Madras High Court
Meharraj vs ) The State Of Tamil Nadu on 8 September, 2014
Bench: S.Manikumar, V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 08.09.2014 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR AND THE HONOURABLE MR.JUSTICE V.S.RAVI HABEAS CORPUS PETITION(MD)No.671 of 2014 Meharraj ... Petitioner Vs. 1) The State of Tamil Nadu, rep by Secretary to Government, Home (Prison IV) Department, Fort St.George, Chennai-600 009. 2) The Additional Director General of Police, Egmore, Chennai-600 0085. 3) The Superintendent of Central Prison, Madurai. 4) Mr.Palani, The Superintendent of Prison, Trichy Central Prison, Trichy. 5) Mr.Senthil Kumar, The Additional Superintendent, Central Prison, Trichy. ... Respondents Prayer Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus to transfer the husband of the petitioner namely, Mohammed Hanifa aged about 34 years from Trichy Central Prison to Madurai Central Prison or Palayamkottai Central Prison and further direct the respondents 1 and 2 to take appropriate action against respondents 4 and 5 and other prison officials. !For Petitioner : Mr.S.M.A.Jinnah ^For R1 to R3 : Mr.C.Mayil Vahana Rajendran Additional Public Prosecutor :ORDER
(Order of the Court was made by S.MANIKUMAR, J.) Wife of the Undertrial Prisoner, Md.Hanifa, has sought for a Writ of habeas Corpus, to transfer him from Central Prison, Trichy to Central Prison, Madurai or Central Prison, Palayamkottai. In this Habeas Corpus Petition, she has also sought for a direction to the Principal Secretary to Government, Home (Prison-IV) Department, Chennai and Additional Director General of Police, Chennai, respondents 1 and 2, to take action against Mr.Palani, Superintendent of Prisons, Trichy Central Prison, Trichy and Mr.Senthil Kumar, Additional Superintendent of Prison, Central Prison, Trichy, who have been arrayed as private respondents 4 and 5 and other prison officials. Though Mr.Punniyamoorthi, Mr.Sadagopan and Mr.Vijayaraj, have not been impleaded as party respondents in this Habeas Corpus Petition, allegations have been levelled against them that they had tortured and assaulted the petitioner's husband.
2. In the year 2006, one Kumarapandiyan has been murdered and Tenkasi Police had falsely implicated her husband in that case. By way of retaliation, henchmen of the deceased Kumarapandiyan murdered three of her husband?s friends. Lateron, some of the late Kumarapandiyan?s henchmen were also murdered by some persons. In the latter case, Tenkasi Police has falsely implicated her husband. Thus, husband of the petitioner has been implicated as an accused in S.C.Nos.1 and 2 of 2010 and both the cases are pending before the learned Communal Clash Special Sessions Judge, Madurai.
3. The petitioner has further contended that her husband has been falsely implicated in some cases by Tirunelveli Police and in Advani Ratha Yatra Case, by Madurai Police. According to her, her husband has been falsely implicated in the bomb blast case, in which, he was acquitted. For all the pending cases, her husband was confined as an undertrial prisoner in Madurai Central Prison, Madurai. When the trial in S.C.No.2 of 2010, on the file of the learned Special Judge for Communal Clash Special Sessions Court, Madurai, was commenced and when witnesses were to be examined, without passing any orders and obtaining any prior permission from the learned trial Judge, Madurai, the prison officials informed him that he has been transferred to Trichy Central Prison, Trichy. Earlier, her husband objected to the illegal activities of the prison officials. But on 03.04.2014, without heeding to his words, the prison officials have transferred her husband from Madurai Central Prison to Trichy Central Prison.
4. According to the petitioner, her husband has objected to the same. However, on 03.04.2014, he was transferred. Coming to know of the same, on 04.04.2014, she went to Trichy Central Prison, along with her children, to meet her husband. But the Prison guards stopped her and she was directed to go back. She struggled for more than half an hour and finally, the prison authorities allowed her to meet her husband. At that time, her husband informed her that in Madurai Central Prison, Prison Jailor, by name Mr.Jeyaraman, belonging to the same community of the aforesaid deceased Kumarapandiyan, threatened her husband that he would transfer her husband to some other prison, and would restrain him, from seeking legal assistance. She was further informed by her husband that the Prison Guards at Central Prison, Trichy, namely, Mr.Sadagopal, Mr.Punniyamoorthi, Mr.Vijayathas and four other persons brutally attacked him, and that he informed the same to the Superintendent and the Additional Superintendent of Central Prison, Trichy, but no action was taken.
5. It is the further case of the petitioner that the abovesaid persons had given her husband ?Admission Attack? and at the outgate of Central Prison, Trichy, the prisoner was brutally attacked. Though a complaint was lodged with the higher officials, through the prisoner's Advocate, no action was taken. Representation, dated 04.04.2014, was made to Registrar, Madurai Bench of the Madras High Court, Chairperson, Human Rights Commission, Chennai, Legal Services Authority, Trichy, Chairperson, Legal Services Authority, Madurai and the Inspector of Police, K.K.Nagar Police Station, Trichy. Subsequently another representation, dated 15.04.2014, was sent to the Additional Director General of Police, Prison Department, Chennai, the 2nd respondent herein.
6. It is the further case of the petitioner that though the District Legal Services Authority, Tiruchirappalli, vide letter, dated 05.04.2014, requested the Deputy Inspector General of Prisons, Trichy, to take action, on the petition, dated 04.04.2014 and submit a report, no report has been filed. Similarly, though the State Human Rights Commission, Chennai, by its letter, dated 22.04.2014, directed the Additional Director General of Police (Prison), Egmore, Chennai, to enquire into the matter and take necessary action and file a report, within a period of eight weeks, no action was taken. Left with no other alternative, the petitioner has filed the present writ of Habeas Corpus, for the relief, stated supra.
7. On the above pleadings, Mr.Jinnah, learned counsel for the petitioner submitted that in connection with the criminal cases, registered and pending, on the file of the Courts of competent Criminal jurisdiction, husband of the petitioner was confined in Central Prison, Madurai, from 08.07.2013, onwards. According to him, upto 02.04.2013, no previous antecedents was alleged against the husband of the petitioner. When trial in the sessions cases started, in order to deny legal assistance to the prisoner and to curtail the interview rights of the prisoner, one Mr.Jeyaraman, Jailor of Madurai Central Prison, began to create troubles with a mala fide intention to transfer her husband to some other prison, as the said Mr.Jeyaraman and the deceased, Kumarapandiyan, belonged to the same community.
8. Inviting the attention of this Court to the representation, dated 04.04.2014, of the petitioner, addressed to the several authorities, stated supra, learned counsel for the petitioner submitted that the petitioner was denied permission to meet her husband in Central Prison, Trichy. Lateron, when she met him, the prisoner has categorically stated that he was beaten black and blue by the prison guards, Mr.Sadagopal, Mr.Punniyamoorthy, Mr.Vijayathas and four other persons, at the entrance, kept him in an isolated place, and he was not provided with any food and water.
9. Learned counsel for the petitioner also invited the attention of this Court to the letters of the Human Rights Commission and Legal Services Authority and the failure on the part of the prison authorities to respond. He further submitted that on 03.04.2014, when the prisoner was brought back to the Central Prison, Trichy, his dress was removed and searched by the sniffer dogs. This averment is not supported by any affidavit. Thus, according to the learned counsel for the petitioner, inhuman treatment was made out to the petitioner's husband.
10. Referring to the punishments, set out in the counter and additional counter affidavits, filed by the Superintendent and Additional Superintendent of Prisons, Central Prison, Trichy, learned counsel for the petitioner submitted that the abovesaid authorities have commenced their cruel activities, only after the prisoner was transferred from the Central Prison, Madurai to Trichy, thus making it clear that the rights conferred on the prisoner to have an effective legal assistance and to meet his relatives, have been effectively curtailed, thereby, the prisoner would be defenceless in the trial in the cases, pending against him.
11. Inviting the attention of this Court to the averments of the petition in C.C.No.24 of 2007, on the file of the learned Judicial Magistrate, Thenkasi, to the effect that on 02.05.2014, when video conferencing was held for the extension of remand, the prisoner reported to the learned Judicial Magistrate, Nilakottai, stating that for nearly three months, all his applications were kept pending, and Mr.Palani, Superintendent of Prisons, Trichy Central Prison, Trichy and Mr.Senthil Kumar, Additional Superintendent of Prison, Central Prison, Trichy, Mr.Eswaramoorthy, OC Team, Mr.Punniyamoorthi, Mr.Vijayathas and three other police officials physically assaulted him, and that due to the same, the prisoner sustained injuries in the neck, hand and thigh. He also submitted that apprehending threat to life, when the prisoner has filed an application to transfer him to some other prison, and to provide treatment and when the learned Judicial Magistrate, Thenkasi, vide order, dated 09.05.2014, directed the Superintendent of Police, Central Prison, Trichy, to give necessary medical treatment to the prisoner and submit a treatment report, no treatment was given.
12. Referring to the Certificate, dated 19.05.2014, issued by the Assistant Surgeon, Central Prison, Trichy, enclosed in the typed set of papers, filed by the respondents, learned counsel for the petitioner submitted that the treatment records were not produced to the Magistrate, but only a certificate was produced, which is enclosed in the typed set of papers, by the respondents.
13. Referring to Rules 302 to 304 of the Tamil Nadu Prison Rules, 1983, learned counsel for the petitioner submitted that all the punishments have been inflicted on the prisoner, in gross violation of the principles of natural justice. No notice of accusation was given and no enquiry as contemplated under the Rules was conducted. He further submitted that no orders of punishments were furnished to the prisoner and thus, there is a gross violation of the procedure.
14. According to the learned counsel for the petitioner, punishments inflicted are punitive in nature and they are inflicted only after the prisoner has been transferred to Trichy Central Prison, Trichy. He submitted that the rights available to the prisoner, to have an effective consultation with his counsel, has also been curtailed. He also submitted that when the prisoner's advocate wanted to meet him, even legal assistance has been denied. That apart, the rights of the prisoner to perform his religious obligations, was also denied.
15. Placing reliance on a decision of the Apex Court in Sunil Batra v. Delhi Administration reported in AIR 1980 SC 1579, and Sheela Barse v. State of Maharashtra, reported in AIR 1983 SC 378, learned counsel for the petitioner submitted that the prison authorities have not only traumatized the prisoner, taken the law in their own hands, infringed even the basic human rights. They have not only tortured the prisoner, but also curtailed his rights, by confining him in solitary confinement, denied canteen and interview rights with the counsel and relatives.
