Full Judgment Text
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PETITIONER:
HUSSAINARA KHATTON & ORS.
Vs.
RESPONDENT:
HOME SECRETARY, STATE OF BIHAR, PATNA
DATE OF JUDGMENT26/02/1979
BENCH:
BHAGWATI, P.N.
BENCH:
BHAGWATI, P.N.
PATHAK, R.S.
KOSHAL, A.D.
CITATION:
1979 AIR 1360 1979 SCR (3) 169
1980 SCC (1) 81
CITATOR INFO :
RF 1980 SC1789 (112)
RF 1981 SC 746 (3)
RF 1981 SC 939 (2)
E 1981 SC1675 (1,2)
R 1982 SC1167 (1,2)
R 1983 SC 361 ((2)19)
RF 1985 SC 231 (2)
R 1986 SC 180 (39)
RF 1986 SC1773 (12)
F 1987 SC 149 (9)
RF 1988 SC1531 (87)
F 1989 SC1335 (71)
RF 1992 SC1701 (1,21,28,29,31,32,35)
ACT:
Constitution of India 1950-Art. 21-Women kept in jail
by way of ’protective custody’-Violation of personal
liberty.
Code of Criminal Procedure 1973-Ss. 167(5) & 468-
Release of under-trial prisoner when Magistrate not
satisfied with necessity of continuing investigation or
charge-sheet not filed within limitation.
HEADNOTE:
At the further hearing of the case on release of under-
trials in the State of Bihar,
^
HELD: (a)(i) The expression ’protective custody’ is an
euphemism calculated to disguise what is really and in truth
nothing but imprisonment. It is an expression intended to
appease the conscience. This so-called ’protective custody’
is nothing short of a blatant violation of personal liberty
guaranteed under Art. 21 of the Constitution, because there
is no provision of law under which a woman can be kept in
jail by way of ’protective custody’ or merely because she is
required for the purpose of giving evidence. [395C-D]
(ii) The Government in a social welfare state must set
up rescue and welfare homes for the purpose of taking care
of women and children who have nowhere else to go and who
are otherwise uncared for by society. [395E]
(b) The under-trial prisoners against whom charge-
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sheets have not been filed by the police within the period
of limitation provided for in sub-section (2) of section 468
cannot be proceeded against at all and they would be
entitled to be released forthwith, as their further
detention would be unlawful and in violation of their
fundamental right under Art. 21. [397 G]
(c) The provision of s. 167(5) of the Code of Criminal
Procedure 1973 requiring the investigating officer to
satisfy the Magistrate on the necessity of continuation of
the investigation beyond a period of six months has not been
complied with, because there are quite a few cases where the
offences charged against the under-trial prisoners are
triable as summons cases and yet they are languishing in
jail for a long number of years far exceeding six months.
[398C]
And the Court directed that:-
(a) All women and children in the jails in the State of
Bihar under ’protective custody’ should be released and
taken forthwith to welfare homes or rescue homes and should
be kept there and properly looked after. [395F]
(b) The State Government should scrutinise the cases of
under-trial prisoners and release such of them who are not
liable to be proceeded against by reason of the period of
limitation provided in s. 468 Cr.P.C. having expired. [397H]
(c) The State Govt. should inquire into those cases
where the investigation has been going on for a period of
more than six months without the satisfaction
394
of the Magistrate as envisaged in s. 167(5) and to release
the under-trials unless the necessary orders of the
Magistrate are obtained within one month. [398D-E]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 57 of 1979.
Mrs. K. Hingorani for the Petitioners.
Lal Narain Sinha, U. P. Singh and S. N. Jha for the
Respondent.
S. V. Gupte, Attorney General, R. N. Sachthey for the
Attorney General.
