# • " • HUSSAINARA KHATOON & ORS v. HOME SECRETARY, STATE OF BIHAR, PATNA

- **Citation:** [1979] 3 S.C.R. 393
- **Court:** Supreme Court of India
- **Decided:** 1979-02-26
- **Case number:** Writ Petition No. 57 of 1979
- **Bench:** P. N. Bhagwati, A. P. Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hussainara-khatoon-ors-v-home-secretary-state-of-bihar-patna-7622
- **Pages:** 6

## Headnote

393
Constitution
of India
1950-Art. 21-Womtn kept in jail by way of
'protective custody'-Violation of personal liberty .
Code of Criminal Procedure 1973-Ss. 167(5) & 468-Releau of under-trial
prisoner 1vlun Magistrate not satisfied with necessity of c,ontinuing i1ivestigation
01A charge-sheel not filed within limitation.
At the further hearing of the case on release of under-trials in the State of
Bihar,
HELD : (a) (i) The expression 'protective custody' is an euphemism calculated to disguise what is really and i11 truth nothing but imPrisonmcnt. It is an
expression intended to appease the
conscience. This
so-called
'protective
custody' is nothing short of a blatant violation of personal liberty guaranteed
A
B
c
under Art. 21 of the. Constitution, because· there is no provision of law under
D
which a \\'Oman can be kept in jail by way of 'protective custody' or merely
because she is required for the purpose of giving evidence.
[395C-p]
(ii) The Government in a social welfare state must set up rescue and welfare homes for the purp0&e of taking care· of women and children who have
nowhere el!!e to go and who are otherwise uncared for by society.
{395E]
(b) Th~ under-trial prisoners against whom charge.-sheets have not been
filed by the police within the period of limitation provided for in sub-section
(2) of section 468 cannot be proceeded against at all and they would be entitled
to be released forthwith, as their further detention \VOuld ·be unlawful and in
violation of their fundamental right under Art. 21. [397 G]
(c) The provision of •· 167(5) of the Code of Criminal Procedure! 1973
requiring the investigating officer to satisfy the ~fagistrate on the necessity of
continuation of the investigation beyond a period of six months has not been
complied with, because there are quite a few cases where the offences charged
against the under-trial prisoners are' triable as sumn1ons cases and yet they are
languishing in jail for a long number of years far exceeding six months.
[398CJ
And the Court directed that :-
(a) All women and children in thei jails in the State of
Bihar
under
'protective custcx:Iy' should be released and taken forthwith to '\velfare homes
,
or rescue homes and should be kept there and properly looked after.
[395F]
__ )c.
(b) The State Government should scrutinise the cases of under-trial prisoners
a.nd release ~uch of them who are not liable to be proceeded against by reason
of the period of limitation provided in •· 468 Cr.P.C. having expired. [397H]
(c) The State Govt. should inquire into those cases \vhere the investigation
has been going on for a period of more than six months without the satisfaction
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394
SUPREME COURT REPORTS
(1979] 3 s.c.R.
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of the Magistrate as envisaged in s. 167(5) and to release the under-trials unless
the necessary orders of the Magistrate are obtained within one month. [398DEl
ORIGINAL JURISDICTION : Writ Petition No. 57 of 1979.
Mrs. K. Hingorani for the Petitioners .
. B
Lal Narain Sinha, U. P. Singh and S. N. J ha for the Respondent.
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S, V. Gupte, Attorney General, R. N. Sachthey for the Attorney
General.
The Order of the Court was delivered by
BHAGWATI, J.-The Government of Bihar has tiled before us a
note containing the proposed· clarification of paragraph 2(e) of the
Government Order dated 9th February, 1979, pursuant to the suggestion made by us in our order dated 19th February, 1979. This clarification states in paragraph one that where the police investigation in
a case· has been delayed by over two years, the Superintendent of
Police will see to it that the investigation is completed expeditidusly
and final report or charge-sheet is submitted by the police as quickly
as possible and the responsibility to ensure this has been laid personally on the Superintendent of Police. We are glad to. note that
the State Government has responded to our suggestion but we ~re not
at all sure whether it is enough merely to provide that the investigation would be comple

## Text

•
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HUSSAINARA KHATOON & ORS.
v.
HOME SECRETARY, STATE OF BIHAR, PATNA
February 26, 1979
(P. N. BHAGWATI AND A. P. SEN, JJ.]
