
jurisdiction to try the case to authorize his detention in
such custody as the Magistrate deems fit for a tenn not
D exceeding 15 days in the whole. Section 309 CrPC, inter
a/ia, empowers the court after taking cognizance of an
offence or commencement of the trial to remand the
accused in custody in cases where the court finds it
necessary to postpone the commencement of trial or
E inquiry.The rationale underlying both these provisions is
that the continued detention of the prisoner in jail during
the trial or inquiry is legal and valid only under the
authority of the Court/Magistrate before whom the
accused is produced or before whom he is being tried.
F An undertrial remains in custody by reasons of such
order of remand passed by the concerned court and
such remand is by a warrant addressed to the authority
who is to hold him in custody. The remand orders are
invariably addressed to the Superintendents of jails
G where the undertrials are detained till their production
before the court on the date fixed for that purpose. The
prison where the undertrial is detained is thus a prison
identified by the competent court either in terms of
Section 167 or Section 309 CrPC. It is axiomatic that
transfer of the prisoner from any such place of detention
H
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED 921
SOHAIL SHEIKH ETC. ETC.
would be permissible only with the permission of the A
court under whose vtarrant the undertrial has been
remanded to custody. [Paras 24, 25] [936-G-H; 937-A;
938-C-G]
2.2. The power exercisable by the court while 8
permitting or refusing transfer is 'judicial' and not
'ministerial'. Exercise of ministerial power is out of place
in situations where quality of life or the liberty of a citizen
is affected, no matter he/she is under a sentence of
imprisonment or is facing a criminal charge in an on- C
going trial. Transfer of an undertrial to a distant prison
may adversely affect his right to defend himself but also
isolate him from the society of his ·friends and relations.
[Para 27] [939-B-D] · ·
2.3. Any order that the Court may make on a request D
for transfer of a prisoner is bound to affect him
prejudicially. It is thus obligatory for the Court to apply
its mind fairly and objectively to the circumstances in
which the transfer is being prayed for and take a
considered view having regard to the objections which E
the prisoner may have to offer. There is in that process
of determination and decision-making an implicit ditty to
·act fairly, objectively or in other words to act judicially. It
follows that any order of transfer passed in any such
proceedings can be nothing but a judicial order or at least F
a quasi-judicial one. In the instant case, inasmuch as the
trial court appears tb have treated the matter to be
administrative and accordingly permitted the transfer
without issuing notice to the under-trials or passing an
appropriate order in thl;'I matter, it committed a mistake. G
A communication received from the prison authorities
was dealt with and disposed of at an administrative level
by sending a communication in reply without due and
proper consideration and without passing a considered
judicial order which alone could justify a transfer in the H
922 SUPREME COURT REPORTS [2012) 11 S.C.R.
A case. Such being the position the High Court was right
in declaring the transfer to be void and directing the re-
transfer of the undertrials to Bombay jail. [Para 39) [947-
C-G]
Sunil Batra v. Delhi Administration AIR 1980 SC 1579:
8
1980 (2) SCR 557 - relied on.
Province of Bombay v. Khusaldas Advani AIR 1950 SC
222: 1950 SCR 621; ; State of Orissa v. Dr. Binapani Dei
AIR 1967 SC 1269: 1967 SCR 625; A.K. Kraipak v. Union
C of India (1969) 2 sec 262: 1970 (1) SCR 457; Mohinder
Singh Gill. v. Chief Election Commission (1978) 1 SCC 405:
1978 (2) SCR 272; Jamal Uddin Ahmad v. Abu Saleh
Najmuddin (2003) 4 SCC 257: 2003 (2) SCR 473 - referred
to.
D
The King v. The Electricity Commissioner [1924) 1 K.B.
171 and The King v. London County Council [1931) 2 K.B.
215 - referred to.
Judicial Review (Thomson Sweet & Maxwell, 6th Edition,
E 2007) by Prof. De Smith and Black's Law Dictionary -
referred to.
Whether the High Court was justified in directing the
Government to hold an inquirv against those responsible
F for using excessive force (against the undertrlal
prisoners) and for dereliction of duty by the medical
officer liail doctors)
3.1. The said direction of the High Court was issued
entirely on the basis of the report submitted by the
G Sessions Judge. That report besides being preliminary
is flawed in many respects including the fact that the
same does not comply with the basic requirement of a
fair opportunity of hearing being given to those likely to
be affected. It is true that the statements of some of the
H jail officials have also been recorded in the course of the
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED 923
SOHAIL SHEIKH ETC. ETC.
inquiry but that is not enough. Those indicted in the A
report were entitled to an opportunity to cross-examine
those who alleged misconduct against them. Not only
that the Sessions Judge has not named the officers
responsible for the alleged use of excessive force which
was essential for any follow up or further action in the B
matter. So, also the report clearly states the officials
concerned have not been allowed to examine any
witness although a request was made by them to do so.
Such being the position, some of the observations made
by the High Court that give an impression as though the c
misdemeanour of the jail officers had been proved, do
not appear to be justified. [Para 40, 41] [948-B-E-G-H]
3.2. It was at any rate not for the High Court to record
a final and authoritative finding that the force used by the
jail authorities was excessive or that it was used for any D
extraneous purpose. It was a matter that could be
determined only after a proper inquiry was conducted
and an opportunity afforded to those who were accused
of using such excessive force or abusing the power
vested in them. Consequential directions issued by the E
High Court in directing the State Government to initiate
disciplinary inquiry against all the officers involved in the
incident were, therefore, premature. This is because the
question whether any disciplinary inquiry needs to be
instituted against the jail officials would depend upon the F
outcome of a proper investigation into the incident and
not a preliminary enquiry in which the Investigating
Officer, apart from statements of the respondents, makes
use of information discreetly collected from the jail
inmates. The report of the Sessions Judge could in the G
circumstances provide no more than a prima facie basis
for the Government to consider whether any further
investigation into the incident was required to be
conducted either for disciplinary action or for launching
prosecution of those found guilty. Beyond that the H
924 SUPREME COURT REPORTS (2012] 11 S.C.R.
A preliminary report could not serve any other purpose.
