State Of U.P. vs Vijay Kumar Mishra
2023 Latest Caselaw 20329 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:155403
 
Court No. - 82
 

 
Case :- CRIMINAL REVISION No. - 2841 of 2011
 

 
Revisionist :- State of U.P.
 
Opposite Party :- Vijay Kumar Mishra
 
Counsel for Revisionist :- G.A.
 
Counsel for Opposite Party :- G.S.Chaturvedi,L.K.Dwivedi
 

 
Hon'ble Shiv Shanker Prasad,J.

1. Heard learned A.G.A. for the State/ revisionist, learned counsel for the opposite party no.2 and perused the material available on record.

2. This criminal revision under Section 397/401 Cr.P.C. has been filed by the revisionist for quashing the impugned order dated 26.4.2011 passed by the learned Special Judge (U.P. Gangsters and Antisocial Activities (Prevention) Act), Allahabad in case crime No.237 of 2010, under Section 2/3 U.P. Gangsters and Antisocial Activities ( Prevention) Act, 1986, Section 302, 307, 427, 429, 120-B IPC, 7 Criminal Law Amendment Act and 3/5 Explosive Substance Act, P.S. Kotwali, District Allahabad pending in the Court of learned Special Judge (U.P. Gangsters and Antisocial Activities (Prevention) Act), Allahabad.

Case of the State-revisionist

3. In pursuance of the order passed by the State Government, the opposite party was transferred from Central Jail, Naini, Allahabad to District Jail, Meerut on 11th February, 2011 and since then he has been languishing therein in case crime no. 237 of 2010, under Section 2/3 U.P. Gangsters and Antisocial Activities (Prevention) Act, 1986, Section 302, 307, 427, 429, 120-B IPC, 7 Criminal Law Amendment Act and also under Sections 3/5 Explosive Substance Act, Police Station Kotwali, District Allahabad. The opposite party has criminal antecednets to more than 59 cases except the present one. On 2nd March, 2011 the opposite party moved an application before the Superintendent, District Jail, Meerut praying to provide him certain facilities like food, water and medical aid.

4. Further it is the case of the revisionist that the foods/ meals of all the convicts or under trial prisoners are being prepared in the cookhouse of the Jail by following all the security as well as hygienic measurement and the preparation of the said food/ meal is being regularly checked by the Medical Officers as well as by the Judicial Officers from time to time and all the times, the concerned administrative authorities as well as judicial authorities, who visited the jail and cookhouse of the jail, has shown their satisfaction with regard to the manner and preparation of the foods/meals, which are being supplied to all the persons languishing in jail either they are convicts or they are under trial prisoners. The under trial prisoners of District Baghpat are also languishing in District Jail, Meerut, as such, the District Judge, Baghpat alongwith District Magistrate and Superintendent of Police, Baghpat have made a joint inspection on 31st January, 2011 and the said team has shown its satisfaction with regard to the drinking water and foods/ meals, which are made in the cookhouse and supplied to the detenues. On 25th and 26th March, 2011 the Additional Chief Judicial Magistrate, Baghpat has also made a monthly inspection of District Jail, Meerut as under trial prisoners are also detained in District Jail, Meerut and Additional Chief Judicial Magistrate, Baghpat has also shown his satisfaction towards working and meal providing to the persons detained in the District Jail, Meerut.

Further it is the case of the revisionist that on the application made by the opposite party dated 2nd/16th March, 2011, the concerned Court after considering the report submitted by the jail authorities directed to provide medical aid to the opposite party upon going back from Allahabad to Meerut. The application dated 16th March, 2011 was accordingly disposed of. However, it is made clear that in the said application there is no mention of any clean water (mineral water) being provided to him However, on the basis of the oral prayer even without calling for the comments in this regard from the jail authorities directions have been issued by the concerned Court vide impugned order dated 26th April, 2011, which is creating a lot of practical problem in complying the said order because said water to be purchased from outside i.e. from the open market and there is no provision at District Jail, Meerut for testing of the said water and in view of the threat perception as raised by the opposite party himself as well as his family members, the jail authorities are feeling handicapped in complying the aforesaid direction (though pursuant to the direction they are supplied mineral water to him) as there is every possibility that at any moment some miss-happening occurs and jail authorities will be held responsible. Being aggrieved, the Superintendent, District Jail, Meerut has also filed recall application in the matter for recalling the order dated 26.4.2011.

Submission of the learned counsel for the State-revisionist

5.

(I) The opposite party is being provided all facilities, which are provided in toto to under trial prisoners according to Rule and Regulation as well as under the Guidelines issued by higher authorities from time to time.