16. Taking this Court through the typed set of papers filed by the respondents, learned counsel for the petitioner submitted that on 03.04.2014, when the prisoner was transferred from Madurai Central Prison to Trichy Central prison, no order of transfer was issued by any competent authority. There was no enquiry into any alleged misconduct. Transfer seemed to have been effected, based on the report of the Superintendent of Prisons, Madurai. Transfer is only to prevent the prisoner from exercising his constitutional rights to life and liberty. The prisoner has been projected as a Fundamentalist, belonging to a particular religion. With the above submissions, he prayed to set aside the transfer and sought for a direction to take appropriate action against respondents 4 and 5 and others.
17. Separate counter affidavits and additional counter affidavits have been filed by respondents 4 and 5. Reiterating the averments made in the counter affidavits, Mr.C.Mayil Vahana Rajendran, learned Additional Public Prosecutor, submitted that Hanifa @ Nagoor Hanifa S/o Meeran @ Meeran Moideen is a Remand Prisoner No.1203 in Trichy Central Prison. He has denied the allegations of torture and physical assault by the prison officials and the wardens, namely, Mr.Punniyamoorthi, Mr.Sadagopal and Mr.Vijayathas. According to him, the above prison wardens were in Special Searching Duty (Operation Cellphone Team - OCT) and they were only performing their searching duties to avoid usage of any contraband articles by the prisoners and also to control the anti-administrative activities, if any, done by the prisoners.
18. Learned Additional Public Prosecutor further submitted that there is no place of isolation cell, without basic amenities in Central Prison, Trichy, as alleged by the petitioner. According to him, the details of the cases, which pending against the husband of the petitioner, are as follows:
Sl.No. Pending case 1 Kadaiyanallur P.S.Cr.No.163/06 CC 24/07 u/s 147, 148, 294(b), 323, 506 (2) IPC r/w 149 IPC J.M Tenkasi.2
Tenkasi P.S.Cr.No: 461/07 SC 02/10 District Sessions Communal Clash Cases Court, Madurai.3
Tenkasi P.S.Cr.No: 727/06 SC No. 1/10 District Sessions Communal Clash Cases Court, Madurai.4
Villakkuthun P.S.Cr.No: 864/10 CC 137/2012 u/s 147, 148, 353, 294(b), 506 (2) IPC J.M -1, Madurai.5
Thirumangalam T.K P.S.Cr.No: 237/11 U/s 307, 120 (b), 109 IPC r/w 4(a) r/w (1) IES Act, 1908 (Act 54 of 2001) r/w 6, r/w 4( 1) E.S. Act 1908 Act 54/01, J.M. - 4, Madurai.6
Vathalagundu P.S.Cr.No: 240/13 u/s 120 (b), 153 (A), 353, 307 IPC 7 of Arms Act 4 and 5 of E.S Act 1908 (Amendment Act of 2001) and 10,14 of Unlawful prevention Act 1967, J.M., Nilakottai.
19. Learned Additional Public Prosecutor further submitted that the above remand prisoner, Hanifa @ Mohammed Hanifa @ Thenkasi Hanifa, was admitted in Central Prison, Madurai, on 08.07.2013, for the cases, pending against him. He always acted against the administration and prison rules, in Central Prison, Madurai. He threatened the prison officials on religious basis, and during search, threatened the Jailor of the central prison, Madurai, for not accepting his illegal demands on several occasions. In Madurai Central Prison, complaints were made against him, by the Jailor, on 11.03.2014, 31.03.2014 and 01.04.2014. To counter blast, the prisoner has sent a written complaint on 02.04.2014 to the Superintendent of Central Prison, Madurai, the 3rd respondent.
20. Learned Additional Public Prosecutor further submitted that taking note of the conduct of the prisoner, the Superintendent of Central Prison, Madurai, 3rd respondent herein, sent a letter No.8539/R.3/2014, dated 02.04.2014, to the Additional Director General of Police/Inspector General of Prisons, Chennai, the 2nd respondent herein, through the Range Deputy Inspector General of Prisons, Madurai, to transfer the remand prisoner to central prison, Trichy, on the grounds of safety of the prison and administration. Along with the letter, the 3rd respondent also enclosed copies of the prisoner's petition, dated 02.04.2014 and other details. The Range Deputy Inspector General of Prisons, Madurai, also recommended transfer of the prisoner and proposals were submitted to second respondent, vide letter No.1015/IA2/2014, dated 04.04.2014. Based on the telephonic orders of the second respondent, the prisoner was transferred from Central Prison, Madurai to Central Prison, Trichy, immediately, on administrative grounds.
21. According to the learned Additional Public Prosecutor, subsequently, the action of the Range Deputy Inspector General of Prisons, Madurai, transferring the remand prisoner was also ratified by the Second respondent, in Order No.15007/P.W.2/2014, dated 11.07.2014. He also submitted that the Additional Director General of Police/Inspector General of Prisons, 2nd respondent herein, is vested with powers to transfer the prisoners from one prison to another prison, as per Rule 570 of Tamil Nadu Prison Manual Volume-II.
22. Learned Additional Public Prosecutor further submitted that on 03.04.2014 at about 12.00 Hours, husband of the petitioner and three other remand prisoners instigated communal feelings of other prisoners and acted against the prison administration. On the report of the Jailor, a detailed enquiry was conducted by the Additional Superintendent of Police, Central Prison, Trichy and finding him guilty, for having committed the prison offence, Under Section 45 of the Prison Act, 1894 (Central Act IX of 1894) r/w. Rules 297(8), (ii), (44) and 57 of Tamil Nadu Prison Manual Volume II, interview facility was stopped for a period of three months as prison punishment, under Section 46 of the Prisons Act, 1894 (Central Act IX of 1594). He also submitted that only a minor punishment was awarded for his serious offence, as per Rule 302(a)(4) of the Tamil Nadu Prison Manual Volume
- II.
23. Learned Additional Public Prosecutor further submitted that on 10.04.2014 at 15.00 Hours, the prisoner, while retuning from the District Sessions Court, Madurai, opposed the search conducted by the Gatekeeper and the searching warden, Tr.Manimaran, II Grade Warden on duty, and threatened the prison authorities and thus committed prison offence Under Section 45 of the Prison Act, 1894 (Central Act IX of 1894) as per rule No.297(2), (4), (42),(44) and (61) of the Tamil Nadu Prison Manual Volume-ll. On the report of the Jailor, a detailed enquiry was conducted and finding him guilty, canteen facilities were stopped for a period of one month, under Section 46 of the Prisons Act, 1894 (Central Act IX of 1894). Similarly, on 16.04.2014 at 8.40 PM, the prisoner, while returning from the learned Judicial Magistrate Court, Tenkasi, during that time, Tr.Muthukumar, II Grade Warder No.192, searching warder on duty, searched him, in the presence of Tr.Kaliyappan, Assistant Jailor, and he opposed search and threatened the prison authorities. Therefore, on the report of the Jailor, an enquiry was conducted and interview facilities were stopped for one month, under Section 46 of the Prisons Act, 1894 (Central Act IX of 1894) and counseling was directed to be given to the prisoner.
24. Learned Additional Public Prosecutor further submitted that on 22.04.2014, about 08.30 Hours, during the weekly inspection conducted by the Superintendent of Prisons, Trichy, the prisoner behaved in an indisciplined manner and threatened the Superintendent of Prisons, Trichy, stating that if his grievances are not accepted, then he will make false allegations against them and thus, committed prison offence, under Section 45 of the Prison Act, 1894 (Central Act IX of 1894), as per rule No. 297 (4), (42) (44) and (61) of Prison Manual Volume-ll. Therefore, on the report of the Jailor, his canteen facilities were stopped for 3 months, under Section 46 of the Prisons Act, 1894 (Central Act IX of 1894). In respect of another incident which occurred on 29.04.2014, his canteen facilities were stopped for another three months.
25. It is the further contention of the learned Additional Public Prosecutor that on 02.05.2014, about 4.30 P.M., while producing the husband of the petitioner, before the Magistrate through video conference, he went out from the video conferencing room, without any permission and tried to go to 6th block. As the Magistrate, had also witnessed the activities of the abovesaid prisoner, through video conference, the officer instructed the prison authorities to catch and produce him for remand extension. Then, the prisoner was produced before the Magistrate, through video conference. Thus, the prisoner had behaved in an indisplined manner, against the prison rules and in disrespect to judiciary. The prisoner used indecent words against the officials, as well as the superintendent of Prisons and thus committed prison offence Under Section 45 of the Prison Act, 1894 (Central Act IX of 1894), as per rule No.297 (2), (4), (13), (44 ard 61) of Tamil Nadu Prison Manual Volume-ll. Therefore, on the report of Jailor, his Interview facility was stopped for 3 months as prison punishment, for the offence committed by him, under Section 46 of the Prisons Act, 1894 (Central Act IX of 1894).
26. Learned Additional Public Prosecutor further submitted that on 05.05.2014, about 16.30 Hours, when an advocate visited the prison to interview the husband of the petitioner, in the presence of the Jailor. According to the respondents, the said Advocate after hearing the false allegation made by the prisoner about the prison administration, accused the Jailor that prisons officials are deliberately attributing religious motive against his client and also threatened the officials that he would make complaints to the courts, and religious heads, to make agitations. He submitted that the abovesaid prisoner has caused hindrance to the prison administration, continuously and no directions were received from Madurai Central prison to torture the above remand prisoner, as alleged by the petitioner and that there is no necessity for the same.
27. Learned Additional Public Prosecutor denied the allegations made against the prison officials and submitted that using religion as the shield, the prisoner has made false complaints against the prison authorities. He also denied torture and physical assault by the prison authorities. He further submitted that regular visits are being made by the judicial authorities to the prison, visiting the 20 Cell Block (High Security Block), but no allegations have been made against the prison authorities. Food, clean water and other basic amenities are being given to him, as per the prison manual.
28. As regards the allegations that the petitioner was denied to meet her husband, learned Additional Public Prosecutor submitted that on 04.04.2014, the petitioner visited the Central Prison, Trichy and though punishment of denial of interview facility was in force, she was allowed to see him, on humanitarian grounds. He further submitted that the allegations made against Tr.Jayaraman, Jailor of Central Prison, Madurai, are denied. According to him, all the allegations have been made, are only to cover up the activities, committed by the prisoner in Central Prisons, Madurai, Trichy, respectively.
