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Murtaza Ali & Others v. State Of U.P. & Others - CRIMINAL MISC. WRIT PETITION No. 12918 of 2005  RD-AH 1716 (23 January 2006)
Criminal Misc. Writ Petition No. 12918 of 2005.
Murtaza Ali and others. ....... ........ Petitioners.
State of U.P. through Secretary,
Lucknow and others. ....... ........ Respondents.
(Hon'ble Mr. Justice Amitava Lala and Hon'ble Mr. Justice Shiv Shanker)
For the Petitioners : Sri Chetan Chatterjee,
Sri Irfan Chaudhary, &
Sri Anurag Prakash Mishra.
For the Respondents. : Sri Rajeev Sharma, A.G.A.
Amitava Lala, J.-- The petitioners are the pairokars of Asif Ikbal, son of Mohd. Basir, resident of Sakhi Maidan, Tehsil and Police Station Mendher, District Punch, Jammu & Kashmir, Shakil Ahmad, son of Nazeer Ahmad, resident of Sakhi Maidan, Tehsil and Police Station Mendher, District Punch, Jammu & Kashmir, Mohd. Nasim, son of Ferozdin, resident of Village Thera, Tehsil and Police Station Mendher, District Punch, Jammu & Kashmir, Mohd. Azeez, son of Mohd. Basir, resident of Village Bhatidhar, Tehsil and Police Station Mendher, District Punch, Jammu & Kashmir.
The petitioners inter alia challenged the order dated 13th December, 2005 passed by the respondent no. 3, by which the respondent no. 3 has allegedly restrained the petitioners and the counsel for the petitioners from meeting the accused named above.
The accused are undertrial prisoners and are undergoing trial in district Faizabad in Case Crime No. 157 of 2005, under Sections 147, 148, 149, 307, 302, 353, 153, 153-A, 153-B, 295, 120-B of Indian Penal Code, Section 7 of the Criminal Law Amendment Act and Section 4 of Prevention of Damage to Public Property Act, 1984. They were transferred to the Central Jail, Naini, Allahabad from District Jail, Faizabad on 01st November, 2005. Since then the prisoners are in the Central Jail, Naini, Allahabad. The prisoners were reportedly taken to the Court of Sessions Judge, Faizabad on 12th December, 2005 once, and were brought back Central Jail, Naini. Since then the prisoners have not been shifted anywhere else from Central Jail, Naini, Allahabad till date.
Petitioners wanted to move an application before the Court of Sessions Judge, Faizabad in respect of permission of the petitioners including the counsel of the undertrial prisoners to meet with them, but they did not get any legal aid to defend their case. The Bar Association of the District Court took a resolution that no counsel shall file Vakalatnama on behalf of such undertrial prisoners. Even the practising Advocate of New Delhi while entering to the Court room of the Chief Judicial Magistrate, Faizabad was prevented from entering into Court room and from filing his memo of appearance.
According to the petitioners, on 07th & 08th December, 2005 the petitioners and/or their counsel were restrained by the Senior Superintendent, Central Jail, Naini, Allahabad from meeting with the undertrial prisoners. Vakalatnama of the learned Advocate along with identity card was produced before the respondent no. 3, but he was not allowed. The petitioners' own case is that on 09th December, 2005 they have moved an application before the District Magistrate, Allahabad, i.e. the respondent no. 4 herein, stating that Senior Superintendent of Central Jail, the respondent no. 3, has refused the petitioners from communicating with the prisoners. The respondent no. 4 did not pass any order. Learned Counsel for the prisoners also moved an application before the respondent no. 3 on 10th December, 2005.
On 13th February, 2005 the Senior Superintendent of Central Jail, Naini wrote a letter to the District Magistrate, Allahabad praying for identification of the persons required to meet with the undertrial prisoners and for specific direction in respect of the permission of the petitioners to meet the accused. Such letter is impugned hereunder along with various other prayers, which are as follows:
1.To issue, a writ, order or direction in the nature of certiorari quashing the order dt. 13.12.2005 (annexure no. 1 to this writ petition).
2.To issue, a writ, order or direction in the nature of mandamus directing the respondent no. 3 to allow the relatives of the prisoners under going trial (named in para no. 2 of this writ petition) to meet their relatives under the restrictions as permitted by Section 40 of the Prisons Act, 1894 and the rules framed there under.
3.To issue, a writ, order or direction in the nature of mandamus directing the respondent no. 3 to allow the counsel for the prisoners to meet the prisoners mentioned in para no. 2 of the writ petition for the purpose to afford required legal help and seek further instructions as the case may be, in absence of any official of the prison as provided by the Act of 1894.
4.To issue, a writ, order or direction in the nature of prohibition, prohibiting the respondents, from creating any obstruction, in future the counsel for the under trial prisoners (named in para no. 2 in the writ petition) seeks an opportunity to meet his client in jail to obtain further instructions of the case.
