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TMI Blog2012 (11) TMI 1091X X X X Extracts X X X X X X X X Extracts X X X X ..... 35-1739 OF 2012 - - - Dated:- 2-11-2012 - T.S. Thakur Fakkir Mohamed Kalifulla , JJ. JUDGMENT : 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 trie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansfer 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 dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven 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 themse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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