Nallapareddy Prasanna Kumar Reddy vs State of Andhra Pradesh and Others

This is a public interest litigation brought in by Sri N. Prasanna Kumar Reddy, a member of the A.P. Legislative Assembly seeking for issue of habeas corpus directing the State to forthwith set at liberty the undertrial prisoners in the State of A.P. the particulars of which are furnished in Annexures A-1 to A-4, the reports published in Udayam a telugu daily newspaper. The petitioner both as a citizen and as a public servant is concerned about the human tragedy and misery of unfortunate persons who are languishing in prison for the past several years. They exceed more than 6000 unfortunate helpless innocent poor people. These undertrial prisoners have already undergone imprisonment which is more than the maximum punishment that a law Court can inflict upon them any further detention these people in prisons is utterly unconstitutional, devoid of legality, totally unjustifiable, constitutionally immoral, statutorily indefensible and highly barbarous. The State unfortunately has become immunised and is impervious to either constitutional niceties or legal imperatives which constitute utter negation of rule of law and basic tenets of a civilised constitutionalism apart from violating the constitutional guarantees and mandate contained in Articles 14, 19 and 21 of the Constitution of India. The "Telenews" had made a survey over the plight of these under trials and the facts and figures as revealed in the survey are staggering and heartburning. There are five central jails in the State located at Chanchalguda in Hyderabad apart from Rajahmundry in East Godavari district, Visakhapatnam, Warangal and Cuddapah. In addition to these central jails there are nine District Jails and 149 Sub Jails. Even as per the police records there are about 12000 prisoners in the State in which not even 25 to 30 per cent of them are subjected to any trial. In Visakhapatnam Central Jail there are about 950 prisoners of whom 567 are undertrials. In Vijayawada District Jail there are about 200 undertrials out of whom 21 have spent more than two years without facing any trial. About six of them are accused in murder cases, seven for committing highway robbery and one accused of trafficking in drugs and they have been in jail for the past two years without commencing the trial. In Adilabad District there are about 235 prisoners of whom 24 are accused under TADA. In Ananthapur district out of 329 undertrial prisoners, 103 are in Ananthapur District Jail. One Nagaraju a harijan undertrial prisoner is there at Ananthapur jail for the past 12 months without any trial. According to Guntur First Additional District Judge there are about 704 undertrials in the district. The police have filed charge-sheets in respect of 158 accused and 74 prisoners including 2 women prisoners have been behind the bars for the past 12 months. Even in Nalgonda district where there is one District Jail and five Sub-Jails, the optimum strength of these jails is 77 but, there are about 150 to 200 undertrials languishing in these jails. Only four of these prisoners were prosecuted and punishment awarded while 176 are awaiting trial. Similarly in Nellore district there are about 860 prisoners, of them 180 have faced trial and are serving the sentence. The prosecution in respect of 686 prisoners is yet to commence. The position in Mahabubnagar district is no different. There are about 181 undertrials of whom five are females. One Manjunath, a hotel worker has been languishing in Mahabubnagar District Jail since July, 1991, arrested in connection with the theft incident at his master''s house. From the above harrowing tale of harassment of helpless citizens, it is clear that there is monumental apathy and cruelty on the part of the State and this illegal and unconstitutional detention and deprivation of liberty of citizens is the subject of correction by this Court failing which there would be constitutional anarchy and executive despotism and this Court as a constitutional Court is bound to uphold the constitutional values and precepts. Hence this writ petition.

The Assistant Inspector General of Prisons and Director of Correctional Services, A.P. Hyderabad has filed the counter affidavit stating that the particulars published by Telenews survey in the daily newspaper "Udayam" in its issues dated 17th, 18th, 19th and 21st October, 1993 filed as annexures as A-1 to A-4 by the petitioner the sole foundation for the issuance of a writ of Habeas corpus about the condition of the undertrial prisoners throughout the State are wholly imaginary and exaggerated purposely. These allegations are false, incorrect and levelled against with the oblique motive of rousing passions of the public and to incite them to rebel against the Government and the existing judicial system. This is nothing but yellow journalism making a tirade against the State and the administration of justice without any basis. The allegation that some loitering policeman chances of catching hold of some beggar or takes him to custody and long afterwards produces him before the Court with false accusation is nothing but a figment of imagination. Barring a few hard cases in general, the detention of an undertrial prisoner is less than a year only. The reason for the delay is not always attributable to the prosecution or the State machinery and very often the delay for the commencement of the trial occurs beyond the control of the State. The allegation that there are about 12000 prisoners in the State, 9000 of them are awaiting prosecution, that in many cases even charge-sheets are not filed etc. are totally devoid of any truth. Further, having regard to the large population of the State crossing six to seven crore figure, the number of 7000 undertrial prisoners is not an alarming feature. It is submitted that as per G.O.Ms. No. 356, Home, Prisoners-B department District Review Committees are formed under the Chairmanship of District and Sessions Judge, of which the District Superintendent of Police and the Superintendent of jail are as members to take steps for early disposal of long pending cases. The District Review Committees meet regularly once in every quarter. All the relevant particulars relating to the detention of the undertrial prisoners in the entire State has been furnished in a tabular form which will clearly disclose the staggering figures furnished by the petitioner are nothing but exaggeration.

