ANIL YADAV & ORS. versus STATE OF BIHAR & ANR.

ANIL · YADAV. & _ORS.'

·.'_;--;:.I ·.·' · l·. . STATE OF BIHAR & ANR. . •, ,,- .•.. ., . ·.· ·.· , , March 23, 1982;

'/ . •, ,,- .•.. .. } ., . ·.· ·.· , , March 23, 1982; ·-; ,"-;.·· ".-· .. V'. [Y.V. CJIANDRACHUD, C.J., A.' v ARADARAJAN AND j" A!llARENDRA -. NATH . . SEN, JI.] _, .. _· ..

. __ . · ConJt/tullon oflmlia 1950, Art.32-Habea• CorpuJ petltlon-&•pondmt go1ernment official directed tO file Oj/idarit..:...OffiClal' 1usp•nded by; government-Susptn1/011 Order whether Can be challenged in /11cldental Proceedt,,Z8. · · · -

The second respondent who was the Superintendent or the BbagaJpur Central Jail was suspended by the State Government on ·the groand that he was negligent in providing~ propel- -medicai aid to the blinded undertrial prisoners inside the jail and that he bad failed to make entries in the jail register as reg~rds the physical condition or the ui:tdeririat prisoners.': ~

In Mlscellaneous Petition ·filed by him he claimed ·that bis order of suspeOsion be quashed as it·was passed ma/a fide. with the object ol preventing him from tiling the affidavit as directed by the cOurt. · ; ..

·The. State GovemiDent contested the petitiO~ cOntendi.iig that the respon-dent was suspended for his ·failure to Comply with the requirements of Rule 474 (1) of the Bihar Jail Manual in that he -did iiot scrutinise and sign the entries made in the Admission Register maintained at the jail to satisfy himself whether those entries were correct and whether the relevant rules in regard to the admis-sion of the prisoners were complied with.· He_ did_ not. aJso record any 'special" . ofdei under Rule 474 (2) regarding the medical treatmeiit given or to be given to the blinded prisoners with the reslllt that they were not sent for examination to any eye specialist. He did ... not make 3. report on the blindings of the prisoners and. he ~~pplied .to newsP_aper_s bis own version of the blindings • . , .

Dismissing the petitions;-, ' ,--.

HELD: . OrdinarilY 30: older ·or sus~D.Sion cailliot be ~·hau~nied i~. I.a · inCideiltal proceeding but it ·was heaid Since the allegation was th3t the petitioD.Cr was suspended in order 10 defeat the order passed _by this Court. [539 E] · · , ·:

~ < . . · -' ~ .. 2. The Order of, suSpension. was -not._ passed: by the GoveiUment ·ma/a J;j~ as couuter·blast to the order passed b)' this Coor! on December l, 1980 lliid 10 c!efc~t it. (540 FJ · · ·

3. The allegation that the motive behind the order was to frustrate the purpose of the Court's direction calJing upon the petitioner to file an affidavit is not proved. The evidence on record indicates that the State Government officials were enquiring into the blindings of the under-trial prisoners and there is report in the- Government files recommending that the petitioner be suspended for dere-liction of duty, It cannot be said that this report was prepa1ed later and ante-dated to justify the order of suspension. [540 G-H; 541 A-BJ

4. By placing the petitioner under suspension the State Government could not prevent him from filing an affidavit in Court. He was free to file bis affidavit and in fact he filed an affidavit after suspension. [541 CJ

S. The petitioner will be at liberty to challenge the order of suspension in properly constituted proceedings on such grounds as may be open to him including the ground that the order was passed ma/a fide. [541 Fl

ORIGINAL JURISDICTION : Criminal Misc. Petitions Nos. 8774 of 1980 & 2581of1981.

Writ Petition No. 5352 of 1980.

(Under Article 32 of the Constitution)

B.L. Das Petitioner-in-person.

K.G. Bhagat and D. Goburdhan for the Respondent (State).

R.N. Poddar for the Res,Pondent (CBI).

The Order of the Court was delivered by

CHANDRACHUD, CJ. These Misc. Petitions are an off-shoot of the blindings of undertrial prisoners at Bhagalpur in the State of Bihar. Truth has strange habit of revealing itself and in spite of the veil of secrecy behind which the blindings of those prisoners lay concealed or suppressed, this Court and the country awoke one day to the incredible fact that, in Bhagalpur, undertrial 'prisoners were subjected to the most inhuman torture imaginable : their eyes were pierced with needles and acid poured into them. Whether these barbarous acts were committed by members of the public after the prisoners were caught or by the police after they were arrested, is not matter directly in issue before us. The greater probability i' th11t thes~ a~\s mat have been ~ommitted mostly by the poli~.

