MANU/SC/0382/1983

Equivalent Citation: AIR1983SC 378, 1983C riLJ642, 1983(1)C rimes602(SC ), 1983(1)SC ALE140, (1983)2SC C 96, [1983]2SC R337

IN THE SUPREME COURT OF INDIA

Writ Petition (Crl) Nos. 1053-1054 of 1982
Decided On: 15.02.1983
Appellants: Sheela Barse
Vs.
Respondent: State of Maharashtra
Hon'ble Judges/Coram:
A.N. Sen, P.N. Bhagwati and R.S. Pathak, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Salman Khurshid, Adv
For Respondents/Defendant: K.C. Bhagat, Sol. General , V.B. Joshi and M.N. Shroff,
Advs.
Case Note:
Constitution - legal aid - Constitution of India - case concerning women
prisoners and detainees in State of Maharashtra - Court reiterated right to
legal aid to under trial and convicted persons - certain direction issued by
Supreme Court for providing fast and efficient legal assistance to prisoners
in jail and to provide protection to women prisoners in lock-ups.
JUDGMENT
1. This writ petition is based on a letter addressed by Sheela Barse, a journalist,
complaining of custodial violence to women prisoners whilst confined in the police
lock up in the city of Bombay. The petitioner stated in her letter that she interviewed
fifteen women prisoners in the Bombay Central Jail with the permission of the
Inspector General of Prisons between 11 and 17th May, 1982 and five out of them
told her that they had been assaulted by the police in the police lock up. Of these five
who complained of having been assaulted by the police, the petitioner particularly
mentioned the cases of two, namely, Devamma and Pushpa Paeen who were allegedly
assaulted and tortured whilst they were in the police lock up. It is not necessary for
the purpose of this writ petition to go into the various allegations in regard to the ill-
treatment meted out to the women prisoners in the police lock up and particularly the
torture and beating to which Devamma and Pushpa Paeen were said to have been
subjected because we do not propose to investigate into the correctness of these
allegations which have been disputed on behalf of the State of Maharashtra. But,
since these allegations were made by the women prisoners interviewed by the
petitioner and particularly by Devamma and Pushpa Paeen and there was no reason
to believe that a journalist like the petitioner would invent or fabricate such
allegations if they were not made to her by the women prisoners, this Court treated
the letter of the petitioner as a writ petition and issued notice to the State of
Maharashtra, Inspector General of Prisons, Maharashtra, Superintendent, Bombay
Central Jail and the Inspector General of Police, Maharashtra calling upon them to
show cause why the writ petition should not be allowed. It appears that on the
returnable date of the show cause notice no affidavit was filed on behalf of any of the
parties to whom show cause notice was issued and this Court therefore adjourned the

