Harihar Rai vs State of Bihar and Others

S. Samsul Hasan, J.—It was a normal day as any in the town of Samastipur. The dirty roads were covered with dust, pedestrins and vehicles of all soils and Wintage. People were going for their normal vocation. As morning sun rose to its High noon, anxiety seem to have started casting shadows over the city by rumours filtering out from the Samastipur Jail where high drama was being enacted Even then the humanity in the city appeared to be intriguingly non-chalant. The year was not 1931 or 1941 but was 1981 being the 14th of January after India broke the Imperial shackles and was a Gandhian republic. The place, however, was the legacy from the British Raj What happened within those walls was a replay of what was the normal frequent drama played before 1947 in this country. The dramatis personae involved were also the same with changed faces. The inmates of the Samastipur Jail, it is not clear whether they were convicts or undertrials or common in of both, had climbed the roof of the building protesting against the subhuman treatment being meted out to them by the authorities of the jail. The protestors were following the precept of the great martyrs of India, who were entirely nonviolent expressing a desire and waiting hopefully, to meet the minister for jails who, they thought, would be available as a messiah to ameliorate their condition. The inmates were on the roof of the building for two days undaunted by the cold winter night which they faced with fortitude.

2 Discipline, however, had to be maintained and the persons within the high walls had to be silenced because they were out caste of the society, a situation for which they were themselves responsible even though the administration within the jail was undoubtedly flawed by non-observance of basic human values and in utter derogation of the rules relating to the rights of the inmates of the jail. Patently, their situation was, therefore, according to them, akin to what the poet has said :

Na tarapne ki ijazat hai, Na Faryad ki hai ; Ghut ke mar jayun, Ye marji mere saiyad ki hai

The District Magistrate accompanied by a host of officials like Subdivisional Magistrate and the Superintendent of Police, opposite party Nos. 2, 3, and 4, respectively, arrived at the scene. Event moved fast thereafter. The inmates were asked to come down from the roof immediately or to face repressive consequences. In fact, the time given to them was five minutes. This was blared out on the public address system also. The inmates, however, remained undaunted. Tear gas shells were burst (vide statement on solemn affirmation). This also proved ineffective. Then firing by rifle was ordered by opposite party Nos. 2 and 3, namely, the District Magistrate and the Sub-divisional Officer. In the first volley, one Gulzari Mian, an inmate was shot This had the desired effect and the rooftop inmates started descending. Some of them, however, tried to pick up the injured inmates, perhaps, the dead satyagrahis. Without waiting further for the result of the first volley of firing, the armed Police along with the warders of the jail entered the prison and thereafter all hell was let loose resulting in the death of several inmates. Two incidents have been specifically highlighted in the complaint. They relate to the manner in which one Lal Bahadur Rai was done to death and how the petitioner complainant was beaten. According to the complainant, the death caused to Laldeo Rai was on the orders of the District Magistrate and the Subdivisional Officer by Sukdeo Tiwary, Havaldar, B.M.P. and the assault on the complainant by opposite party 3 with a cane and then by Chaukidar Warden. The assailants of Laldeo Rai have been specifically named. This story, however, was not substantiated fully in the statement of the complainant on solemn affirmation.

It may be stated here that the petitioner complainant had been forwarded to jail custody in a case by a Judicial Magistrate of Samastipur, and was a new entrant. His plea of mercy was granted only after several lives bad been taken.

When the petitioner complainant was released on 16-1-1981, he filed the instant complaint on 21-2-1981 which was not entertained by the impugned order dated 26-2-1981 passed by the Chief Judicial Magistrate, Samastipur stating that since the accused persons were public servants, they were entitled to the benefit of Section 197 of the Code of Criminal Procedure (hereinafter referred to as ''the Code'') and prior sanction to their prosecution was necessary and further that the matter is sub judice before the "Samastipur Mandal Kara Golikand Janch Aayog" and therefore summonses were not issued. In an elaborate discussion, the court held that the public servants were acting or purporting to act in the discharge of their official duty. An important aspect, however, was left out by the Court below which aspect, in my view, was not too premature. A person, while acting in discharge of his official duty, can exceed the bounds of law thus rendering himself beyond the protection offered by Section 197 of the Code, the evidence being severable or inextricably involved.

Be that as it may, the matter has now come to this Court. The only and the most important and significant aspect that needs to be examined in this case is whether the protection offered by Section 197 of the Code was available to the public servants involved or not. Section 197 of the Code reads thus:

Prosecution of Judges and public servants. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction.

This Section was introduced by an alien regime to protect its own officers who, in order to serve the interest of the raj, even went beyond their brief, This legacy has been preserved by the citizens of a free India also as a protective cover against malafide prosecution with an eye of victimisation. The Supreme Court in numerous decisions has now enunciated the law clearly and specifically. Putting this in my own language, if a public servant is acting within the bounds of his duty howsoever strong and harsh his action, he is protected, but if, however, he acts in a manner that has no nexus to the duty of a public servant, then the protection u/s 197 of the Code disappears and the Court will take cognizance for that offence, if any, committed. There is yet another situation. The occurrence is in such a close proximity that it may not be easy for the Court to decide whether the public servant committed an act in exercise of his public duty or in derogation to or in excess of it. Then the matter has to be examined at the trial and if it is found that the complained of act cannot be separated and was within the bounds of duty, then the prosecution will fail without any further ado on the ground of absence of sanction. Apart from Section 197 of the Code, there are numerous laws and statutes which bar prosecution without sanction. These provisions are not fettered in any way by the qualifications introduced by Section 197.

