- (1.) The Judgment of the Court was as follows : What are political offences? Who are political prisoners? What is the role of political violence for achieving the political goal professed by its believers? What is the treatment which State should administer to those who use political violence/activities to terrorize others for achievement of their objective? Should means defeat the end? What is the state of affairs in prison? and how the prisoners should be dealt within socio-economic realities of our nation? are a few questions which, being unpalatable, have been thrown as dice on the board of this Court.
(2.) These questions also test the ability of the believer of liberty and democracy to keep his prejudices and bias at bay to strictly confine to the provisions of the statute believing in the maxim "those who believe in the system, it is their duty to ensure fairness to those who question the system". Before a humble effort is made to answer these questions, it will be appropriate to divide this judgment into five parts, (a) Facts, (b) Broad background, (c) Provisions of the West Bengal Correctional Services Act, 1992 (hereinafter referred to as the Correctional Services Act'); its classification of political prisoners; their rights and the conveniences extended to them, (d) Remedial measures which this Court propose as recommendations, and (e) Conclusions and the prayer clause. (a) Facts By this common judgment, three petitions, viz. (1) Criminal Revision No. 4000 of 2011, (2) Criminal Revision No. 463 of 2012 and (3) Criminal Revision No.1312 of 2012 shall be decided together. The petitioners herein, at one point of time, claimed themselves to be Maoists and are dubbed by the State as Naxalites. Maoists or Naxalites, being interchangeable words, are to be broadly understood ill reference to those persons who take up arms to dislodge the existing system being aggrieved of socio-economic disparities prevailing in the State. The petitioners in all the three revisions petitions have assailed the orders passed by the Courts below, whereby their prayer to be declared as political prisoners has been declined. They have approached this Court with a prayer that they be treated as political prisoners within the meaning of Section 24 of the Correctional Services Act and a few conveniences which the Correctional Services Act ensures to the political prisoners be granted to them over and above the ordinary prisoners. Criminal Revision No. 4000 of 2011 Gaur Narayan Chakraborty, petitioner to Criminal Revision No.4000 of 2011 was. named as an accused in Shakespeare Sarani Police Station case No.286 of 2009 dated 23rd June, 2009 under Section 20 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as, 'the Unlawful Activities Act') and is being tried by the NDPS City Sessions Court, Calcutta at Bichar Bhavan in Sessions Case No. 111 of 2009. As per the averments made in this revision petition, he is aged 67 years. In the report lodged by Debashis Dutta, Sub-Inspector of Police posted at Shakespeare Sarani Police Station, it is alleged that on 23rd June, 2009 at around 19:05/10 hours, the petitioner was giving an interview to a local TV Channel named "Channel 10". In the interview, the petitioner is alleged to have introduced himself as an official spokesperson of Communist Party of India (Maoist). This organization was banned by the Central Government on 22nd June, 2009. While the petitioner was leaving the office of the TV Channel, he was intercepted by the police officials and during interrogation he admitted that he had been in close contact with the top leaders of CPI (Maoist). Some leaflets were also found in his possession which contained seditious material. Criminal Revision No. 463 of 2012 V. Venketeswara Reddy, a resident of Andhra Pradesh, petitioner to Criminal Revision No.463 of 2012, was arrested by the police in Thakurpukur Police Station case No. 98 of 2010 dated 3rd March, 2010 registered for an offence punishable under Section 20 of the Unlawful Activities Act. In the complaint, which was lodged by Ardhendu Sekhar Pahari, Inspector of Police, CID, West Bengal on 2nd March, 2010, it was alleged that the petitioner was carrying material propagating the ideology of the banned organization and furthermore was a State Committee member of the Communist Party of India (Maoist). Several papers including various magazines, leaflets and cassettes were recovered from the possession of the petitioner, which contained propaganda of the banned organization. Criminal Revision No. 1312 of 2012 This revision petition has been filed by five persons namely (1) Sambhu Soren, (2) Sagun Murmu, (3) Chatradhar Mahato (4) Suksanti Baskey, all residents of Lalgarh and (5) Prasun Chatterjee, a resident of Jadavpur, Kolkata. They have been named as accused in Lalgarh Police Station Case No. 161 of 2009 dated 26th September, 2009 registered for offences under Sections 120B/121/121 A/307, IPC, Sections 3 and 4 of the Explosive Substances Act, Sections 25/27 of the Arms Act and Sections 16(B)/17/18/20/38/39/40 of the Unlawful Activities Act. in the written complaint lodged by Sub Inspector of Police, Police Station Lalgarh, it was alleged that the police party headed by one Prasanta Kumar Pathak was on its way to Dalilpur village and at about 13:35 hours, there was an explosion on the side of the road. All members of the police party escaped. Nobody received any injury in the occurrence. However, four persons including petitioners No. 1 and 2 were apprehended while they had taken refuge behind the bushes. A personal search of the accused was carried and on the basis of disclosure statement made, petitioner No. 3 was apprehended with some books. Other persons are said to have fled from the spot. It was alleged that the petitioners were members of the banned organization and responsible for the explosion which was to deter the police party from performing its duty and instill terrorism in the minds of the people. All the petitioners in the above said three revision petitions filed separate