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 hearing of the writ petition to enable the State of Maharashtra and other parties to
file an affidavit in reply to the averments made in the letter of the petitioner. this
Court also directed that in the meanwhile Dr. (Miss) A.R. Desai, Director of College of
Social Work, Nirmala Niketan, Bombay will visit the Bombay Central Jail and
interview women prisoners lodged there including Devamma and Pushpa Paeen
without any one else being present at the time of interview and ascertain whether
they had been subjected to any torture or ill-treatment and submit a report to this
Court on or before 30th August, 1982. The State Government and the Inspector
General of Prisons were directed to provide all facilities to Dr. Miss A.R. Desai to
carry out this assignment entrusted to her. The object of assigning this commission
to Dr. Miss A.R. Desai was to ascertain whether allegations of torture and ill-
treatment as set out in the letter of the petitioner were, in fact, made by the women
prisoners including Devamma and Pushpa Paeen to the petitioner and what was the
truth in regard to such allegations. Pursuant to the order made by this Court, Dr. Miss
A.R. Desai visited Bombay Central prison and after interviewing women prisoners
lodged there, made a detailed report to this Court. The Report is a highly interesting
and instructive socio-legal document which provides an insight into the problems and
difficulties facing women prisoners and we must express our sense of gratitude to Dr.
Miss A.R. Desai for the trouble taken by her in submitting such a wonderfully
thorough and perceptive report. We are not concerned here directly with the
conditions prevailing in the Bombay Central Jail or other jails in the State of
Maharashtra because the primary question which is raised in the letter of the
petitioner relates to the safety and security of women prisoners in police lock up and
their protection against torture and ill-treatment. But even so we would strongly
recommend to the Inspector General of Prisons, Maharashtra that he may have a look
at this Report made by Dr. Miss A.R. Deasai and consider what further steps are
necessary to be taken in order to improve the conditions in the Bombay Central Jail
and other jails in the State of Maharashtra and to make life for the women prisoners
more easily bearable by them. There is only one matter about which we would like to
give directions in this writ petition and that is in regard to the need to provide legal
assistance not only to women prisoners but to all prisoners lodged in the jails in the
State of Maharashtra. We have already had occasion to point out in several decisions
given by this Court that legal assistance to a poor or indigent accused who is arrested
and put in jeopardy of his life or personal liberty is a constitutional imperative
mandated not only by Article 39 but also by Articles 14 and 21 of the Constitution. It
is a necessary sine qua non of justice and where it is not provided, injustice is likely
to result and undeniably every act of injustice corrodes the foundations of democracy
and Rule of Law, because nothing rankles more in the human heart than a feeling of
injustice and those who suffer and cannot get justice because they are priced out of
the legal system, lose faith in the legal process and a feeling begins to overtake them
that democracy and Rule of Law are merely slogans or myths intended to perpetuate
the domination of the rich and the powerful and to protect the establishment and the
vested interests. Imagine the helpless condition of a prisoner who is lodged in a jail
who does not know to whom he can turn for help in order to vindicate his innocence
or defend his constitutional or legal rights or to protect himself against torture and
ill-treatment or oppression and harassment at the hands of his custodians. It is also
possible that he or the members of his family may have other problems where legal
assistance is required but by reason of his being incarcerated, it may be difficult if
not impossible for him or the members of his family to obtain proper legal advice or
aid. It is therefore absolutely essential that legal assistance must be made available
to prisoners in jails whether they be under-trial or convicted prisoners.
2. The Report of Dr. Miss A.R. Desai shows that there is no adequate arrangement for
providing legal assistance to women prisoners, and we dare say the situation which
prevails in the matter of providing legal assistance in the case of women prisoners

