Bombay High Court
The State Of Maharashtra vs Vikramsinh Dattusinh Chauhan on 10 November, 2017
Bench: A. M. Dhavale
1 WP718.2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CRIMINAL WRIT PETITION NO. 718 OF 2016
The State of Maharashtra,
through the Superintendent of Jail,
Latur, Tq. Latur, Dist. Latur. ... Petitioner
VERSUS
Vikramsinh Dattusinh Chauhan,
Age : Major, Occu. Nil,
Back Side of Ushakiran Theater,
Indradatta Niwas, Vishalnagar,
Latur, at present in Latur District Prison. ... Respondent
..........
Mr R. V. Dasalkar, APP for the petitioner
None for the respondent.
.............
CORAM : A. M. DHAVALE, J.
DATE : 10TH NOVEMBER, 2017.
ORDER :-
1. Heard learned APP on admission of the matter.
2. The State, under article 227 of the Constitution of India,
challenges the order passed by 2nd Addl. Sessions Judge, Latur on
Exh. 113 in Sessions Case No. 78/14 whereby the petitioner under-
trial accused was allowed permission for home food.
2 WP718.2016
3. Learned APP - Mr. R. V. Dasalkar submits;
(i) The accused under trial is facing serious charges
of murder, kidnapping for ransom and gang-rape.
(ii) The provisions of Sections 31 & 32 of Prisons Act,
1984 do not provide permission for home food and the decision has
to be taken by the jail authorities. The jail authorities were not heard.
4. Since every accused person is presumed to be innocent
person till he is held guilty, the seriousness of the allegations against
the petitioner cannot be a ground to deny him the facilities available
to all the under-trial prisoners unless there are special reasons for
denying so.
5. The ld. Sessions Judge has observed that there were
medical papers on record showing that the petitioner had undergone
two angioplasties and was suffering from breathlessness and spinal
problems. He was satisfied about the existence of health problems.
6. Pertinently, the Jail authorities had filed application for
recalling the said order and the said application was rejected by order
dt. 16.01.2016. In the said challenge, the provisions of Jail Manual
3 WP718.2016
particularly Sections 31 & 32 were quoted. The ld. Addl. Sessions
Judge vaguely recorded that there were pronouncements of the High
Court as well as Supreme Court about permitting of home food.
7. The point argued about the authority to permit such home
food is no more res integra in view of the judgment of the Division
Bench of the Principal Seat of this Court in Asgar Yusuf Mukadam
and others v. State of Maharashtra and another 2004 CRI. L. J.
4312 wherein in paras 21, 23, 27 & 28 it is held as under:
21. ...... The food is necessary for the survival of human
being, and being so, the Magistrate who is required
to get himself satisfied about the existence of
adequate grounds for continuation of detention of
the accused in custody is obviously empowered to
grant the facility of home food to the under-trial
while he is in custody, albeit which could be subject
to conditions and bearing in mind the facts and
circumstances of each case.
23. It is not only the power of the Magistrate and the
Court but it should be their endeavour to ascertain
through the executing agency the availability of
basic needs to the person to be detained in the
custody. The same is implicit in the power to order
detention and it would include passing of an
appropriate order in relation to such basic needs to
the under-trials detained in jail, as and when
occasion arises. Undoubtedly, the order has to be a
speaking order disclosing the grounds for ordering
the facility in relation to the basic needs otherwise
than in the manner provided in the jail by its
authorities. Being so, whenever an application is
filed by an under-trial prisoner for grant of facility
for home food, the Magistrate will have power to
4 WP718.2016
pass an appropriate order on such application after
hearing the authorities and giving reasons for grant
of such facility to such person. This power is implicit
in the power to order detention or continuation of
detention of the accused in custody either at the
time of investigation or on filing of the charge sheet
on conclusion of the investigation and till the
disposal of the trial.
27. It is to be remembered that, as rightly submitted by
the learned advocate for the petitioners, the cardinal
principles of criminal jurisprudence is that a person
accused of an offence is deemed to be innocent until
he is proved guilty. The provision of law, as they
stand comprised, under Section 167 of the Code of
Criminal Procedure, therefore, discloses implicit
power in favour of the Magistrates and the Courts
before whom the accused is produced for remand or
continuation of detention of the accused in custody,
to order the facility of home food on being requested
for by such accused and on being satisfied about the
need for grant of such facility. Undoubtedly, the
respondents would be entitled to take appropriate
steps to ensure that the drugs, messages, weapons,
etc. are not transported inside the jail under the
guise of supplying home food to the under-trials,
and, in case, any such mischief is brought to the
notice of the Court, nothing would prevent the
Court or the Magistrate either to defuse such facility
or even to recall the order already passed granting
such facility, albeit, after hearing the concerned
accused and in extreme urgency, even ex parte
subject to confirmation after hearing the accused.
28. ....... The power to order home food vests in the
Magistrate or the trial Court under Section 167 of
the Code of Criminal Procedure and the same is not
controlled by virtue of Sections 31 and 32 of the
Prisons Act, 1894. In this view of the matter, it is
not necessary to deal with the issue of vires of the
amended Sections 31 and 32 of the said Act sought
to be raised by the petitioner. Suffice to observe that
the petitioners are entitled to move before the
concerned trial Court, and if such application is
5 WP718.2016
filed, the concerned Court should pass an
appropriate order in that regard considering the
facts and circumstances of the case.
8. Thus, the Sessions Judge had every power to permit home
food to the respondent in appropriate cases. He has referred to the
medical evidence and was satisfied about necessity to grant such
permission. In the writ jurisdiction, it will not be proper to consider
the merits and demerits of the findings in this regard. The petition,
therefore, deserves to be dismissed in limine and is accordingly
dismissed.
[ A. M. DHAVALE ]
JUDGE
sgp