29. Inviting the attention of this Court to the averments made in the petition filed before the Judicial Magistrate, Thenkasi and the orders passed therein, learned Additional Public Prosecutor submitted that what is recorded by the learned Judicial Magistrate are only the submissions of the prisoner and when directions were given to provide treatment, a report, dated 27.05.2014, was also submitted to the said Magistrate.
30. Taking this Court through the report, dated 27.05.2014, learned Additional Public Prosecutor further submitted that even as early as on 27.05.2014, the Superintendent of Central Prison, Trichy, has denied physical assault and harassment. He also submitted that though the physical assault was alleged only before the learned Judicial Magistrate, the same has not been proved. Even the Superintendent of Central Prison, Trichy, in his report has stated that the prisoner was not assaulted and there were no injuries and as per the Medical Certificate, dated 17.05.2014, his physical condition was normal.
31. Learned Additional Public Prosecutor submitted that every Tuesday, the weekly inspection of prisoners was conducted by the Superintendent of Prisons and at that time, the Superintendent of Prisons along with the Legal Aid Advocates deputed from the District Legal services Authority and Residencial Medical Officer of Srirangam Government Hospital with two prison Doctors and other correctional staffs used to visit all blocks including the 20 cells, where the above remand prisoner is confined and they have seen all the prisoners. He further submitted that no complaint has been made by any of the prisoners in the High Security Block, regarding the basic amenities, as stated by the petitioner. It is also his contention that every month, the learned Principal District Sessions Judge and the learned Chief Judical Magistrate, Trichy used to visit the prison and visit the all blocks, including 20 cell (High security block) and seen all the prisoners. Also the Judicial Magistrates used to visit the prison to conduct prison Adalath, and for prisoners identification parade. It is also submitted that the learned District Sessions Judge, Trichy conducted an adalath along with the learned Chief Judicial Magistrate, Trichy, Secretary cum Sub Judge, District Legal service committee Trichy, Judicial Magistrates and that there was no complaint from any prisoner, against the prison administration in the matter of providing of basic needs to the prisoners. Hence, he submitted that the contention of the petitioner that the above remand prisoner was kept in solitary confinement, tortured and refused of basic amenities, is not true.
32. Learned Additional Public Prosecutor further submitted that privileges granted to the prisoner under the Prison Manual and Volumes, have been denied only after recording a clear finding of guilt. In support of the above contention regarding misconduct, committed by the prisoner and the punishments, learned Additional Public Prosecutor, drew the attention of this Court to the typed set of papers, regarding the nature of offences and the punishments imposed and in particular an act, said to have been committed by the prisoner on 02.05.2014, about 4.30 P.M., while producing him, before the learned Magistrate through video conference.
33. Learned Additional Public Prosecutor further submitted that there is no mala fide intention on the part of respondents 4 and 5 to deny any privilege, permissible under law. But appropriate action was warranted, when serious acts of misconducts were repeated. Only after conducting an enquiry and making necessary entries, punishments were imposed.
34. Learned Additional Public Prosecutor further submitted that earlier, the petitioner had complained that there was threat to life, at Central Prison, Madurai, because of one Mr.Jeyaraman, Jailor, Central Prison, Madurai, had threatened the prisoner that he would prevent the prisoner, from getting legal assistance and curtail visitation rights and he was instrumental for transfer of the prisoner from the Central Prison, Madurai to Central Prison, Trichy, on caste bias, and now, quite contrary to the same, alleging violation of basic rights, the petitioner wanted her husband to be transferred back to Madurai Central Prison. He therefore submitted that the allegations in the supporting affidavit now made would prove that the allegations against Mr.Jeyaraman, are untrue.
35. Learned Additional Public Prosecutor further submitted that the intention of the prisoner is to some how create problems in the prison administration and for that purpose, has used religion/community as a tool. For the misconduct committed by him in violation of prison manual, the authorities were required to pass appropriate orders. In all such cases, only minor penalties have been inflicted and they are not with any intention to curtail the rights to any prisoner.
36. By way of reply, Mr.Jinnah, learned counsel for the petitioner submitted that what is enclosed in Page No.1 in the typed set of papers, is only a proposal to transfer the prisoner to Central Prison, Trichy and it is not an order from any competent authority. Therefore, there is no order of transfer as on 03.04.2014. Complaints seemed to have been received only after 03.04.2014, at Central Prison, Trichy, and one after another, punishments have been inflicted, till 2015. He submitted that the action of the respondents 4 and 5, is contrary to the constitutional rights in providing legal assistance to the detenue/prisoner and the conduct of the respondents, has infringed rights of the petitioner also. He also submitted that it is not possible for the petitioner to go from Madurai to Trichy to meet her husband. Children are also being deprived of their rights, to meet her father. For the abovesaid reasons, he prayed for an issuance of a Writ of Habeas Corpus, for the relief, as stated supra.
37. Heard the learned counsel for the parties and perused the materials available on record.
38. Let us first consider the cases, registered against the prisoner, which are as follows:
Sl.No. Pending case 1 Kadaiyanallur P.S.Cr.No.163/06 CC 24/07 u/s 147, 148, 294(b), 323, 506 (2) IPC r/w 149 IPC J.M Tenkasi.2
Tenkasi P.S.Cr.No: 461/07 SC 02/10 District Sessions Communal Clash Cases Court, Madurai.3
Tenkasi P.S.Cr.No: 727/06 SC No. 1/10 District Sessions Communal Clash Cases Court, Madurai.4
Villakkuthun P.S.Cr.No: 864/10 CC 137/2012 u/s 147, 148, 353, 294(b), 506 (2) IPC J.M -1, Madurai.5
Thirumangalam T.K P.S.Cr.No: 237/11 U/s 307, 120 (b), 109 IPC r/w 4(a) r/w (1) IES Act, 1908 (Act 54 of 2001) r/w 6, r/w 4( 1) E.S. Act 1908 Act 54/01, J.M. - 4, Madurai.6
Vathalagundu P.S.Cr.No: 240/13 u/s 120 (b), 153 (A), 353, 307 IPC 7 of Arms Act 4 and 5 of E.S Act 1908 (Amendment Act of 2001) and 10,14 of Unlawful prevention Act 1967, J.M., Nilakottai.
39. The Prisoner, Hanifa @ Mohammed Hanifa @ Thenkasi Hanifa, is a remand prisoner, admitted in Central Prison, Madurai, on 08.07.2013, for the cases, pending against him. Vide letter No.8539/R.3/2014, dated 02.04.2014, the Superintendent of Central Prison, Madurai, 3rd respondent herein, through the Range Deputy Inspector General of Prison, Madurai, has forwarded a request to the Additional Director General of Police/Inspector General of Prisons, Chennai, the 2nd respondent herein, requesting him to transfer the remand prisoner to Central Prison, Trichy. Along with his request, he has also enclosed copies of the prisoner's petition, dated 02.04.2014 and other details. The 3rd respondent has also narrated certain incidents, said to have occurred on 11.03.2014, 31.03.2014 and 01.04.2014, respectively. The letter, dated 02.04.2014, report of the 3rd respondent and the petitions are extracted hereunder:
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fhuz';fis Kd;dpl;L rpiwkhw;wk; bra;af;nfhhp braw;Fwpg;g[ rku;g;gpj;jy; Fwpj;J/ kJiu kj;jpa rpiwapy; K!;yPk; mog;gilthj tprhuiz rpiwthrp vz;/8539 KfkJ cwdPgh (v) bjd;fhrp cwdPgh j-bg/kPuhd;ikjPd; vd;gtu; bgau;gl;oaypy; Fwpg;gpl;l 6 tHf;FfSf;fhf 08/07/2013 Kjy; tprhuiz rpiwthrpahf ,Ue;J tUfpwhu;/ ,r;rpiwthrp kJiu kj;jpa rpiwapy; cau;ghJfhg;g[ bjhFjpahd bjhFjp 1?y; mDkjpf;fg;gl;Ls;shu;/ cau;ghJfhg;g[ bjhFjpia nrhjid bra;a[k; neu;t[fspy; nkw;fz;l rpiwthrp njitaw;w Kiwapy; ngRtJk;. nrhjid bra;a tUgtu;fis vy;yhk; ,tu;fs; K!;yPk; kjj;jpw;F tpnuhjpfs;. Mu;/v!;/v!;/ mDjhgpfs;. ,tu;fs; ekf;F vjphpfs; vd rf bjhFjp K!;yPk; rpiwthrpfsplk; TwptUtjhf bjhpatUfpwJ/
2) ,tu; rpiw mYtyu;fis vjpu;j;J ngRtjdhy;. RpiwthrpfSf;Fs; jhd; jiytu;
nghy; ele;J bfhs;s Kaw;rpf;fpwhu;/ rpiwthrpf;F rpiw mYtyu;fshy; jFe;j mwpt[iufs; tH';Fk; nghJ. ehd; mt;thWjhd; rpiwf;F tpnuhjkhd bray;fis bra;ntd;. ehd; gy tHf;Ffspy; rpiwapy; cs;nsd;. vd;id xd;Wk; bra;a KoahJ. c';fs; midtiua[k; ePjpkd;wj;jpy; g[fhu; bra;Jk;. v';fSila kjj;jtiuf; bfhz;L $khj;jpy; brhy;ntd; vdt[k;. vdf;F gpd;dhu; vd;Dila rKjhak; cs;sJ/ ehd; jdp Ms;,y;iy vd;w tifapy; ngrp tUfpd;whu;/ (3) nkw;fz;l rpiwthrp Fwpj;J ufrpa tprhuiz nkw;bfhz;ljpy;. rf K!;yPk; rpiwthrpfsplk; ,e;Jkjf; bfhs;ifia jPtpukhf gpd;gw;wf;Toa kw;w rpiwthrpfis jhf;f ntz;Lk; vdt[k;. ,e;j kjj;ijr; nru;e;j ek;ik nrhjid bra;a[k; fhtyu;fis jhf;f ntz;Lk; vdt[k; bjhptpj;J tw;g[Wj;jp tUtjhft[k; bjhpatUfpwJ/ rpiwthrpf;F jf;f mwpt[iufs; tH';fpdhYk;. mjidf; nfl;Fk; epiyapy; ,y;iy/ nkYk; mtu; bjhlh;e;J ,r;rpiwapy; ,Ue;jhy;. rpiwapDs; njitaw;w mrk;ghtpj rk;gt';fs; Vw;gl tha;g;g[fs; mjpfk; cs;sd/ vdnt rpiwapd; ghJfhg;g[ kw;Wk; epu;thf eyd; fUjp nkw;fz;l rpiwthrpia jpUr;rp kj;jpa rpiwf;F khw;wk; bra;a jf;f Miz tH';FkhW gzpt[ld; nfl;Lf; bfhs;fpnwd;/
4) nkw;fz;l rpiwthrp rpiwapy; ,Uf;Fk; nghJ rpiwf;Fw;wk; g[hpe;jikf;fhf rpiw mYtyu; mwpf;if g[j;jfj;jpd; gphpj;bjLg;g[ efy;. rpiwthrp bray; bjhlu;ghf rf K!;yPk; rpiwthrpfs; vGjpf; bfhLj;j kDtpd; efy; kw;Wk; bgau;g;gl;oay;
Mfpait ,j;Jld; ,izj;J rku;g;gpf;fg;gLfpwJ/ ,izg;g[ nkw;fz;lthW rpiwf; fz;fhzpg;ghsu; kj;jparpiw. kJiu
rpiw mYtyu; mwpf;if g[j;jfj;jpd; gphpj;bjLg;g[ efy;
ehs;
rpiw mYtyhpd; mwpf;if 11/03/2014 mwpf;if ? tprhuiz rpiwthrp vz;/8539 bjd;fhrp mdPgh j-bg/kPuhd; ikjPd; ,d;W kjpak; jd;id neu;fhzy; bra;a te;j jdJ kidtp kw;Wk; khkhit rpiw mYtyu; mYtyfj;jpy; itj;J neu;fhzy; bra;a ntz;Lk; vd Twp ntiy bra;a tplhJ gpur;rid bra;J te;jhu;/ mjd;gpd; neu;fhzy; bra;j te;jtu;fs; bfhz;L te;j Fspu;ghdk; ($pfu;jz;lh) fl;lhak; vdf;F bfhLf;f ntz;Lk;. eP kl;Lk; jhd; bfhLf;f kWf;fpwha; vd xUikapy; ngrpa[k;. ePjpkd;wj;jpy; tHf;F nghLntd; vd;Wk;. ehis ePjpkd;wk; bry;Yk;nghJ cd;kPJ bgl;ord; vGjp brd;W tHf;F bjhLg;ngd; vdt[k;. vd;dplk; Kiwj;Jf;bfhs;shjPu;fs; vd rpiw mYtyuhfpa vd;id kpul;or; brd;whu;/ rpiwthrpf;F bghWikahf mwpt[iufs; tH';fp mDg;gpndd;/ 31/03/2014 mwpf;if ? ,d;W fhiy 10/45 kzpf;F nfhg[uk; 1?k; bjhFjp cau;ghJfhg;g[ bjhFjpiar; Rw;wpg; ghu;f;f brd;w cjtp rpiw mYtyu; jpU/k/fh/KUnfrd; re;njfj;jpw;F ,lk; mspf;Fk; tpjkhf bjhFjpapd; fhk;gt[z;l; RtUf;Fk;. brofSf;Fk; ,ilna cl;fhu;e;jpUe;j tprhuiz rpiwthrp vz;/8539 KfkJ mdPgh j- bg/kPuhd; ikjPd; vd;gtiu nrhjid bra;J ghu;j;jjhft[k;. rpiwf;F tpnuhjkhd bghUs;fs; ,y;iy vdt[k;. nrhjid bra;j nghJ. ?eP vd;d. btspapy; Mu;/v!;/v!;/fhud; brhy;yp bfhLj;J vd;id ghpnrhjpf;fpwhah. vd;id nfhu;l;oy; ghu;j;Jf; bfhs;fpnwd;? vd kpul;L bjhdpapy; ngrpdhu; vd g[fhu; bra;jhu;/ ehd; tprhhpj;jjw;F. ehd; mg;goj;jhd rg;jk; nghLntd;. vd;id mrp!;ld;l; b$apyu; nrhjid bra;af; TlhJ vdf; Twpdhu;/ rpiw eilKiw vLj;Jf; Twp mwpt[iufs; tH';fg;gl;lJ/ kPz;Lk; ,tu; jpUe;j tha;g;g[ mspf;Fk; tpjkhf ,k;Kiw vr;rhpj;J mDg;gpndd;/ 01/04/2014 g[fhu; ? ,d;W khiy fz;fhzpg;ghsu; mwpt[iug;go ehDk; (rpiw mYtyu;) kw;Wk; TLjy; fz;fhzpg;ghsu; mtu;fSld; cau;ghJfhg;g[ bjhFjp vz;/?1y; midj;J rpiwthrpfisa[k; miHj;J rpiwg;gzpahsu;fs; nrhjid bra;a te;jhy; xj;JiHg;g[ bfhLf;f ntz;Lk;/ new;iwa jpdk; nfhg[uk; cjtp rpiw mYtyiu nrhjid bra;jjw;fhf tprhuiz rpiwthrp vz;/8539 KfkJ cwdPgh (v) bjd;fhrp cwdPgh j-bg/kPuhd; ikjPd; vd;gtu; khpahij ,y;yhJ ele;jpUf;fpwhu;/ mtUf;F mwpt[iu TW';fs; vd mwpt[iu Twpf;bfhz;oUe;j nghJ. mtd; Mu;/v!;/v!;/fhud; brhd;dgojhd; bra;thdh> vd;id ahUk; nrhjid bra;af;TlhJ. mg;go nrhjid bra;jhy; ehd; khpahij ,y;yhjgojhd; elg;ngd;. ehd; ahUf;Fk; mogzpa khl;nld;. my;yh xUtiu jtpu ntW ahiua[k; tz';f khl;nld;. b$apyu; eP vg;gt[k; vd;id rPz;Lfpwha;. cd;id ePjpkd;wj;jpy; Vj;jp cdf;F ghlk; g[fl;Lntd;. ehd; jdpahs; ,y;iy. vdf;F gpd;dhu; vdJ rK:fk; ,Uf;fpwJ/ khpahijahf ele;J bfhs; vd;W kpft[k; Mf;nuhc&khf fj;jp rz;il nghLk; bjhzpapy; mj;jpukhf fj;jpdhu;/ TLjy; fz;fhzpg;ghsUk; ehDk; mwpt[iu Twp milg;gpw;F mDg;gg;gl;lhu;/ ,tUf;F vd;dhy; gy neu;t[fspy; bghWikahf mwpt[iufs; Twpa[k;. mjid kjpf;Fk; epiyapy; rpiwthrp ,y;iy/ vdnt ,k;Kiw nkw;fz;l braYf;fhf tprhuiz rpiwthrp vz;/8539 KfkJ cwdPgh (v) bjd;fhrp cwdPgh j- bg/kPuhd; ikjPd; vd;gtu; kPJ g[fhu; bra;fpd;nwd;/
-cz;ik efy;-
rpiwf; fz;fhzpg;ghsu;
kj;jparpiw. kJiu?16 S/o.jpahfuh$d;
C.P.5191 ? kj;jparpiw kJiu bgWeu; ? cau;jpU/ fz;fhzpg;ghsu; mtu;fs;
kj;jparpiw kJiu/ ma;ah. nkw;fz;l ehd; ma[s; jz;lid rpiwthrpahf 6 Mz;Lfshf rpiwapy; ,Ue;J tUfpnwd;/ vd;Dld; rf rpiwthrpahf tprhuiz rpiwthrp bjd;fhrp cwdPgh vd;gtu; ,Ue;J tUfpwhu;/ ,tu; rpiwtpjp Kiwfis kPwp tUfpwhu; vd;ida[k; kw;w rpiwthrpfisa[k; xj;JiHf;FkhW nfl;Lf tw;g[Wj;Jfpwhu;/ nkYk; rpiw fhtyu;fis jhf;f ntz;Lk; vd;W TwptUfpwhu;/ ,tuJ elj;ij kpft[k; mghafukhf cs;sJ/ vd; capUf;Fk; cwdPghthy; Mgj;J Vw;gLk; epiy cs;sJ vdnt cau;jpU ma;ah mtu;fs; jFe;j eltof;if vLf;fntz;Lkha; nfl;L bfhs;fpnwd;/ Fwpg;g[ ? ,e;J ifjpfis bfhy;yntz;Lk; vd;Wk; TwptUfpwhu;/ ,g;gof;F Xg;gk;
2-4-2014 mDg;g[eu; ?S/ mg[ mg[jhcwpu;
S/o.brhPg;
5256 ? Ma[s; jz;liz rpiwthrp.
kj;jparpiw. kJiu?16 bgWeu; ? cau;jpU/ fz;fhzpg;ghsu; mtu;fs;
kj;jparpiw. kJiu ? 16/ ma;ah. nkw;fz;l ehd; ma[s; jz;lid rpiwthrpahf fle;j 17 tUl';fshf ,Ue;J tUfpnwd;/ jw;nghJ kJiu kj;jparpiwapy; cau;ghJfhg;g[ bjhFjpapy; ,Ue;J tUfpnwd;/ vd;Dld; ,Uf;Fk; tprhuiz rpiwthrp bjd;fhrp cwdPgh vd;gtu; fle;j 6 khj';fshf ,Ue;J tUfpwhu;/ ,tu; elj;ijapy; rhp ,y;yhky; mjpfhhpfsplk; jtwhd elj;ijapy; ,Ue;J tUfpwhu; ,tu; bra;a[k; brayhy; vd; clikf;Fk; capUf;Fk; ghJfhg;g[ ,y;yhj epiy Vw;gl;Ls;sJ/ vdnt ,e;j tprhuiz rpiwthrpia ,e;j rpiwapypUe;J rpiwkhw;wk; bra;a jh';fs; chpa eltof;if vLf;Fk;go md;g[ld; nfl;Lf;bfhs;fpnwd;/ ,g;gof;F Xg;gk;
2-4-2014 mDg;g[eu; ?M/ rPdpiedhu; Kcwk;kJ C.P.5333 ? kj;jparpiw kJiu?16 bgWeu; ? cau;jpU/fz;fhzpg;ghsu; mtu;fs;
kj;jparpiw kJiu/ ma;ah. ehd; fle;j gy tUl';fshf ey;yKiwapy; ,Ue;J tUfpnwd;/ ehd; jw;nghJ kj;jparpiw xd;whtJ bjhFjpapy; rfrpiwthrpfSld; ,zf;fkhd Kiwapy; ,Ue;JtUfpnwd;/ jw;nghJ bjd;fhrp tHf;fpw;fhf tprhuiz rpiwthrpahf KfkJ mdpgh vd;gtiu v';fs; bjhFjpapy; mDkjpf;fg;gl;L ,Ue;J tUfpwhu;/ KfkJ mdpgh ? mt;tg;bghGJ rpiwrl;ltpjpKiwfSf;F vjpuhf bray;gl;L tUtJld; rpiwfhtyu;fs; Kjy; mjpfhhpfs; tiu bfhiy bra;JtpLntz;vd;W kpul;Lfpwhu;/ K!;yPk; my;yhj rpiwthrpfis bfhy;yntz;Lk; vd;W Mntrj;Jld; ngRtnjhL v';fisa[k; kpul;o bfhL";brhw;fshy; ngrp tUfpwhu;/ ,thpd; bfhLur;brayhy; v';fSf;F epk;kjp ,y;yhj epiy ,Uf;fpwJ/ Mifahy; KfkJ mdpgh kPJ eltof;if vLf;Fk;go nfl;Lf;bfhs;fpnwhk;/ ,g;gof;F Xg;gk;
2-4-2014
40. From the above, it could be deduced that the contention of the petitioner that the prisoner had no previous antecedents, while he was detained as remand prisoner, at the Central Prison, Madurai, from 08.07.2013, till he was transferred to Trichy Central Prison, is not correct. As per the report of the Superintendent of Central Prison, Madurai, though he was advised, not to act in a manner, contrary to the prison regulations and discipline, he did not correct himself. According to the 3rd respondent, detention of the remand prisoner at Madurai Central Prison, would affect the security and for administrative grounds, he has sought for transfer. The contents of the letter, also discloses religious ill feelings.