The Order of the Court was delivered by
BHAGWATI, J.-The Government of Bihar has filed before
us a note containing the proposed clarification of paragraph
2(e) of the Government Order dated 9th February, 1979,
pursuant to the suggestion made by us in our order dated
19th February, 1979. This clarification states in paragraph
one that where the police investigation in a case has been
delayed by over two years, the Superintendent of Police will
see to it that the investigation is completed expeditiously
and final report or charge-sheet is submitted by the police
as quickly as possible and the responsibility to ensure this
has been laid personally on the Superintendent of Police. We
are glad to note that the State Government has responded to
our suggestion but we are not at all sure whether it is
enough merely to provide that the investigation would be
completed expeditiously and the final report or charge-sheet
submitted as quickly as possible. We are of the view that a
reasonable time limit should be set by the State Government
within which these steps should be taken, so that no further
delay is occasioned in the submission of the final report or
charge-sheet. We fail to see how any police investigation
can take so long as two years and if police investigation
cannot be completed within two years, then there must be
something radically wrong with the police force in the State
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of Bihar. It appears that there are a number of cases where
police investigation has not been completed for over two
years and persons have been in jail as under-trial prisoners
for long periods. This is a shocking state of affairs so far
as the administration of law and order is concerned. We
would, therefore, suggest that in those cases where police
investigation has been delayed by over two years, the final
report or charge-sheet must be submitted by the police
within a further period of three months and if that is not
done, the State Government might well withdraw such cases,
because if after a period of over two years plus an
additional period of three months, the police is not able to
file a charge-sheet, one can reasonably assume that there is
no case against the arrested persons.
395
The Government of Bihar has also filed a counter-
affidavit made by Mr. Mrinmaya Choudhry, Assistant Inspector
General of Prisons (1), Bihar setting out the particulars in
regard to 18 under-trial who have been ordered to be
released by us on their personal bond. The particulars given
in this counter-affidavit make very distressing reading. It
appears from this counter-affidavit that there are quite a
few women prisoners who are in jail without even being
accused of any offence, merely because they happen to be
victims of an offence or they are required for the purpose
of giving evidence or they are in "protective custody". The
expression ’protective custody’ is a euphemism calculated to
disguise what is really and in truth nothing but
imprisonment. It is an expression intended to appease the
conscience. It cannot be gainsaid that women who have been
kept in jail under the guise of ’protective custody’ have
suffered involuntary deprivation of liberty for long periods
without any fault on their part. We may point out that this
so-called ’protective custody’ is nothing short of a blatant
violation of personal liberty guaranteed under Article 21 of
the Constitution, because we are not aware of any provision
of law under which a woman can be kept in jail by way of
"protective custody" or merely because she is required for
the purpose of giving evidence. The Government in a social
welfare state must set up rescue and welfare homes for the
purpose of taking care of women and children who have
nowhere else to go and who are otherwise uncared for by the
society. It is the duty of government to protect women and
children who are homeless or destitute and it is surprising
that the Government of Bihar should have come forward with
the explanation that they were constrained to keep women in
’protective custody’ in jail because a welfare home
maintained by the State was shut down. We direct that all
women and children who are in the jails in the State of
Bihar under ’protective custody’ or who are in jail because
their presence is required for giving evidence or who are
victims of offence should be released and taken forthwith to
welfare homes or rescue homes and should be kept there and
properly looked after.
We also find from the counter-affidavit that Bhola
Mahto was in jail from 23rd November, 1968 until 16th
February, 1979 when he was released on his personal bond
pursuant to the directions given by us by our order dated
5th February, 1979. He is accused in a case under Section
363 & 368 of the Indian Penal Code and he was committed to
the court of Sessions on 13th September, 1972 but his
sessions trial has not yet commenced. It is amazing that a
sessions
396
trial of a person committed to the court of sessions as far
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back as 13th September 1972 should not have been commenced
for about seven years. We direct that the Sessions Judge,
Patna should forward to this Court through the High Court of
Patna an explanation as to why the sessions trial of Bhola
Mahto has not yet commenced. This is also a matter to which
we would invite the attention of the High Court of Patna.
The same may be said also of Ram Sagar Mistry who was
admitted in jail on 28th March, 1971 and committed to the
Court of Sessions on 28th June, 1972 on a charge under
section 395 of the Indian Penal Code but whose trial has not
yet commenced before the Court of Sessions though a period
of more than six years has elapsed since the date of his
commitment and a period of eight years since the date of his
imprisonment.
The counter-affidavit shows that Babloo Rai who is
reported to be a Naxalite is in jail since 15th May, 1975.
He is alleged to be involved in five cases which are set out
in the counter-affidavit. So far as he is concerned, it will
be open to him to make an application to the Magistrate
before whom he is produced, for being released on bail or on
his personal bond and the Magistrate will deal with his
application in accordance with broad guidelines laid down by
us in our judgment dated 12th February, 1979.