No details as to how many of such persons are in jails have been furnished, presumably for the reason that it is not possible to collect the statistics. Apart from highlighting the aspect regarding the invalidity of the continued incarceration of the under trials as being violative of Article 21 of the Constitution, it is averred in the affidavit that this Court, being a constitutional Court, is bound to grant relief to the under trials without taking notice of the existing statutory provisions found in the Criminal Procedure Code.

In fact, the main argument of Sri. S. Ramachander Rao learned counsel for the petitioner, is that if a person is detained in a prison as an ''under trial'' for unduly long time, the outer limit being six months, no matter the nature of the offence with which he or she is charged, this Court should release him/her since Article 21 transcends all the width and ambit of any statutory provisions.

When there is a clash between the constitutional protection under Article 21 on one side and the penal laws and procedural complexities on the other, the former should prevail, contends the learned counsel. The principle is unexceptionable. It was already recognised in Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, . How far this principle is applicable in the present case, and if applied, how many should be released is a matter for our consideration on the basis of the detailed information submitted by the learned Advocate General.

To examine this question a look at Article 21 of the Constitution of India is necessary which is in the following terms :

"21. Protection of life and personal liberty :- No person shall be deprived of his life or personal liberty except according to procedure established by law."

Article 21 guarantees personal liberty and nobody shall be deprived of the same except in accordance with the procedure established by law. Criminal CPC is the main procedure Code for arrest and custody. The procedure prescribed by the Criminal Procedure Code has to be tested on the bed rock of Constitution and as long as the said procedure is not unconstitutional, it has to be followed without exception. So it has to be seen whether the provisions of Criminal Procedure Code with reference to arrest and custody are fair, just and reasonable. Section 57, Cr.P.C. contemplates that any person accused of an offence shall be produced before the nearest Magistrate within 24 hours of his arrest. This procedure is prescribed in accordance with the mandate contained in Article 22 of the Constitution of India. When the investigation could not be completed within the period of 24 hours as fixed by Section 57, Cr.P.C., the Magistrate may authorise the detention of the accused in such custody for a term not exceeding 15 days whether he has jurisdiction to try the case or not as per Section 167, Cr.P.C. He may authorise the detention of the accused beyond the period of 15 days if he is satisfied that adequate grounds exist for doing so but he shall not authorise the detention of the accused for a total period exceeding 90 days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than 10 years and 60 days where the investigation relates to any other offence. But Explanation 1 to Section 167, Cr.P.C. is to the effect that notwithstanding expiry of the period specified therein, the accused shall be detained in custody so long as he does not furnish bail, Section 468, Cr.P.C. contemplates bar of limitation for taking cognizance of the offences. Under this section the period of limitation shall be six month for taking cognizance of the offence if the offence is punishable with fine only, one year if the offence is punishable with imprisonment for a term not exceeding one year and three years if the offence is punishable with imprisonment for a term exceeding one year and not exceeding three years. The Criminal Procedure Code is silent as to the period within which the trial of a case or a particular class of cases should be closed or completed presumably it is not possible to fix up any time frame for any case or class of cases as it would depend upon several circumstances.