41. It is the contention of the Superintendent of Central Prison, Madurai that when a report, dated 02.04.2013, was sent to the Additional Director General of Police/Inspector General of Prisons, Chennai, 2nd respondent herein, through the Range Deputy Inspector General of Prison, Madurai, telephonic orders have been received from the Range Deputy Inspector General of Prison, Madurai, to transfer the prisoner. At this juncture, in order to ascertain, as to whether, there was any order, from the competent authority, viz., Additional Director General of Prisons/Inspector General of Prisons, Chennai, to transfer, we deem it fit to extract the letter, dated 04.04.2014, written by the Deputy Inspector General of Prison, Madurai to the Additional Director General of Police/Inspector General of Prisons, Chennai, 2nd respondent herein, as follows:
jkpH;ehL rpiwj;Jiw mDg;g[eu;
t/cw%/KfkJ cwdPgh. ,/fh/g/.
Jizj;jiytu;. rpiwj;Jiw.
kJiu rufk;. kJiu?16 bgWeu;
TLjy; fhty;Jiw ,af;Feu; kw;Wk;. rpiwj;Jiwj; jiytu;. brd;id ? 8 Vz;/1015-cj/2-2014 ehs; 04/04/2014 Iah.
bghUs; ? kJiu rufk; ? kJiu tprhuiz rpiwthrp vz;/8539 KfkJ cwdPgh (v) bjd;fhrp cwdPgh j-bg/kPuhd; ikjPd; vd;gtiu epu;thf eyd; fUjp jpUr;rp kj;jparpiwf;F khw;wk; bra;jpl nfhUk; braw;Fwpg;g[ ?
nkyDg;g[jy; ? bjhlu;ghf/ ghu;it ? kJiu. kj;jpa rpiw fz;fhzpg;ghshpd; foj vz;/8539-jF/3-2014 ehs; 02/04/2014 ?????
ghu;itapy; fhQqk; fojj;jpy;. kJiu kj;jpa rpiwapy; cs;s tprhuiz rpiwthrp vz;/8539 KfkJ cwdPgh (v) bjd;fhrp cwdPgh j-bg/kPuhd; ikjPd; vd;gtu; gpd;tUk; tHf;FfSf;fhf 08/07/2013 Kjy; kJiu kj;jparpiwapy; ,Ue;J tUfpwhu; vd;W bjhptpj;Js;shu;/ t/vz;/ ePjpkd;wk; kw;Wk; epYit tHf;Ffs; tpguk;
gphpt[fs;1
ePjpj;Jiw eLtu; vz;/4. kJiu
307. 120(gp). 109 c-, 4(a) (2) r/w 4 (f), 6 r/w 4(f) 2 ePjpj;Jiw eLtu;. bjd;fhrp
147. 148. 294(gp). 323. 325. 506 (2) ,jr 3 ePjpj;Jiw eLtu; vz;/1. kJiu 294 (gp). 506(2). 147. 148. 353 ,jr 4 ePjpj;Jiw eLtu;. epyf;nfhl;il 120(gp). 153(m). 353. 307 ,jr 5 Communal Clash Court, Madurai Charge Sheet No.2/10 6 Communal Clash Court, Madurai Charge Sheet No.1/10
2) nkw;fhQqk; epYit tHf;FfSf;fhf ,t;tprhuiz rpiwthrp kJiu kj;jparpiwapy; cau; ghJfhg;g[ bjhFjp 1y; mDkjpf;fg;gl;Ls;shu;/ ,r;rpiwthrp bjhFjpia nrhjid bra;a[k; neu;t[fspy; njitaw;w Kiwapy; ngRtJk;. nrhjid bra;a tUk; fhtyu;fs; vy;yhk; K!;yPk; kjj;jpw;F tpnuhjpfs; vd;Wk;. Mu;/v!;/v!;/ ,af;f mDjhgpfs; vd;Wk; rf K!;yPk; rpiwthrpfsplk; TwptUtjhf kj;jparpiw kJiu ngrp. rpiwthrpfsplk; jd;id jiytu; nghy; ele;J bfhs;s Kaw;rp bra;J tUfpwhu;
vd;Wk;. rpiwf;F tpnuhjkhf bray;fis bra;ntd; vd;Wk;. ePjpkd;wj;jpYk;. $khj;jpYk; g[fhu; bra;ntd; vd;Wk;. jdf;F gpd;dhy; rKjhak; cs;sJ vd;Wk; mof;fo ngrp tUtjhft[k; kj;jparpiw fz;fhzpg;ghsu; bjhptpj;Js;shu;/
3) vdnt ,r;rpiwthrpapd; bray;ghLfs; Fwpj;J ufrpa tprhuiz nkw;bfhs;sg;gl;ljpy;. ,e;Jkj bfhs;ifia jPtpukhf gpd;gw;w Toa rpiwthrpfisa[k;. jk;ik nrhjid bra;a[k; ,e;Jkjj;ij nru;e;j fhtyu;fisa[k; jhf;f ntz;Lk; vd;Wk; rf K!;yPk; rpiwthrpfsplk; bjhptpj;J tUfpwhu; vd;Wk;. ,r;rpiwthrpf;F gyKiw mwpt[iufs; tH';fpa[k; mjid nfl;Fk; epiyapy; ,r;rpiwthrp ,y;iy vd;Wk; kj;jparpiw fz;fhzpg;ghsu; bjhptpj;Js;shu;/ vdnt epu;thf eyd; fUjp nkw;fhQqk; tprhuiz rpiwthrp vz;/8539 KfkJ cwdPgh (v) bjd;fhrp cwdPgh j-bg/kPuhd; ikjPd; vd;gtiu jpUr;rp kj;jparpiwf;F khw;wk; bra;jpl nfhUk; braw;Fwpg;g[ ghu;itapy; fhQqk; fojj;jpd; thapyhf kJiu kj;jparpiw fz;fhzpg;ghsu; rku;g;gpj;Js;shu;/
4) ruf rpiwj;Jiwj; Jizj;jiytu; Mfpa ehd; kJiu kj;jparpiwf;F 2/4/2014 md;W tp$ak; bra;j nghJ. ,r;rpiwthrpia nehpy; miHj;J Fiw nfl;L mwpt[iufs; tH';fpa nghJk;. MtuJ elj;ij jpUg;jpfukhf ,y;yhjjhy; cld; TLjy; fhty;Jiw ,af;Feu; kw;Wk; rpiwj;Jiwj; jiythplk; bjhiyngrp thapyhf tpguk; bjhptpj;J. tha;bkhHp cj;jut[ bgw;W ,r;rpiwthrp 3/04/2014 md;W kJiu kj;jpa rpiwapypUe;J jpUr;rp kj;jpa rpiwf;F khw;wk; bra;ag;gl;Ls;shu;/ nkw;fhQqk; rpiwthrpia epu;thf eyd; fUjp jpUr;rp kj;jpa rpiwf;F khw;wk; bra;j braYf;F gpdndw;ghiz tH';fpl nfl;Lf;bfhs;fpnwd;/ j';fs; cz;ika[s;s.
,izg;g[ld; Jizj;jiytu;. rpiwj;jiw. kJiu rufk;. Kjiu efy; ? fz;fhzpg;ghsu;. kj;jparpiw. Kjiu
42. Reading of Paragraph 4 of the letter, dated 04.04.2014, shows that on 02.04.2014, the Deputy Inspector General of Prisons, Madurai, has inspected the Central Prison, Madurai and though he personally enquired the husband of the petitioner and advised him, still his conduct was not satisfactory and that therefore, he had telephonically contacted the Additional Director General of Police/Inspector General of Prisons, Chennai, obtained oral orders from him and on that basis, on administrative grounds, he has transferred the prisoner, from Central Prison, Madurai to Central Prison, Trichy. In his letter, dated 04.04.2014, ratification for the action of transfer, pursuant to the telephonic orders of the Additional Director General of Police/Inspector General of Prisons, Chennai, has been sought for. A copy of the said letter, has also been sent to the Superintendent of Central Prison, Madurai.
43. Further, a letter in Mu.Mu.No.15007/CN.2/2014 dated 11.07.2014, of the Additional Director General of Police/Inspector General of Prisons, addressed to the Deputy Inspector General of Prison, Madurai and (2)Superintendent of Central Prison, Madurai, with a copy marked to (1)Deputy Inspector General of Prison, Trichy and (2)Superintendent of Central Prison, Trichy, shows that the action of the Deputy Inspector General of Prison, Madurai, transferring the remand prisoner to Central Prison, Trichy, has been ratified. The said letter is extracted hereunder:
K:/K/vz;/15007-rpe/2-2014 TLjy; fhty;Jiw ,af;Feu;
kw;Wk; rpiwj;Jiw jiytu;
mYtyfk;.
brd;id/8 ehs;/11/07/2014 bghUs; ? kj;jparpiw. kJiu ? tprhuiz rpiwthrp vz;/8539 KfkJ cwdPgh (v) bjd;fhrp cwdPgh j-bg/kPuhd; ikjPd; vd;gtiu epu;thf eyd; fUjp kJiu kj;jparpiwapypUe;J. jpUr;rp kj;jparpiwf;F 03/04/2014 md;W khw;wk; bra;j kJiu. rpiwj;Jiw Jizj;jiythpd; braYf;F gpd;ndw;ghiz mspj;J Miz tH';Fjy; ? bjhlu;ghf/ ghu;it ?