393
Constitution
of India
1950-Art. 21-Womtn kept in jail by way of
'protective custody'-Violation of personal liberty .
Code of Criminal Procedure 1973-Ss. 167(5) & 468-Releau of under-trial
prisoner 1vlun Magistrate not satisfied with necessity of c,ontinuing i1ivestigation
01A charge-sheel not filed within limitation.
At the further hearing of the case on release of under-trials in the State of
Bihar,
HELD : (a) (i) The expression 'protective custody' is an euphemism calculated to disguise what is really and i11 truth nothing but imPrisonmcnt. It is an
expression intended to appease the
conscience. This
so-called
'protective
custody' is nothing short of a blatant violation of personal liberty guaranteed
A
B
c
under Art. 21 of the. Constitution, because· there is no provision of law under
D
which a \\'Oman can be kept in jail by way of 'protective custody' or merely
because she is required for the purpose of giving evidence.
[395C-p]
(ii) The Government in a social welfare state must set up rescue and welfare homes for the purp0&e of taking care· of women and children who have
nowhere el!!e to go and who are otherwise uncared for by society.
{395E]
(b) Th~ under-trial prisoners against whom charge.-sheets have not been
filed by the police within the period of limitation provided for in sub-section
(2) of section 468 cannot be proceeded against at all and they would be entitled
to be released forthwith, as their further detention \VOuld ·be unlawful and in
violation of their fundamental right under Art. 21. [397 G]
(c) The provision of •· 167(5) of the Code of Criminal Procedure! 1973
requiring the investigating officer to satisfy the ~fagistrate on the necessity of
continuation of the investigation beyond a period of six months has not been
complied with, because there are quite a few cases where the offences charged
against the under-trial prisoners are' triable as sumn1ons cases and yet they are
languishing in jail for a long number of years far exceeding six months.
[398CJ
And the Court directed that :-
(a) All women and children in thei jails in the State of
Bihar
under
'protective custcx:Iy' should be released and taken forthwith to '\velfare homes
,
or rescue homes and should be kept there and properly looked after.
[395F]
__ )c.
(b) The State Government should scrutinise the cases of under-trial prisoners
a.nd release ~uch of them who are not liable to be proceeded against by reason
of the period of limitation provided in •· 468 Cr.P.C. having expired. [397H]
(c) The State Govt. should inquire into those cases \vhere the investigation
has been going on for a period of more than six months without the satisfaction
E
F
G
R
394
SUPREME COURT REPORTS
(1979] 3 s.c.R.
A
of the Magistrate as envisaged in s. 167(5) and to release the under-trials unless
the necessary orders of the Magistrate are obtained within one month. [398DEl
ORIGINAL JURISDICTION : Writ Petition No. 57 of 1979.
Mrs. K. Hingorani for the Petitioners .
. B
Lal Narain Sinha, U. P. Singh and S. N. J ha for the Respondent.
c
D
E
F
H
S, V. Gupte, Attorney General, R. N. Sachthey for the Attorney
General.
The Order of the Court was delivered by
BHAGWATI, J.-The Government of Bihar has tiled before us a
note containing the proposed· clarification of paragraph 2(e) of the
Government Order dated 9th February, 1979, pursuant to the suggestion made by us in our order dated 19th February, 1979. This clarification states in paragraph one that where the police investigation in
a case· has been delayed by over two years, the Superintendent of
Police will see to it that the investigation is completed expeditidusly
and final report or charge-sheet is submitted by the police as quickly
as possible and the responsibility to ensure this has been laid personally on the Superintendent of Police. We are glad to. note that
the State Government has responded to our suggestion but we ~re not
at all sure whether it is enough merely to provide that the investigation would be completed expeditiously and the final report or chargesheet submitted as quickly as possible.
We arc of the view that a
reasonable time limit should be set by the State Government within
which these steps should be taken, so that no further delay is occasioned in the submission of the final report or charge-sheet.
We fail
to see how any police investigation can take so Jong as two years and
if police investigation cannot be completed within two years,
then
there must be something radically wrong with the police force in the
State of Bihar. It appears that there are a number of cases where
police investigation has not been completed for over two years and
persons have been in jail as under-trial prisoners for Jong
periods.
'Ibis is a shocking state of affairs so far as the administration of law
and. order is concerned.
