IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.5806 of 2009
Date of decision: 12th November, 2009
Hemant Goswami
... Petitioner
Versus
State of Haryana and others
... Respondents
CORAM: HON'BLE MR. JUSTICE T.S. THAKUR
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. A.P.S. Shergill, Advocate for the petitioner.
Mr. Anil Rathee, Additional Advocate General, Haryana
for respondents No.1 to 3.
Mr. Rajdeep Singh Cheema, Advocate
for respondent No.4.
Ms. Madhu Dayal, Additional Advocate General, Punjab
for respondent-State of Punjab.
KANWALJIT SINGH AHLUWALIA, J.
This writ petition has brought into focus prevailing system of
sending release warrants by the Courts to the jail authorities in respect of
prisoners. We have been called upon to examine whether the system in
existence is adequate and efficacious, or some amendment of the Rules
in force is required.
To answer the above said issue, during the course of hearing
of this writ petition on various dates, we called upon all concerned, which
included the Director General of Prisons, Punjab, Haryana, U.T.
Chandigarh and even the Listing Committee of this Court on
administrative side to make suggestions for ensuring immediate delivery
of release warrants to the Superintendent of jails concerned, so that the
benefit of release on bail or acquittal to the prisoners is not denied for lack
of effective means of communication. An effort was made by all the
involved to evolve an effective mechanism for immediate delivery of
Civil Writ Petition No. 5806 of 2009 2
release warrants passed by the competent courts. We intend to dispose
of this writ petition by taking into consideration the suggestions advanced,
various facets of the problem and apprehension and doubts expressed
over the suggestions advanced. Before we do so, it will be necessary to
advert to the facts of the case and give details of various steps
undertaken in consequence of filing of the writ petition and the
proceedings which originated therefrom.
This writ petition was filed, purportedly in public interest, by
Hemant Goswami, who claims himself to be a social activist. According to
the petitioner, one Hawa Singh Rathi (hereinafter referred to as, ‘the
accused’), to whom the petitioner perceives to be a social worker, was
engaged in the affairs of the community development, was a participant of
NGO and was arrested in case FIR No. 31 dated 19.02.2008 registered at
Police Station Chandimandir under Sections 420/406 IPC. We need not
examine the averments made in the writ petition that Hawa Singh Rathi
was falsely implicated, as this is not a fact in issue and is subject matter
of the trial. Suffice it to say that the accused was arrested on March 30,
2008 and was produced on that day in the Court of Ms.Anshu Shukla,
Additional Chief Judicial Magistrate, Panchkula, who remanded the
accused to judicial custody. The application for grant of bail to the
accused was instituted on the same day and a notice was issued for April
2, 2008. The bail application was argued and the orders granting bail
were pronounced on 3rd April, 2008. In compliance with the order,
necessary bail and surety bonds were furnished. The petitioner has
averred that the Court had passed the release order and in pursuance
thereof, release warrant was prepared on the same day, i.e. 3rd April,
2008 at 3.00 p.m. The grievance made in this writ petition is that the
accused was released from the jail only on 7th April, 2008 and for five
days, i.e. April 3, 4, 5, 6 and 7, 2008, detention of the accused in jail was
Civil Writ Petition No. 5806 of 2009 3
not warranted. The cause of delay in releasing the accused is stated to be
non-reaching of the release warrants from Panchkula Court to the Central
Jail, Ambala. The reasons for delay, according to the petitioner, are
malafide intention on the part of those influential persons, who had
allegedly got the accused arrested and prevailing corruption in the
system. The petitioner alleges that no paper moves forward until the
palms of those who deal with it are greased. In the writ petition, directions
have been sought to ensure accountability of the system, grant
compensation to the family of the accused and to hold an inquiry into the
circumstances, due to which the accused remained detained for the time
more than required and to initiate proceedings under Section 166 of the
IPC against the erring officials.
Raj Kumar, HPS-I, Chief Probation Officer submitted his
counter-affidavit on behalf of respondents No.1 to 3. He stated therein
that the accused was admitted in Central Jail, Ambala on 31st March,
2008. The release warrants dated 3rd April, 2008 were received in the
office of Superintendent, Central Jail, Ambala by post Under Postal
Certificate on 7th April, 2008 and on receipt of the release warrants, the
accused was released from the jail.
District Panchkula is not having its own jail, therefore, the
undertrials in cases pending at Panchkula or those convicted at
Panchkula are confined in Central Jail, Ambala.
