Mr. Abdul Kareemlal Telgi vs State of Karnataka

Arali Nagaraj, J.—The revision petitioner herein, who is accused No. 13 in SC No. 9/2001 on the file of the learned Special Judge, XXXV Additional City Civil and Sessions Judge, Bangalore (hereinafter referred to as Trial Court'' for short) has challenged in this revision petition the correctness of the order dated 7.8.2008 passed in the said case rejecting his application, filed u/s 30 of Karnataka Prisons Act, 1963 (hereinafter referred to as ''Prisons Act'' for short), seeking direction to the Senior Superintendent, Central Prison, Bangalore, to permit him (accused) to receive homely food from outside the prison.

The said application was opposed by the respondent - CBI by filing written objections to it. After hearing both the sides, the Trial Court passed the impugned order rejecting the said application. Therefore, the revision petitioner - accused has challenged the correctness of the said order.

At the outset, Sri B.R. Nanjundaiah, the learned Senior counsel and Senior Special Public Prosecutor appearing for the respondent - CBI strongly contended that since the impugned order is an interlocutory order, passed in the said Sessions Case during its pendency, the present revision petition challenging its correctness is not maintainable. As against this, Sri Shankarappa, the learned Counsel for the revision petitioner strongly contended that though the said application of this petitioner was an interim application, the impugned order, passed by the Trial Court, rejecting the said application, has decided right of the petitioner to get homely food from outside the prison and therefore the impugned order cannot be termed as ''interlocutory order'', hence the present revision petition ''is maintainable''.

In support of his contention, Sri B.R. Nanjundaiah, the learned Senior Special Public Prosecutor for the respondent - CBI has relied upon two decisions of Hon''ble Supreme Court, (i) V.C. Shukla Vs. State through C.B.I., and (ii) Sethuraman v. Rajamanickam reported in 2009 (2) SCC 627.

In first of the said two decisions i.e. in V.C. Shukla Vs. State through C.B.I., , Hon''ble Supreme Court has observed at para 66 of its judgment as under:

This Court has therefore taken the view in Amar Nath''s case that the expression "interlocutory order" has been used in Section 397(2) of the Code in a restricted sense, that it ''denotes'' orders of a purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties and that any order which substantially affects the rights of the accused is not an interlocutory order. On that reasoning, an order for the framing of a charge against the accused in this case cannot be said to be an interlocutory order.

Even applying these principles to the facts of the present case, it could be seen that by its impugned order, the Trial Court has decided the right of the petitioner - accused to get the homely food from outside the prison. Therefore, I am of the considered view that the impugned order, though has been passed on interlocutory application filed by the petitioner during pendency of the main case, i.e. SC No. 9/2001, it cannot be termed as interlocutory order so as to bar the present revision petition.

In second of the said decisions relied upon by the learned Senior Counsel for respondent - CBI i.e. in 2009 (2) SCC 627 Sethuraman v. Rajamanickam, Hon''ble Supreme Court has observed at para No. 5 as under:

Secondly, what was not realised was that the orders passed by the trial court refusing to call the documents and rejecting the application u/s 311 Cr.P.C., were interlocutory orders and as such, the revision against those orders was clearly barred u/s 397(2) Cr.P.C. The trial court, in its common order, had clearly mentioned that the cheque was admittedly signed by the respondent-accused and the only defence that was raised, was that his signed cheques were lost and that the appellant complainant had falsely used one such cheque. The trial court also recorded a finding that the documents were not necessary. This order did not, in any manner, decide anything finally. Therefore, both the orders i.e. one on the application u/s 91 Cr.P.C. for production of documents and other on the application u/s 311 Cr.P.C. for recalling the witness, were the orders of interlocutory nature, in which case, u/s 397(2), revision was clearly not maintainable. Under such circumstances, the learned Judge could not have interfered in his revisional jurisdiction. The impugned Judgment is clearly incorrect in law and would have to be set aside. It is accordingly set aside. The appeals are allowed.

