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Tuesday, November 6, 2012

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 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 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 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 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 citizen being inviolable except in accordance with the procedure established by law.


                                                   REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
               CRIMINAL APPEAL NOS.  1735-1739         OF 2012
            (Arising out of S.L.P. (Crl.) Nos. 6390-6394 of 2010)


The State of Maharashtra & Ors. etc.etc.           …Appellants

      Versus

Saeed Sohail Sheikh etc. etc.                      …Respondents



                               J U D G M E N T



T.S. THAKUR, J.

1.    Leave granted.



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 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 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  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, the Bombay 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.

5.    In response to the request aforementioned the Special Judge passed  an
order dated 26th March, 2004, inter alia, stating that:

         “xxxxxxxx


             It is true that Honourable Supreme Court has granted  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 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  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.

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 announcement was then made requesting thirty-two undertrial prisoners  to
gather near Lal 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 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  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
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  provision  of  law  nor  any  other  act  of
impropriety or illegality committed by them.

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  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 Judge,  Greater  Bombay
who was asked to report whether use 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  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 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  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  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….


         xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx


           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 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 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  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 and slogans shouted by him and that  there
were reasons for the jail authorities to bring the situation under  control.
The following passage in the inquiry report is, in this regard, relevant:


         “xxxxxxxxxxxxxx
         There is possibility that after hearing the shouting of Tanvir  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 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  framed  under  the
         Maharashtra  Prison  (Discipline)  Rules  of  1963  and  there  was
         disturbance to some extent.  I have no hesitation to  come  to  the
         conclusion that due to the instigation given by Kamal  and  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  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  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 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:



         “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  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 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 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 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  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
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 such request nor an opportunity to oppose  the  same.
It is 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 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, 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 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  such
direction.

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 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 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 of any such investigation.

19.   Section 29 of the Prisoners Act, 1900 reads as under:


         “29. Removal  of  prisoners-(1)  The  [State  Government]  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
           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,


         to any other prison in [the State]


         (2)  [Subject to the orders, and under the  control  of  the  State
         Government,  the Inspector-General of prisons may, in like  manner,
         provide for the removal of any prisoner confined as aforesaid in  a
         prison in the State to any other 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 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) 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  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, in particular, was placed upon the provisions of  Section
26 of the Act which reads as under:


         “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 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, 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 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  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  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 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 deems fit  for  a  term  not
exceeding 15 days in the whole. It reads:



         “167. Procedure when investigation cannot be completed  in  twenty-
         four hours
         (1) xxxxxxxxxxxxxx
         (2) The Magistrate 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 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:


         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 authorise detention in  any  custody  under
         this section unless the accused is produced before him;


         (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.”




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
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 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  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  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 Act, 1894 did not empower the  Inspector
General of Prisons to transfer the undertrial, the only other mode  of  such
transfer 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  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
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  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 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 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  duties  include  recording
         judgments on the docket.

         Ministerial office. An office that does not  include  authority  to
         exercise judgment, only to carry out orders  given  by  a  superior
         office, or to perform duties or acts 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.

         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 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 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. It is sometimes loosely used to describe an  act  that
is neither 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 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 observed as follows:


             “It is established that the writ of certiorari does not lie to
             remove an order merely ministerial, such as a warrant, 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  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.”


         This definition was approved  by  Lord  Atkinson  in  Frome  United
         Breweries Co. v. Bath Justices [1926] A.C. 586, 602,  as  the  best
         definition  of  a   judicial   act   as   distinguished   from   an
         administrative act.”




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. 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 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  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
    (2)    to determine questions affecting rights of subjects and
    (3)    having the duty to act judicially
    (4)    act in excess of their legal authority-a writ of 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:

         “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. 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 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. Binapani Dei  (AIR  1967  SC  1269)  Justice
Shah, speaking for the Court observed that the 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  of  a
         person, duty to act judicially is implicit in the exercise of  such
         power.”



36.   In A.K. Kraipak v. Union of India (1969) 2 SCC 262, Hegde, J., as  His
Lordship  then  was,  recognised   that  the  dividing   line   between   an
administrative power and a quasi-judicial power  was  fast  vanishing.  What
was important, declared the 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:

         “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 or persons  on  whom  it  is  conferred,  the
         framework of  the  law  conferring  that  power,  the  consequences
         ensuing from the exercise of that power and  the  manner  in  which
         that power is expected to be exercised. Under our Constitution  the
         rule of law pervades over the entire field of administration. Every
         organ  of  the  State  under  our  Constitution  is  regulated  and
         controlled by the rule of law. In 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 vitality if the instrumentalities of the State are not  charged
         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 power are merely those which  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 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:


         “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  contrary
         to the common sense of the situation.”


38.   Recently this Court in  Jamal  Uddin  Ahmad  v.  Abu  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 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 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  are
         performed 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 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  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 parties. There is a duty  to  act
         judicially. The Judge may 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  a   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 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  a
transfer in the 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.  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 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.

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 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
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 essential for  any  follow  up  or  further  action  in  the
matter. The Sessions Judge has observed:



         “I am avoiding  naming  the  officers  of  the  jail  against  whom
         allegations of use of force are made  as  I  am  expected  to  give
         findings only on the aforesaid five points 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  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 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 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 preliminary report could not in view of what  we  have  said
above serve any other purpose.

42.   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   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 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 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 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 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  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 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
inquiry or investigation, the observations made by the High Court in  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.




                   ….………………………………….……………………..…….…J.
                                                    (T.S. THAKUR)






                 ..…………………………………….………………….…..……….J.
                 (FAKKIR MOHAMED IBRAHIM KALIFULLA)
New Delhi
November 2, 2012