The Director General of Prisons, Haryana had ordered an
inquiry and deputed Jasvinder Singh Gill, Assistant District Attorney to
hold the inquiry. The inquiry report has been placed on record along with
the counter affidavit. The Inquiry Officer recorded statement of Sukhchain
Singh, Civil Nazir at District Court, Panchkula. He stated that on 3rd April,
2008 at 4.20 p.m., release warrants were received by him and on 4th April,
2008, he went to the post office of Gurukul, Panchkula and had posted
Civil Writ Petition No. 5806 of 2009 4
the release warrants Under Postal Certificate. The Civil Nazir has also
disclosed to the Inquiry Officer the procedure prevailing regarding
sending of release warrants to jail authorities. In case the parokars of the
detenue are desirous of immediate release, then an application is filed in
the Court stating therein that they are ready and willing to bear the
expenses of special messenger and release warrants be sent to jail
authorities through special messenger. The Inquiry Officer submitted that
on 4th April, 2008, release warrants were posted at Panchkula. They
reached Ambala jail on 5th April, 2008. In the Post Office, Ambala, there is
a post box/window in the name of Central Jail, Ambala. 5th April, 2008
was Saturday. The following day, i.e. 6th April, 2008, being Sunday, on 7th
April, 2008 jail officials collected the release warrants from the post box
and the accused was released.
Dr. John V. George, IPS, Director General of Prisons,
Haryana filed a short affidavit. In the affidavit so filed, it has been
submitted that in the cases where accused are brought in custody by the
police from jails, the orders of release and release warrants of the
accused brought from the jails are handed over to the police officials, who
had brought the accused from the jail. On their return journey, police
escort officials hand over the release warrants to jail authorities and the
accused is released. Where the accused is not brought from the jail and
is ordered to be released on bail or otherwise, the release warrants are
handed over to the Court staff (Piada) for onward transmission to jail
authorities. In case this procedure is not followed, the release warrants
are sent through post. The Director General of Prisons, Haryana gave
following two suggestions:
“a) It would be desirable that the Judicial
Magistrates who issue release warrants on case to case
basis to seek the compliance report from the subordinate
staff such as Ahlmad, Najar & other concerned to the effect
Civil Writ Petition No. 5806 of 2009 5
as to whether the release warrants issued by him have since
been delivered to the Jail Authorities concerned on the same
date.
b) That the system of delivery of release warrants
through post be dispensed with and release warrants to be
either sent through a process server or through Courier
Service. In the absence secured digital signature and other
safety/ cyber security systems, it would not be appropriate to
introduce release orders delivery through E-Mail. The same
is true about facsimile transmission also. The Speed Post
Service of the Postal Department may be used wherever it is
available.”
On 17th December, 2008, a Committee consisting of various
officials of State of Haryana held its meeting. It took into consideration
Rule 4 of Part B of Chapter 20, Volume (III) of Punjab and Haryana High
Court Rules and Orders. Rule 4 reads as under:
“RULE-4 “Warrants for release or remission of
sentence:-Warrants for the release or remission of sentence of
prisoners confined in jail, warrants for the release of
prisoners on bail, and intimations of payment of fine sent to
jail authorities should always be drawn up in Urdu or in
English and should be signed in full by such officer and
sealed with the seal of his Court.On receipt of warrant for the release of a prisoner it
should be forwarded without delay by registered cover to the
jail in which the prisoner is confined, if it is necessary to send
it through the agency of the post.”The Committee also noticed section 442 (1) of the Code of
Criminal Procedure. The same reads as under:
“Section 442(1):- “Discharge from Custody:- As
soon as the bond has been executed, the person for whose
appearance it has been executed shall be released; and,
when he is in jail, the Court admitting him to bail shall issue
Civil Writ Petition No. 5806 of 2009 6an order or release to the officer in charge of the jail, and
such officer on receipt of the orders shall release him.”The Committee also took into consideration the instructions
dated 28th July, 1990 issued by the High Court under the directions of
Hon’ble the Chief Justice. The letter has been attached with the additional
affidavit of Director General of Prisons, Haryana as Annexure R-1. It will
be apposite here to reproduce the relevant portion of the letter:
“I am directed by the Hon’ble Chief Justice and Judges
refer you on the above subject and to say that all released
warrants issued by various Courts at the Sub-Divisional Head
Quarters regarding the day should be entrusted to an official
of the Court and should serve the same on the jail authorities,
the same day. Necessary expenses of his travel can be
conveyed by a reasonable fee which can be paid by the
petitioner.”
On the facts of the case, the Committee noticed that an
application was filed on 3rd April, 2008 itself by the parokars of the
accused that a special messenger be deputed for taking the release
warrants to jail authorities at Ambala, but no fee was deposited, therefore,
the Nazir reported that expenses of special messenger have not been
paid by the applicant therefore, he be allowed to send release warrants
through post Under Postal Certificate. On permission granted to this
effect, release warrants were sent on 4th April, 2008 by post Under Postal
Certificate. The Committee recommended that the instructions dated 28th
July, 1990 (Annexure R-1), the relevant portion of which has been
reproduced above, either be modified or exempted in deserving cases.