But this much is certain, that six prisoners were thus blinded between October 1979 and May 1980 and twelve between lune 11 and July 25, 1980. The petitioner Bacbcho Lal Das, who has filed the11e Misc. Petitions, had assumed charge as the Superintendent of the Bhagalpur Central Jail.on April 19, 1979.

On October 26, 1979 prisoner by the name of Arjun Goswami was sent to the Bhagalpur Central Jail. On November 20, 1979 he addressed an application to the Chief Judicial Magistrate, Bhagalpur, asking that an inquiry be held into the torture infticted upon him, especially the blinding of his eyes. That application was forwarded by the petitioner to the Chief Judicial Magistrate. Later, eleven prisoners made similar complaints which were for-warded by the petitioner to the learned Sessions Judge, Bhagalpur, on July ~O, 1980. The complaints made by these prisoners unques-ionably demanded the most prompt and careful attention. But, instead of directing full and proper inquiry into the allegati-Ons matle by the undertrial prisoners, the learned Sessions Judge, on August 5, 1980, sent cold and indifferent reply to the petitioner's covering letter, saying that "there is no provision in the Cr. P.C. to provide lawyer to any person for prosecuting criminal case as complaint" and that the petitions of the prisoners Were forwarded. to the Chief Judicial Magistrate, Bhargalpur, "for needful in accnr-dance with Jaw."

On October 9, 1980, ten blinded prisoners filed Habeas Corpus petition in this Court (Criminal Writ Petition No. 5352 of 1980) asking that : (I) they should be produced in the Court, (2) they should be examined by Medical Board, (3) they should be paid compensation for the damage done to their eyes and that (4) .the police officers guilty of committing atrocities upon them should be suitably punished. On October 10, 1980 Bench 'of this Court consisting of one of us, (the Chief Justice), and Justice A.D. Koshal passed the following order in that petition :

"We direct that the petitioners shall be. examined. by the Jail Doctor forthwith and report shall be submitted to this Court expeditiously in regard to the allegation in the petition that their eyes haye been damaged by certain police officers by putting acid therein. The report shall be submitted within four weeks from today. The W.P. be listed for hearing after \he report is rec;eiv~4,"

(1982) 3 s.c.R.

By his·JettCli,dated October 31, 1980 the petitioner, who is respon·

dent 2 in the Habeas Corpus petition, forwarded to this Court the report of the Jai.1 Doctor on the condition of the eyes of the prisoners. The remaining 2 prisoners were already rele.ased and could not therefore be examined. The report of the Jail Doctor in regard to one of the prisoners, Anil Yadav, is representative of the conclhion of all the eight of them and may be extracted here :

"(!) Presence of old burn scar around both the eyelids of both the eyes and on left cheek.

(2) Collapse of both the eye balls.

(3) Perception of light and projection of rays abseat in ;, both the eyes.

(4) Eye sight of both the eyes lost.

The cause is perforation of eye balls by burn with some corrosive· substance and puncture by some sharp and pointed weapon.

From the records of Jail Hospital it is known that he was admitted in Jail Hospital on 8. 7 .1980 for acid burn injury of both the eyes."

On December I, 1980, the Court (the Chief Justice and Chinnappa Reddy, J.), while directing that the prisoners be brougltt to Delhi the following week and be examined at the Dr. Rajendra Prasad Opthalmic Institute, New Delhi, passed the following order :

"The report of the doctor which we had called for by our Order dated October 10, 1980 shows that eight out of the ten petitioners before us have lost their eye-sight totally or partially. The· report submitted by Dr. K.S. Roy in each individualcase shows that :

(i) most of the petitioners are suffering from collapse of one or both of the eye-balls ;

(ii) the sighi of one or both of their eres is lost ;

(iii) there is perforation of .their eye-balls by burn with corrosive substance and that

(iv) their eyes have been punctured by some sharp and pointed weapon.

The remaining two petitioners have been released and therefore no report could be sent regarding them.

The report of the doctor will shock the conscience of mankind. There has been the most flagrant violation of the safeguards provided by Articies 19 and 21 of the Cons-titution. There is ndthing that the Court can do to restore the physical demage, which seems irreparable. But the offenders must at all events be brought to book, at least in the hope that such brutal atrocities will not be committed again.