The main contention of the learned counsel for the petitioner Sri. S. Ramachandra Rao is that where the chargesheets are not filed and pretrial incarceration exceeded 90 days this Court should quash the F.I.Rs. in all such cases, as the non-observation of this principle according to the learned counsel violates the spirit of Article 21 of the Constitution of India and therefore, any procedure inconsistent with this principle, should be held as unconstitutional. The learned counsel has not invited our attention to any particular provision in the Criminal Procedure Code which according to him is violative of Article 21 of the Constitution. Even so, we presume that what he had in mind is Section 167, Cr.P.C. which confers power on the Magistrate to extend the remand period of an undertrial prisoner. In Abdul Rehman Antulay Vs. R.S. Nayak and another etc. etc., . The Supreme Court in unmistakable terms held that the fundamental right guaranteed under Article 21 is reflected in the provisions of Criminal Procedure Code. Such being the legal position, we cannot accept the contention that in every case where a person is incarcerated during the pre-trial stage beyond 90 days and if no charge-sheet is filed, the F.I.R. itself should be quashed. The Supreme Court in A. R. Antulay''s case (supra) has observed that no doubt speedy trial is the essence of our system of criminal justice, there should be safeguards for the enforcement of fundamental right to life and liberty guaranteed under Article 21 of the Constitution and speedy trial should be one such guarantee. Pretrial detention for unduly long periods is an affront of personal liberty guaranteed under the Constitution. The enforcement of personal liberty guaranteed under Article 21 can be ensured by speedy trial only. Any undue delay of trial is abrogation of the fundamental right guaranteed under the said Article. Every undertrial prisoner has a right to speedy trial as otherwise the fundamental right to liberty guaranteed to him under this Article becomes otiose. Therefore, there should be every endeavour on the part of the Court to ensure speedy trial of undertrial prisoners. But the proposition advanced by the learned counsel for the petitioner that any infraction of this right must result in quashing of the F.I.R. or the charge is too board for meriting acceptance. Considering this question the Supreme Court is A. R. Antulay''s case (supra) observed thus :

"It cannot also be said that the only consequence flowing from an infringement of right to speedy trial was the quashing of charges and/or conviction."

So on the authority of the Supreme Court, we have no hesitation in rejection this principal contention advanced by the learned counsel. A Full Bench of this Court presided over by one of us (M. M. Rao, J.) in Kurra Dasaratha Ramaiah and Others Vs. State of Andhra Pradesh, had an occasion to consider the effect of Section 167, Cr.P.C. more particularly sub-section (2)(b) of Section 167, Cr.P.C. which provides that no Magistrate shall authorise detention under custody u/s 167, Cr.P.C., unless the accused is produced before him observed the Full Bench, "the change brought about in the new Code by the incorporation of proviso (b) to Section 167(2) obligating that no Magistrate shall authorise detention in any custody u/s 167 unless the accused is produced before him, in our view, does not automatically empower the Magistrate to release the accused on Bail. Despite the mandatory language in which Section 167(2)(b) is couched, the Section does not direct the Magistrate to release the accused with or without conditions, unlike the mandate contained in Proviso (a) under which the failure of the police to complete the investigation within sixty days or ninety days, as the case may be, imposes an obligation on the Magistrate to release the accused on bail if the accused is, prepared to and does furnish bail ... "(vide Kurra Dasaratha Ramaiah''s case (supra))."

In the above said case the Full Bench considered the object, and the purpose of Section 167, Cr.P.C. in extenso and after a thorough discussion, it observed thus Kurra Dasaratha Ramaiah and Others Vs. State of Andhra Pradesh, :

"The mere default on the part of the jail or police authorities in producing the accused before the Magistrate cannot be a valid reason to release the accused either on bail or without any conditions. Such a course of action, in our view, would amount to abdication of his judicial functions."

The Full Bench also mentioned illustrations where it is physically impossible to produce the accused before the Magistrate on the day when the accused is called. So also in the instant case there may be valid reasons for the delay in conducting speedy trial. In A. R. Antulay''s case (1992 Cri LJ 2717) (SC) (supra) Justice B. P. Jeevan Reedy speaking for the Court observed that it is not possible to postulate any fixed time for completion or conclusion of trial of any case as it would depend upon several factors and each case will have to be examined in the light of the peculiar circumstances of that case. Therefore, the learned Judge gave certain guidelines for speedy trial. A Division Bench of the Madras High Court in Elumalai v. State of Tamil Nadu, 1983 Mad LW (Cri) 121 has held thus :

"For a speedy trial, the prosecuting agencies also must take must take a prompt step in completing their investigations and filing their final reports a contemplated under the Code as expeditiously as possible. In case the investigating officer fails to take speedy action in a case registered against any person arrested u/s 41(1), Section 151(1) or any other penal provision of the law, and keeps it in cold storage, forgetting his obligation to the society and in contravention of the principles of natural justice and allow, by his conduct, the arrested persons to be kept behind the bars, for months together and if the Courts without being conscious of the mandatory provisions of Section 167(2), mechanically authorise repeated detention and also do not show any diligence in completing the trial of the case speedily, the result would be that prisoners, especially those coming from the society of have notes, have not to suffer untold physical and mental agony and spend their lives in the jail without having any ray of hope of their release."