[Para 41] [948-G-H; 949-A-D]
3.3. In a country governed by the rule of law police
excesses whether inside or outside the jail cannot be
countenanced in the name of maintaining discipline or
8
dealing with anti-national elements. Accountability is one
of the facets of the rule of law. If anyone is found to have
acted in breach of law or abused his position while
exercising powers that must be exercised only within the
parameters of law, the breach and the abuse can be
C punished. That is especially .so when the abuse is alleged
to have been committed under the cover of authority
exercised by people in uniform. Any such action is also
open to critical scrutiny and examination by the Courts.
Having said that one cannot ignore the fact that the
D country today faces challenges and threats from extremist
elements operating from within and outside India. Those
dealing with such elements have at times to pay a heavy
price by sacrificing their lives in the discharge of their
duties. The glory of the constitutional democracy that this
E country has adopted, however, is that whatever be the
challenges posed by such dark forces, the country's
commitment to the Rule of Law remains steadfast. Courts
in this country have protected and would continue to
protect the ideals of the rights of the citizen being
F inviolable except in accordance with the procedure
established by law. [Para 42] [949-E-H; 950-A-B]
3.4. The Government shall treat the report submitted
by the Sessions Judge as a preliminary inquiry and take
G a considered decision whether or not any further inquiry,
investigation or proceedings against those allegedly
responsible for using excessive force while restoring
discipline in the Central Jail at Bombay on 26th June, 2008
needs to be conducted. [Para 43] [950-C-D]
H
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED 925
SOHAIL SHEIKH ETC. ETC.
Case Law Reference: A
1980 (2) SCR 557 relied on Para 27
1950 SCR 621 referred to Paras 30, 31,
33
B
1924 1 K.B. 171 referred to Para 31
1931 2 K.B. 215 referred to Para 32
1967 SCR 625 referred to Para 35
1910 (1) SCR 457 referred to Para 36 c
1978 (2) SCR 272 referred to Para 37
2003 (2) SCR 473 referred to Para 38
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal D
Nos. 1735-1739 of 2012.
From the Judgment & Order dated 21.7.2009 of the High
Court of Judicature at Bombay in Criminal Writ Petition No.
1377 of 2008, Criminal Application No. 50 of 2009 in Criminal
Writ Petition No. 1377 of 2008, Criminal Writ Petition No. 1496 E
of 2008, Criminal Writ Petition No. 1773 of 2008 and Criminal
Writ Petition No. 2746 of 2008.
Shekhar Naphade, Amrender Saran, Arun R Pednekar,
Sanjay Kharde, Asha Gopalan Nair, Abhay Kumar, Upendra F
Pratap Singh, Rutwik Panda, Nilofar Qureshi for the Appearing
Parties .
.The Judgment of the Court was delivered by
T.S. THAKUR, J. 1. Leave granted. G
2. These appeals have been filed by the State of
Maharashtra and senior officers in the Department of Prisons,
Government of Maharashtra against a common judgment and
order dated 21st July, 2009 passed by a Division Bench of the H
926 SUPREME COURT REPORTS [2012] 11 S.C.R.
A High Court of Judicature at Bombay whereby a batch of criminal
writ petitions filed by the respondents have been allowed,
transfer of the respondents-prisoners from Arthur Road Jail in
Bombay to three other jails in the State of Maharashtra held to
be illegal and the appellants directed to transfer the prisoners
B back to the jail at Bombay. The High Court has expressed the
view that jail authorities having used force against undertrial
prisoners for no fault of theirs and since such force was used
for extraneous reasons and was excessive, the Chief Secretary
of the State of Maharashtra shall initiate a disciplinary inquiry
C against all those involved in the incident. The High Court has
further held that if need be in addition to departmental inquiry,
criminal action be also taken against the concerned officers
including an inquiry into the conduct of the jail doctors for
dereliction of their duty and alleged fudging of the records.
D 3. The factual matrix relating to the transfer of the prisoners
from Bombay Central Prison to other prisons in the State and
use of force causing injuries to some of them has been set out
in the order passed by the High Court at some length. We need
not, therefore, recount the same over again except to the extent
E it is necessary to do so for the disposal of these appeals.
4. Superintendent of the Bombay Central Prison appears
to have addressed a letter to the Special Judge under The
Maharashtra Control of Organised Crime Act, 1999 (hereinafter
F referred to as the MCOC Act) requesting for permission to
transfer accused persons in three different Bombay blast cases
being MCOC cases No.16/2006, 21/2006 and 23/2006. The
request for transfer was proceeded on two distinct grounds
namely (i) that against a capacity of 840 prisoners, the Bombay
G jail had as many as 2500 prisoners housed in it resulting in
over-crowding and consequent problems of management in the
jail and (ii) that proceedings in the on-going cases in question
had been stayed with the result that the presence of the
accused persons involved in the said cases was no longer
required in the near future.
H
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED 927
SOHAIL SHEIKH ETC. ETC. [T.S. THAKUR, J.)
5. In response to the request aforementioned the Special A
Judge passed an order dated 26th March, 2004, inter alia,
stating that:
'xxxxxxxx
It is true that Honourable Supreme Court has granted B
stay to entire further proceedings of above referred cases
and therefore, presence of accused is no more required
in near future. It is total domain of Jail Authorities to
transfer accused to other jails due to scarcity of premises
or for security purpose. As the presence of accused is not C
required immediately, you are at liberty to take action of
transfer of above referred accused to other jails as per
rules and regulations."
6. Administrative approval for the transfer of 37 undertrial 0
prisoners involved in the above three cases was also obtained
from the Inspector General of Prisons who directed the
Superintendent, Bombay Central Prison, to keep in mind the
criminal background of the prisoners while allocating them to
different jails in the State.
E
7. On 22nd June, 2008 the jail authorities appear to have
sent a requisition for an escort to the police headquarters which
police escort was provided and reached the jail premises on
28th June, 2008 at 9.00 a.m. An announeement was then made
requesting thirty-two undertrial prisoners to gather near Lal F
Gate in the prison premises out of whom seven prisoners were
transferred to Ratnagiri Special Jail around 11.40 a.m. The
other nineteen undertrials were said to be sitting outside while
two other undertrial prisoners named Kamal Ahmad Vakil
Ansari and Dr. Tanveer Mohd. Ibrahim Ansari refused to leave G
their cell to join the escort party despite persuasions by the jail
authorities. The case of the appellants is that these undertrial
prisoners refused to listen to the jail authorities and started
abusing and misbehaving with the jail officials including Mrs.