5.To award compensation of such violation of fundamental rights i.e. right to meet the legal representative and the right to meet the relatives for the purpose of the fair trial of the criminal case pending in District Court, Faizabad.
6.To award any other relief as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
7.To award the cost of the petition to the petitioners."
Learned Government Advocate contended that no question of refusal arose as yet. The impugned letter dated 13th December, 2005 has been written by the Senior Superintendent, Central Jail, to the District Magistrate requiring permission. The petitioners did not wait even for three days from such communication but filed the writ petition. On such submission the learned Counsel appearing for the petitioners contended that the writ petition is pending from that date but the petitioners have no knowledge about taking any decision in connection thereof.
In any event, let us consider the question of law to resolve the issue. According to learned Counsel appearing for the petitioners, as per Section 41 (2) of the Prisoners Act, 1894 in case of any such visitor refusing to permit himself to be searched, the Jailer may deny his admission; and the grounds of such proceeding with the particulars thereof shall be entered in such record as the State Government may direct. Therefore, the Senior Superintendent, Central Jail, had no business to write a letter to the District Magistrate seeking permission. A Superintendent of Jail himself is empowered to allow or disallow a person from meeting with a prisoner. Referring the matter to the District Magistrate by such Superintendent is as good as refusal. Learned Counsel for the petitioners relied upon paragraph-14 of a Supreme Court judgement reported in AIR 1974 SC 2092 (D. Bhuvan Mohan Patnaik and others Vs. State of Andhra Pradesh and others) to establish that right of personal liberties and fundamental rights of the undertrial prisoners can not be curtailed in the name of reasonable restrictions unless it is backed by any law. There is no law which permits the Superintendent of a Jail to seek permission from the District Magistrate and prevent the petitioners in the name of such permission. He further relied upon a Supreme Court judgement reported in AIR 1997 SC 1739 (Rama Murthy Vs. State of Karnataka) in its various paragraphs. A lot of discussions are there in respect of jail visits. The Supreme Court identified three categories of visitors i.e. (1) relatives and friends; (2) professionals; and (3) lay persons. It has been highlighted by the learned counsel by saying that spouse being the part of the first category can have a great importance of the visits. He said that it is, of course, correct that at times visits may become a difficult task. This should be so where prisoners are geographically isolated. According to him, this is such a case when the prisoners belong to State of Jammu & Kashmir. He contended on the basis of such judgement that a liberalised view in case of jail visits is to be made otherwise it will cause additional trauma. In any event, the Supreme Court is categorical to the extent of the visits of professionals i.e. lawyers. The Supreme Court held that the same has to be guaranteed to the required extent, if the prisoner be a pre-trial detainee in view of the rights conferred by Article 22 (1) of the Constitution of India. He further relied upon AIR 1980 SC 1579 (Sunil Batra Vs. Delhi Administration), where it was held that undertrials are presumably innocent until convicted. Learned Counsel has cited this judgement for several reasons. Firstly, he wanted to separate the undertrials from the convicted prisoners. Secondly, he wanted to establish that the Court has continuous responsibility to ensure that the constitutional purpose of the deprivation is not defeated by the prison administration. Thirdly, right to society of fellow-men, parents and other family members can not be denied in the light of Article 19 of the Constitution of India and its sweep. Lastly, they are entitled to compensation due to violation of their fundamental rights by the public authority also on the ratio of AIR 1993 SC 1960 (Smt. Nilabati Behera alias Lalita Behera Vs. State of Orissa and others).
According to us, the last submission is an extreme submission when there is no refusal apparently. In a different situation the Supreme Court considered the dynamic role of habeas corpus writ petitions and its extent, which is not applicable herein. The last referred judgement is also about custodial death which has got nothing to do herein. We can not accept such prayer. Now we shall discuss the other parts after hearing the argument of the learned Government Advocate in furtherance.
We have to take note of various paragraphs of the U.P. Jail Manual as referred by the learned Counsel for the petitioners. Such paragraphs are 457-A, 457-D and 457-E. It appears from, paragraph-457-A that undertrial prisoners shall be granted all reasonable facilities at proper times and under proper restrictions for interviewing or otherwise communicating either orally or in writing with their relatives, friends or legal advisers. From paragraph 457-D it appears that when any person desires an interview with an undertrial prisoner in the capacity of his legal adviser, he shall apply in writing giving his name and address and stating to what branch of the legal profession he belongs, and shall satisfy the Jail Superintendent that he is the bonafide legal adviser of the prisoner with whom seeks an interview and that he has legitimate business with him.
Note:- The Superintendent may allow a legal adviser to have an interview with an undertrial prisoner even though the latter be on hunger strike.
Paragraph 457-E has been shown to establish that every interview between an undertrial prisoner and his legal adviser shall take place within sight of a jail officer but out of his or police officer's hearing.
