CENTRAL INFORMATION COMMISSION(Room No.315, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066)

Prof. M. Sridhar Acharyulu (Madabhushi Sridhar)

Information Commissioner

CIC/SA/A/2015/000431 & CIC/SA/A/2015/000432

O P Gandhi v. PIO, Tihar Jail

Important Dates and time taken:

RTI: 13.10.2014 Reply : 20.10.2014 Time : 07 days

FAA: 15.11.2014 FAO: 24.11.2014 Time: 09 days

SA: 19.03.2015 Hearing: 23.06.2015 Decision: 4-7-2015

Decision: Direction to frame policy to compensate for excessive detention.

Parties Present:

1. Appellant is present. Public authority is represented by Mr. Radha Charan,

Superintendent/PIO and Mr. Zakir Husain, Welfare Officer.

CIC/SA/A/2015/000431

FACTS:

2. Appellant through his RTI application sought to know the following

information (Gist or RTI request and PIOs reply):

No. RTI request PIOs reply during hearing

1. Whether a prisoner is kept in jail even after completion of his/her sentence without any of proven crime?

No

2. Whether any prisoner was sent during sentence to another state in pursuance of warrant, whether inquiry is done before or after completion of sentence?

What inquiry? It is not clear.

3. If officer does not inquire before completion of sentence, can a prisoner be kept in jail beyond fixed sentence, claiming required in another case?

Yes

4. What is the amount of compensation paid for every extra day in prison?

No

5. Does department constitute an inquiry against the officer who kept a prisoner beyond term?

Does not arise

3. The PIOs responses include: The applicant has not clearly mentioned

regarding the type of inquiry/information he sought. Convicts are admitted in jail

as per the Court orders and released from the jail after expiry of their

sentence. All Officers & officials wear prescribed uniforms. The Convicts are paid

wages for the each and every day of labour they attended in jail.

4. Being unsatisfied with the information furnished appellant filed first appeal.

First appellate authority upheld the PIO reply. Being unsatisfied with the FAA

order, appellant approached the Commission.

CIC/SA/A/2015/000432

Facts

5. Appellant through his RTI application sought to know following

information (Gist or RTI request and PIOs reply):

Sl. No

RTI request PIOs reply during hearing

1. Whether it is true that Om Prakash Hans,

appellant, was given remission of 68 days;

Yes

2. Whether it is true that he was given special

remission;

Yes

3. Whether it is true that his release date was

15.8.2014;

---

4. Whether it is true that he had spent 32 days

from 23.11.2010 to 24.12.2010 in Jail No. 5;

He was there from

26.11.2013 to 19.08.2014

5. Whether it is true that he had spent 263 days

in jail from 26.11.2013 to 15.05.2013;

He was there in prison

from 26.11.2013 to

19.08.2014.

6. Whether it is true that he was in jail from

15.08.2013 to 19.08.2013 without any

crime.etc;

He was required in

Faridabad Court case.

6. CPIO replied: 68 days remission, 15 days of special remission was granted

to appellant. As per record, other case was pending with convict appellant in

Faridabad Court; hence after the confirmation from the concerned Court, he was

released on 19.08.2014. He was in prison for 32 days as per the order of the

Honble Court of Sh. Rakesh Kumar Rampuri, Metropolitan Magistrate,

Karkardooma Court Delhi from the period 26.11.2013 to 19.08.2014.

7. Being unsatisfied with the information, appellant filed first appeal. First

appellate authority directed the PIO to provide information on point no 8 & 9. On

non compliance of FAA order, appellant approached the Commission.

Proceedings in CIC/SA/A/2015/000431

8. Regarding release of appellant the PIO stated that special remission was

granted to the individual and he was supposed to be released on 15 August,

2014. As other case was pending against appellant, he was to be produced

before the Faridabad Court on 19.08.2014, so the individual was released on

19.08.2014. When the Commission asked why he was kept in jail from 15th to

19th August, 2014, Mr. Santosh Kumar, Warder stated that he was an under-trial

prisoner in other case, hence he was kept in jail though he was given special

remission by Superintendent for 15 days on 15th August itself.

9. Appellant also wanted to know who will take action against the officer for

releasing any prisoner prior to the fixed date of release. The officer stated that

they cannot release any prisoner on prior date, if anybody is released prior to fix

date, court will enquire into.

10. Regarding release of appellant/convict the PIO stated that special

remission was granted to the individual and he was supposed to be released on

15 August, 2014. As he was to be produced before the Faridabad Court in

another case on 19.08.2014, he was released on 19.08.2014. When the

Commission asked why he was kept in jail from 15th to 19th August, 2014, Mr.

Santosh Kumar, Warder stated that he was an under-trial prisoner in other case,

hence he was kept in jail though he was given special remission by

Superintendent for 15 days on 15th August itself.

11. Appellant also wanted to know who will take action against the officer for

releasing any prisoner prior to the fixed date of release. The officer stated that

they cannot release any prisoner on prior date, if anybody is released prior to

fixed date, court of law has to examine the case.