Swati Madhav Sathe, the Jail Superintendent. Not only that, the H
928 SUPREME COURT REPORTS (2012) 11 S.C.R.
A undertrial prisoners started shouting anti-national and
provocative slogans. After hearing these slogans from the high
security cell, 21 undertrial prisoners who had gathered near the
Lal Gate also started giving similar slogans and charged
towards the jail officials, Wardens and watchmen and started
B assaulting them with bricks and stones. The version of the
appellants is that these 21 undertrial prisoners also tried to
approach the High Security Cell and tried to open its gate while
they continued shouting slogans. Apprehending that the
situation may go out of hand, the alarm bell was sounded in
c the jail and force reasonable enough to bring the situation under
control used for that purpose. The appellants contend that
because of the assault by the undertrial prisoners, the jail
guards and prison officers sustained injuries.
8. A report regarding the incident in question was
D submitted on 30th June, 2008 to the Deputy Inspector General
of Prison with a copy to the Principal Judge, City Sessions
Court, Greater Bombay, Registrar Special-Judge, under
MCOC Act apart from other officers in the prison hierarchy.
Such of the prisoners as had received injuries were forwarded
E to the jail medical officers who examined them and issued
medical certificates, regarding injuries sustained by them. The
appellants allege that there was no violation of any statutory
provision of law nor any other act of impropriety or illegality
committed by them.
F
9. In the writ petitions filed by the respondents before the
High Court, allegations regarding use of excessive force and
inhuman treatment were made against the jail officials including
the Superintendent of the Central Jail. The respondents alleged
G that the use of force was without any provocation and
justification apart from being inspired by reasons extraneous
to the need for maintaining peace and order within the jail. The
nature of the allegations made in the writ petitions was found
by the High Court to be sufficient to call for an inquiry into the
violent incident. This inquiry was assigned to the Sessions
H
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED 929
SOHAIL SHEIKH ETC. ETC. [T.S. THAKUR, J.]
Judge, Greater Bombay who was asked to report whether use A
· of force by the jail authorities on 28th June, 2008 was excessive
and whether, force was used for any extraneous reasons other
than for maintaining discipline in terms of the Discipline Rules,
1963 of the Jail Manual. The Sessions Judge was also asked
to enquire into the circumstances in which the prisoners had B
access to bricks and stones as claimed by jail authorities in
\the counter-affidavit filed before the High Court.
10. An inquiry pursuant to the directions of the High Court
was accordingly conducted by the learned Sessions Judge,
Greater Bombay in which the Sessions Judge recorded the C
statements of the injured as also the jail officials besides some
other inmates of the jail. The report submitted by the Sessions
Judge concluded that the cause underlying the incident of 28th
June, 2008 was the resistance offered by Kamal Ahmad Vakil
Ansari and Dr. Tanveer Mohd. Ibrahim Ansari to their transfer D
from the prison. The Inquiry Officer observed:
"....The inquiry revealed that Tanvir and Kamal had resisted ·
the jail staff on that day and they were not ready to go out
of the High Security Zone. Inquiry further revealed that the E
jail staff was required to use force against them for taking
them out of the room, then from barrack and then from the
circle itself....
F
Statements of prisoners sent to Kolhapur and Nagpur
jails and the statement of the jail staff if considered
together, are sufficient to infer that Tanvir and Kamal
offered maximum resistance to jail staff and they had
refused to come out of High Security Zone but they were G
. not taken out of their respective rooms and so there is no
convincing statement given by anybody in respect of other
two prisoners. It can be said that they were removed after
the main incident was over. If the exaggeration made by
other prisoners who were brought from Kolhapur jail is H
930 SUPREME COURT REPORTS (2012] 11 S.C.R.
A ignored, and the facts which can be called as commor.
from the statements given by the jail staff and the prisoners
are considered, it can be said that shouts of Tanvir who
was assaulted inside of High Security Zone were heard
by the prisoners who had gathered outside, in the open
B space. Material is also sufficient to infer that Kamal came
out though without stick and he instigated the 20 prisoners
who were sitting outside in the open space."
11. The Inquiry Officer further found that the resistance
offered by Kamal Ahmad Vakil Ansari and Dr. Tanveer Mohd.
C Ibrahim Ansari required use of force against them but since
both of them started shouting slogans other prisoners who were
gathered outside in the open portion of the jail gate got agitated
and rushed towards the High Security Cell to see as to what
was happening. The Inquiry Officer held that hearing the anti-
D national slogans, the jail officers lost their calm and ordered use
of force leading to breach of disturbances within the jail. The
Inquiry Officer has specifically noted that the disturbances had
started on account of instigation given by Kamal Ansari arid
slogans shouted by him and that there were reasons for the jail
E authorities to bring the situation under control. The following
passage in the inquiry report is, in this regard, relevant:
There is possibility that after hearing the shouting of Tanvir
F and after hearing from Kamal that Tanvir was being beaten
in High Security Zone and after hearing slogans given by
Tanvir, prisoners who had gathered outside became
disturbed. It can be said that they must have rushed
towards the High Security Zone to see as to what was
G happening. There is a clear possibility that after hearing
of the slogans which were given against India, officers
outside became angry and then order was made to use
force. Aforesaid circumstances have created probability
that there was breach .of discipline in view of the Rules
H framed under the Maharashtra Prison (Discipline) Rules
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED 931
SOHAIL SHEIKH ETC. ETC. [T.S. THAKUR, J.]
of 1963 and there was disturbance to some extent. I have A
no hesitation to come to the conclusion that due to the
instigation given by Kamal arid slogans given by him,
disturbance was caused and there was reason for the jail
authority to order use of force. Force was used to bring
the situation under control. But it needs to be ascertained B
as to whether there was excessive use of force or there
was some extraneous reason also for excess use of force
against these prisoners."
12. Having identified the cause of disturbances the Inquiry C
Officer next examined the question whether the force used by
the jail authorities was excessive and came to the conclusion
on the basis of the medical records of the injured namely,
Tanveer, Kamal, Ehatesham, Sayed Asif, Abdul Wahid, Mohd.
Zuber, Mushtaq Ahmed, Mohd. Zahid, Zameer Ahmad, Riyaz
Ahmed and Mohd. Mujaffar that the use of force by the jail D
authorities was excessive. The Inquiry Officer further held that
the injured were not given medical aid. They were not properly
examined by the doctors from the Bombay Central Police.