In the circumstances noted above, the entire focus shifted on
the communication dated 28th July, 1990 sent by this Court, wherein it
was stated that the release warrants issued by the Court of Sub-
Civil Writ Petition No. 5806 of 2009 7
Divisional Headquarters can be served through a special messenger in
case necessary expenses of the special messenger are paid by way of
reasonable fee by the detenue. Meanwhile, the listing Committee
consisting of three judges, on the administrative side, reviewed the matter
regarding issuance of release warrants by post/special messenger on
payment of TA/DA and recommended amendment in Rule 4 Part B of
Chapter 20, Volume (III) of the Punjab and Haryana High Court Rules and
Orders. The proposed amendment reads as under:
“On receipt of warrant for release of a prisoner, it
should be forwarded through e-mail under digital signatures
immediately provided that till such time such facility is made
available in all the Jails/sub jails, the release warrants be
sent through Fax as well as through registered post.”
The Financial Commissioner and Principal Secretary of
Government of Haryana, Jails Department, had conveyed to the Registrar
of this Court that in the State of Haryana all district jails are located within
8 kilometers from the courts, except in case of Sub-Divisional Courts and
new District Courts at Panchkula, Fatehabad and Nuh. The special
messenger (Piada), who is a Class-IV employee of the Haryana
Government, is entitled to draw TA/DA from the Government, only if he
undertakes a journey more than 8 kilometers in the course of his duty.
Nominal fee prescribed and charged for serving the release warrants
through special messenger (Piada) is Rs.100/-. He further stated that in
the month of January, 2009, only 564 release warrants were received in
various jails in the State of Haryana. It was further submitted that State of
Haryana is establishing 2 MB dedicated line and introducing video
conferencing system between the courts and jails, as part of State Wide
Area Network. The video conferencing system, according to the Secretary
Jails, will become operational within three months.
Civil Writ Petition No. 5806 of 2009 8
We have heard counsel for the parties. During course of
arguments, by reference to the pleadings, it has emerged that the release
warrants are sent to the authorities through following modes:
(a) In case the prisoner comes to the Court and is ordered to be
released, the release warrants along with the prisoner are
taken by the police escort to the jail and after verification that
he is not involved in any other case, the prisoner is released
by the jail authorities.
(b) On grant of bail or acquittal, in case the prisoner is in jail, the
release warrants can be communicated to the jail authorities
through special messenger and a fee of Rs.100/- is to be
deposited. On deposit of the fee, special messenger takes
the release warrants to the jail and the prisoner is released
on the same day.
(c) In case both the above mentioned modes are not followed,
the release warrants are sent to jail authorities through post
Under Postal Certificate.
To overcome the delay in sending the release warrants
through post, Government has suggested that they are in the process of
establishing video conferencing system between the courts and the jail
authorities. The committee of the High Court on administrative side has
suggested amendment of the rule and introduction of sending release
warrants through e-mail under digital signatures and where this facility is
not available, to send the same through FAX or through registered post.
Counsel for the State has expressed apprehension that a
number of cyber crimes are being reported and hacking of the system
and misuse by somebody to send the release warrants through e-mail
cannot be overruled. This, according to the counsel for the State, will
Civil Writ Petition No. 5806 of 2009 9
compromise the security and can create law and order problem. In the
cases of terrorist crime or where people of mafia are involved, misuse of
the system suggested by way of amendment by the Committee of High
Court cannot be overruled. This, according to the counsel for the State,
will have wide ramifications and at this stage fallout of the consequences
cannot be comprehended.
After hearing all the concerned, we are of the view that the
prevailing system is working efficiently, effectively and without much
problem. A stray incident is not sufficient to conclude that the entire
system requires overhaul or is to be changed drastically. The example,
which the petitioner has projected, is one out of thousands of release
warrants, which are being sent to jail authorities. However, this Court
intends to grant due sanctity to the amendment suggested by the listing
committee of this Court on administrative side and jail authorities
regarding video conferencing. Therefore, sending of release warrants
through e-mail under the digital signatures or information through video
conferencing may be accepted as an alternative mode for confirmation of
the release warrants sent through prevailing modes. Taking the facts of
the present case, since requisite charges were not deposited for the
release of the accused, no directions, as prayed by the petitioner, can be
issued.
Present writ petition is disposed of in accordance with the
observations made above, but without any order as to the costs.
[T. S. THAKUR] [KANWALJIT SINGH AHLUWALIA]
CHIEF JUSTICE JUDGE
November 12, 2009
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