We would, therefore, suggest that in those
cases where police investigation has been delayed by over two years,
the final report or charge-sheet must be submitted by the police within
a further period of three months and if that is not done, the State
Government might well withdraw such cases, because if after a period
of over two years plus an additional period of three months, the police
is not able to file a charge-sheet, one can reasonably assume that there
is no case against the arrested persons.
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H. KHATOON v. HOME SECRETARY (Bhagwati, !.)
395
The Government of Bihar has also filed a connter-affidavit made
by Mr. Mrinmaya Chaudhry, Assistant Inspector General of Prisons
(1), Bihar setting out the particulars in regard
to
18
under-trial
who have been ordered to
be released by us
on their personal bond.
The p:irticulars given in this counter-affidavit make very
distressing reading.
It appears from this counter-affidavit tliat there
are quite a few women prisoners who are in jail without even being
accused of any offence, merely because they happen to be victims of
an offence or they are required for (he purpose of giving evidence o.r
they are in "protective custody". The expression 'protective custody'
is a euphemism calculated to disguise what is really and
in truth
nothing but imprisonment. It is an expression intended to
appease
the conscience. It cannot be gainsaid that women who
have been
kept in jail under the guise of 'protective custody' have sullere<l involuntary deprivation of liberty for long periods without any fault
on their part.
We may point out
that this
so-called
'protective
custody' is nothing short of a blatant violation of personal liberty
guaranteed under Article 21 of the Constitution, because we are not
aware of any provision of law under which a woman can be kept in
jail by way of "protective custody" or merely because she is required
for the purpose of giving evidence. The Government in a social welfare state must set up rescue and welfare homes for the purpose of
taking care of women and children who have nowhere else to go and
who are otherwise uncared for by the society.
It is the duty of
government to protect women and children who are homeless or destitute and it is surprising that the Government of Bihar should have
come forward with the explanation that they were constrained to keep
women in 'protective custody' in jail because a welfare home maintained by the State was shut down.
We direct that all women and
children who are in the jails in the State of Bihar under 'protective
~ustody' or who are in jail because their presence is
required
for
giving evidence or who are victims of offence should be released and
taken forthwith to welfare homes or rescue homes and should be kept
there and properly looked after.
We also find from the counter-affidavit that Bhola Mahto was in
jail from 23rd November, 1968 until 16th February, 1979 when he
was released on his personal bond pursuant to the directions given by
us by our order dated 5th February, 1979. He is accused in a case
under Section 363 & 368 of the Indian Penal Code and he was committed to the court of Sessions on 13th September, 1972 but his
sessions trial has not yet commenced. · It is amazing that a sessions
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SUPREME COURT REPORTS
[1979] 3 s.c.R.
trial of a person committed to the court of sessions as far back as 13th
September 1972 should not have been commenced for about seven years.
We direct that the Sessions Judge, Patna should forward to this Court
through the High Court of Patna an explanation as to why the sessions
trial of Bhola Mahto has not yet commenced.
This is also a matter
to which we would invite the attention of the High Court of Patna.
The same may be said also of Ram Sagar Mistry who was admitted in
jail on 28th March, 1971 and committed to the Court of Sessions on
28th June, 1972 on a charge un.der section 395 of the Indian Penal
Code but whose trial has not yet commenced before the Court of
Sessions though a period of more than six years has elapsed since the
date of his commitment and a period of eight years since the date of
his imprisonment.
The counter-affidavit shows that Babloo Rai who is reported to be a
Naxalite is in jail since 15th May, 1975.
He is alleged to be involved
. in five cases which are set out in .the counter-affidavit.
So far as he is
concerned, it will be open to him to make an application to the Magistrate before whom he is produced, for being released on bail or on his
personal bond and the Magistrate will deal with his application in accordance with broad gnidelines laid down by us in our judgment dated
12th February, 1979.
We are not at all sure on reading the counter-affidavit whether the
under-trial prisoners whose particulars are given there, are being produced periodically before the Magistrate as required by the proviso to
Section 167(2) of the Code of Criminal Procedure, 1973.
We should
like to know from the Government in a proper affidavit to be filed
before us on or before 3rd March, 1979 whether these under-trial prisoners were periodically produced before the Magistrate in compliance
with the requirement of the proviso to Section 167(2). The proviso
to Section 167(2) says that the Magistrate may authorise the detention
of the accused person beyond the period of 15 days if he is satisfied
that adequate grounds exist for doing so.
