DATE: 22nd March, 2021
JUDGES
- Chief Justice Thottathil B. Radhakrishnan
- Justice Aniruddha Roy
PARTIES
- Dipak Joshi
- State of West Bengal (RESPONDENT)
SUBJECT: Following is a notice given by the Calcutta High Court seeking the state Government’s response in the matter of Dipak Joshi who was in prison for almost 41 years without a trial. The question before the court is whether compensation order against the state can be passed or not.
AN OVERVIEW
- Dipak Joshi, a Nepali man has been under custody for a period of more than 40 years. He was arrested in the year 1980 and since then has been an under detention as an under trial prisoner (UTP) at Dum Dum Central Correctional Home.
- It was noted by the court that the issue in question was if Dipak Joshi was mentally fit to stand the trial for which, reports concerning his mental status were still awaited.
- Looking into the factual situation the court stated that in the larger spectrum, what surges is that, the person concerned has already undergone a period of more than 40 years in custody even if life imprisonment is to be ultimately handed down after a trial which could happen only if the accused is found to be one, who can stand trial in spite of his mental capacity which is writ large in the materials.
- As per the SLSA report and material records provided by the Consulate General of Nepal, the person in custody has the mindset of a child not more than 9-10 years of age.
- The court further observed that it needs to be examined whether it is necessary to continue the prosecution at all against him to secure the ends of justice or it is necessary in the interest of justice and to secure the ends of justice that the said prosecution itself be terminated through a judicial order of the superior Court in exercise of power under Section 482 of the Code of Criminal Procedure read with Articles 226 and 227 of the Constitution of India, by this Court in this suo motu proceeding.
- Dealing with the matter, the court on 22nd March has issued notice asking the State Government to submit its response regards with providing compensation to UTP.
IMPORTANT PROVISIONS
CONSTITUTION OF INDIA
- Article 227: Power of superintendence over all courts by the High Court
(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction
(2) Without prejudice to the generality of the foregoing provisions, the High Court may
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein: Provided that any rules made, forms prescribed or tables settled under clause ( 2 ) or clause ( 3 ) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces
CRIMINAL PROCEDURE CODE
- Section 482- Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
ISSUES: The sole issue before the court in the present case is whether an order of compensation or damages, as against the State could be passed?
ANALYSIS OF THE JUDGEMENT
- In the present notice, the High Court after looking into the report given by Superintendent of Dum Dum Central Correctional Home to the Secretary of the DLSA directed the Secretary, DLSA, North 24 Parganas to file a short report about that has to be taken as per the memo dated 03/11/2020.
- The court further directed the Additional Director General and Inspector General of Police, Correctional Services, West Bengal Police to gather details of all the undertrials from all the correctional homes as to who are unfit o stand a trial. Further, the court directed the report to available by 25/03/2021 concerning the status of under trial prisoners who are eligible for release as per sections 436 and 436A of Cr.P.C.
- The most important point that the court has observed is that Dipak Joshi and his family are economically marginalised. Also, they are acing social challenges too on account of him being in detention for over 40 years. The court thus stated “the detention of Dipak Joshi for about 41 years or so, that too without trial and also without resorting to other due proceedings, prompt us to consider whether he is to be supported with an order of compensation or damages, as against the State”.
- In this regard the court notified the learned Advocate General on behalf of the state in order to get a requisite response for the same.
CONCLUSION
- A few days ago, the entire country was shocked after hearing traumatising case of Vishnu Tiwari who was acquitted after spending 20 years in prison for being innocent. However, our system never leaves a chance to startle us and here we come to know that a man is under custody for more than 40 years, and that too without a trial.
- Probably the Vishnu Tiwari case and the present case acted as an eye opener to bring light to the financial issues that these people face after spending decades in prison, without it being established that they were at fault. such kind of detentions not only infringe the liberty of the concerned person but also cause mental suffering upon them.
- The question however is why it happens that people have to spend decades in prison when they are not even awarded punishment? Our system has several loopholes in implementing administrative and procedural methods. Therefore, when state is at fault, state should be made accountable for the sufferings of the innocent.
- Thus, this consideration of court to provide compensation to such under trial prisoners would truly be remarkable, but then again, it has to be seen what approach the Government adopts concerning the issue.
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