Speaking about the conduct of the doctors in Bombay Central
Prison the Inquiry Officer observed: E
"This conduct of the doctors of Mumbai Central Prison
speaks volume about the general approach of the jail
authority and the doctors working in the jail. It can be said
that the doctors helped the jail authority in falsifying F
everything and screening illegal actions of the officers. It
is surprising for the jail authority also that when under
Chapter 11 of the Prison Act, action could have been
taken against the prisoners if they had committed prison
offence by assaulting officers, no record in that regard was G
created and no such action was proposed. Instead of that,
jail authority hurriedly transferred the prisoners to other
jails."
13. On a consideration of the report received from the
Sessions Judge, the High Court found it necessary to direct the H
932 SUPREME COURT REPORTS (2012) 11 S.C.R.
A' Government to hold a departmental inquiry against the officials
who had used excessive force in bringing the situation in the
jail under control. The High Court found that the order
transferring the respondents-undertrial prisoners from Bombay
Central Jail to other jails in the State was illegal and
s unacceptable inasmuch as the request for transfer had been
dealt with at an administrative level without affording an
opportunity to the undertrials to oppose the same. The High
Court rejected the contention urged on behalf of the appellants
that Section 29 of the Prisoners Act, 1900 empowers the State
c Government or the Inspector General of Prisons to transfer the
undertrials. The power to transfer the undertrials was, according
to the High Court, exercisable only by the Court under whose
orders the prisoners were remanded to judicial custody in a
given jail. Inasmuch as the court concerned had faltered in
taking appropriate action on the request for transfer by treating
0
the request to be only an administrative matter, the sanction for
transfer of the undertrials to other jails was vitiated.
14. Appearing for the appellants Mr. Shekhar Naphade,
learned senior counsel, made a three-fold submission before
E us. Firstly, it was contended that the undertrial prisoners had
no enforceable right to demand that they should be detained
in a prison of their choice or to resist their transfer from one
jail to the other if the court under whose orders they were
remanded to such custody permitted such transfer. He argued
F that although Section 29(2) of the Prisoners Act, 1900 permitted
the Inspector General of Prisons to remove any prisoner from
one prison to another in the State even if that power was not
available qua undertrial prisoners, there was no impediment in
such removal after the court under whose orders the prisoners
G were committed to jail had permitted such a transfer.
15. Secondly, it was argued by Mr. Naphade, that the
power exercisable by the court in the matter of permitting or
refusing the transfer of a prisoner was ministerial in character
and that the prisoner had no right to demand a notice of any
H
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED 933
SOHAIL SHEIKH ETC. ETC. [T.S. THAKUR, J.]
such request nor an opportunity to oppose the same. It is a A
matter entirely between the jail authorities on the one hand and
the court concerned on the other in which the prisoner had no
locus standi to intervene.
16. Thirdly, it was argued by Mr. Naphade that the High B
Court had fallen in a palpable error in holding that the use of
force by the jail authorities was excessive, which called for any
administrative or disciplinary action against those responsible
for using such excessive force. He contended that what would
constitute reasonable force to restore discipline and peace
within the jail depends largely upon the nature of the incident, C
the extent of disturbances and the gravity of the consequences
. that would flow if force was not used to restore order. It was
not, according to Mr. Naphade possible to sit in judgment over
the decision of the jail authorities who were charged with
maintenance of discipline and peace within the jail and D
determine whether force was rightly used and, if so, whether
or not the use of force was excessive.
17. ~r. Naphade also urged that the underlying cause of
the incident in the instant case was resistance put up by the E
undertrials involved in heinous offences against the society
threatening the very sovereignty and integrity of the country. It
was not open to the concerned prisoners, argued Mr. Naphade
to resist their transfer from one jail to the other and to create a
situation in which the jail authorities found it difficult to effectuate F
their transfer. It was also contended by Mr. Naphade that the ·
reports submitted by the Sessions Judge was at best a
preliminary fact finding report which has neither afforded an
opportunity to all concerned to defend themselves against the
insinuations or to examine witnesses in their defence. No such G
report could, therefore, be made a basis by the High Court to
issue a mandamus to the State to institute disciplinary action
against the officials concerned as though the finding that the
use of force was excessive was unimpeachable and could
constitute a basis for any such direction.
H
934 SUPREME COURT REPORTS [2012] 11 S.C.R.
A 18. On behalf of the respondents Mr. Amrender Saran,
learned senior counsel, argued that the transfer of a prisoner
especially an undertrial from one prison to the other was not
inconsequential for the prisoner and could not, therefore, be
dealt with at a ministerial level. A prisoner was entitled to
B oppose the transfer especially if the same adversely affected
his defence. It was also contended that Section 29 did not
empower the Government or the Inspector General of Prisons
to direct transfer of undertrials. It was argued that while the
inquiry conducted by the Sessions Judge was not a substitute
c for a regular inquiry that may be conducted by the State, yet
the exercise undertaken by a senior officer like the Sessions
Judge under the orders of the High Court could furnish a prima
facie basis for the High Court to direct an appropriate
investigation into the case, and to initiate proceedings against
those who may be found guilty of any misconduct on the basis
0
of any such investigation.
19. Section 29 of the Prisoners Act, 1900 reads as under:
"29. Removal of prisoners-(1} The [State Government]
E may, by general or special order, provide for the removal
of any prisoner confined in a prison-
(a} under sentence of death, or
{b) under, or in lieu of, a sentence of imprisonment or
F transportation, or
{c) in default of payment of a fine, or
{d) in default of giving security for keeping the peace or
for maintaining good behaviour,
G
to any other prison in [the State]
(2) [Subject to the orders, and unPE!r the control of the
State Government, the Inspector-General of prisons may,
H in like manner, provide for the removal of any prisoner
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED 935
SOHAIL SHEIKH ETC. ETC. [T.S. THAKUR, J.]
confined as aforesaid in a prison in the State to any other A
prison in the State]"
20. It is evident from a bare glance at the above provision
that removal of any prisoner under the same is envisaged only
at the instance of the State Government in cases where the
8
prisoner is under a sentence of death or under or in lieu of a
sentence of imprisonment or transportation or is undergoing in
default of payment of fine or imprisonment in default of security
for keeping the peace or for maintaining good behaviour.