II) If the impugned order is allowed to stand, it will create a lot of havoc and mismanagement in the jail administration for maintaining under trial prisoners and upon coming to know about the aforesaid provisions every under trial prisoner will get up and make application for providing facilities to him and in that situation it will be impossible for the jail authorities to check the water purchased outside the jail because it cannot be handed over to them without checking. Feeling practical difficulty in complying with the direction issued by the learned Special Judge (Gangster Act), Allahabad, which is general in nature, requires that every day the under trial prisoner is permitted to receive the mineral water purchased from open market. The mineral water cannot be given to any under trial prisoner unless it is certified by Jail Doctor that it is not noxious or poisonous.

(III) At a time in District Jail, Meerut one Doctor is posted to look after the health of all the convicts or under trial prisoners, who are languishing in District Jail, Meerut and it is not feasible or possible by the said Doctor to check said mineral water, which is purchased from out side at the same time by looking to the health of the prisoners, who are languishing in District Jail, Meerut, who are in number about 2600.

(IV) The learned Special Judge has wrongly passed the impugned order dated 26.4.2011 for providing him mineral water in jail at his cost as the section 31 of the Prisoners Act, 1894 (hereinafter the Act) reads as under:

"31. 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 other necessaries, but subject to examination and to such rules as may be approved by the Inspector General."

(V) The Special Judge was influenced by wrong approach and ought not to have ordered for providing the delinquent with mineral water as this cannot be done without the approval of the Inspector General of Prisons. The Special Judge has wrongly passed the impugned order dated 26.4.2011 for providing him mineral water in jail at his cost as the Executive Engineer-I of the U.P. Jal Nigam, Meerut has found the water being provided in jail to be potable after testing two samples vide his report no. 112/4-41/20 dated 31.1.2011. This fact was brought to the notice of the learned Special Judge, but the learned Special Judge was influenced by wrong approach and ought not to have passed order for providing mineral water to opposite party in jail at his cost. The Special Judge has wrongly opined that in the impugned order dated 26.4.2011 for providing the opposite party mineral water in jail at his cost as there are three government orders against it. Para- 7 of the Government Order No. 2691/22-3-5G/99 dated 15.3.1999, Para-6 of Government Order No. 2840J.L./22-3-2006, dated 29.8.2006 and Para-6 of Government Order No. 737J.L./22-3-07-10G/99, dated 6.3.2007 strictly provides that the prisoners shall only be supplied with food prepared inside the premises of the Jail. Water is included in the food as neither it has been separately mentioned in Section 31 of the Act nor in any of the Government Order's. Therefore, the learned Special Judge was influenced by wrong approach and ought to have rejected the application moved by the opposite party. The opposite party is a hardened criminal and has a long criminal history, which mentions heinous offence only. Such person deserves no mercy and the long criminal history adds to his culpability. The opposite party was transferred to District Jail, Meerut on administrative grounds as he is a danger to the society at large. The impugned order has not only posed problems for the administration at Jail, but also to the security of the accused himself as he has himself alleged that there is a plot to cause his death.

(VI) Under all the circumstances mentioned above the opposite party ought not to have been provided mineral water in jail at his cost and the Special Judge committed an illegality in passing the said order dated 26.4.2011. The impugned order dated 26.4.2011 was passed in utter disregard to the provisions of U.P. Jail Manual applicable to the opposite party, the convict as well as to under trial prisoner. On the basis of request made by opposite party even without calling for the comments in this regard, order for providing mineral water has been passed, which is against the provisions of Section 13 (1) of the Prisons Act.

6. On the other-hand, learned counsel for opposite party submits that there is no illegality or infirmity in the order impugned so as to warrant any interference by this Court while exercising its revisional power under Sections 397/401 Cr.P.C.

7. I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present criminal revision including the order impugned passed by the Special Judge dated 26th April, 2011.

8. In paragraph-28 of the affidavit filed in support of the present criminal revision, it has been stated as follows:

"That despite the direction given by this Hon'ble Court while disposing of criminal misc. writ petition no. 8792 of 2011 by order dated 30.5.2011 the recall application filed by jail authorities have yet not been considered. The recall application filed by jail authorities for recalling the order dated 26.4.2011 has not been recalled and application is pending consideration. A true copy of the order dated 30.5.2011 passed by this Hon'ble Court is being filed herewith and marked as Annexure No.8 to this affidavit."

9. The aforesaid statement makes it clear that during the pendency of the recall application, the State-revisionist has filed the present criminal revision against the order impugned, meaning thereby that the State has availed to statutory remedy simultaneously at the same time, which is not permissible under law. As such the present criminal revision is liable to be dismissed on this ground alone.

10. On perusal of the entire records of the present criminal revision, this Court does not find as to whether the application filed by the State-revisionist before the concerned Special Judge for recall of the order dated 26th April, 2011 has been disposed of finally or not. The learned counsel for the State-revisionist has also not answered any reply to the aforesaid question.