In the instant application, it has, therefore, to be examined whether the act committed was such that required obtaining of the sanction from the State Government before cognizance was taken, one sure which the complainant petitioner could have taken recourse to in the circumstances of the case as an abundant caution.

I shall take up the case of the opposite party Nos. 2, 3 and 4, namely, the District Magistrate, the Subdivisional Magistrate and the Superintendent of Police together I have no manner of doubt that the situation prevailing in the jail justified their entry and their attempt to persuade the inmates to give up their Satyagrah although a more prudent manner of exercise of power was desirable. The discipline had to be enforced, law and order had to be preserved and public order maintained. No inmate of a prison can act howsoever laudable be the objective, contrary to the prison rules and directions. Even if the method was not really called for, it cannot be called unjustified. I have also no doubt that under certain circumstances, justifiability of which had to be their subjective discretion, they could order firing to restore discipline and order. From the complaint petition and the statement of the complainant on solemn affirmation, the acts attributed to these three public servants really and broadly do not go beyond this. The involvement of the District Magistrate and the Sub-Divisional Magistrate in the alleged murder of Laldeo Rai though stated in the complaint petition that it was done with their consent and not mentioned in the statement of the complainant on solemn affirmation and also the involvement of the Subdivisional Magistrate in the alleged assault on the complainant, suffers from vagueness. Had these omissions not been there then undoubtedly it was an act, if proved, could not justify the protection offered by Section 107 of the Code to anyone. I may state that there is no allegation at all against the opposite party Superintendent of Police. I have, therefore, no hesitation, as things stand at present, in holding that sanction was required for taking cognizance against these three officers.

The same thing in regard to the protection u/s 107 of the Code cannot be said about the petitioners other than petitioner Nos. 2, 3 and 4. In this category, as evidence stands, there are two sets of persons. Those who continued to be opposite party in the petition and these whose names have been deleted though at the risk of the petitioner for no fault of his, I am not inclined to accept the submission of the learned Advocate General that the incidents were so closely interlinked and intermingled that any excess committed would be in the same transaction and thus coming within the protective cover of Section 197. The cases of other opposite party will have to be judged in the light of the allegations made against them specifically and generally. If they were ordered to fire then they could fire and fire effectively but once the inmates came down, I have said above, from the roof after the first effective firing which killed one of the inmates, the constables and warders were entirely unjustified in entering the jail and acting in the manner alleged In regard to their case, therefore, the Court, which had uptil now laid emphasis on the participation of the aforesaid three officers, should examine in which of the three categories mentioned by me above do the cases of the accused opposite party other than opposite party Nos. 2. 3 and 4 come. If it finds that it may be necessary to pick and choose such accused persons for whose prosecution sanction is not required, then it should separate them from opposite party who come in the category of opposite party Nos. 2, 3 and 4. In regard to those accused persons who are not opposite party in this petition, the Court will, in course of further inquiry, examine the allegations against them in the light of the law as spelt out above and will consider the next step in accordance with the law along with others.

The pendency of the judicial inquiry under the Commission of Inquiry Act can hardly stand in the way of a judicial proceeding and it is entirely a misnomer to describe the matter involved in such an inquiry as sub judice. It is not necessary for me to go into this matter in detail and as conceded by the learned Advocate General, this point does not need any indepth consideration as the legal situation is patent.

In the result, this application is dismissed so far as opposite party Nos. 2, 3 and 4 are concerned but it is allowed so far as other opposite party are concerned and the matter is remanded to the Chief Judicial Magistrate, Samastipur, for further inquiry in the light of the legal situations spelt out above in regard to the remaining opposite party and others mentioned in the complaint. This inquiry and all further proceedings must be given top priority by all Courts concerned as the matter is delayed long enough.

Before parting, I cannot restrain myself from expressing my sense of deepest anguish at the entire incident. Why should such situation at all arise that would require presence of District Magistrate, Subdivisional Magistrate and the Superintendent of Police ? It was neither an attempt to escape nor any danger posed to the life or property but was an attempt to draw the attention of the authorities to the neglected rights of the inmates of the prison at the bands of those who were required to grant it. If the inmates wanted to see the minister, I see no reason why the minister should have avoided seeing them, listening to their grievances and, if possible, redressing them. Why was such situation allowed to come about which forced the inmates to seek the interference of the minister ? These questions have to be answered by the Superintendent of the Jail and his subordinates. No person, whether he is a convict or an undertrial, can be treated in a subhuman manner as is now being done. Regret is that expenditure on courts which cause the filling of the jails which are the necessary corollary of the proceedings of the criminal courts, and the jails does not receive adequate financial approbation by the Government since they do not come within the five-year plans of India. While we talk of upliftment of the weaker sections of the society, we allow the prisoners to be treated as they were done in the medieval and ancient times or even worse. More cells and wards are required. More money is required for normal human needs. Better medical facilities are required for the sick. The inmates of the jails deserve their punishment but the law does not provide that they should sleep in turn for two hours giving place for another person or to eat diets that are not fit for human consumption. I do hope that this matter will be looked into by all concerned. I have no manner of doubt that the present Inspector General of Jails, who is well known for his efficiency and integrity, will bestow his administrative skill for which he is well known in order to effect improvement in the conditions of the jails in Bihar and I have also no manner of doubt that the Government will provide him with adequate facility for this purpose.

I feel that this Court is entitled to say all that I have said in regard to the condition of jails because when a person is consigned to the prison by a judgment of the Court, a duty devolves upon it to ensure that the pound of flesh is equally distributed between the State and the convict or the undertrial. I may strike a note of warning that if immediate attention is not paid to these matters by the State, in times to come, the Courts may be compelled to issue prerogative writs to avoid subversion of human rights in relation to the inmates of the jails.