Transfer in terms of sub-section (1) of Section 29 (supra) is thus
permissible only in distinct situations covered by clauses (a) C
to (d) above. The provision does not, it is manifest, deal with
undertrial prisoners who do not answer the description given
therein.
21. Reliance upon sub-section (2) of Section 29, in support D
of the contention that the transfer of an undertrial is permissible,
is also of no assistance to the appellants in our opinion. Sub-
section (2) no doubt empowers the Inspector General of Prisons
to direct a transfer but what is important is that any such transfer
is of a prisoner who is confined in circumstances mentioned E
in sub-section (1) of Section 29. That is evident from the use
of words "any prisoner confined as aforesaid in a prison". The
expression leaves no manner of doubt that a transfer under sub-
section (2) is also permissible only if it relates to prisoners who
were confined in circumstances indicated in sub-section (1) of F
Section 29. The respondents in the present case were
undertrials who could not have been transferred in terms of the
orders of the Inspector General of Prisons under Section 29
extracted above.
22. We may at this stage refer to Prison Act, 1894 to which ·G
our attention was drawn by learned counsel for the appellants
in an attempt to show that the Government could direct transfer
of the undertrials from one prison to another. Reliance, in
particular, was placed upon the provisions of Section 26 of the
Ad which reads as under: H
936 SUPREME COURT REPORTS [2012] 11 S.C.R.
A "26. Removal and discharge of prisoners. - (1) All
prisoners, previously being removed to any other prison,
shall be examined by the Medical Officer.
(2) No prisoner shall be removed from one prison to
another unless the Medical Officer certifies that the prisoner
B
is free from any illness rendering him unfit for removal.
(3) No prisoner shall be discharged against his will from
prison, if labouring under any acute or dangerous
distemper, nor until, in the opinion of the Medical Officer,
c such discharge is safe."
23. The above, does not, in our opinion, support the
contention that the Inspector General of Prisons could direct
removal of undertrial from one prison to other. All that Section
0 26 provides is that before being removed to any other prison
the prisoner shall be examined by the medical officer and unless
the medical officer certifies that the prisoner is free from any
illness rendering him unfit for removal, no such removal shall
take place. Section 26 may, therefore, oblige the prison
authorities to have the prisoner, whether a convict or an
E undertrial, medically examined and to remove him only if he is
found fit but any such requirement without any specific power
vested in any authority to direct removal, cannot by itself, be
interpreted to mean that such removal can be ordered under
the order either by the Inspector General of Prisons or any other
F officer for that matter.
24. That leaves us with the question as to whether
undertrials can be transferred to any prison with the permission
of the court under whose orders he has been committed to the
G prison. Reference in this connection may be made to Sections
167 and 309 of the Code of Criminal Procedure, 1973. Section
167(2) empowers the Magistrate to whom an accused is
forwarded whether or not he has jurisdiction to try the case to
authorize his detention in such custody as the Magistrate
H
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED 937
SOHAIL SHEIKH ETC. ETC. [T.S. THAKUR, J.)
deems fit for a term not exceeding 15 days in the whole. It A
reads:
"167. Procedure when investigation cannot be
completed in twenty-four hours
(1) lOOOOOOOOOOOOOC B
(2) The M::igistrate to whom an accused person is
forwarded under this section may, whether he has or has
not jurisdiction to try the case, from time to time, authorise
the detention of the accused in such custody as such c
Magistrate thinks fit, a term not exceeding fifteen days in
the whole; and if he has no jurisdiction to try the case or
commit it for trial, and considers further
detention unnecessary, he may order the accused to be
forwarded to a Magistrate having such jurisdiction: D
Provided that-
(a) the Magistrate may authorise the detention of the
accused person, otherwise than in the custody of the E
police, beyond the period of fifteen days, if he is satisfied
that adequate grounds exist for doing so, but no Magistrate
shall authorise the detention of the accused person in
custody under this paragraph for a total period
exceeding-
F
(i) ninety days, where the investigation relates to an offence
punishable with death, imprisonment for life or
imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other G
offence, and, on the expiry of the said period of ninety days,
or sixty days, as the case may be, the accused person shall
be released on bail if he is prepared to and does furnish
bail, and every perron released on bail under this sub-
section shall be deemed to be to so released under the H
938 SUPREME COURT REPORTS [2012] 11 S.C.R.
A provisions of Chapter XXXlll for the purposes of that
Chapter;
(b) no Magistrate shall authorise detention in any custody
under this section unless the accused is produced before
him;
B
(c) no Magistrate of the second class, not specially
empowered in this behalf by the High Court, shall authorise
detention in the custody of the police."
c 25. Reference may also be, at this stage made, to Section
309 of the Code which, inter alia, empowers the court after
taking cognizance of an offence or commencement of the trial
to remand the accused in custody in cases where the court
finds it necessary to postpone the commencement of trial or
0 inquiry. The rationale underlying both these provisions is that
the continued detention of the prisoner in jail during the trial or
inquiry is legal and valid only under the authority of the Court/
Magistrate before whom the accused is produced or before
whom he is being tried. An undertrial remains in custody by
E reasons of such order of remand passed by the concerned
court and such remand is by a warrant addressed to the
authority who is to hold him in custody. The remand orders are
invariably addressed to the Superintendents of jails where the
undertrials are detained till their production before the court on
the date fixed for that purpose. The prison where the undertrial
F is detained is thus a prison identified by the competent court
either in terms of Section 167 or Section 309 of the Code. It is
axiomatic that transfer of the prisoner from any such place of
detention would be permissible only with the permission of the
court under whose warrant the undertrial has been remanded
G to custody.
26. Both Mr. Naphade and Mr. Saran had no serious
quarrel on the above proposition. It was all the same argued
that if the provisions of the Prisoners Act, 1900 and the Prisons
H Act, 1894 did not empower the Inspector General of Prisons
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED 939
SOHAIL SHEIKH ETC. ETC. [T.S. THAKUR, J.)
to transfer the undertrial, the only other mode of such transfer A
was with the permission of the court and pursuant to whose
warrant of remand the undertrial is held in a particular jail.