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 must also be the same in regard to male prisoners. It is pointed out in the Report of
Dr. Miss A.R. Desai that two prisoners in the Bombay Central Jail, one a German
national and the other a That national were duped and defrauded by a lawyer, named
Mohan Ajwani who misappropriated almost half the belongings of the German
national and the jewellery of the That national on the plea that he was retaining such
belongings and jewellery for payment of his fees. We do not know whether this
allegation made by these two German and That women prisoners is true or not but, if
true, it is a matter of great shame for the legal profession and it needs to be
thoroughly investigated. The profession of law is a noble profession which has
always regarded itself as a branch of social service and a lawyer owes a duty to the
society to help people in distress and more so when those in distress are women and
in jail. Lawyers must realise that law is not a pleasant retreat where we are
concerned merely with mechanical interpretation of rules made by the legislature but
it is a teeming open ended avenue through which most of the traffic of human
existence passes. There are many casualties of this traffic and it is the function of the
legal profession to help these casualties in a spirit of dedication and service. It is for
the lawyers to minimise the numbers of those casualties who still go without legal
assistance. The lawyers must positively reach out to those sections of humanity who
are poor, illiterate and ignorant and who, when they are placed in a crisis such as an
accusation of crime or arrest or imprisonment, do not know what to do or where to
go or to whom to turn. If lawyers, instead of coming to the rescue of persons in
distress, exploit and prey upon them, the legal profession will come into disrepute
and large masses of people in the country would lose faith in lawyers and that would
be destructive of democracy and Rule of Law. If it is true-that these two German and
That women prisoners were treated by Mohan Ajwani in the manner alleged by them-
and this is a question on which we do not wish to express any opinion ex parte it
deserves the strongest condemnation. We would therefore direct that the allegations
made by the two German and That women prisoners as set out in paragraph 9.2 of
the Report of Dr. Miss A.R. Desai be referred to the Maharashtra State Bar Council for
taking such action as may be deemed fit.
3. But, this incident highlights the need for setting up a machinery for providing legal
assistance to prisoners in jails. There is fortunately a legal aid organisation in the
State of Maharashtra beaded by the Maharashtra State Board of Legal Aid and Advice
which has set up committees at the High Court and district levels. We would
therefore direct the Inspector General of Prisons in Maharashtra t issue a circular to
all Superintendents of Police in Maharashtra requiring them-
(1) to send a list of all under-trial prisoners to the Legal Aid Committee of
the district in which the jail is situate giving particulars of the date of entry
of the under-trial prisoners in the jail and to the extent possible, of the
offences with which they are charged and showing separately male prisoners
and female prisoners.
(2) to furnish to the concerned District Legal Aid Committee a list giving
particulars of the persons arrested on suspicion under Section 41 of the CrPC
who have been in jail beyond a period of 15 days.
(3) to provide facilities to the lawyers nominated by the concerned District
Legal Aid Committee to enter the jail and to interview the prisoners who have
expressed their desire to have their assistance.
(4) to furnish to the lawyers nominated by the concerned District Legal Aid
Committee whatever information is required by them in regard to the
prisoners in jail.

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 (5) to put up notices at prominent places in the jail that lawyers nominated
by the concerned District Legal Aid Committee would be visiting the jail on
particular days and that any prisoner who desires to have their assistance
can meet them and avail of their counselling services; and
(6) to allow any prisoner who desires to meet the lawyers nominated by the
concerned District Legal Aid Committee to interview and meet such lawyers
regarding any matter for which he requires legal assistance and such
interview should be within sight but out of hearing of any jail official.
4. We would also direct that in order to effectively carry out these directions which
are being given by us to the Inspector General of Prisons, the Maharashtra State
Board of Legal Aid and Advice will instruct the District Legal Aid Committees of the
districts in which jails are situate to nominate a couple of selected lawyers practising
in the district Court to visit the jail or jails in the district atleast once in a fortnight
with a view to ascertaining whether the law laid down by the Supreme Court and the
High Court of Maharashtra in regard to the rights of prisoners including the right to
apply for bail and the right to legal aid is being properly and effectively implemented
and to interview the prisoners who have expressed their desire to obtain legal
assistance and to provide them such legal assistance as may be necessary for the
purpose of applying for release on bail or parole and ensuring them adequate legal
representation in Courts, including filing or preparation of appeals or revision
applications against convictions and legal aid and advice in regard to any other
problems which may be facing them or the members of their families. The
Maharashtra State Board of Legal Aid & Advice will call for periodic reports from the
district legal aid committees with a view to ensuring that these directions given by us
are being properly carried out. We would also direct the Maharashtra State Board of
Legal Aid and Advice to pay an honorarium of Rs. 25/- per lawyer for every visit to
the jail together with reasonable travelling expenses from the court house to jail and
back. These directions in so far as the city of Bombay is concerned, shall be carried
out by substituting the High Court Legal Aid Committee for the District Legal Aid
Committee, since there is no District Legal aid committee in the city of Bombay but
the Legal Aid Programme is carried out by the High Court Legal Aid Committee. We
may point out that this procedure is being followed with immense benefit to the
prisoners in jails by the Tamil Nadu State Legal Aid & Advice Board.
5 . We may now take up the question as to how protection can be accorded to the
women prisoners in police lock ups. We put forward several suggestions to the
learned Advocate appearing on behalf of the petitioner and the State of Maharashtra
in the course of the hearing and there was a meaningful and constructive debate in
Court. The State of Maharashtra offered its full co-operation to the Court in laying
down the guidelines which should be followed so far as women prisoners in police
lock ups are concerned and most of the as suggestions made by us were readily
accepted by the State of Maharashtra. We propose to give the following directions as
a result of meaningful and constructive debate in Court in regard to various aspects
of the question argued before us.
(i) We would direct that four or five police lock ups should be selected in
reasonably good localities where only female suspects should be kept and
they should be guarded by female constables. Female suspects should not be
kept in police lock up in which male suspects are detained. The State of
Maharashtra has intimated to us that there are already three cells where
female suspects are kept, and are guarded by female constables and has
assured the Court that two more cells with similar arrangements will be
provided exclusively for female suspects.