11. From the records, it is also clear that for the relief prayed in the application dated 2nd/16th March, 2011, which has been decided under the order impugned dated 26th April, 2011, the opposite party had approached this Court earlier by means of Criminal Misc. Writ Petition No. 8792 of 2011 (Vijay Kumar Mishra Vs. State of U.P. & Others), which has been decided by a Division Bench of this Court vide judgment and order dated 30th May, 2011.

For ready reference, judgement and order dated 30th May, 2011 is being quoted herein-below:

"Heard Sri G.S. Chaturvedi, learned Senior Counsel along with Sri L.K. Dwivedi, learned counsel appearing for the petitioner as well as learned AGA appearing for the State respondents and have perused the record. Counter affidavit on behalf of the State has been filed and with consent of learned counsel for the parties, this writ petition is being disposed of finally at this stage.

The petitioner is in Jail and he has filed this petition with the prayer for a direction to the respondents to provide the minimum basic facilities to the petitioner as also medical care as he is a patient of diabetic blood pressure and slip disc. A further prayer has been made to take suitable action against the respondent no. 3, who is Jail Superintendent, for not following the directions of the Court.

Along with the counter affidavit, the respondents have stated that all proper facilities are being provided to the petitioner.

It has been contended by the learned counsel for the petitioner that vide order dated 26.4.2011 passed by the Special Judge, UP Gangster and Anti Social Activities (Prevention) Act, Allahabad (Annexure 10 to the writ petition), a direction had been issued to provide mineral water to the petitioner at the cost of the petitioner. It has been submitted that availability of pure drinking water is a basic necessity, which ought to be provided to the petitioner especially when the same is to be provided at his own cost and has been so directed by the competent Court.

Sri A.K. Sand, learned AGA appearing for the State respondents has vehemently opposed this prayer on the ground that as per Section 31 of the Prisoners Act, 1894, the said facilities can be provided only after the approval of the Inspector General.

For ready reference, the said Section 31 of the Prisoners Act, 1894 is quoted below:-

"31. 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 other necessaries, but subject to examination and to such rules as may be approved by the Inspector General."

It has thus been contended that since the matter has been forwarded to the Inspector General for his approval, such facility will be provided after the said approval is granted.

We have perused the order dated 26.4.2011 passed by the Special Judge, Allahabad as well as the provisions of the Prisoners Act, 1894. What is provided under Section 31 of the said Act is with regard to the approval to be sought from the Inspector General when a prisoner directly wishes to receive or purchase certain items.

In the present case, what is relevant is that the Special Judge, Allahabad has specifically directed for providing pure mineral water at the cost of the prisoners himself. In such circumstances, it is not understood as to why the respondent authorities should wait for approval for providing a simple thing as mineral water for drinking and that too at his own cost and especially when the competent Court has so directed.

Learned AGA has further submitted that an application for recall of such direction issued by the order dated 26.4.2011 has already been filed before the Special Judge, Allahabad and since the same is pending, such facility has not been provided. In reply, Sri G.S. Chaturvedi has stated that after 26.4.2011, the next date was fixed for 10.5.2011 when no such application was filed. It is contended that even if such application is filed, the same will be of no consequence as according to the own case of the petitioner, no orders have been passed on such application and thus the respondent authorities are bound to comply with the directions issued vide order dated 26.4.2011.

Considering the aforementioned facts and circumstances, it is directed that the respondent authorities shall forthwith provide the facilities of mineral water to the petitioner at his own cost.

However, if any application for recall of such direction (as has been issued by order dated 26.4.2011) has been filed before the Special Judge, Allahabad, the same shall be considered and decided on its own merits, unfetter by any observations made hereinabove.

With the aforesaid observations/directions, this writ petition is finally disposed of."

12. Perusal of the entire records of the present criminal revision also does not makes it clear as to whether pursuant to the judgment and order of the Division Bench dated 30th May, 2011 the opposite party has made any application for recall of the order dated 26th April, 2011 has been filed and the same has been decided finally or not. It is also pertinent to mention here that before the Division Bench, the State-revisionist has contested the case.

13. Since for the issue arose between the opposite party and the State-revisionist qua providing of food, water and medical aid to the opposite party, the Divisional Bench exercising its extra ordinary power under Article 226 of the Constitution of India, has passed the order dated 30th May, 2011 after hearing the opposite party and the State-revisionist, this Court having limited revisional jurisdiction under Sections 397/401 Cr.P.C. cannot pass any order sitting over the Division Bench. Any order passed by this revisional Court may overriding effect the order of the Division Bench. The proper remedy available to the State-revisionist was to have its say whatever which has been prayed in the present criminal revision, before the Division Bench when the matter was heard finally.

14. In view of the aforesaid, the present criminal revision is dismissed as not maintainable.

(Shiv Shanker Prasad, J.)

Order Date :- 3.8.2023

Anurag-Sushil/-