27. The forensic debate at the Bar was all about the nature
of the power exercisable by the court while permitting or B
refusing transfer. We have, however, no hesitation in holding
that the power exercisable by the court while permitting or
refusing transfer is 'judicial' and not 'ministerial' as contended
by Mr. Naphade. Exercise of ministerial power is out of place
in situations where quality of life or the liberty of a citizen is c
affected, no matter he/she is under a sentence of imprisonment
or is facing a criminal charge in an on-going trial. That transfer
of an undertrial to a distant prison may adversely affect his right
to defend himself but also isolate him from the society of his
friends and relations is settled by the decision of this Court in 0
Sunil Batra v. Delhi Administration AIR 1980 SC 1579, where
this Court observed:
"48. Inflictions may take many protean forms, apart from.
physical assaults. Pushing the prisoner into a solitary cell,
denial of a necessary amenity, and, more dreadful E
sometimes, transfer to a distant prison where visits or
society of friends or relations may be snapped, allotment
of degrading labour, assigning him to a desperate or
tough gang and the like, may be punitive in effect. Every
such affliction or abridgment is an infraction of liberty or F
life in its wider sense and cannot be sustained unless
Article 21 is satisfied. There must be a corrective legal
procedure, fair and reasonable and effective. Such
infraction will be arbitrary, under Article 14 if it is
dependent on unguided discretion, unreasonable, under G
Article 19 if it is irremediable and unappealable, and
unfair, under Article 21 if it violates natural justice. The
string of guidelines in Batra set out in the first judgment,
which we adopt, provides for a hearing at some stages,
a review by a superior, and early judicial consideration H
940 SUPREME COURT REPORTS (2012] 11 S.C.R.
A so that the proceedings may not hop from Caesar to
Caesar. We direct strict compliance with those norms
and institutional provisions for that purpose.•
28. The expressions 'ministerial', 'ministerial office',
'ministerial act', and 'ministerial duty' have been defined by
8
Black's Law Dictionary as under:
"Ministerial, Adj. (16c) of our relating to an act that
involves obedience to instructions or laws instead of
discretion, judgment, or skill the court clerk's ministerial
C duties include recording judgments on the docket.
Ministerial office. An office that does not include
authon"ty to exercise judgment, only to carry out orders
given by a superior office, or to perform duties or acts
0 required by rules, statutes, or regulations.
Ministerial act. An act performed without the
independent exercise of discretion or judgment. If the act
is mandatory, it is also termed a ministerial duty.
E Ministerial duty. A duty that requires neither the exercise
of official discretion nor judgment. •
29. Prof. De Smith in his book on 'Judicial Review'
(Thomson Sweet & Maxwell, 6th Edn. 2007) refers to the
F meaning given by Courts to the terms 'judicial', 'quasi-judicial'.
'administrative', 'legislative' and 'ministerial' for administrative
law purposes and found them to be inconsistent. According to
the author 'ministerial' as a technical legal term has no single
fixed meaning. It may describe any duty the discharge whereof
G requires no element of discretion or independent judgment. It
may often be used more narrowly to describe the issue of a
formal instruction, in consequence of a prior determination
which may or may not be of a judicial character. Execution of
any such instructions by an inferior officer sometimes called
ministerial officer may also be treated as a ministerial function.
H
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED941
SOHAIL SHEIKH ETC. ETC. [T.S. THAKUR, J.]
It is sometimes loosely used to describe an act that is neither A
judicial nor legislative. In that sense the term is used
interchangeably with 'executive' or 'administrative'. The tests
which, according to Prof, De Smith delineate 'judicial functions',
could be varied some of which may lead to the conclusion that
certain functions discharged by the Courts are not judicial such B
as award of costs, award of sentence to prisoners, removal of
trustees and arbitrators, grant of divorce to petitioners who are
themselves guilty of adultery etc. We need not delve deep into
all these aspects in the present case. We say so because
pronouncements of this Court have over the past decades c
made a distinction between quasi-judicial function on the one
hand and administrative or ministerial duties on the other which
distinctions give a clear enough indication and insight into what
constitutes ministerial function in contra-distinction to what
would amount to judicial or quasi-judicial function. D
30. In Province of Bombay v. Khusaldas Advani (Al R 1950
SC 222) this Court had an occasion to examine the difference
between a quasi-judicial order and an administrative or
ministerial order. Chief Justice Kania, in his opinion, quoted E
with approval an old Irish case on the issue in the following
passage:
•..... the point for determination is whether the order in
question is a quasi-judicial order or an administrative or F
ministerial order. In Regina (John M'Evoy) v. Dublin
Corporation [1978] 2 L.R. Irish 371, 376, May C.J. in
dealing with this point observed as follows: "It is
established that the writ of certiorari does not lie to
remove an order merely ministerial, such as a warrant, G
but it lies to remove and adjudicate upon the validity of
acts judicial. In this connection, the term Judicial' does
not necessarily mean acts of a judge or legal _tribunal
sitting for the determination of matters of law, but for the
H
942 SUPREME COURT REPORTS [2012] 11 S.C.R.
A purpose of this question a judicial act seems to be an
act done by competent authority, upon consideration of
facts and circumstances, and imposing liability or
affecting the rights of others."
B This definition was approved by Lord Atkinson in Frome
United Breweries Co. v. Bath Justices [1926] A.G. 586,
602, as the best definition of a judicial act as
distinguished from an administrative act."
C 31. In Khushaldas Advani's case (supra) the Court was
examining whether the act in question was a ministerial/
administrative act or a judicial/quasi-judicial one in the context
of whether a writ of certiorari could be issued against an order
under Section 3 of the Bombay Land Requisition Ordinance,
1947. The Court cited with approval the observation of L.J.
D Atkin in The King v. The Electricity Commissioner [1924) 1
K.B. 171 that laid down the following test:
"Whenever anybody of persons having legal authority to
determine questions affecting the rights of subjects, and
E having the duty to act judicially, act in excess of their legal
authority they are subject to the controlling jurisdiction of
the King's Bench Division exercised in these writs.•
32. The Court quoted with approval the decision in The
F King v. London County Council [1931) 2 K.B. 215 according
to which a rule of certiorari may issue; wherever a body of
persons
(1) having legal authority
G
(2) to determine questions affecting rights of subjects
and
(3) having the duty to act judicially
H
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED 943
SOHAIL SHEIKH ETC. ETC. [T.S. THAKUR, J.]
(4) act in excess of their legal authority-a writ of A
certiorari may issue.
