Sanjeev Kumar Akash v. State of Uttarakhand and Ors


Court :
High Court of Uttarakhand

Brief :
The judgement deals with various Rules for the administration of the Prison system to decide the validity of the order for appointment of Police personnel as the Senior Superintendent of the prison.

Citation :
REFERENCE: WRIT PETITION (PIL) No. 25 of 2021

DATE OF JUDGMENT: 12 April 2021

JUDGES

  • Chief Justice Sri Raghavendra Singh Chauhan
  • Justice Sri Alok Kumar Verma

PARTIES

• Sanjeev Kumar Akash – Petitioner
• State of Uttarakhand and Ors. - Respondent

SUBJECT: The judgement deals with various Rules for the administration of the Prison system to decide the validity of the order for appointment of Police personnel as the Senior Superintendent of the prison.

AN OVERVIEW

  1. The order passed by the Inspector General of the Prisons arising from the order passed by the Secretary of Department of Home giving the additional charge of Senior Superintendent of Jail to the Officers of Police department.
  2. The Court went on to decide the case referring to the Nelson Mandela Rules and the U.P. Jail Services Rules of 1982 which specify the criterion for appointment of personnel upon vacancy in the positions of the Prison administration.
  3. The transfer orders by the Inspector General and of the Secretary were challenged by the petitioner though a Writ Petition.

IMPORTANT PROVISIONS

  1. Section 167 of the Code of Criminal Procedure – A person cannot be detained for more than 15 days in police custody.
  2. Rule 14 of Uttar Pradesh Jail Services Rules, 1982 – Determination of Vacancies.
  3. Rule 15 of Uttar Pradesh Jail Services Rules, 1982 – Procedure for Direct Recruitment.
  4. Rule 16 of Uttar Pradesh Jail Services Rules, 1982 - Procedure for Recruitment by promotion to the post of Superintendent, District Jail.
  5. Rules 74 to 82 of the Nelson Mandela Rules – Institutional Personnel

ISSUES

  1. Whether the order passed by the Secretary of Department of Home was legal.
  2. 2. Whether the consequential order passed by the Inspector General of Prisons was legal.
  3. Whether a personnel of Police cadre be appointed to a position in the Prison Administration.

ANALYSIS OF THE JUDGEMENT

India is a country with a very vast legal system. The functioning of the country stands on three strong pillars of democracy, i.e., the legislature, the executive and the judiciary. The three bodies maintain checks and balances on each other to ensure that there is no misuse of the powers granted to each. The Police is a part of the executive body and is responsible for carrying out its duties in implementation of the law. The High Court of Uttarakhand in this PIL has dealt with maintaining that proper administration is maintained in the Police department.

1. The petitioners contended that the training of the Police officers and the Jail administration stand at different pedestals. The training given to the police is for maintaining law and order in the society and their duty’s nature is preventive and penal. The task of investigation, prevention and protection of the masses lies with the police.
The Jail Administration on the other hand runs on the theories of punishment. The rehabilitation and reformative principle are the basis for the duties of the Officers of the Department of Jail. The job profiles and the responsibilities on the shoulders of the Police administration and the Jail Administration are very different which requires different trainings for attaining the skills for their duties.

2. The two services are divided by law which gives them different powers. The division of powers is a universal bifurcation between the services not limited to India. The Standard Minimum Rules for the Treatment of Prisoners prescribes “good principles and practice in the way the prisoners are treated and in prison management”.
Rule 74 prescribes careful selection of personnel for the administration of the prison, considering their integrity, humanity, professional capacity and personal suitability. The tailored training specifically for the prison staff on the basis of evidences should be provided to the staff as laid down under Rule 75, which would include rights, duties and functions of the staff prohibiting certain conducts as under Rule 76. Rule 79 requires for the appointment of the Jail Superintendent as a full time duty and should reside in the prison premises or nearby.

3. The rules also focus light on the importance of the Superintendents to have gone through the proper training as it would inculcate a sense of dignity and sensitise them towards the prisoners which lacks in the police who just treat them as offenders who have broken the law.
The Uttar Pradesh Jail Service Rules of 1982 specifies Superintendent, District to be a person appointed whole time according to the Rules which prescribe the appointment of fifty percent by promotion under Rule 16. The recruitment process has also been laid down under Rule 15. The ad-hoc appointment of the Police is not permitted, under the Rules, which is in clear violation of the Rules. An under-trial prisoner cannot be kept under police custody after 15 days under Section 167 of CrPC. The accused should be granted in case the period is over and the investigation is not complete, but only if the offence is bailable.
The appointment of police personnel would make the prisoners under police custody and also the proper implementation of the rules is very important to protect the very spirit of enactment of the CrPC.

4. The defendants relied on the order which said for the appointment of IAS and IPS cadre of officers as the Inspector General and Addl. Inspector General of Police. So the appointment of the police officers for the other positions is not incorrect.
They also were of the opinion that since there was a vacancy in the positions and the prison authorities that could have been promoted have not completed five years as required by the Rules, therefore, the ad-hoc appointment of police due to lack of jailors was justified on the part of the State.
Though the positions of the Inspector General and Addl. Inspector General have been prescribed to be filled by IPS officers there are no rules that prescribe for the appointment of police officers as Senior Superintendent of the prison.

5. The Court while deciding the outcome of the petition referred to various historical aspects and found that recommendations have been made by Dr. W.C. Reckless’ Report, Ministry of Home Affairs’ Report and All India Committee on Jail Reforms’ recommendations which emphasize the requirement of proper training requirement for the prison administration.

6. The philosophy behind the Indian prisons is reformation and rehabilitation of the prisoners as protection under Article 21 of the Indian Constitution. This requires that the staffs are properly trained to fulfil the motive behind the concept of prisons.
The Court proceeded to refer to the case of Inhuman Conditions In 1382 Prison, In re, where the Supreme Court had constituted a Committee on Prison reforms which suggested the State Governments to hold special recruitment to fill the vacancies in different ranks. They also referred to the Nelson Mandela Rules on the treatment of prisoners and prison management which are binding on India, being a member of the United Nations.
These factors can only lead to the protection, reformation and rehabilitation of the prisoners. The purpose of police is preventing crimes and punishing the criminals and not their reformation or rehabilitation.

7. The Rules of 1982 clearly specify the appointment of vacancies by either promotion or direct recruitment which does not allow ad-hoc appointment, let alone appointment o police personnel. This process of recruitment has to be followed. Though the posts of Inspector General and Addl. Inspector General can be filled by personnel belonging to the IPS cadre, the same cannot be done to fill the positions for the lower posts in the prison system.
The orders were set aside and immediate appointment of the Senior Superintendent position was to be done either by recruitment or ad-hoc promotion as allowed by the Rules.

CONCLUSION

When certain rules have been made to be followed for recruitment under law then the rules are to be followed strictly. The prison is a place where the criminal offenders are punished for their actions not just for the sale of punishment but to ensure that such offences are not repeated by them. The prison system is inculcated on the values of the Reformative and Rehabilitation theory of punishment that has the principle that a person can be changed and through proper guidance, the criminal can be reformed and allowed to go to the society without being a threat to the people.

For this to happen, the prison authorities are given a special duty and training to develop their perspective and help the prisoners to reform. The police on the other hand are not trained for such a thing but trained to prevent the occurrence of crimes or to punish the criminal. So the appointment of a police personnel as a prison staff is not only a violation of the rules prescribed but also wrong from the societal and philosophical view behind the concept of Prisons.

 

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SUSHREE SAHU
on 20 April 2021
Published in Others
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