Even in Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, the Supreme Court had an occasion to consider similar question and gave guidelines for release of the accused from custody. Newspaper report published in "Indian Express" was the basis for the decision. The report showed several hundreds of prisoners are languishing in Bihar jails. The State has not filed counter-affidavit denying the allegations. The Court, therefore, had treated the allegations as true and decided the case on that basis. While considering this question the Supreme Court laid down the principle that speedy trial is an essential part of Article 21 of the Constitution. In appropriate cases, the Court observed that the undertrial prisoners languishing in jails for long period should be released on taking personal bonds. The factors that should be taken into consideration by the Court for granting such released are also mentioned by the Court. Accordingly the Supreme Court gave directions to Bihar Government to scrutinise the cases of undertrial prisoners charged with offences of punishable with fine only or punishable with imprisonment for a term not exceeding one year or punishable with imprisonment for a term exceeding one year but not exceeding three years and release such of them who are not liable to be proceeded against by reason of period of limitation being expired. The Supreme Court further directed that this exercise shall be carried out within a period of six weeks from the date of receipt of the order. Therefore, where the undertrial prisoners have been in jail for longer periods than the maximum term they would have been sentenced if convicted, their detention in jail is violative of Article 21 and therefore, they have to be released forthwith.

The learned Advocate-General has fairly conceded that the undertrial prisoners falling within the ambit of the above principle should be released forthwith. The undertrial prisoners who are in jails for periods longer than the term of the imprisonment for which they could be sentenced if convicted, could not apply for bail due to poverty and if the Court in those cases is of the opinion that they are entitled to bail in the normal circumstances, their applications for bail should not be opposed and they should be released on the basis of the guidelines Nos. 1 and 8 mentioned by the Supreme Court in para. 4, Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, in the said case. A duty is cast as per the Supreme Court on the Magistrate when an under trial prisoner is produced for remand u/s 167, Cr.P.C. before making an order to further remand, he should inform the undertrial prisoner that he is entitled to be released on bail.

In pursuance of our direction, the learned Advocate-General spared no pains in compiling the data in book from giving all details of the undertrial prisoners confined in various jails in the State of Andhra Pradesh as on 30-10-1993. We rely on the information furnish by him as we are satisfied about the authenticity of the information furnish by him. The learned Counsel for the petitioner expressed no objection for the same. Therefore, applying the principles enumerated above, we proceed to consider the release of the undertrial prisoners.

A list of persons who according to us should be released, is appended to this judgment. The period of imprisonment underwent by each accused is shown as on 30-10-1993 in the said list. Another five months should be added to the said period to make it up to date.

Normally Courts award sentences of six months to one year for offences u/s 324, I.P.C. The accused charged under this Section whose particulars are mentioned hereunder have completed more than one year and in some cases more than two years.

Although for offences u/s 34(a) of A.P. Excise Act, in addition to minimum sentence of imprisonment for one year, fine is also prescribed. But these accused could not apply for bail due to financial constraint. Therefore, even if fine had been imposed, they could not pay they may have to undergo further imprisonment in default of payment of fine. As they have undergone imprisonment of one-and-half years and more and as the trial is not commenced so far, we feel they should not be further subjected to the ordeal of trial.

Under the A.P. Excise Act, the minimum period of imprisonment prescribed for an offence u/s 34(a) of the Act is one year. The two accused shown in the appendix have undergone imprisonment of more than that period. So, they are entitled for release. There are also a few accused who are languishing in jails between 1 to 2 years and in some cases more than two years. They are charged for offences u/s s 379, 411, 385, 506 and 341, I.P.C. and 41, 102, Cr.P.C. For these offences, the Courts generally convict the accused with imprisonment for a term which may extend to six months to one year. As these accused have suffered imprisonment for more than those periods, without commencing the trial, we are of the view that their further detention is illegal and their charge-sheets also should be quashed.

In respect of other accused i.e., other than those shown in the appendix and who are charged for grievous offence like 302, 304, 376, I.P.C., under TADA etc., we are not inclined to pass any orders for their bail or release. We, however, direct the concerned Judge to expedite their cases.

In conclusion, we accordingly, quash the charge-sheets of the accused shown in the appendix to this judgment and the accused shall be released forthwith.

The State Government will inform the concerned jail authorities to release these undertrial prisoners forthwith.

The concerned Magistrates and Judicial Officers would follow these directions as soon as these orders are communicated to them or brought to their notice and may even act upon publication of this judgment in Law Journals.

We, accordingly, dispose of the writ petition, subject to the above directions. No costs.

Order accordingly.