We are not at all sure on reading the counter-affidavit
whether the under-trial prisoners whose particulars are
given there, are being produced periodically before the
Magistrate as required by the proviso to Section 167(2) of
the Code of Criminal Procedure, 1973. We should like to know
from the Government in a proper affidavit to be filed before
us on or before 3rd March, 1979 whether these under-trial
prisoners were periodically produced before the Magistrate
in compliance with the requirement of the proviso to Section
167(2). The proviso to Section 167(2) says that the
Magistrate may authorise the detention of the accused person
beyond the period of 15 days if he is satisfied that
adequate grounds exist for doing so. We hope and trust that
in these cases the Magistrates concerned did not act
mechanically but applied their mind and satisfied themselves
that adequate grounds existed for remanding these persons to
judicial custody from time to time over a period varying
from two to ten years, though we fail to see how the
Magistrates could possibly have been satisfied about the
existence of adequate grounds for remanding these persons to
judicial custody for such long periods of time ranging from
two to ten years for the purpose of police investigation.
This is also a matter which we would like the High Court of
Patna to consider after making a detailed inquiry.
397
The Government of Bihar has also filed before us a list
giving particulars of the under-trial prisoners who are
confined in 17 jails in Bihar for more than 18 months as on
1st February, 1979. The chart shows that there are under-
trial prisoners confined in these jails for long periods of
time and sometimes even exceeding the maximum punishment
which could be awarded to them even if they are found guilty
of the offences charged against them. To take an example, we
find at Item 30 one Lambodar Gorain has been in Ranchi Jail
since 18th June, 1970 for an offence under Section 25 of the
Arms Act for which the maximum punishment is two years, with
the result that he has been in jail as an under-trial
prisoner for 8 1/2 years for an offence for which even if
convicted, he could not have been awarded more than two
years’ imprisonment. There are many such cases in the chart,
but it is not possible to identify them easily from the
chart because the chart contains a large number of names of
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under-trial prisoners. We would, therefore, direct the
Government of Bihar to submit to us on or before 3rd March,
1979 a revised chart showing yearwise break-up of the
particulars of the under-trial prisoners in these jails
after dividing them broadly into two categories, one of
minor offences and the other of major offences.
Our attention has also been drawn to Section 468 of the
Code of Criminal Procedure 1973 which in sub-section (1)
provides that except as otherwise provided elsewhere in the
Code, no court shall take cognizance of an offence of the
category specified in sub-section (2) after the expiry of
the period of limitation and under sub-section (2) the
period of limitation provided is six months, if the offence
is punishable with fine only, one year if the offence is
punishable with imprisonment for a term not exceeding one
year and three years if the offence is punishable with
imprisonment for a term exceeding one year but not exceeding
three years. It would, therefore, be seen that the under-
trial prisoners against whom charge-sheets have not been
filed by the police within the period of limitation provided
in sub-section (2) of Section 468 cannot be proceeded
against at all and they would be entitled to be released
forthwith, as their further detention would be unlawful and
in violation of their fundamental right under Article 21.
We, therefore, direct the Government of Bihar to scrutinise
the cases of under-trial prisoners charged with offences
which are punishable with fine only or punishable with
imprisonment for a term not exceeding one year or punishable
with imprisonment for a term exceeding one year but not
exceeding three years and release such of them who are not
liable to be proceeded against by reason of the period of
limitation having expired. This direction shall be carried
out by the Government of Bihar within a
398
period of six weeks from today and compliance reports
containing particulars shall be submitted to this Court,
first at the end of four weeks and then at the end of the
next two weeks.
We also find from section 167(5) of the Code of
Criminal Procedure, 1973 that if in any case triable by a
Magistrate as a summons case, the investigation is not
concluded within a period of six months from the date on
which the accused was arrested, the Magistrate shall make an
order stopping further investigation into the offence,
unless the officer making the investigation satisfies the
Magistrate that for special reasons and in the interest of
justice the continuation of the investigation beyond the
period of six months is necessary. We are not at all sure
whether this provision has been complied with, because there
are quite a few cases where the offences charged against the
under-trial prisoners are triable as summons cases and yet
they are languishing in jail for a long number of years far
exceeding six months. We, therefore, direct the Government
of Bihar to inquire into these cases and where it is found
that the investigation has been going on for a period of
more than six months without satisfying the Magistrate that
for special reasons and in the interest of justice the
continuation of the investigation beyond the period of six
months is necessary, the Government of Bihar will release
the under-trial prisoners, unless the necessary orders of
the Magistrate are obtained within a period of one month
from today. We would also request the High Court to look
into this matter and satisfy itself whether the Magistrates
in Bihar have been complying with the provisions of section
167(5).
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We adjourn the hearing of the Writ Petition to 5th
March, 1979 and on that date, we shall proceed to hear and
dispose of the Writ Petition on merits on the various
questions arising for determination.
N.V.K.
399