applications before the respective trial Courts praying that they be classified as political prisoners as per Section 24 of the Correctional Services Act. Their applications were dismissed by three different trial Courts by assigning reasons which, to some extent, are identical. In the impugned order dated 4th July, 2011, assailed in Criminal Revision No. 4000 of 2011, the Judge, Special Court, Bichar Bhavan concluded that "at this stage it is not possible to arrive at any conclusion whether the act or acts allegedly done by the accused, was/were done with an exclusive political objective or not". It was further held that "if any member of any recognized political party commits any offence without any political objective he can not be treated as political prisoner". It was also held that since Section 15 of the Unlawful Activities Act defines terrorist acts and organisations mentioned in the schedule of Terrorists Organisations, the petitioner is believed to have committed terrorist acts and hence, he is not entitled to the benefit which accrues to the political prisoners under the provisions of the Correctional Services Act. In Criminal Revision No. 463 of 2012, the Additional Sessions Judge, Fast Track Court - II at Alipore in the impugned order dated 4th January, 2012 held that the petitioner had resorted to create unrest in the prevailing situation in the society and the activities of the petitioner are not for the common good of the people but for the revolution with arms and he being a member of the terrorist organization can not be granted the benefit claimed by him. In Criminal Revision No. 1312 of 2012, the relief was denied to the petitioners therein on the ground that on earlier occasion i.e. 20th September, 2010 a similar prayer was not entertained by the Court and that order was not challenged in the higher Court. The above said facts contain a common thread that the petitioners in these three revision petitions were members of an organization, which was banned under the Unlawful Activities Act and they are engaged in terrorist activities and have also canvassed to the people at large to take up arms to destabilize the prevailing order.
(3.) (B) Broad Background 'What is a political offence' was defined By Hon'Ble the Supreme Court in Rajender Kumar Jain v. State through Spl. Police EstaBlishment and Others , 1980 3 SCC 435 as under: "18. It is true that the Indian Penal Code and the Code of Criminal Procedure do not recognize offences of a political nature, as a category of offences. They cannot, in the ordinary course of things. That does not mean that offences of a political character are unknown to jurisprudence or that judges must exhiBit such a naivete as to feign ignorance aBout them. Offences of a political character are well-known in International Law and the Law of Extradition. The Indian Extradition Act refers to 'offences of a political character'. For our present purpose it is really unnecessary to enter into a discussion as to what are political offences except in a Sketchy way. It is sufficient to say that politics are aBout Government and therefore, a political offence is one committed with the oBject of changing the Government of a State or inducing it to change its policy..." A necessary corollary of the aBove definition is that those who commit political offences are political prisoners. To further elaBorate the definition of 'political prisoner', it will Be necessary to have a look at the Advanced Law Lexicon 3rd Edition Reprint 2007 puBlished By Wadhwa Nagpur. This Lexicon considered political offence from two points of view, Municipal and International. It will Be apposite here to notice Both the views contained in the Lexicon and the same read as under: "MUNICIPAL - where an offence has Been committed, not from motives of private spite or interest, But in order to change the legislative or executive Government in the country, it is frequently contended that the offence is political, and that persons convicted of it should not Be treated as ordinary offenders, and should Be pardoned or amnestied on the earliest opportunity. The offences to which this contention applies are those descriBed as against puBlic order, namely, treason, sedition, or interference with the executive or legislature By unlawful assemBlies intended to defy or overawe either, or riotous protests against the law; and, in fact, all acts directed to oBtain By unlawful means a change in the law or general Government of the realm. There is no statutory recognition in England of any of these offences as political, unless it Be sedition and seditious liaBle; as to which the law directs that persons convicted thereof shall Be treated as first class misdemeanants (40&41 Vict c. 21, Ss. 40, 41) and the controversy may Be descriBed as of a parliamentary rather than of a legal character. INTERNATIONAL - It is usual, if not invariaBle to except from treaties of extradition "offences of a political character". What should Be taken as excluded in this description has Been much discussed By continental jurists. In England the suBject seems to have Been dealt with only By Sir James Stephen (Hist. Crim. Law, vol. ii, p. 70) and By the judges on application for haBeas corpus under the Extradition Act. (See Ency. of the Laws of England). To constitute an offence as one of a "political character", there must Be, at least, two distinct political parties, each striving to impose its form of Government on the country. "The offences of anarchists, consist, in the main, of attacks on private citizens generally rather than on Governments or memBers of any particular government, as such. In such cases they cannot Be called 'political offences." (per CAVE, J., Re Meunier, (1894) 2 QB 415; 63 LJMC 198). The idea that lies Behind the phrase 'An offence of a political character' is that the fugitive is at odds with the State that applies for his extradition on some issue connected with the political control or government of the country. Schtraks v. Government of Israel, 1962 3 AllER 529.;