With that end in view, we direct the Superintendent of the Bhagalpur Central Jail to file an affidavit in this Court within two weeks from to-day stating :

(a) the names of convicts and nndertrial prisoners in the jail whose eyes have been damaged or impaired b~fore or after their lodgement in Jail ;

(b) the names of policemen, police officers and the members of the.jail stJff who were in charge of those prisoners at the relevant time ;

(c) the names of doctors who were in charge of the jail ·dispensary or hospital at the relevant time ; and

(d) the names of doctors who have examined, from time to time, the petitioners and other prisoners whose eyes have b.een damaged or impaired after their lodgement in jail:

We direct that the Registrar of the Supreme Court and one other officer of ·the Court shall visit the Bhagalpur Central Jail during this week and obtain first-hand the version of the petiticiners and other prisoners similarly situated as regards the impairment or blinding of their eyes. The two. officers of the Court ~hall. be ~anted everr facilit¥

(1982] 3 S.C.R.,

to meet the prisoners, to talk them beyond the hearing of any jail officer or police officer and to record the state-mepts of the prisoners. We direct the Jail Superintendent to ensure due and full complince with these directions.

Issue notice to the State of Bihar asking it to show cause on the petition as also as to why the petitioners should not be released on bail on their personal recogni-zance."

Shri R. Narasimhan, Registrar (Judicial) and Shri Y. Lal, · Assistant Registrar of this Court visited the Bhagalpur Central Jail on December 3 and 4, 1980 and recorded the statements of 17 prisoners who were blindeg. These statements show ·that 15 out of the 17 prisoners were blinded by the police and the remaining 2, whose names appear at Serial Nos. 14 and 15 of the report of the Registrar, were blinded by the members of the public. The method adopted for blinding the undertrial prisoners, as described by the prisoners themselves, was that 'takwa' (a long· needle used for stitching gunny bags) or barber's nail-cqtter or cycle spoke was poked into tb&ir eyes and acid was poured into the eyes, sometimes with the help of dropper, sometimes with syringe and some-times directly from bottle. It is alleged that the prisoners were held firmly on the ground by policemea who either pulled the ropes tied to their feet or sat upon their feet.

The Registrar questioned the Petitioner, Bachcho Lal Das, in Delhi. The petitioner stated to him that as many as 31 blinded prisoners were brought to the Jail under orders of remand issued by the Magistrate and that they were given medical treatment by the Jail Doctor. According to the petitioner, he got blinded prisoner Umesh Yadav examined by the Jail Doctor, since the report of the doct<•r was required by the learned District .and Sessions Judge, Bhagalpur, in connection with bail application filed by the pri-soner. The petitioner disclosed to the Registrar that be bad made inquiries from Umesh Yadav, who told him that V.K. Sharma, D.S.P., had thrust long needle in both of his eyes and had poured acid into the eyes. The other blinded persons appear to have taken cue from Umesh. Yadav and submitted similar petitions for being forwarded to the District and ~essions Judge. The petitioner dis-closed to the Registrar the names of the police officer3 ·who

were involved by the prisonem as being responsible for their blindings. ·

It may be recalled that thi.s Court by its order dated December I, 1980 had directed the petitioner, who was then the Superintendent of the Bhagalpur Central Jail, to file an affidavit within two weeks on Points (a) to (d) mentioned in that order. On that very day, the petitioner was suspended by the Government of Bihar on the grour,d the he was negligent in providing proper medical aid to the blinded nndertrial prisoners inside the Jail and that . he had failed to make proper entries in the Jail Register as regards the physical condition of the undertrial prisoners. On December 10, 1980 the petitioner filed the main Misc. Petition in this Court in the Writ Petition filed by the blinded prisoners. He prays that the order of' sus-pension dated December I, 1980 l!e quashed, since at was passed by the State of Bibar mala fide with the object of preventing him from filing an affidavit in pursuance of the direction issued by this Court on December I, 1980.

We would not have entertained I\ petition of this nature in the normal circumstances, because an order of suspension cannot be challenged in this manner in an incidental proceeding. We, however, decided to hear the Misc. Petitions filed by the petitioner for quashing the order of suspension, since he alleged which, at first blush, seemed plausible, that he was suspended in order to defeat the order passed by this Court on December I, 1980.

The petitioner appeared in person before us and argued his case at great length. We gave him all reasonable facilities to sub-stantiate his contentions, which he did with the help of the voluminous record prepared by him. Having considered the sub-missions of the petitioner and .those of Shri K.G. Bhagat, who appeared on behalf of the State of Bihar, we are of the opinion that there is no merit in the complaint of the petitioner that he was suspended on ·December l; 1980 in order to prevent him from complying with the order passed by this Court on that day and with the ulterier object of defeating that order.