Suffice it to say that these observations of Hon''ble Supreme Court cannot be applied to the order impugned in this Criminal Revision Petition.

Further, the learned Counsel for the revision petitioner - accused has placed reliance on the decision of Hon''ble Supreme Court in the case of State Vs. Renuka Devi, . Hon''ble Supreme Court has observed at para Nos. 19, 21 and 22 as under:

It cannot be debated that every order which is not final need not be an interlocutory order. There could be intermediate category of order also, which is not final. When an order, though an interim order, decides the issues on merits and determines the issues affecting the rights of the parties, it cannot be an interlocutory order. In other words, any order pending disposal of the case passed by the trial Court as an interim arrangement, which does not decide the issue, or right can certainly be called as an interlocutory order.

(emphasis supplied by me)

Any order which substantially affects or decides the right of the parties cannot be said to be an Interlocutory order, so as to bar a revision against that order. As indicated earlier, some orders may not be equated with the expression interlocutory order and the same may not be final order too. Merely because it is not a final order, it cannot be called as interlocutory order pure or simple. Some kinds of orders may fall in between the two. They are called as an intermediate order. In that case, the bar in Section 397(2) Cr.P.C. is not attracted to such kind of intermediate order.

The "interlocutory orders" are not to be confused with the "intermediate orders" which though not final orders, are sometimes passed during the course of trial or enquiry. When such Intermediate orders do not decide the dispute of the parties finally, it could decide some points of controversy regarding rights finally and then in respect of those orders, the bar put in Section 397 Cr.P.C. does not get attracted."

(emphasis supplied by me)

Following the above observations of Hon''ble Supreme Court in the above case also, I am of the considered opinion that the impugned order passed by the Trial Court rejecting the application of this revision petitioner - accused seeking service of homely food to him from outside the prison that cannot be held to be an interlocutory order, and hence, the present revision challenging its legality & correctness is maintainable.

The grounds stated by the revision petitioner - accused in his application filed u/s 30 of the Act read as under:

(a) This accused has been infected with HIV, a dreadful decease and is under regular treatment. Therefore, he shall have to take homely food and to live in stress free atmosphere. In the event, if the same is not strictly followed, it may endanger to his life. While he was in judicial custody at Pune regularly taking medicines in long life;

(b) The petitioner sought for homely food at his cost and the same was permitted by the Hon''ble Court (Trial Court) after hearing the complainant and thereby the Court directed the Senior Superintendent of Central Prisons to permit him to have homely food;

(c) The petitioner also made similar submission before the Mumbai Court where he was under going trial and he was permitted to have homely food;

The said application was opposed by the respondent - CBI by filing its written objections to it as under;

(i) The order dated 22.2.2003 passed by XXI Addl. City Civil & Sessions Judge and Special court for CBI cases, Bangalore, permitting the petitioner - accused to secure homely food as he was still under trial prisoner and he was permitted to do so under the provisions of Section 30 of the Act. But the petitioner has been convicted in other cases in the States of Karnataka and Maharashtra and therefore he is not entitled to service of homely food from the outside prison inasmuch as Section 30 of the Act does not permit for service of such home food from outside to the convicts;

(ii) If the petitioner is permitted to have secured homely food from the outside, he would carry on his earlier business through such persons and therefore he cannot be permitted to get the food from outside the prison as prayed in the said application;

After this revision petition came to be filed, the respondent - CBI filed its objections to it on dated 1.10.2008. Thereafter, it filed additional objections to the revision petition on 21.10.2008, 16.11.2008, 17.8.2009 and 3.9.2009. The respondent - CBI has taken several contentions in the said objections and additional objections In addition to those taken by it in its objections to the application filed u/s 30 of the Prisons Act by the revision petitioner - accused before the Trial Court. I need not advert to each and every contention taken by the respondent - CBI in all its said objections and additional objections.