(1) kJiu. kj;jpa rpiw fz;fhzpg;ghshpd; foj vz;/8539-jF/3-2014 ehs; 02/04/2014 (2) kJiu. rpiwj;Jiw Jizj;jiytu; foj vz;/1015-cj/2-2014 ehs; 04/04/2014 ghu;it 2y; fhQqk; fojj;jpy; kJiu. ruf rpiwj;Jiw Jizj;jiytu;. kJiu kj;jpa rpiw fz;fhzpg;ghsu; fojj;jpy; Twg;gl;Ls;s fhuz';fis Vw;W chpa tprhuiz bra;J. tprhuiz rpiwthrp vz;/8539 KfkJ cwdPgh (v) bjd;fhrp cwdPgh j-bg/kPuhd;
ikjPd; vd;gtiu epu;thf eyd; fUjp kJiu kj;jparpiwapypUe;J. jpUr;rp kj;jparpiwf;F 03/04/2014 md;W khw;wk; bra;j kJiu. ruf rpiwj;Jiw Jizj;jiythpd; braypid Vw;W. TLjy; fhty;Jiw ,af;Feu; kw;Wk; rpiwj;Jiw jiytuhy; ,jd; K:yk; gpdndw;ghiz mspf;fg;gLfpwJ vdj; bjhptpf;fg;gLfpwJ/ Xk;-? $/F/jphpghjp Tljy; fhty;Jiw ,af;Feu; kw;Wk;
rpiwj;Jiw jiytu;
bgWeu;
rpiwj;Jiwj;Jizj; jiytu;. kJiu rufk;
fz;fhzpg;ghsu;. kj;jpa rpiw. kJiu efy;?
1)rpiwj;Jiwj; Jizj; jiytu;. jpUr;rp rufk;
2)fz;fhzpg;ghsu;. kj;jpa rpiw. jpUr;rp
3)rpe/2 ,Ug;g[ nfhg;g[ - rpe gphpt[ fz;fhzpg;ghsu;
--Mizg;go ?- mDg;gg;gLfpwJ--
fz;fhzpg;ghsu;
44. Thus, from the above, it could be deduced that the Additional Director General of Police/Inspector General of Prisons, Chennai, has taken note of the contents of the letter of the Superintendent of Central Prison, Madurai, dated 02.04.2014, along with the petitions of the co-prisoners and the letter of the Deputy Inspector General of Prisons, Madurai, dated 04.04.2014 and having found the need to transfer the prisoner, telephonic orders have been issued and that the same has been carried out by the prison officials.
45. Though the learned counsel for the petitioner contended that there were no materials, warranting transfer of the remand prisoner from Central Prison, Madurai to Central Prison, Trichy, this Court is not inclined to accept the same. The contention that there was nothing against the remand prisoner, warranting transfer, cannot be accepted.
46. In the supporting affidavit, the petitioner has contended that the Superintendent of Central Prison, Madurai, has transferred her husband from Central Prison, Madurai to Trichy Central Prison, without any authority. At this juncture, this Court deems it fit to extract the relevant provisions, from the Prisons Act, 1894 Prisoners Act 1900, and the Rules framed thereunder, enabling the prison authorities to have an effective control over the prisoners, in the prisons. They are responsible for the internal management of the prison.
47. Chapter II deals of the Prisons Act, 1984, deals with maintenance of officers of Prisons. Sections 4 and 5 of the Act are as follows:-:-
?4. Accommodation for prisoners.? The State Government shall provide, for the prisoners in the territories under such Government, accommodation in prisons constructed and regulated in such manner as to comply with the requisitions of this Act in respect of the separation of prisoners.
5. Inspector General.? An Inspector General shall be appointed for the territories subject to each State Government and shall exercise, subject to the orders of the State Government the general control and superintendence of all prisons situated in the territories under such Government.?
48. Chapter III deals with the duties of the officers. As per Section 12(3) of the Act, the Superintendent shall keep or cause to be kept a punishment-book for the entry of the punishments inflicted on prisoners for prison offences.
49. Section 21 deals with duties of gate-keepers, which as follows:-
?The officer acting as gate-keeper, or any other officer of the prison, may examine anything carried in or out of the prison, and may stop and search or cause to be searched any person suspected of bringing any prohibited article into or out of the prison, or of carrying out any property belonging to the prison, and if any such article or property be found, shall give immediate notice thereof to the Jailor.?
50. Chapter IV deals with admission, removal and discharge of prisoners. Section 24 of the Act, deals with prisoners to be examined on admission, which reads as follows:-
?(1) Whenever a prisoner is admitted into prison, he shall be searched, and all weapons and prohibited articles shall be taken from him. (2) Every criminal prisoner shall also, as soon as possible after admission, be examined under the general or special orders of the Medical Officer, who shall enter or cause to be entered in a book, to be kept by the Jailor, a record of the state of the prisoner?s health, and of any wounds or marks on his person, the class of labour he is fit for if sentenced to rigorous imprisonment, and any observations which the Medical Officer thinks fit to add.
(3) In the case of female prisoners the search and examination shall be carried out by the matron under the general or special orders of the Medical Officer.?
51. Section 26 deals with removal and discharge of prisoners, which as follows:-
?(1) All prisoners, previously to being removed to any other prison, shall be examined by the Medical Officer.
(2) No prisoner shall be removed from one prison to another unless the Medical Officer certifies that the prisoner is free from any illness rendering him unfit for removal.
(3) No prisoner shall be discharged against his will from prison, if labouring under any acute or dangerous distemper, nor until, in the opinion of the Medical Officer, such discharge is safe.?
Reading of Section 26 of the Act, 1894, clearly indicates that a prisoner can be removed from one prisoner to another, but subject to certain conditions.
52. Chapter V deals with discipline of prisoners. Section 29 of the Act reads as follows:-
?29. Solitary confinement.? No cell shall be used for solitary confinement unless it is furnished with the means of enabling the prisoner to communicate at any time with an officer of the prison, and every prisoner so confined in a cell for more than twenty-four hours, whether as a punishment or otherwise, shall be visited at least once a day by the Medical Officer or Medical Subordinate.?
53. Chapter IX deals with visits to prisoners. Sections 40 and 41 of the Act, reads as follows:-
?40. Visits to civil and unconvicted criminal prisoners.? Due provision shall be made for the admission, at proper times and under proper restrictions, into every prison of persons with whom civil or unconvicted criminal prisoners may desire to communicate, care being taken that, so far as may be consistent with the interests of justice, prisoners under trial may see their duly qualified legal advisers without the presence of any other person.?
54. Section 44 deals with publication of penalties and it reads as follows:-
?The Superintendent shall cause to be affixed, in a conspicuous place outside the prison, a notice in English and the Vernacular setting forth the acts prohibited under section 42 and the penalties incurred by their commission.?
55. Chapter XI deals with prison offences. Sections 45, 46, 47 and 48, are as follows:-
"45.Prison offences.--- The following acts are declared to be prison offences when committed by a prisoner.
(1)such wilful disobedience to any regulation of the prison as shall have been declared by rules made under section 59 to be a prison-offence; (2) any assault or use of criminal force;
(3) the use of insulting or threatening language;
(4) immoral or indecent or disorderly behaviour;
(5) wilfully disabling himself from labour;
(6) Contumaciously refusing to work;
(7) filing, cutting, altering or removing handcuffs, fetters or bars without due authority;
(8) wilful idleness or negligence at work by any prisoner sentenced to rigorous imprisonment.
(9) wilful mismanagement of work by any prisoner sentenced to rigorous imprisonment;
(10) wilful damage to prison-property;
(11)tampering with or defacing history-tickets, records or documents; (12)receiving, possessing or transferring any prohibited article; (13) feigning illness;
(14) wilfully bringing a false accusation against any officer or prisoner; (15) omitting or refusing to report, as soon as it comes to his knowledge, the occurrence of any fire, any plot or conspiracy, any escape, attempt or preparation to escape, and any attack or preparation for attack upon any prisoner or prison-official; and (16) conspiring to escape, or to assist in escaping, or to commit any other of the offences aforesaid.
46. Punishment of such offences.? The Superintendent may examine any person touching any such offence, and determine thereupon, and punish such offence by-
(1) a formal warning:
Explanation? A formal warning shall mean a warning personally addressed to a prisoner by the Superintendent and recorded in the punishment book and on the prisoner?s history-ticket;
(2) change of labour to some more irksome or severe form [for such period as may be prescribed by rules made by the State Government; (3) hard labour for a period not exceeding seven days in the case of convicted criminal prisoners not sentenced to rigorous imprisonment; (4) such loss of privileges admissible under the remission system for the time being in force as may be prescribed by rules made by the State Government;
(5) the substitution of gunny or other coarse fabric for clothing of other material, not being woollen, for a period which shall not exceed three months;
(6) imposition of handcuffs of such pattern and weight, in such manner and for such period, as may be prescribed by rules made by the State Government; (7) imposition of fetters of such pattern and weight, in such manner and for such period, as may be prescribed by rules made by the State Government; (8) separate confinement for any period not exceeding [three] months;
Explanation? Separate confinement means such confinement with or without labour as secludes a prisoner from communication with, but not from sight of, other prisoners, and allows him not less than one hour?s exercise per diem and to have his meals in association with one or more other prisoners; (9) penal diet, that is, restriction of diet in such manner and subject to such conditions regarding labour as may be prescribed by the State Government:
Provided that such restriction of diet shall in no case be applied to a prisoner for more than ninety-six consecutive hours, and shall not be repeated except for a fresh offence nor until after an interval of one week; (10) cellular confinement for any period not exceeding fourteen days:
Provided that after each period of cellular confinement an interval of not less duration than such period must elapse before the prisoner is again sentenced to cellular or solitary confinement:
Explanation? Cellular confinement means such confinement with or without labour as entirely secludes a prisoner from communication with, but not from sight of, other prisoners;
[(11)]penal diet as defined in clause (9) combined with [cellular] confinement ;
][(12)]whipping, provided that the number of stripes shall not exceed thirty: Provided that nothing in this section shall render any female or civil prisoner liable to the imposition of any form of handcuffs or fetters, or to whipping.
