HUSSAINARA KHATOON & ORS. versus HOME SECRETARY, STATE OF BIHAR, PATNA

Citation: [1979] 3 S.C.R. 393 · Decided: 26-02-1979 · Supreme Court of India · Bench: P.N. BHAGWATI · Disposal: Hearing Adjourned
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Judgment (excerpt)

• 
" • 
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 calcu-
lated 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 
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B 
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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 wel-
fare 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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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. [398D-
El 
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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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 sugges-
tion made by us in our order dated 19th February, 1979. This clari-
fication 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 per-
sonally 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 investiga-
tion would be completed expeditiously and the final report or charge-
sheet 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 occa-
sioned in the su
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