Of those languishing in West Bengal jails for years without trial

Almost after 43 years, Dipak Joshi, 70, would meet his mother, 90, at their village in Nepal once he is released from a West Bengal jail, where he was incarcerated without a trial for 41 years, and is handed over to the Nepal consulate. Doctors had told the court that he was mentally unfit to face the court proceedings. Finally, on December 7, the Calcutta high court ordered his release and awarded him compensation for being kept behind cars for so long.

“He was arrested on May 12, 1980, on charges of murder. His trial, however, never took off as he was mentally unfit to face the proceedings,” said Jayanta Narayan Chatterjee, a high court advocate. Joshi was arrested from Darjeeling in the 80s for allegedly killing a local after a brawl. In these 41 years, he was transferred from one prison to another before finally landing at the Dum Dum Central Correctional Home in Kolkata, locked up in a foreign country with no one to meet or see.

In late 2020, the then Chief Justice of Calcutta high court, TBN Radhakrishnan, who was also the patron of the West Bengal State Legal Services Authority, noticed his case while reviewing the cases which had not been taken up in the court in want of a lawyer. On the court’s direction, the district legal services authorities took up the matter and Joshi was sent for a mental health checkup in a state-run hospital.

“The committee found that even though he was physically 70 years old, his mental health age was that of a nine-year-old. He could only speak in Nepali and none understood what he was saying. He was just eating and surviving. He had no family or relatives in India. He has family in Nepal, who knows he is languishing in jail,” said a high court lawyer who didn’t wish to be named.

Chatterjee, who appeared on behalf of the State Legal Services Authority for Joshi, said the then Chief Justice started a suo moto proceeding and in less than two months Joshi was set free. “The Nepal Consulate was made a party to the case. It was found that Joshi’s 90-year-old mother was living in his native village in Nepal. One of his relatives, who came to India, was asked to sign a bond and Joshi was reunited with his family after four decades in March 2021,” said Chatterjee.

As the family was extremely poor and stayed in a remote village in Nepal, Radhakrsihnan requested the advocate general to address the court on the issue of compensation since Joshi had suffered incarceration for more than four decades. The state government submitted an affidavit saying there was no scheme for compensating undertrial, who did not get justice, the court decided to give compensation of ₹five lakh, which is granted to a family undertrial, who dies in jail. “The court ordered (on December 7) that compensation can be paid to Joshi through Nepal consulate,” the lawyer said.

More like him

Joshi is just one of the 103 undertrials still languishing in West Bengal and Andaman and Nicobar Islands jails without trial as they are not mentally fit to face court proceedings, according to the state legal services authority. And almost all of them come from a very poor economic background and many have been forgotten by their family in absence of financial resources to fight their case. Some are eagerly awaited by their family members. Andaman and Nicobar Islands come under the jurisdiction of the Calcutta high court.

One of them, Asim Kumar Roy, 50 was arrested in December 2011 on charges of murdering a domestic help at Haringhata in Nadia. He is presently lodged in the Dum Dim Central Correctional Home in the northern fringes of Kolkata and is awaiting trial as a doctor from government-run hospitals said he was mentally weak and may not be able to bear the court trauma.

“He was the youngest of the siblings. We really don’t know why he murdered the woman. We heard a thud and came running out of the room. The woman was lying on road and my brother was standing there. I ran to the police station to inform the cops. They came and took him away. Since then he is in jail. The doctors are yet to give him a fit certificate and that’s why the trial hasn’t started,” said Alok Kumar Roy, Asim Kumar Roy’s brother.

All these years, Roy’s elder sister used to meet him in jail. After her death due to cancer in 2020, his elder brother Alok meets him. Asim has not been informed that his sister has died. He still knows that his sister is suffering from cancer and is critically ill. His father died the same year he was arrested.

“Every time I meet him he cries. He begs me to get him out of the jail saying he can’t take it any longer and is not keeping well. He has started limping as he is having a pain in his leg. I can’t even see him properly as there are two mesh-wire walls between us with a gap of at least five feet in between. We both have to shout and speak as our voices get drowned. We have already spent more than one lakh rupees on lawyers’ fees all these years. We are still trying to bring him out,” he said.

But, there are some like Biswanath Chatterjee, whose family appears to be losing interest in pursuing his case. Chatterjee, another under-trial lodged in Dum Dum central jail, was arrested in August 1992 on charges of murder. His case is pending before the district court in Bankura. In April, he was declared ‘not fit’ for trial by the medical board of Calcutta Pavlov Hospital.

In records, his family is not traceable, said a jail official, adding that nobody has come to meet him for years. The official added that there are some of these mentally unfit undertrials who have not seen a visitor for years now. “The family loses interest as the trial cannot start because of their mental health condition,” he said.

The case of Bankim Chakraborty, 70, who was arrested in connection with a dowry death of his daughter-in-law in 2017 at Haringhata in North 24 Parganas was arrested with his wife and two sons, is different. He was declared mentally unfit to face trial while trial started against his other family members.

“I don’t know much about the case. Four of my family members are in jail. My father developed some mental problems. I have not met him for many days. The lawyer knows it,” said his youngest son Aparup Chakraborty. Lawyer Dipak Dey, whose number was provided by Aparup, said he was not aware of the case. When called again Aparup said he doesn’t want to talk about the case.

“There are umpteen cases where a man’s family member and relative do not come and he continues to languish in jail. He can’t be freed. He has to stay in jail till the trial is completed,” said Raju Mukherjee, member secretary of the state legal services authority.

Slow legal system

According to Prisoners Statistics of India, 2019, 7,394 inmates in Indian jails are suffering from mental health issues and 1.5% of them are undertrials in jails. Some studies in jails have indicated a higher number of prisoners suffering from mental health issues. A 2011 study published in the Indian Journal of Psychiatry found that 23.8% of the 500 surveyed prisoners suffered from mental health issues.

The Supreme Court in 2019 had recognised that every prisoner with mental illness has the right to live with dignity and asked jails to have counsellors for early detection of mental illness. In 1995, the apex court in the case of Sheela Barse vs the Union of India passed a direction for all high courts of India to institute a writ petition concerning the mental health of the under-trials and convicts.

“But even after 25 years there were, however, no such writ petitions instituted in the Calcutta high court,” said a lawyer of the Calcutta high court, quoted above. Justice Radhakrishnan last year nominated Justice Shampa Sarkar as the judge to hear cases about the mental health of inmates of correctional homes. “The next date of hearing is on March 4, 2022,” said an advocate of the high court.

The trial, however, does not start only if a government doctor certifies a person as mentally unfit. Raju Mukherjee said if a jail doctor suspects that an undertrial is mentally not fit, the court is informed. The court sets up a committee that gives a certificate – whether he or she is fit to face trial or unfit.

Ganesh Prasad, superintendent of Calcutta Pavlov Hospital, said they examine a prisoner to find whether he or she is mentally fit to understand the proceedings and its ramifications in court against him. “We submit our report to court accordingly,” he said.

Mukherjee said there are provisions in the law that if the court thinks then such an undertrial, who is mentally not stable to undergo trial, may also be freed. Unlike normal cases, in which a man is allowed to go out if he gets bail, in these cases a relative or a family member of the te undertrial has to come and sign a bond. Using that provision, Dipak Joshi was released and provided compensation on December 7.