Bishal Das & Ors vs The State Of West Bengal & Ors
2023 Latest Caselaw 4759 Cal

   10
04.08.2023
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              IN THE HIGH COURT AT CALCUTTA
             CONSTITUTIONAL WRIT JURISDICTION
                      APPELLATE SIDE

                  W.P.A. No. 12098 of 2023

                      Bishal Das & Ors.
                              Vs.
                The State of West Bengal & Ors.


                 Mr. Achin Jana,
                 Mr. Subhanitwa Ghosh,
                 Mr. Prosenjit Ghosh,
                 Ms. Gargi Dhang
                              ...for the petitioners

                 Mr. Sk. Md. Galib,
                 Mr. Abu Siddique Mallik
                             ...for the State


                 Affidavit-of-service filed in Court today be kept

              on record.

                 Learned counsel appearing for the petitioners

              contends that the petitioners have been kept in

              separate solitary confinement, contrary to the

              norms of humanity and justice. Learned counsel,

              in support of his contention, places reliance on the

              judgment of the Supreme Court, reported at (1981)

              1 SCC 503.

                 The      Supreme   Court,   in   the   said   case,

              specifically deprecated solitary confinement.    It is

              submitted that the present petitioners, being mere

              under-trials, cannot suffer a worse fate than

              convicts.
                      2




   It is further contended that the petitioners are

being restrained severely from meeting people. It is

also contended that, in fact, on at least one

occasion, one of the petitioners' sister and mother

were picked up by police, when they came up to

meet the said petitioner, and were dealt with

brutally.

   Thirdly, it is argued that the petitioners suffer

from serious medical ailment but are not being

checked up properly by the respondent-authorities.

Learned counsel appearing for the petitioners

places reliance on Section 64 of the West Bengal

Correctional Services Act, 1992. Sub-section

(3)(a)(i) of the same provides that, subject to the

provisions of the Act and the Rules made

thereunder, the Superintendent of a District

Correctional Home shall have the power to transfer

a prisoner from a District Correctional Home to the

Central Correctional Home on grounds of over-

crowding.

Learned counsel appearing for the State seeks

to place reliance on a report. It is submitted, on

the strength of the report, that the allegations made

by the petitioners are incorrect.

Insofar as meeting people is concerned, it is

contended that there is a "day unlock" period every

day, during which the petitioners are permitted to

mingle with other prisoners. That apart, there have

been at least 40 interviews during the under-trial

incarceration of the petitioners on several counts of

offences, since the year 2018.

As far as the allegation regarding medical

ailment is concerned, it is submitted that only one

of the petitioners, namely, Bishal Das, is suffering

from Hydrocele. However, it was diagnosed not to

be emergent and/or serious in nature and it was

possible to be reduced.

That apart, there are no serious medical

complications and the last check-up, as per

records, was held in the month of April 2023 at the

Government District Hospital.

With regard to solitary confinement, it is

submitted by learned counsel for the State that the

petitioners, that is, all three of them, have been

kept together in a particular cell. As such, it

cannot be said that they are in solitary

confinement. That apart, the number of prisoners

in the concerned correctional home at Hooghly is

almost double the amount which can be

accommodated there. Due to such over-crowding,

the petitioners could not be given further

segregation. That apart, they had to be kept apart

from their rival group of criminals, who are also

incarcerated in the same correctional home, for

their own safety and security.

It is also contended that the allegations made in

the present writ petition were substantially raised

before the Sessions Judge on two occasions. As

such, those having been dealt with by the said

court, the petitioners are not entitled to raise the

same issues afresh before this Court.

Learned counsel appearing for the State also

places reliance on the definition of "solitary

confinement" in Mitra's Legal and Commercial

Dictionary, which primarily defines solitary

confinement as a punishment regarded as complete

isolation of the prisoner from all human society and

his confinement in a cell of considerable size so

arranged that he has no direct intercourse or sight

of any human being and no employment or

instruction. A more practical definition, given in the

Black's Law Dictionary, was also discussed in the

cited definition, which says that solitary

confinement, in a general sense, is a separate

confinement of a prisoner, with only occasional

access of any other person and that only at the

discretion of the Jailor; in a stricter sense, the

complete isolation of a prisoner from all human

society and his confinement in a cell so arranged

that he has no direct intercourse or sight of any

human being and no employment or instruction.

In the present case, however, it transpires that

all the petitioners have been kept together in a

particular cell. Hence, the expression 'solitary'

cannot be appended to their confinement.

Even in the judgment cited by learned counsel

for the petitioners, the language clearly shows that

each of the petitioners were put up in separate

cells, which led to the court observing that they

were in solitary confinement. However, as opposed

to the said case, here the petitioners have been

kept together in a particular cell. Moreover, it has

been alleged in the report sought to be filed the

State that there is "day unlock" period, during

which the petitioners have the right to intermingle

with other prisoners in the correctional home. That

apart, a scope is there for interview between the

petitioners' visitors and the petitioners, as alleged

by the State, which has been happening.

Insofar as the allegation of indecent behaviour

against the relatives of the petitioners are

concerned, it is rightly pointed out by learned

counsel for the State that those have been dealt

with by the Sessions Judge, who gave liberty to the

petitioners to file proper complaints in that regard

independently.

However, it does not appear from the records

that any such complaint has yet been lodged.

Regarding the allegation of dearth of medical

attention, it has been prima facie shown by the

State that medical check ups are being done.

However, it may be arguable as to whether such

scanty medical attention is sufficient to take care of

the general well-being of the petitioners, who are

under-trials as of now.

As such, since the petitioners seek to apprise

themselves on the contents of the report filed today

by the State, and to take an exception thereto, if

necessary, the matter is adjourned till August 10,

2023, when it will be listed fairly at the top of the

list for passing orders.

The report filed by the State today be kept on

record.

The exception to the report, if any, shall be filed

by the petitioners on the next returnable date, with

an advance copy of the same to learned counsel

appearing for the State.

(Sabyasachi Bhattacharyya, J.)