The main contention taken by the learned Senior Special Public Prosecutor for respondent - CBI is that in view of the fact, that the revision petitioner � accused came to be convicted by the Special Court, Pune for various offences under IPC pertaining to manufacture, sale and circulation of fake stamp papers and sentenced to undergo RI for 13 years and, since his presence in SC No. 9/2001 came to be secured by issuing body warrant against him, his detention in the prison as under trial prisoner came to be ceased and therefore, he is not entitled, under the provision of Section 30 of the Prisons Act, to be served with homely food from out side the prison. His further contention is that, in the prison, the petitioner - accused has been provided with the food as per the diet chart recommended by the Medical Officer who examined him for his various ailments including the HIV, diabetes etc. and therefore, the grounds stated by him in his said application for the service of homely food from outside the prison are not tenable.

After this revision petition came to be filed, this Court obtained a report from the Medical Officer as to the treatment, given to the petitioner - accused and diet prescribed for him. The report of the Medical Officer, Central Prison Hospital, Bangalore dated 19.9.2008 submitted through the Chief Superintendent, Central Prison, Bangalore on 20.9.2008 and also the letter of the Chief Superintendent, Central Prison, Bangalore reveal that the revision petitioner - accused is being served with the diet food as prescribed under Karnataka Prison Rules and also as per the diet chart prescribed by the Medical Officer. Further reports of the concerned Medical officer obtained on various dates during the pendency of this revision petition reveal that health condition of the petitioner - accused has remained the same throughout and he is being served with the food in the prison as per the diet chart prescribed by the concerned Medical Officers.

On 26.9.2008, an order came to be passed in this Revision, directing the Superintendent, Central Prison, Bangalore to serve to the petitioner food in the prison as per the diet chart given by the doctor concerned. On 15.10.2008, when this Revision was listed for hearing the arguments on merits, the learned Counsel for the revision petitioner - accused, after submitting his argument in part, submitted to the Court that despite the order of this Court dated 26.9.2008 directing the Superintendent, Central Prison, Bangalore, to serve to the petitioner food as per the diet chart given by the doctor, the said direction was not complied with till that day. In reply to the said submission of the learned Counsel for the petitioner, the learned Counsel for the respondent - CBI, Sri B.L. Sanjeev, submitted that he would communicate to the Superintendent of Central Prison, Bangalore that the petitioner be served with food as per the diet chart given by the doctor.

Thereafter, on 17.8.2009, when this Revision was again listed for hearing further arguments, Sri Shankarappa, the learned Counsel for the revision petitioner submitted that despite the interim order directing the Superintendent, Central Prison, Bangalore to serve to the petitioner the food as per the diet chart given by the doctor, the Jail Authorities were not giving him the food as per the said chart and therefore, the presence of the revision petitioner be secured before this Court for swearing an affidavit to that effect In view of the said submission, the presence of the petitioner -accused before this Court was secured on 25.8.2009.

On that date (i.e. 25.8.2009), the petitioner -accused submitted that in the prison, he had been provided with the food as per the diet chart given by the concerned Medical Officer. He did not also choose to file any affidavit making any allegation against the prison Authorities in the matter of service of food to him as per the diet chart prescribed by the Medical Officer. However, on the said date, the revision petitioner submitted through his counsel, his another application in this Revision, in continuation of his earlier application that was filed before the Trial Court u/s 30 of the Prisons Act. Some of the averments made in his application dated 25.8.2009 which is signed by him, read as under:

I had filed this petition through my Advocates way back in 2008 praying to set aside the order dated 7.8.2008 passed by the Special XXXVth Addl. City Civil and Sessions Judge, Bangalore in SC No. 9/2001. At present the jail authorities are providing me the food as per the diet chart given by the Doctors and I have absolutely no issue about my diet regime being followed by the jail authorities.

I am able to live because of the care taken by the jail authorities. I was admitted for both kidney failure, however because of the jail authorities I was able to get better treatment at reputed hospitals like Victoria hospital, NIMHANS, etc.