Proceedings in CIC/SA/A/2015/000432

12. The officer replied that nobody can be kept in the jail beyond term, and

that if any person is detained in the jail after term is over, they have to verify

whether the prisoner is involved in other case also.

13. To another question the PIO answered that no prisoner was detained

beyond prescribed term and if there is any allegation by any prisoner it has to be

decided by the court of law. The prisoner has facility of using the complaint box

or appeal to higher officer or approach grievance redressal forum.

14. The Commission noticed that appellant has a grievance that he was

unnecessarily kept in prison beyond term on the pretext that he was needed in a

different case. The officers should have enquired about other case before

expiration of term. They kept him in jail for some more days on the excuse that

they were holidays for courts etc. From this it appears that prisoner was

detained beyond the period of term.

15. Excessive detention like this is a matter of serious concern, as that

violates right to personal liberty of individual, guaranteed under Article 21, which

says:

No person shall be deprived of his life or personal liberty except

according to procedure prescribed by law.

16. Appellants personal liberty can be deprived only till the term of

imprisonment prescribed by court of law continues and not even a day beyond.

Strategically, we hear that, the individuals are arrested during night of Friday so

that they will not be in a position to move the court of law till Monday. Such

detention would be absolute violation of Article 21 and it could be both a crime

and tort (civil wrong) also.

17. The Honourable Supreme Court said in its land mark judgment in Rudul

Shah v State of Bihar, AIR 1983 SC 1086 that the imprisonment would be

unlawful the moment its lawful justification is withdrawn. Chief Justice

Y. V. Chandrachud, Justice Amarendranath Sen, Justice Ranganath Misra said

regarding compensation for illegal detention:

Article 21 which guarantees the right to life and liberty will be denuded of its

significant content if the power of this Court were limited to passing orders to

release from illegal detention. One of the telling ways in which the violation of

that right can reasonably be prevented and due compliance with the mandate

of Article 21 secured, is to mulct its violaters in the payment of monetary

compensation. Administrative sclerosis leading to flagrant infringements of

fundamental rights cannot be corrected by any other method open to the

judiciary to adopt. The right to compensation is some palliative for the unlawful

acts of instrumentalities which act in the name of public interest and which

present for their protection the powers of the State as a shield. If civilization is

not to perish in this country as it has perished in some others too well-known to

suffer mention, it is necessary to educate ourselves into accepting that, respect

for the rights of individuals is the true bastion of democracy. Therefore, the State

must repair the damage done by its officers to the petitioner's rights. It may have

recourse against those officers.

18. If there is such a violation, and there is no internal mechanism to redress

that grievances, the individual like appellant in this case, will have no other go

except to file a writ petition before the constitutional courts or civil or criminal

courts seeking remedy for wrongful detention. It shows that the public authority

does not have any internal mechanism to prevent such practices, and to take

action to redress such grievances. It is not proper on the part of public authority,

first to detain the prisoners beyond the term, not to have any mechanism to

receive, hear and provide remedy for excessive detention, and not even giving

correct information to the prisoner seeking under RTI Act.

19. During hearing of second appeal, the PIO said, only remedy available for

excessive detention, if any, is available is in courts of law. This constitutes

wrongful and incomplete information. The PIO should have at least inquired into

the complaint parts of the RTI application and replied him whether he was

unnecessarily imprisoned or not.

20. The Commission noticed that contentions of prisoner appellant and

respondent PIO reveal a prima facie case of excessive detention and that there

is no specific mechanism to take complaints of extra detention and provision for

compensation in such cases. The Commission recommends public authority to

frame a policy for this purpose and disclose the same under Section 4 (1)(c) of

RTI Act, which says: PUBLISH ALL RELEVANT FACTS WHILE FORMULATING

IMPORTANT POLICIES OR ANNOUNCING DECISIONS WHICH AFFECT PUBLIC. If

they do not have a policy, and that affects the public, the public authority should

explain why they do not have a policy on such an important issue. Thus they

have a duty to frame a policy and disclose the same to the public.

21. The Commission directs the respondent authority to consider this RTI

application as complaint of excessive detention, inquire into the allegation of

excessive detention from 15th August to 19 August 2014, fix responsibility on the

officer concerned for not releasing him, and give the action taken report within

one month from the date of receipt of this order, giving the appellant reasonable

opportunity to present his case, also considering the possibility of compensating

if the extra-detention beyond the sentence is found.

22. The Commission directs the PIO to show cause why not the Commission

direct the public authority to pay compensation to the appellant for giving

wrongful/incomplete information, within 21 days from the date of receipt of this

order.

(M. Sridhar Acharyulu)Information Commissioner

Authenticated true copy

(Babu Lal)Deputy Registrar

Addresses of the parties:

1. The CPIO under RTI,O/o Superintendent, Central Jail No. 5Tihar, New Delhi.

2. Shri O P Gandhi,2034, Sec-7, Block-D, Faridabad.