Mumbai: A young Mumbaikar, who found himself in a peculiar situation recently, has exposed a major lacuna in the state’s prison system. While he has been sentenced to three months in prison in a civil matter, it has come to light that there is not a single civil jail in the state. Taking note of this, in a landmark judgment, Bombay High Court judge G S Patel, on April 26, dismissed his case.
The matter has, for the first time, opened up a debate on the violation of rights of civil prisoners. The judgment has put the state and prison department in a royal fix.
The young man has already spent 39 days lodged at Byculla jail. The lawyers who represented the young man argued that the state had failed to provide facilities as mandated in the prison manual for civil prisoners.
Advocate Rusit Patel, who represented the young man, said, “During our research on the issue, we have found that in the two cases on civil imprisonment pending before the court, no order has ever been passed. Ideally, in our case, the client should not have been behind bars for even a single day.” Patel added, “The order will give people confidence in the system. We appreciate the intervention of the Bombay High Court in this case.”
The young man, a distributor for a pharma giant, was accused by the company of not paying R3.50 crore against supply of goods back in 2016. The company took the matter to the Bombay High Court, who directed the man to furnish an affidavit disclosing his assets. Justice K R Shriram passed a detailed order on August 25, 2016 and August 31, 2016, stating that the man tried time and again to avoid complying with his orders and that he made false and incorrect statements repeatedly. Accordingly, the judge sentenced him to civil imprisonment for three months.
On February 19, 2018, the Supreme Court dismissed a special leave petition (SLP) filed by the young man, and directed him to surrender within a week.The defendant, in response, asked where he might find a civil prison. He said he did not know how to surrender and to whom. He was then asked to go to the Registrar of the City Civil Court. Instead, he filed a Chamber Summons, wherein he stated that he has not been allowed to meet his family except through a barred window at Byculla jail. The conditions in which he has been kept are unhygienic and he has not been allowed to speak to his children on the phone at all for 33 days.
Justice Patel observed that the person was not seeking any preferential treatment or luxuries. He based his observation on The Prisons Act 1894 that covers civil imprisonment in Mumbai. Section 27(4) clearly says that civil prisoners have to be separated from criminal prisoners. Section 31 says that a civil prisoner or an unconvicted criminal prisoner is permitted to purchase or receive from private sources at proper hours, food, clothing, bedding and other necessary items.
If he is unable to do so, these are to be provided to him. Civil prisoners may, in addition under Section 34, with the Superintendent’s permission work and follow any trade or profession. Section 40 requires that provision be made for admission into every prison of persons with whom civil prisoners may desire to communicate. The Prison Manual has statutory rules for the provision of proper food, etc. and Rule 3 requires that civil prisoners be confined in a civil jail or a portion of a criminal prison set apart for that purpose and not allowed to hold communications or be associated with criminal prisoners. It seems to be undisputed that in this case, these provisions have not been followed.
PIL already pending
Justice Patel in his order states that, “A PIL is assigned to the bench presided over by Justice A S Oka. I will request the Prothonotary and Senior Master of this court to put copies of these orders before that bench, so that any committee that is constituted by the bench to examine jail conditions may also look into this aspect of the matter as well.”
State has no choice
Justice Patel added, “It is, however, inconceivable that the State of Maharashtra is unable to provide what the statute requires. This is not a matter of discretion and the state government has no choice whatsoever in this matter. The statement made on behalf of the state government that it will and perhaps by today itself make the necessary arrangements is too little too late.”
Rohini Salian, former chief public prosecutor
‘This is the first time I am coming across a matter for civil imprisonment… In case of civil imprisonment, the person is entitled to a more liberal stay. If the state or country does not have such a jail, then provisions should be made to make such divisions within existing structures’
Justice A R Lakshmanan, former SC judge
‘We do not have a civil jail. There is only one jail where people are compelled to undergo punishment, depending on the nature of crime committed, whether solitary confinement or rigorous imprisonment. I will need to check the order before making any specific comment’
Majeed Memon, senior criminal lawyer
‘A person who has been convicted to suffer imprisonment for a certain term with specific pronouncement of simple imprisonment cannot be put to serve rigorous imprisonment, which is common in criminal offences. And, if it so happens, it is a breach of his constitutional right under Article 21 and the person can even demand compensation from the state government’
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Article source: https://www.ndtv.com/mumbai-news/no-jail-to-keep-him-so-mumbai-man-guilty-of-fraud-released-1846438