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IN THE HIGH COURT OF BOMBAY
Khandeparkar R.M.S. Mohite R.S., JJ.
Asgar Yusuf Mukadam others .... Petitioners.
Versus
State of Maharashtra another.... Respondents.
Criminal Writ Petition No. 1438 of 2000, decided on 2-8-2004.
Advocates appeared :
P.A. Sebastian with Ms. Sharmila Kaushik, for petitioners.
Smt. A.S. Pai, A.P.P., for respondents.
Held: 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 undertrial while he is in custody, albeit which could be subject to conditions and bearing in mind the facts and circumstances of each case. (Para 21)
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 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. (Para 23)
The view that we are taking in the matter and bearing in mind the practice which is followed by the Courts below in the matter of grant of facility of home food to the under trial prisoners whenever asked for and reasons to be recorded, the contention that the power to order facility of home food was exercised by the Courts below in terms of the amended Sections 31 and 32 is to be held as totally devoid of substance. Those provisions do not deal with the powers of the Magistrate or the Trial Courts. Those are the powers which are given to the Jail Administrative Authorities, and similar is a situation in relation I to the amended provisions of law. 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 filed, the concerned Court should pass an appropriate order in that regard considering the facts and circumstances of the case. (Para 28)
2. The petitioners challenge the vires of sections 31 and 31, as amended, of the Prisons Act, 1894, hereinafter called as "the said Act", being in violation of the provisions of Articles 14 and 21 of the Constitution of India and for further direction against implementation of those provisions of law.
3. Few facts relevant for the decision are that, at the relevant time, the petitioners were lodged in Bombay Central Prison at Arthur Road, as under-trial prisoners in Bomb Blast Cases No. 1 of 1993, They were detained for a period exceeding seven years at the time of the filing of the petition. Section 31 of the said Act, which dealt with the provisions relating to the availability of certain facilities regarding food, clothing, bedding and other necessaries to the under-trial prisoners and civil prisoners as well as section 32 which dealt with restriction on transfer of food and clothing between certain prisoners, were sought to be amended by the Prisons (Maharashtra Amendment) Act, 2000 hereinafter called as "the Amendment Act" by introducing new provisions of law in place of the old sections 31 and 32 of the said Act. Aggrieved by the consequences which would follow from the amendment to the said provisions of law, the same are sought to be challenged by the petitioners.
4. It is the case of the petitioners that in accordance with the provisions of unamended sections 31 and 32 of the said Act, the petitioners were receiving food from their respective houses. The food so supplied to the prisoners from their respective houses was examined by the prison staff and such facility was never misused, and the said facility was being availed for over five years prior to the filing of the petition.
5. It is the contention of the petitioners that the amended provision in section 31 seeks to classify the non-convict prisoners in three categories viz. unconvicted criminal prisoners, satyagrahis and civil prisoners. Though the satyagrahis are also defined as unconvicted criminal prisoners having participated in non-violent public agitation, there is a clear discrimination ought to be made in their favour and against the petitioners i.e. unconvicted criminal prisoners by virtue of the amended provision inasmuch as that the styagrahis and civil prisoners are permitted to have home food and other necessaries whereas no such facility is available to the unconvicted criminal prisoners. In other words, it is the case of the petitioners that the amended section 31 seeks to deny the facility of getting home food. Section 32 of the said Act has been further amended to bring it in conformity with the provision contained in amended section 31.
6. While assailing the amended provision, the learned Advocate appearing for the petitioners submitted that the amended provision seeks to negate cardinal principles of criminal jurisprudence that the accused is deemed to be innocent until proved guilty, and further seeks to punish the under-trial prisoners even before the completion of trial and their guilt is judicially established. His further contention is that the differentiation sought to be made between the unconvicted criminal prisoners, satyagrahis and civil prisoners, violates Articles 14 and 21 of the Constitution of India. It is his further contention that denial of home food deprives the petitioners of their fundamental right guaranteed under the Constitution and, therefore, the amendment needs to be held as being ultra vires constitutional provisions. The learned A.P.P., on the other hand, submitted that at all times and even when the unamended sections 31 and 32 were in force, the facility regarding food from private sources was granted only pursuant to the order of the Magistrate or the trial Court and not otherwise. She has further submitted that the amended provision in noway causes prejudice to the under-trials in
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