33. Justice Fazl Ali, in his concurring opinion in
Khushaldas' case (supra) made the following observations as
regards judicial and quasi-judicial orders: 8
·16. Without going into the numerous cases cited before
us, it may be safely laid down that an order will be a
judicial or quasi-judicial order if it is made by a court or
a judge, or by some person or authority who is legally
bound or authorised to act as if he was a court or a judge. C
To act as a Court or a judge necessarily involves giving
an opportunity to the party who is to be affected by an
order to make a representation, making some kind of
enquiry, hearing and weighing evidence, if any, and
considering all the facts and circumstances bearing on D
the merits of the controversy before any decision affectir:ig
the rights of one or more parties is arrived at. The
procedure to be followed may not be as elaborate as in
a court of law and it may be very summary, but it must
contain the essential elements of judicial procedure as E
indicated by me.
xxx xxx xxx
xxx xxx xxx
F
... The mere fact that an executive authority has to decide
something does not make the decision judicial. It is the
manner in which the decision has to be arrived at which
makes the difference and the real test is: Is there any duty
to decide judicially?" G
34. The detailed concurrent opinion of Justice Das, in the
same case, also agreed with the above test for determining
whether a particular act is a judicial or an administrative one.
Das J., observed:
H
944 SUPREME COURT REPORTS [2012] 11 S.C.R.
A "The real test which distinguishes a quasi-judicial act
from an administrative act is the third item in Atkin L.J. 's
definition, namely the duty to act judicially. n
35. In State of Orissa v. Dr. Binapani Dei (AIR 1967 SC
1269) Justice Shah, speaking for the Court observed that the
8
duty to act judicially arose from the very nature of the function
intended to be performed. It need not be shown to be
superadded. The Court held:
"If there is power to decide and determine to the prejudice
C of a person, duty to act judicially is implicit in the exercise
of such power.·
36. In AK. Kraipak v. Union of India (1969) 2 SCC 262,
Hegde, J., as His Lordship then was, recognised that the
0 dividing line between an administrative power and a quasi-
judicial power was fast vanishing. What was important, declared
tlie Court, was the duty to act judicially which implies nothing
but a duty to act justly and fairly and not arbitrarily or capriciously.
The Court observed:
E "13. The dividing line between an administrative power
and a quasi-judicial power is quite thin and is being
gradually obliterated. For determining whether a power is
an administrative power or a quasi-judicial power one has
to look to the nature of the power conferred, the person
F or persons on whom it is conferred, the framework of the
Jaw conferring that power, the consequences ensuing from
the exercise of that power and the manner in which that p
wer is expected to be exercised. Under our Constitution t
e rule of law pervades over the entire fie/
G
of administration. Every organ of the State under our Consti
ution is regulated and controlled by the rule of law.
n a welfare State like ours it is inevitable that
the jurisdiction of the administrative bodies is increasing
at a rapid rate. The concept of rule of law would lose its
H
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED 945
SOHAIL SHEIKH ETC. ETC. [T.S. THAKUR, J.]
vitality if the instrumentalities of the State are not charged A .
with the duty of discharging their functions in a fair and
just manner. The requirement of acting judicially in
essence is nothing but a requirement to act justly and
fairly and not arbitrarily or capriciously. The procedures
which are considered inherent in the exercise of a judicial B
power are merely those wh_ich facilitate if not ensure a just
and fair decision. In recent years the concept of quasi-
judicial power has been undergoing a radical change.
What was considered as an administrative power some
years back is now being considered as a quasi-judicial c
power.·
37. To the same effect is the decision of this Court in
Mohinder Singh Gill. v. Chief Election Commission (1978) 1
SCC 405 where Krishna Iyer, J. speaking for the Court
observed: D
"48. Once we understand the soul of the rule as fairplay
in action - and it is so - we must hold that it extends
to both the fields. After all, administrative power in a
democratic set-up is not allergic to fairness in action and E
discretionary executive justice cannot degenerate into
unilateral injustice. Nor is there ground to be frightened
of delay, inconvenience and expense, if natural justice
gains access. For fairness itself is a flexible, pragmatic
and relative concept, not a rigid, ritualistic or F
sophisticated abstraction. It is not a bull in a china shop,
nor a bee in one's bonnet. Its essence is good
conscience in a given situation: nothing more - but
nothing less. The •exceptions" to tha rules of natural
justice are a misnomer or rather are but a shorthand G
form of expressing the idea that in those exclusionary
cases nothing unfair can be inferred by not affording an
opportunity to present or meet a case. Text-book excerpts
and ratios from rulings can be heaped, but they all
converge to the same point that audi alteram partem is H
946 SUPREME COURT REPORTS [2012] 11 S.C.R.
·A the justice of the law, without, of course, making law
lifeless, absurd, stultifying, self-defeating or plainly
contrary to the common sense of the situation."
38. Recently this Court in Jamal Uddin Ahmad v. Abu
B Saleh Najmuddin (2003) 4 SCC 257 dealt with the nature of
distinction between judicial or ministerial functions in the
following words:
"14. The judicial function entrusted to a Judge is
inalienable and differs from an administrative or
c ministerial function which can be delegated or
performance whereof may be secured through
authorization. "The judicial function consists in the
interpretation of the law and its application by rule or
discretion to the facts of particular cases. This involves
D the ascertainment of facts in dispute according to the law
of evidence. The organs which the State sets up to
exercise the judicial function are called courts of law or
courts of justice. Administration consists of the
operations, whatever their intrinsic nature may be, which
E are pelformed by administrators; and administrators are
all State officials who are neither legislators nor judges."