The credit for my recuperation goes to the jail authorities who are providing me with the food as per the diet chart given by the Doctors and also because of their arrangements to send me to the hospitals for my routine checkup and treatment, had the jail authorities not taken the case, I would have lost my life.

The entire dietary and food expenses are borne by the jail authorities, who are trying their level best to give me the best available food and medicines as per the diet chart and prescription of the doctors.

During my last days, I am able to live an healthy life only because to the care and caution taken by the jail authorities.

I am a resident of Bangalore at present, my family lives in Bangalore and more over I am capable to atleast bear the expenses of my food as per the diet chart and I am permitted to get the home food it will add to the advantage of my recuperation and also lessen the burden and expenses of the jail authorities.

On careful reading of the above averments made by the petitioner himself in his said application, which is written by him only, it could be seen that he is not suffering from any health problem inside the prison by reason of not getting either ''homely food'' from any source or ''home food from his home. Besides this, the Trial Court has observed its its impugned order that the provisions of Section 30 of the Prisons Act do not provide for supply of food from outside the prison to a convicted prisoner. The Trial Court has extracted in its impugned order Section 30 of the Prisons Act. it reads as under:

Maintenance of certain prisoners from private sources:- A civil prisoner or an unconvicted criminal prisoner shall be permitted to maintain himself and to purchase or receive from private sources at proper hours food, clothing, bedding or writing materials, books, newspapers or other necessities, subject to examination and to such regulations as may be approved by the Inspector General.

Referring to the above provisions, Sri Shankamppa, the learned Counsel for the revision petitioner - accused strongly contended that the words ''unconvicted prisoner'' cannot be held to mean the person who is detained in the prison for facing his Trial though he is convicted by a court, other than the Trial Court, in a different case, and therefore, the view taken by the Trial Court that the petitioner - accused is not entitled to the service of food from his home is erroneous. He further submitted that though the petitioner has been convicted in other cases, the fact remains that he is still ''under trial prisoner in connection with SC No. 9/2001'' in which case he is being tried by the Trial Court and therefore his detention in connection with the said case cannot be held to be as that of a ''convicted prisoner''.

Per contra, the learned Senior Special Public Prosecutor representing the respondent - CBI strongly contended that the words ''unconvicted prisoner clearly indicate that the prisoner should not have been convicted in any case, by any Court, and therefore, since the revision petitioner - accused has been convicted for various of lences by different courts in the States of Karnataka and Maharashtra, he cannot be termed as unconvicted prisoner so as to get the benefit of provisions of the 30 of the Prisons Act.

It is not in dispute that the revision petitioner -accused has been convicted for various offences under IPC and other enactments by the Special Court at Pune and also the Special Court at Bangalore. It is also not in dispute that the presence of this petitioner has been secured in SC No. 9/2001 by issuing body warrant against him as he was detained in Central Jail at Yerawada, by reason of his conviction by the Special Court at Pune, in Spl.Case No. 2/2003. This being so, I am of the considered opinion that the detention of this revision petitioner-accused for the purpose of trial in the said Sessions Case, cannot be termed as that of an unconvicted prisoner'' so as to extend him the benefit, of Section 30 of the Prisons Act. Therefore, 1 hold that the Trial Court did not commit any error in recording its findings that the revision petitioner - accused cannot be termed as ''unconvicted prisoner so as to seek the benefit of Section 30 of the Prisons Act.

Lastly the learned Counsel for the revision petitioner strongly contended that the word ''unconvicted prisoner'' is not defined in any dictionary and therefore it should be understood to mean ''under trial prisoner'' in connection with SC No. 9/2001 in which he is facing trial. This contention cannot be accepted for the reason that, as observed by me supra, though he is still feeing trial in the said sessions case, in view of his conviction by the Special Court at Pune and also by the Special Court at Bangalore, he lost the character of an under trial prisoner.

For the reasons aforesaid, the present revision petition is dismissed as being devoid of merits. However, it is made clear that the Jail Authorities shall provide the revision petitioner - accused with the food as per the diet chart, that may be prescribed by the concerned Medical Officers from time to time.