Learned Government Advocate contended before this Court that the Police authorities are guided by their Jail Manual. Such Jail Manual provides power of the District magistrate and communication of the Superintendent of the concerned jail with the District Magistrate for an appropriate order. Paragraph 457-C of the Jail Manual prescribes that the orders of the Court or of the District Magistrate to the effect that a particular undertrial prisoner should not be allowed to be interviewed by any person including official or non-official visitors, shall be strictly complied with and intending interviewers informed of such orders. In special cases a reference should be made to the Court or the District Magistrate, as the case may be. He also relied upon paragraph-683 of the Jail Manual. It speaks that the person other than official or non-official visitors may visit a jail if he has obtained the written permission of the State Government or is accompanied by or has obtained the written permission of the Inspector General, the District Magistrate or the Jail Superintendent. Learned counsel appearing for the petitioners opposed citing of such paragraphs by saying that this is in respect of round of the jail and for no other reason. However, learned Government Advocate further contended that the argument as advanced by the learned Counsel appearing for the petitioners is unsustainable in view of paragraph-708 of the U.P. Jail Manual. He said under such paragraph the Jail Superintendent may refuse to allow an interview to which a prisoner would ordinarily be entitled under these rules if in his opinion it is against the public interest to allow any particular person to interview the prisoner or for some other sufficient cause. Learned Counsel appearing for the petitioners joined issue therein by saying that in every such case he shall record in his order-book the reason for such refusal. However, the learned Government Advocate contended that the undertrials were taken into custody from Faizabad, which is very near to Ayodhya, on account of terrorism. Therefore, there is a good ground of refusal, if any. But he put question to himself that where is the refusal. A communication has been challenged. By such communication the Senior Superintendent, Central Jail sought permission from the District Magistrate which is permissible under the U.P. Jail Manual. The petitioners did not wait for few days but applied before the Court under the writ jurisdiction to obtain an order. Under such circumstances, when no refusal is there, the writ petition is not sustainable.
According to us, any unfettered right has been restricted by the amendment of the Constitution putting reasonable restrictions therein. It has been rightly done since experience prescribed to do so. If the right is to be prescribed as unfettered even in the cases of the prisoners then we shall discharge our one sided moral obligations at the cost of others who purportedly become victim of the circumstances by the action of the prisoners. Therefore, there can not be any restriction about check and balance. This is not an ordinary case where the permission will be given by the Senior Superintendent, Central Jail as a matter of course nor he violated the law. He forwarded the matter to the District Magistrate within fore corners of the U.P. Jail Manual and it is right in saying that without waiting for the decision, the writ petitioners have filed this writ petition surprisingly for quashing such communication under which permission was sought. If the letter is quashed then nothing will be there in the hands of the Senior Superintendent, Central Jail to allow the petitioners to meet with the undertrial prisoners. On the other hand, it might be a pressure tactics upon the Senior Superintendent, Central Jail to compel him to fulfil their desire. Factually, the petitioners themselves approached to the District Magistrate on 09th December, 2005 prior to making an application to the Senior Superintendent, Central Jail on 10th December, 2005 and thereafter turned around and say that Senior Superintendent, Central Jail has no power of communication with the District Magistrate for seeking permission. Therefore, it is clear that the petitioners invoked the writ jurisdiction with unclean hands. This is a good ground for dismissal of the writ petition. Even in AIR 1980 SC 1579 (supra), on which the learned Counsel appearing for the petitioners banged upon very much, held that fellow-men, parents and other family members can not be denied in the light of Article 19 of the Constitution and its sweep but, of course, subject to the search, discipline and other security criteria. These are the duties of the police authorities. Court can not loss sight from taking notice about threat perception in the country. Over all situation is changing time to time and the police authorities have to take into account all such facts and circumstances of each and every case separately. In the present case, when there is no refusal and when the petitioners themselves made an application to the District Magistrate, we do not find any cogent reason to interfere with the matter. It is true to say that normally legal professional can not be avoided from attending prisoner/s particularly when he or they are understrials, but we do not find any act done by the Senior Superintendent, Central Jail contrary to the U. P. Jail Manual. Refusal, if any, is yet to born. It is important to see that one should not be deprived his right under Article 22 (1) of the Constitution of India to the extent that no person can be denied his right to consult and to be defended by a legal practitioner of his choice and it is equally important to see that one should not be opposed from discharging his duty of reasonable restrictions under Article 19 (2) of the Constitution of India in the interest of the sovereignty and integrity of India, the security of the State. Therefore, the relief is to be given on the basis of the facts and circumstances of the individual cases. When the petitioners themselves forwarded the matter to the District Magistrate one day before making application to the Senior Superintendent, Central Jail and when such officer made a communication to such District Magistrate seeking direction, what mistake he committed is unknown to this Court. The legal practitioner for whose right the petitioners are very much vociferous, is also part of this misconceived writ petition.
Therefore, the writ petition stands dismissed.
However, no order is passed as to costs.
In any event, this order will not put an embargo upon the authority concerned in considering the application for grant of permission for visits as expeditiously as possible and independently.
(Justice Amitava Lala)
(Justice Shiv Shanker)
Dated: 23rd January, 2006.
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