Madhya Pradesh High Court
Shyam Singh vs The State Of Madhya Pradesh on 10 August, 2021
Author: Chief Justice
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The High Court Of Madhya Pradesh
WP-13544-2021
(SHYAM SINGH Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Jabalpur, Dated : 10-08-2021
Heard through Video Conferencing.
Shri Ajay Gupta, learned counsel for the petitioner.
Shri Ashish Anand Bernard, learned Deputy Advocate General for the
respondents/State.
This writ petition has been filed under Section 226 of the Constitution
of India by Shyam Singh, who is an Advocate, on the basis of his experience
of representing one client Suyash Shrivastava, who is accused for the offence
punishable under Sections 11/12, 13/14 of the Protection of Children from
Sexual Offences Act, 2012 and under Section 354-D of the Indian Penal
Code, 1960 and under Sections 66-E and 67-8 of the Information Technology
Act, 2000. An FIR No.42/2020 was registered against the said accused
person on 25.02.2020 in the Cyber and IT Offences Police Station, Bhopal,
pursuant to which he was arrested on 08.03.2020 and since then he is
imprisoned in the Central Jail, Bhopal. A charge-sheet with challan
No.60/2020 was submitted before the Special Judge, Bhopal on 23.03.2020.
Due to limited virtual hearing, the accused who is an under-trial prisoner,
could not appear physically before the Court and therefore, the petitioner-
Advocate was engaged by the mother of the accused. But the petitioner could
not get a chance to interact with his client to seek instructions and understand
his case.
It is contended that as per conventional law practice, there are only two
ways by which the lawyer could meet and seek instructions from his client.
One, the lawyer, after permission from the Judge, could talk to his client, an
under-trial prisoner, during his/her visit to the Court for the hearings and
second, if the accused is released on bail then he/she could visit his lawyer's
office to discuss about the case. Presently, the first option is not available due
to suspension of the physical hearings and the second option is subject to
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getting bail from the Court. The petitioner therefore, filed and application on
11.01.2021 before the Trial Court of Additional Sessions Judge, Bhopal
seeking permission from the court to meet the accused for better
understanding of the case and to provide essential legal advice. The Trial
Court vide order dated 25.02.2021 rejected the said application on the ground
that the accused cannot be directed to appear physically and in the present
circumstances, can be allowed to appear only through video conferencing.
Attention of this Court was drawn towards the ground reality that there
are no such arrangements in the prisons of the State of Madhya Pradesh
through which the prisoners could consult their private lawyers and have
effective privileged communication. It is submitted that the Ministry of Home
Affairs through its circular dated 20.04.2021 directed that all Mulaqats, i.e.
meeting between the prisoners and their family members, be stopped till the
pandemic is controlled and that video calls/phone calls be allowed. However,
no order and/or guidelines have been issued by the Jail Authorities with
respect to 'Legal Mulaqats' of the under-trial prisoners with their private
lawyers which is so very essential in most of the cases as the physical
appearance of the accused has been discontinued.
Shri Ajay Gupta, learned counsel for the petitioner, has invited attention
of this Court to the order passed by the Bombay High Court dated
02.07.2020 directing the prison department to install smartphones in jail and
arrange lawyer-prisoner meeting through video conferencing in all the jails.
Attention has also been drawn towards the circular dated 06.07.2020 issued
by the Government of NCT of Delhi providing guidelines for 'Legal
Mulaqats' wherein it is stated that -
(i) the applications received through email from the
private counsels shall be considered by the
Superintendent of Jails.
(ii) Superintendent shall take a prompt decision to
allow/decline request on the merit/verification of
vakalatnama and identity of applicant.
(iii) After scrutiny of request, slot for video
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conferencing may be fixed for an early possible date.
The same will be intimated to the concerned at least one
day in advance.
(iv) Legal interview through video conferencing will be
conducted for maximum half an hour of each 3
interview, subject to maximum of two interviews in a
week.
(v) Link for video conferencing will be sent by email
through which the advocate can establish a link for
video conferencing.
(vi) The video conferencing shall be allowed on First
Come, First Serve basis.
(vii) The legal interview shall be conducted in the
presence of Deputy Superintendent/Assistant
Superintendent/ other jail staff but out of hearing.
(viii) If any misuse of video conferencing by the users
is notices, the facility extended will be withdrawn
immediately.
It is further contended that in the State of Bihar and Gujarat 'e-
mulaqats' system has been set up for facilitating VC mulaqats between
prisoners and their counsel/family & friends. Moreover, Vadodra Central Jail
has also commenced a special dedicated application to facilitate VC
mulaqats. Similarly, various measures have been undertaken by the prison
department of the State of Tamil Nadu wherein Smartphones were procured
for conducting VC mulaqats through the medium of 'Whatsapp Video Call'.
The newspaper clippings have also been placed on record to bring home the
arguments.
Learned counsel for the petitioner has relied on the order of the
Supreme Court in Suo Moto W.P. (Civil) No.406/2013, Re: Inhumane
Conditions prevailing in 1382 prisons of India which directed the
Ministry of Home Affairs to review the Model Prison Manual as there had
been a huge change in circumstances and the availability of technology since
2003. Reliance has also been placed on the judgment of the Supreme Court in
the case of Dwarka Prasad Agrawal (D) by LRs v. B.D. Agarwal and
Others [(2003) 6 SCC 230] wherein it was held that an accused has a right
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to fair trial. Under our Constitution as also the international treaties and
conventions, the right to get a fair trial is a basic fundamental/human right. He
has a right to defend himself as a part of his human as also fundamental right
as enshrined under Article 21 of the Constitution of India.
Learned Deputy Advocate General Shri Ashish Anand Bernard submits
that the petitioner should be required to approach the State of Madhya
Pradesh through Principal Secretary, Department of Home, Jail and Law,
Vallabh Bhawan, Bhopal, with all such suggestions who shall examine the
matter and do the needful.
Having regard to submissions made and taking note of the detailed
arguments, I deem it appropriate to require the petitioner to give all his
suggestions in a comprehensive representation to the Principal Secretary,
Department of Home, Jail and Law, Vallabh Bhawan, Bhopal, who shall
examine the grievance raised by the petitioner vis-a-vis right to fair trial to all
the under-trial prisoners in the State of Madhya Pradesh and shall also
examine the guidelines laid down by the different State Governments specially
the circular of Government of NCT of Delhi dated 06.07.2020, the order of
the Bombay High Court dated 02.07.2020 and also the similar facilities
provided in the State of Bihar, Gujarat and Tamil Nadu. The respondent-State
Government shall enquire about the similar facilities being provided in the
other States and shall frame and issue appropriate S.O.P./Guidelines to
provide for the facility of e-mulaqat to the prisoners, not only with their
lawyers as per the procedure that may be devised but also with the family
members periodically, on the basis of advance application, atleast once in a
week, for not more than 30 minutes, by ensuring that while communicating
with them, privacy is given to the accused and the staff of the prison should
not be made to sit in the audible range so as to ensure privacy between the
accused and his lawyer/family members. It is directed that appropriate orders
in this regard may be passed after having all the inputs within a period of four
weeks from the date of production of copy of this order.
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With the aforesaid direction, the present petition is disposed of.
Certified copy as per rules.
(MOHAMMAD RAFIQ) (VIJAY KUMAR SHUKLA)
CHIEF JUSTICE JUDGE
Priya.P
Signature Not Verified
SAN
Digitally signed by priyanka pithawe mishra
Date: 2021.08.12 16:47:06 IST