(See Constitutional and Administrative Law, Phillips and
Jackson, 6th Edn., p. 13.) P. Ramanatha Aiyar's Law
Lexicon defines judicial function as the doing of
F something in the nature of or in the course of an action
in court. (p. 1015) The distinction between "judicial" and
"ministerial acts" is: If a Judge dealing with a particular
matter has to exercise his discretion in arriving at a
,. decision, he is acting judicially; if on the other hand, he
is merely required to do a particular act and is precluded
G
from entering into the merits of the matter, he is said to
be acting ministerially. (pp. 1013-14). Judicial function is
exercised under legal authority to decide on the disputes,
after hearing the parties, maybe after making an enquiry,
and the decision affects the rights and obligations of the
H
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED 947
SOHAIL SHEIKH ETC. ETC. [T.S. THAKUR, J.)
parties. There is a duty to act judicially. The Judge may A
construe the law and apply it to a particular state of facts
presented for the determination of the controversy. A
ministerial act, on the other hand, may be defined to be
one which a person performs in a given state of facts, in
a prescribed manner, in obedience to the mandate of fl B
legal authority, without regard to, or the exercise of, his
own judgment upon the propriety of the act done. (Law
Lexicon, ibid., p. 1234). In ministerial duty nothing is left
to discretion; it is a simple, definite duty.·
39. Applying the above principles to the case at hand and C
keeping in view the fact that any order that the Court may make
on a request for transfer of a prisoner is bound to affect him
prejudicially, we cannot but hold that it is obligatory for the Court
to apply its mind fairly and objectively to the circumstances in
which the transfer is being prayed for and take a considered D
view having regard to the objections which the prisoner may
have to offer. There is in that process of determination and
decision-making an implicit duty to act fairly, objectively or in
other words to act judicially. It follows that any order of transfer
passed in any such proceedings can be nothing but a judicial E
order or at least a quasi-judicial one. Inasmuch as the trial court
appears to have treated the matter to be administrative and
accordingly permitted the transfer without issuing notice to the
under-trials or passing an appropriate order in the matter, it
committed a mistake. A communication received from the F
prison authorities was dealt with and disposed of at an
administrative level by sending a communication in reply without
due and proper consideration and without passing a
considered judicial order which alone could justify a transfer in
the case. Such being the position the High Court was right in G
declaring the trans.fer to be void and directing the re-transfer
of the undertrials to Bombay jail. It is common ground that the
stay of the proceedings in three trials pending against the
respondents has been vacated by this Court. Appearance of
the undertrials would, therefore, be required in connection with H
948 SUPREME COURT REPORTS [2012] 11 S.C.R.
A the proceedings pending against them for which purpose they
have already been transferred back to the Arthur Road Jail in
Bombay. Nothing further, in that view, needs to be done by this
Court in that regard at this stage.
B 40. That leaves us with the only other aspect namely
whether the High Court was justified in directing the
Government to hold an inquiry against those responsible for
using excessive force and for dereliction of duty by the medical
officer. As noticed earlier by us the said direction has been
issued entirely on the basis of the report submitted by the
C Sessions Judge. That report besides being preliminary is
flawed in many respects including the fact that the same does
not comply with the basic requirement of a fair opportunity of
hearing being given to those likely to be affected. It is true that
the statements of some of the jail officials have also been
D recorded in the course of the inquiry but that is not enough.
Those indicted in the report were entitled to an opportunity to
cross-examine those who alleged misconduct against them. Not
only that the Sessions Judge has not named the officers
responsible for the alleged use of excessive force which was
E essential for any follow up or further action in the matter. The
Sessions Judge has observed:
·1 am avoiding naming the officers of the jail against
whom a/legations of use of force are made as I am
expected to give findings only on the aforesaid five points
F
and as officers who took part in the action, officers who
gave orders of or the officers who did not oppose the
action cannot be segregated.·
41. So, also the report clearly states the officials concerned
G have not been allowed to examine any witness although a
request was made by them to do so. Such being the position,
some of the observations made by the High Court that give an
impression as though the misdemeanour of the jail officers had
been proved, do not appear to be justified. It was at any rate
H not for the High Court to record a final and authoritative finding
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED 949
SOHAIL SHEIKH ETC. ETC. [T.S. THAKUR, J.]
that the force used by the jail authorities was excessive or that A
it was used for any extraneous purpose. It was a matter that
could be determined only after a proper inquiry was conducted
and an opportunity afforded to those who were accused of using
such excessive force or abusing the power vested in them.
Consequential directions issued by the High Court in directing 8
the State Government to initiate disciplinary inquiry against all
the officers involved in the incident were, therefore, premature.
We say so because the question whether any disciplinary
inquiry needs to be instituted against the jail officials would
depend upon the outcome of a proper investigation into the C
incident and not a preliminary enquiry in which the Investigating
Officer, apart from statements of the respondents, makes use
of information discreetly collected from the jail inmates. The
report of the Sessions Judge could in the circumstances
provide no more than a prima facie basis for the Government
to consider whether any further investigation into the incident D
was required to be conducted either for disciplinary action or
for launching prosecution of those found guilty. Beyond that the
preliminary report could not in view of what we have said above
serve any other purpose.
E
42. In a country governed by the rule of law police excesses
whether inside or outside the jail cannot be countenanced i:i
the name of maintaining discipline or dealing with anti-national
elements. Accountability is one of the facets of the rule of law.
If anyone is found to have acted in breach of law or abused his F
position while exercising powers that must be exercised only
within the parameters of law, the breach and the abuse can be
punished. That is especially so when the abuse is alleged to
have been committed under the cover of authority exercised by
people in uniform. Any such action is also open to critical G
scrutiny and examination by the Courts. Having said that we
cannot ignore the fact that the country today faces challenges
and threats from extremist elements operating from within and
outside India. Those dealing with such elements have at times
to pay a heavy price by sacrificing their lives in the discharge H
950 SUPREME COURT REPORTS [2012) 11 S.C.R.
A of their duties. The glory of the constitutional democracy that
we have adopted, however, is that whatever be the challenges
posed by such dark forces, the country's commitment to the Rule
of Law remains steadfast. Courts in this country have protected
and would continue to protect the ideals of the rights of the
B citizen being inviolable except in accordance with the procedure
established by law.
43. In the result we allow these appeals but only in part and
to the extent that the Government shall treat the report submitted
by the Sessions Judge as a preliminary inquiry and take a
C considered decision whether or not any further inquiry,
investigation or proceedings against those allegedly
responsible for using excessive force while restoring discipline
in the Central Jail at Bombay on 26th June, 2008 needs to be
conducted. We make it clear that if the Government decides
D to hold any further inquiry or investigation into the matter on the
basis of the preliminary findings in the report submitted by the
Sessions Judge or institute any departmental proceedings
against any one of those found guilty in any such further inquily
or investigation, the observations made by the High Court in
· E regard to the use of force or the extent thereof shall not prejudice
the parties concerned or the outcome of any such inquiry nor
shall any such observation be treated to be a final expression
of opinion regarding the guilt or innocence of the concerned.
The parties are left to bear their own costs.
F B.B.B. Appeals Partly allowed.
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