Shri Ambik .. iasad Poddar, Assistant Inspector General of Prisons, Bihar, has filed an affidavit in this Court, settling out the circumstances in which and the reasons for which the petitioner was suspended by the Government Qf :Qihar. The ca~e ma,ge 011t in tha,t

affidavit is that the petitioner failed to discharge his official func-tions enjoined upon him by Rule 474 (I) of the Bihar Jail Manual, in that he did not scrutinise and sign the entries made in the Admission Register maintained. at the Central Jail, in order to satisfy himself whether those entries were correct and whether the relevant rules in regard to the admission of the prisoners were complied with. It is stated in the affidavit that contrary to Rule 474 (2), the petitioner failed to record any 'special order' regarding the medical treatment given or to be given to the . blinded prisoners, with the result that they were not sent for examination to any eye specialist either in the Jail or at the Bhagalpur Medical College Hospital. Though the District Magistrate, Bhagalpur, had given· his approval on October 21, 1980 to the proposal for sending the blinded prisoners for specialised treatment at the Bhagalpur Medical College Hospital, the petitioner;· it is alleged, neglected to discharge his duty and sent the prisoners f9r medical .treatment to the Hospital ten days later on October 31, 1980. According to Shri Ambika Prasad, Poddar, the petitioner omitted to make report on the blindings of prisoners lodged in the Jail which was under his charge, he did not hold parade of the prisoners nor did he make the weekly inspection of the Jail, and on the top of it all, he supplied to news-papermen his own one·sided •version of the blindings. The sus-pension order, according to Shri Poddar, was passed on the basis of the various rules and notifications governing the conditions of the petitioner'sservice and was not passed in order to frustrate or defeat the order passed by this Court on December 1, 1980,On careful consideration of the aforesaid affidavit and the arguments advanced before us by the parties, we find it difficult to accept the petitioner's contention that the order of suspension was passed by the Government of Bihar ma/a fide, that is· to say, as counterblast to the order passed by this Court on December I, 1980 and to defeat it. The question for inquiry in these Miscellaneous Petitions is very narrow and limited. The question is not even whether the order of suspension is ma/a fide in broad and general sense, covering the entire gamut of extraneousness. The question before us is whether the motive behind the order was to· frustrate the purpose of our direction calling upon the ·petitioner to file an affidavit, That charge is not substantiated and is difficult to accept. It. appears that officers of the State Government91e enquiring into the blindings of the undertrial prisoners at least from November 27, 1980, There is report <late<l Peceml;>er 1, 1980 in the Govermen~

files, which was produced before us by Shri K,G. Bhagat, by which Shri L.V. Singh, Deputy I.G.P. (Prisons), recommended that for reasons of dereliction of duty the petitioner should be suspended. We find it quite difficult to accept the petitioner's contention that the report of Shri Singh was prepared later and was antedated in order to justify the order of suspension.

We are also unable to appreciate how the State Government could prevent the petitioner from filing an affidavit as directed by this Court, by placing him under suspension. The petitioner would be free to file his affidavit in spite of the order of suspension and in fact he has filed an affidavit in this Court after he was suspended. During the course of arguments before us, he produced photostat copies of quite few documents, which also show: that the order of suspension is not calculated to interfere with the direction given by this Court, asking the petitioner to file his affidavit. If we had found that by reason of the order of suspension the petitioner was prevented from filing his affidavit, we would not have hesitated to ask the Government of Bihar to supply copies of necessary docu-ments to the petitioner in order to enable him to file full and complete affidavit in compliance with our order.

The Miscellaneous petitions have therefore to be dismissed. We would, however, like to state that we are not called upon to consi-der in tbe,se incidental proceedings, and we have in fact not con-sidered, the question of the validity of the order of suspel.li!on dated December I,1980. The petitioner will be at liberty to cb!lenge that order, if so advised, in properly constituted proceedings, on such grounds as may be open to him including the ground that the order was passed ma/a fide. We have only dealt with the narrow question as to whether the order of suspension was passed with the object of preventing the petitioner from filing an affidavit in this Court and on that question we have rejected the petitioner's contention that the order of suspension was passed for that purpose. We have not inquired into the question whether the order of suspension is vitiated by ma/a fa/es for any other reason,

It ls desirable and but proper that the State Government ought not to visit the petitioner with any penalty or punishment for app-

542 SUPREME COURT REPoRTS (1982) 3 S.C.R. roaching this Court or for having attempted to lay before this Court, what according to the petitioner, was the truth of the matter in regard to the bizarre blindil)gs of the under trial prisoners. Order accordingly. N.V.K. Petitions dismissed.