47. Plurality of punishments under section 46.? [(1)] Any two of the punishments enumerated in the last foregoing section may be awarded for any such offence in combination, subject to the following exceptions, namely:-
(1) formal warning shall not be combined with any other punishment except loss of privileges under clause (4) of that section; (2) penal diet shall not be combined with change of labour under clause (2) of that section, nor shall any additional period of penal diet awarded singly be combined with any period of penal diet awarded in combination with [cellular] confinement;
[(3) cellular confinement shall not be combined with separate confinement, so as to prolong the total period of seclusion to which the prisoner shall be liable];
(4) whipping shall not be combined with any other form of punishment except cellular or separate confinement [or] loss of privilege admissible under the remission system;
[(5) no punishment shall be combined with any other punishment in contravention of rules made by the State Government. [(2) No punishment shall be awarded for any such offence so as to combine with the punishment awarded for any other such offence, two of the punishments which may not be awarded in combination for any such offence].
48. Award of punishments under sections 46 and 47.? (1) The Superintendent shall have power to award any of the punishments enumerated in the two last foregoing sections, subject, in the case of separate confinement for a period exceeding one month, to the previous confirmation of the Inspector General.
(2) No officer subordinate to the Superintendent shall have power to award any punishment whatever.?
56. Section 49 deals with punishments to be in accordance with foregoing sections and it reads as follows:
?Except by order of a Court of Justice, no punishment other than the punishments specified in the foregoing sections shall be inflicted on any prisoner, and no punishment shall be inflicted on any prisoner otherwise than in accordance with the provisions of those sections.?
57. Section 59 deals with the power of the State Government to make rules consistent with this Act, which as follows:-
?(1)defining the act which shall constitute prison-offences; (2)determining the classification of prison-offences into serious and minor offences;
(3)fixing the punishments admissible under this Act which shall be awardable for commission of prison-offences or classes thereof; (4)declaring the circumstances in which acts constituting both a prison-
offence and an offence under the Indian Penal Code (Act 45 of 1860)may or may not be dealt with as a prison-offence;
(5)for the award of marks and the shortening of sentences; (6)regulating the use of arms against any prisoner or body of prisoners in the case of an outbreak or attempt to escape;
(7)defining the circumstances and regulating the conditions under which prisoners in danger of death may be released;
[(8)for the classification of prisons, and description and construction of wards, cells and other places of detention;
(9)for the regulation by numbers, length or character of sentences, or otherwise, of the prisoners to be confined in each class of prisons]; (10)for the government of prisons and for the appointment of all officers appointed under this Act;
(11)as to the food, bedding and clothing of criminal prisoners and of civil prisoners maintained otherwise than at their own cost; (12)for the employment, instruction and control of convicts within or without prisons;
(13)for defining articles the introduction or removal of which into or out of prisons without due authority is prohibited;
(14)for classifying and prescribing the forms of labour and regulating the periods of rest from labour;
(15)for regulating the disposal of the proceeds of the employment of prisoners;
(16)for regulating the confinement in fetters of prisoners sentenced to transportation;
(17)for the classification and the separation of prisoners; (18)for regulating the confinement of convicted criminal prisoners under section 28;
(19)for the preparation and maintenance of history-tickets; (20)for the selection and appointment of prisoners as officers of prisons; (21)for rewards for good conduct;
(22)for regulating the transfer of prisoners whose term of transportation or imprisonment is about to expire; subject, however, to the consent of the State Government of any other State to which a prisoner is to be transferred; (23)for the treatment, transfer and disposal of criminal lunatics or recovered criminal lunatics confined in prisons;
(24)for regulating the transmission of appeals and petitions from prisoners and their communications with their friends;
(25)for the appointment and guidance of visitors of prisons; (26)for extending any or all of the provisions of this Act and of the rules thereunder to subsidiary jails or special places of confinement appointed under section 541 of the Code of Criminal Procedure, 1882 (10 of 1882), and to the officers employed, and the prisoners confined, therein; (27)in regard to the admission, custody, employment, dieting, treatment and release of prisoners; and (28)generally for carrying into effect the purposes of this Act.? [Vide Madras Act 11 of 1958. Section 8 (w.e.f. 4th June 1958)]
58. Prisoners Act, 1900 (Act No.3 of 1900), has come into existence from 2nd February, 1900. Chapter VI of the Act deals with removal of prisoners. Section 29 of the Act reads as follows:-
?29. Removal of prisoners. ? (1) The State Government may, by general or special order, provide for the removal of any prisoner confined in a prison ?
a) under sentence of death, or
b) under, or in lieu of, a sentence of imprisonment or transportation, or
c) in default of payment of a fine, or
d) in default of giving security for keeping the peace or for maintaining good behaviour, to any other prison in the State. (2) Subject to the orders, and under the control, of the State Government, the Inspector-General of Prisons may, in like manner, provide for the removal of any prisoner confined as aforesaid in a prison in the State to any other prison in the State.
Tamil Nadu:- In its application to the State of Tamil Nadu, in Section 29, ?
(i) in sub-section (1), in Clause (b), for the words ?or transportation?
substitute the words ?or imprisonment for life?; (ii) after sub-section (2), add the following sub-section, namely, ? ?(3) Subject to the orders, and under the control, of the State Government any person who is detained in custody in a prison pending inquiry or trial under any writ, warrant or order of any Court may, by order, be directed to be removed ?
(i)from one subsidiary jail to another subsidiary jail in the district, by the Collector of the district or by his Personal Assistant (not below the rank of Deputy Collector),
(ii) from one subsidiary jail to another subsidiary jail within the jurisdiction of a Revenue Divisional Officer, by the Revenue Divisional Officer,
(iii) from a subsidiary jail in one district to a subsidiary jail in another district, by the Collector of the district from which the person is removed with the consent of the Collector of the other district,
(iv) by the Inspector General of Prisons ?
(a) from one Central Jail to a District Jail or a subsidiary jail;
(b) from one District Jail to another District Jail or a Central Jail or a subsidiary jail; or
(c) from one subsidiary jail to another subsidiary jail or to a District Jail or a Central Jail.?
59. At this juncture, we deem it fit to incorporate the insertion made vide Madras Act 11 of 1958, Section 8 (with effect from 4th June, 1958).
1. (1) This Act may be called the ?Prisoners (Tamil Nadu Amendment) Act, 1958.? [Short title and extent] (2) It extends to the whole of the State of Tamil Nadu.
2. Section 5 shall be renumbered as subsection (1) of Section 5 and after sub-section (1) as so renumbered add the following sub-section, namely:-
?(2) Every warrant for the arrest of any person issued by a Court of Session shall be directed to, and executed by, a police officer within the local limits of its jurisdiction?. [Amendment of Section 5. Central Act III of 1990]
3. For Section 7 of the Principal Act, the following section , substitute the following namely:--
?7. Delivery of persons sentenced to imprisonment or death by High Court or Court of Session.- Where any person is sentenced by the High Court or by a Court of Session to imprisonment for life or to imprisonment or to death, the Court shall cause him to be delivered to the Superintendent, together with is warrant, and such warrant shall be executed by the Superintendent, and returned by him to the High Court or Court of Session, as the case may be, when executed.? [Substitution of new Section for Section 7 in Central Act III of 1990]
4. Section 8 of the Principal Act shall be omitted. [Omission of Section 8 in Central Act III of 1900]
5. For Section 10 of the Principal Act, the following section shall be substituted, namely:-
?10. Delivery of persons sentenced by President Magistrate or by any Court constituted under lawful authority.- Where any person is sentenced by a Presidency Magistrate or by any Court constituted under lawful authority to imprisonment, or is committed to prison for failure to find security to keep the peace or to be of good behaviour, the Magistrate or the Court shall cause him to be delivered to the Superintended, together with his or its warrant?. [Substitution of new Section for Section 10 in Central Act III of 1990]
6. For Section 11 of the Principal Act, the following section shall be substituted, namely:-
?11. Delivery of persons committed for trial by a Court of Session.- Every person committed by a Magistrate or justice of the peace for trial by a Every person committed by a Magistrate or justice of the peace for trial by a Court of Session, shall be delivered to the Superintendent, together with a warrant of commitment, directing the Superintendent to produce such person before the Court for trial, and the Superintendent shall, as soon as practicable, cause such person to be taken before the Court whenever required together with the warrant of commitment, in order that he maybe dealt with according to law. [Substitution of new Section for Section 11 in Central Act III of 1990]
7. In Section 16 of the Principal Act, for the words, ?for transportation?, the words ?for imprisonment for life? shall be substituted. [Amendment of Section 16. Central Act, III of 1900]
8. In Section 29 of the Principal Act-
?(i) In sub-section (1), in clause (b), for the words ?or transportations? substitute the words ?or imprisonment for life?;
(ii) After sub-section (2), add the following sub-section, namely,-
?(3) Subject to the orders, and under the control, of the State Government any person who is detained in custody in a prison pending inquiry or trial under any writ, warrant or order of any Court may, by order, be directed to be removed-
(i) From one subsidiary jail to another subsidiary jail in the district, by the Collector of the district or by his Personal Assistant (not below the rank of Deputy Collector),
(ii) From one subsidiary jail to another subsidiary jail within the jurisdiction of a Revenue Divisional Officer, by the Revenue Divisional Officer,
(iii) From a subsidiary jail in one district to subsidiary jail in another district, by the Collector of the district from which the person is removed with the cosent of the Collector of the other district,
(iv) By the Inspector-General of Prisons-
(a) From one Central Jail to a District Jail or a subsidiary jail;
(b) From one district jail to another district jail or a Central Jail or a subsidiary jail; or
(c) From one subsidiary jail to another subsidiary jail or to a district jail or a Central jail? [Amendment of Section 29. Central Act III of 1900]
9. Part VII of the Principal Act, shall be omitted. [Omission of Part VII in Central Act III of 1900].
60. The Statement of Objects and Reasons of the Gazettee Notification made to Fort St.George Gazette, Part IV-A-Extraordinary, is as follows:-
?The High Court of Madras was itself the Court of Session for the Presidency town of Madras prior to the 1st January 1956. But a Court of Session for the Presidency town has been established with effect from that date. According to Sections 5 to 112 of the Prisoners Act, 1900 (Central Act III of 1900), the authorities in charge of prisons in the City of Madras can receive prisoners sentenced by the High Court but not those sentenced by the Court of Session in the City. It is found necessary to amend sections 5, 7, 10 and 11 and to omit section 8 of the Prisoners Act, 1900, so that the authorities in charge of prisons in the City of Madras can receive prisoners sentenced by the Court of Session in the City. It is also necessary to omit Part VII of the Act as 'transportation' as a punishment has been abolished.
The amendment proposed to Section 29 of the Prisoners Act, 1900, is to provide specifically for the transfer of undertrial prisoners and to empower the Collectors, their Personal Assistants and Revenue Divisional Officers to order transfer of undertrials from one sub jail to another sub jail and the Inspector General of Prisons to order transfer of undertrials from central jails, district jails and subsidiary jails to other jails. The Bill seeks to achieve the above objects.?