We hope and trust that in
these cases the Magistrates concerned did not act mechanically but
applied their mind and satisfied themselves that adequate grounds existed for remanding these persons to judicial custody from time to time
over a period varying from two to ten years, though we fail to see how
the Magistrates could possibly have been satisfied about the existence
of adequate grounds for remanding these persons to judicial custody
for such long periods of time ranging from two to ten years for the
purpose of police investigation.
This is also a matter which we would
like the High Court of Patna to consider after making a detailed
inquiry.
•
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H. KHATOON V. HOME SECRETARY (Bhagwati, J.)
397
The Government of Bihar has also filed before us a list giving parA
ticulars of the under-trial prisoners who are confined in 17 jails in Bihar
for more than 18 months as on 1st February, 1979. The chart shows
that there are under-trial prisoners confined in these jails for Joni:
periods of time and sometimes even exceeding the maximum punishment which could be awarded to them even if they are found guilty of
the, offences charged against them.
To take an example, we find at Item
30 one Lambodar Gorain has been in Ranchi Jail since 18th June,
1970 for an offence under Section 25 of the Arms Act for which the
maximum punishment is two years, with the result that he has been in
jail as an under-trial prisoner for St years for an offence for which
even if convicted, he could not have been awarded more than two
years' imprisonment.
There are many such cases in the chart, but it is
not possible to identify them easily from the chart because the chart
rnntains a large number of names of under-trial prisoners.
We would,
therefore, direct the Government of Bihar to submit to us on or before
3rd March, 1979 a revised chart showing yearwise break-up of the
particulars of the under-trial prisoners in these jails after dividing them
broadly into two categories, one of minor offences and the other of
major offences.
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Our attention has also been drawn to Section 468 of the Code of
Criminal Procedure 1973 which in sub-section ( 1) provides that except '
as otherwise provided elsewhere in the Code, no court shall take cogniE
zance of an offence of the category specified in sub-section (2)
after
the expiry of the period of limitation and under sub-section ( 2)
the
period of limitation provided is six months, if the offence is punishable
with fine only, one year if the offence is punishable with imprisonment
for a term not exceeding one year and three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years, It would, therefore, be seen that the under-trial prisoners
against whom charge-sheets have not been filed by the police within
the period of limitation provided in sub-section (2) of Section 468 cannot be proceeded against at all and they would be entitled to be released
forthwith, as their further detention would bo unlawful and in violation
of their fundamental right under Article 21. We, therefore, direct 'the
Government of Bihar to scrutinise the cases of under-trial prisoners
charged with offences which are punishable with fine only or punishable
with imprisonment for a term not exceeding one year or punishable
with imprisonment for a term exceeding one year but not exceeding
three years and release such of them who are not liable to be proceeded
against by reason of the period Of limitation having expired.
This
direction shall be carried out by the Government of Bihar within a
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SUPREME COURT REPORTS
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A· period of six weeks from today and compliance reports containing particnlars shall be submitted to this Court, first at the end of four weeks
and then at the end of the next two weeks.
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We also find from section 167(5) of the Code of Criminal Procedure, 1973 that if in any case triable by a Magistrate as a summons
case, the investigation is not concluded within a period of six months
from the date on which the accused was arrested, the Magistrate shall
make an order stopping further investigation into the offence, unless the
officer making the investigation satisfies the Magistrate that for special
reasons and in the interest of justice the continuation of the investigation beyond the period of six months is necessary.
We are not at all
C sure whether this provision has been complied with, because there are
quite a few cases where the offences charged agaiust the under-trial
prisoners are triable as summons cau1 and yet they are languishing in
jail for a long number of years far exceeding six months.
We, therefore, direct the Government of Bihar to inquire into these cases and
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where it is found that the investigation has been going on for a period
of more than six months without satisfying the Magistrate that for
special reasons and in the interest of justice the continuation of the
investigation beyond the period of six months is necessary, the Government of Bihar will release the under-trial prisoners, unless the necessary
orders .of the Magistrate are obtained within a period of one month
from today.
We would also request th.e High. Court to look into this
matter and satisfy itself whether the Magistrates in Bihar have been
complying with the provisions of section 167 (5).
We adjourn tge hearing of the Writ Petition to 5th March, 1979
and on that date, we shall proceed to hear and dispose of the W.rit Petition on merits on the vanous question11 arising for determination.
N.V.K.
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