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 (ii) We would further direct that interrogation of females should be carried
out only in the presence of female police officers/constables.
(iii) Whenever a person is arrested by the police without warrant, he must be
immediately informed of the grounds of his arrest and in case of every arrest
it must immediately be made known to the arrested person that he is entitled
to apply for bail. The Maharashtra State Board of Legal Aid & Advice will
forthwith get a pamphlet prepared setting out the legal rights of an arrested
person and the State of Maharashtra will bring oat sufficient number of
printed copies of the pamphlet in Marathi which is the languages of the
people in the State of Maharashtra as also in Hindi and English and printed
copies of the pamphlet in all the three languages shall be affixed in each cell
in every police lock up and shall be read out to the arrested person in any of
the three languages which he understands as soon as he is brought to the
police station.
(iv) We would also direct that whenever a person is arrested by the police
and taken to the police lock up, the police will immediately give an
intimation of the fact of such arrest to the nearest Legal Aid Committee and
such Legal Aid Committee will take immediate steps for the purpose of
providing legal assistance to the arrested person at State cost provided he is
willing to accept such legal assistance. The State Government will provide
necessary funds to the concerned Legal Aid Committee for carrying out this
direction.
(v) We would direct that in the city of Bombay, a City Sessions Judge, to be
nominated by the principal Judge of the City Civil Court, preferably a lady
Judge, if there is one, shall make surprise visits to police lock ups in the city
periodically with a view to providing the arrested persons an opportunity to
air their grievances and ascertaining what are the conditions in the police
lock ups and whether the requisite facilities are being provided and the
provisions of law are being observed and the directions given by us are
being carried out. If it is found as a result of inspection that there are any
lapses on the part of the police authorities, the City Sessions Judge shall
bring them to the notice of the Commissioner of Police and if necessary to
the notice of the Home Department and if even this approach fails, the City
Sessions Judge may draw the attention of the Chief Justice of the High Court
of Maharashtra to such lapses. This direction in regard to police lock ups at
the districts head quarters, shall be carried out by the Sessions Judge of the
district concerned.
(vi) We would direct that as soon as a person is arrested, the police must
immediately obtain from him the name of any relative or friend whom he
would like to be informed about his arrest and the police should get in touch
with such relative or friend and inform him about the arrest; and lastly.
(vii) We would direct that the magistrate before whom an arrested person is
produced shall enquire from the arrested person whether he has any
complaint of torture or mal-treatment in police custody and inform him that
he has right under Section 54 of the CrPC 1973 to be medically examined.
We are aware that Section 54 of the CrPC 1973 undoubtedly provides for
examination of an arrested person by a medical practitioner at the request of
the arrested person and it is a right conferred on the arrested person. But
very often the arrested person is not aware of this right and on account of,
his ignorance, he is unable to exercise this right even though he may have

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 been tortured or maltreated by the police in police lock up. It is for this
reason that we are giving a specific direction requiring the magistrate to
inform the arrested person about this right of medical examination in case he
has any complaint of torture or mal-treatment in police custody.
6. We have no doubt that if these directions which are being given by us are carried
out both in letter and spirit, they will afford considerable protection to prisoners in
police lock ups and save them from possible torture or ill-treatment. The writ petition
will stand disposed of in terms of this order.

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