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2012 (11) TMI 1091
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....ashtra shall initiate a disciplinary inquiry 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. 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 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 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, th....
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....ear the Lal Gate also started giving similar slogans and charged towards the jail officials, Wardens and watchmen and started 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 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 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 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 prov....
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....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 ignored, and the facts which can be called as common 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 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. 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-national slogans, the jail officers lost their calm and ordered use of force leadi....
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....he doctors helped the jail authority in falsifying 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 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 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 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 Governme....
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.... who were charged with maintenance of discipline and peace within the jail and determine whether force was rightly used and, if so, whether or not the use of force was excessive. 17. Mr. Naphade also urged that the underlying cause of the incident in the instant case was resistance put up by the 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 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 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 s....
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....isoners who do not answer the description given therein. 21. Reliance upon sub-section (2) of Section 29, in support 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 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 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 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, ....
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....ding 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: Provided that- (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the 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- (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 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 person released on bail under this sub-section shall be deemed to be to so released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall auth....
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....f a citizen is 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 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 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 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 Article 19 if it is irremediable and unappealab....
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....are not judicial such 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 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. 30. In Province of Bombay v. Khusaldas Advani (AIR 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 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 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 obs....
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....olves 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 the merits of the controversy before any decision affecting 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 indicated by me. xxx xxx xxx xxx xxx xxx 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?" 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: "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." 35. In State of Orissa v. Dr....
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....ing for the Court observed: "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 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 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 the rules of natural justice are a misnomer or rather are but a shorthand 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 the justice of the law, without, of course, making law lifeless, absurd, stultifying, self-defeating or plainly c....
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....to the case at hand and 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 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 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 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 ....
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....ative finding that the force used by the jail authorities was excessive or that 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 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 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 was required to be conducted either for disciplinary action or for launching prosecution of those found guilty. Beyond that the prel....