Mumbai: Undertrials' 'right to life' includes home-cooked food say experts

Nov 30, 2017, 09:59 IST | Vinod Kumar Menon

With HC granting a Latur prisoner home meals, saying it is an extension of 'right to life', legal experts say ruling will benefit all undertrials

The Bombay High Court's just given the thousands of undertrials languishing behind bars a reason to smile - the inmates may soon be allowed home food in jail, according to legal experts. They were referring to the recent HC judgment that upholds an order passed by Latur's additional sessions judge, which states that an undertrial accused of serious offences - kidnapping, gang rape and murder - be allowed home food.

Undertrials can approach the magistrate or trial court with such a demand, instead of moving an application to the jail superintendent, say lawyers. Representation pic
Undertrials can approach the magistrate or trial court with such a demand, instead of moving an application to the jail superintendent, say lawyers. Representation pic

The order came about after an undertrial approached the trial court on being denied permission to have home food by the Latur jail superintendent, who cited the prison Act. When the trial court didn't rule in his favour, he moved the sessions court in Latur, and achieved victory. The jail superintendent then, through State of Maharashtra, challenged the sessions court's order before the Bombay High Court.

Setting a precedent
Noted criminal lawyer Majeed Memon said HC's upholding of the sessions court order would set a precedent for other undertrials, who can exercise their Right to Life under Article 21 of the Constitution.

"Right to Life supersedes all rules and laws; it has been elaborately stated in numerous judgments passed by the Supreme Court in various cases, wherein it has given 14 instances where right to life is extended, such as right to live happily, right to live with a sense of security, and right to human rights..." he added. "An undertrial needs to live till he receives justice; he's innocent until proven guilty. Rules should be different for convicts and undertrials... This HC order can be used by any undertrial... hence, it's an important one."

The senior counsel also clarified that undertrials could approach the magistrate court or trial court with such a demand, instead of moving an application to the jail superintendent. It would be the court's discretion to grant the request or not after considering all the facts and circumstances, security parameters and nature of the case in which the accused has been arrested. Another lawyer, Mikhail Dey, too agreed that the HC order would set a precedent, which would help many undertrials, as the order doesn't state that it is only for the particular case.

HC observation
The state had challenged the additional sessions court order in the HC under Article 227 of the Constitution. While upholding the order, justice A M Dhavale observed, "The power to order home food vests with the magistrate or the trial court under section 167 of the Code for Criminal Procedure, and the same is not controlled by virtue of sections 31 and 32 of the Prison Act, 1894 ...the petitioners are entitled to move the trial court, and if such an application is filed, the court concerned should pass an appropriate order... "The sessions judge had every power to permit home food to the respondent... He has referred to the medical evidence... satisfied about the necessity to grant permission. The petition, therefore, deserves to be dismissed, and is accordingly dismissed."

Prison officials' view
Despite repeated attempts, G V Patil, superintendent of jail, Latur, remained unavailable for comment. His superior, DIG (central) Rajendra Dhamne, under who Latur jail's jurisdiction falls, said, "I am unaware of this particular order, as no one consulted or informed me before approaching the HC. I will have to check with the jail authorities and only then will I be able to comment."

Additional Director General (state prisons) B K Upadhyay, when asked if they would challenge the HC ruling, replied in the negative. "Home food is allowed for certain undertrials with court order; will have to check this order," he said. A senior prison official said, "We haven't seen the order yet but are presuming that it might not be a blanket order; it might be binding on this particular accused. We have approximately 24,000 undertrials in various prisons across the state, and they are manned as per the prison manual. They need to adhere to the same... or it will be a difficult situation."

In numbers
Latur jail has around 291 prisoners; as of March 15, 2016, 12 were convicts and 279 undertrials. In March 2015, it housed 248 prisoners, of which 10 were convicts and 238 were undertrials.

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