61. The State Government has framed Tamil Nadu Prison Rules, 1983. For brevity, the Tamil Nadu Prison Rules, 1983, is hereinafter referred to as ?the rules?. Chapter 3 deals with Inspector General of Prisons.
62. As per rule 6 of the Rules, the Inspector General shall be the head of the Prison Department and shall, subject to such general or special orders as may be issued by the Government from time to time exercise control and superintendence over all prisons in the State and shall be responsible for the internal Management and economy of the Prison Department.
63. Chapter 3-II deals with Deputy Inspector General of Prisons. Rules 18(1) to 18(4) are as follows:-
18(1)Deputy Inspector General of Prisons at Headquarters.-- The Inspector General shall have a Deputy Inspector General of Prisons in the headquarter to assist him in his work.
(2)Head of Office.-- He shall be the head of office of the Inspector General and shall be immediate subordinate to the Inspector-General. (3)Appointing authority.-- He shall be the appointing authority for the C and D groups of Government Servant in the office of the Inspector-General except the Office Superintendents in the Tamil Nadu Ministerial Service. (4)Transfer of prisoners.-- He shall be the authority to order the transfer of prisoners from one Central Prison to another, whenever necessary due to overcrowding or on disciplinary grounds except the transfer of a casual prisoner on disciplinary ground either to Central Prison, Salem or Cuddalore.
64. As per rule(13) of rule 18, the Deputy Inspector General of Prisons shall assist the Inspector General in his work connected with the management and superintendence of prisons and in addition, he shall also attend to the other items of work connected therewith, as may be assigned to him by the Inspector General, from time to time.
65. Chapter 4 deals with the Superintendent of the Central Prison and Borstal Schools, Pudukkottai. Rule 20 is as follows:-
?20.General duties of Superintendent.--(1) The Superintendent is the officer in-charge of the Prison.
(2)He shall be responsible for the implementation of the policy of the Government pertaining to prison administration, the care and welfare of the prisoners and their proper training for rehabilitation in society. He shall plan, organize and control all the institutional programmes, activities and operation. He shall endeavour to develop an institutional atmosphere for correctional work. He shall also exercise general supervision over security and custody arrangements and have custody of secret and confidential documents.
(3)He shall make himself thoroughly acquainted with these rules and with the Acts and Regulations relating to prisons and shall be strictly responsible for the carrying out of all such rules and statutory provisions and the execution of all sentences on prisoners committed to his charge. (4)Every order of a Superintendent shall be subject to the revision of the Additional Director General.
(5)He shall also supervise the employment of prisoners, production programmes and also prisoner?s vocational training. (6)He shall be responsible for the weighment of raw materials in purchase, checking of unsatisfied indents and conduct of surprise check, and shall be responsible for personnel matter, staff welfare and the discipline. (7)He shall also be responsible for educating the institutional personnel regarding current policies and correctional methods. (8)He shall visit the prison once in the forenoon and once in the afternoon of every working day and on Sundays and holidays also whenever special circumstances render it desirable that he should do so. At least twice a month, he shall visit the prison at night and satisfy himself that the guarding is being properly performed and that everything is in order. (9)At least on two days in a week, the Superintendent shall visit the prison hospital and enquire about the welfare of the sick prisoners confined therein. He shall also consider any representation made by the sick prisoners.
(1)The Superintendent shall maintain on half margin fullscape and his own handwriting, a journal in Form No.2 in which he shall record as soon after the event as possible the timings of his entering the prison and leaving and the results of his weekly inspection of prisoners, guard and premises. The journal shall be forwarded to the Inspector-General on the first day of the month following that to which it relates or as soon as possible and shall be returned after perusal by him with such remarks as he may find necessary.
(11)The Superintendent shall be responsible for the economical working of his prison. He shall carefully consider the necessity for all expenditure before incurring it and shall satisfy himself that all rates paid are the lowest compatible with efficiency. He shall be responsible for the satisfactory conduct of the manufacturing department, the punctual execution of orders, the collection of outstanding, the due credit of all sum collected and generally for the financial administration of the prison. He shall be answerable for all prison property, stores and money and shall be held responsible for any defalcations on the part of the prison establishment, if it be shown that such defalcations were rendered possible by negligence on this part.
(12)He shall as a rule transact all business connected with the prison, within its precincts. He shall not except in case of necessity, require the attendance of the Jailor or other subordinate beyond the prison limits.?
66. Rule 117 of the rules is as follows:-
?117.Duties of welfare officer:-It shall be the duty of a Welfare Officer-
(a) to contact every prisoner in the prison and render such help as is consistent with the rules pertaining to the institution;
(b) to arrange for correspondence by every prisoner with his relatives outside;
(c) to keep the ties of prisoner's relationship with their family strong by arranging interviews with relatives and friends;
(d) to render help in the settlement of civil claims of every prisoner by persuasion or compromise;
(f) to attend to correspondence work of illiterate prisoners or inmates to the extent provided for in the rules pertaining to the institution;
(g) to contact relatives and the Welfare and Employment Agencies either directly or through the concerned Probation Officer;
(h) to get deserving prisoners or inmates admitted in the After-Care Home for social or vocational rehabilitation;
(i) to arrange for recreational or other activities permissible within the rules and to instal the value of democratic living so that after discharge, the prisoners may fit into society without any difficulty.
(j) to prepare if requested, appeal or mercy petitions for newly admitted prisoners and condemned prisoners;
(k) to contact the Legal Aid and Advice Board of the Taluk or District or State and arrange for drafting of the grounds of the appeal and engagement of the counsel to defend the prisoner before the appellate court.
(i) to maintain History Sheets of prisoners or inmates of the prison whose cases he has taken up for the welfare work in Form No.92. The work done by the Welfare Officer on behalf of the prisoners or inmates shall find a place in it; to maintain a Report Book in Form No.4 indicating his day-to-
day work and submit it daily to the Superintendent of the prison who shall review it and pass such order as are necessary;
(m) to submit fortnightly statistical returns to the Superintendents of the Prison to which he is attached;
(n) to draw pre-release programme in respect of prisoners sentenced to a period of one year and above and thereupon to enter into correspondence with the concerned Probation Officer for the proper settlement of the prisoners on their release; and
(o) to do such other work pertaining to the Welfare of prisoners or inmates as the Superintendent or the Inspector-General assigns to him from time to time.
67. Section 142 states as to how prisoners to be treated with good temper, which reads as follows:-
?All prison officers shall treat prisoners with good temper, humanity and strict impartiality, and shall listen patiently and without irritability to any complaint or grievance, while at the same time maintaining strict discipline, strict and enforcing observance of the rules and regulations. It is important that every complaint made by a prisoner should be heard with attention, in order that grievances may be redressed, and that no cause for disconnect may be allowed to remain.?
68. Rule 194 speaks about the search of prisoners on admission, which reads as follows:-
?Prisoners shall be carefully searched by a prison official. Female prisoners shall be searched and their washing shall be conducted in the female yard. Prisoners of A and B classes shall wash and be searched in their yard or respective cell and not in the presence of other prisoners. Searches of prisoners shall be a made, with due regard to decency and with reasonable privacy.?
69. Chapter 18 deals with offences and punishments. Rule 297 of the rules reads as follows:-
?297.Acts declared to be prison offence under Section 45 of the Prisons Act, 1894 (Central Act IX of 1894).-- The following acts are forbidden and every prisoner who wilfully commits any of the following acts shall be deemed to have wilfully disobeyed the regulations of the prison, and have to committed a prison offence within the meaning of Section 45 of the Prisons Act, 1894 (Central Act IX of 1894).
70. Though several acts have been declared as offences, for the purpose of this case, it is relevant to extract only the acts alleged to have been committed by the prisoner, on various dates.
(2)Quarreling with other prisoners, prison officials, visitors and others.
(4)Showing disrespect to any prison officer or visitor. (8)Planning, instigating, abetting directly or indirectly, in commission of any prison offences.
(42)Refusing or omitting or conniving or disobeying to abide by standards of behaviour, rules, regulations, lawful instructions and orders or omitting or refusing to perform duties in the manner prescribed. (44)An offence against law and order and discipline. (57)Agitating or acting on the basis of caste or religious prejudices. (61)Using incident, abusive, insolent, threatening or improper language, being disrespectful, making indecent or vulgur acts of gestures.
71. Rule 302 deals with classification of punishment, which as follows:-
?The punishments enumerated in Section 46 of the Prisons Act, 1894, (Central Act IX of 1894), shall be classified into minor and major punishment.
(a) Minor.-The following punishment shall be considered as minor punishments, namely, (1)Formal warning;
(2)Change of labour for a stated period to a some more irksome or severe form;
(3)Forfeiture of remission earned, not exceeding four days; (4)Forfeiture of class, grade or prison privileges for a period of not exceeding three months;
(5)Temporary reduction from a higher to a lower class or grade; (6)Cellular confinement for not more than seven days; (7)Separation in a cell for not exceeding 15 days at a time (8)Hand cuffing for not exceeding 12 hours at a time (and 9 omitted) 7 & 8 above G.O.Ms.No.2291, Home Dept, dated 12.10.90 I.G's No.7806/GI/90
(b) Major.-- The following punishments shall be considered major punishments, namely,-
(1)Hard labour in the case of prisoners not sentenced to rigorous imprisonment namely, (2)Forfeiture of remission earned, exceeding four but not exceeding twenty days;
(3)Forfeiture of remission earned, in excess of twenty days; (4)Forfeiture of class, grade or prison privileges for a period exceeding three months;
(5)Exclusion from the remission system for a period exceeding five months;
(7)Permanent reduction from a higher to a lower class or grade; (8)Cellular confinement for a period exceeding seven days; (9)Separate confinement for a period exceeding fourteen days; and (10)Any combination of minor punishments admissible under Section 47 of the Prisons Act, 1894 (Central Act IX of 1894) Explanation.--The major punishments (3) and (6) and any combination of the major punishments (3), (4) and (6) shall not be awarded by the Superintendent of a prison without the previous sanction of the Inspector General of Prisons. The Superintendent shall obtain previous confirmation of the Inspector General before awarding separate confinement for a period exceeding one month.?
72. Rule 303 deals with awarding of punishments, which reads as follows:-
?(1)The Superintendent shall examine any person touching any prison offence and determine thereupon whether to award a minor or major punishment and his determination shall be noted down while awarding punishment. (2)No prisoner shall be punished unless he has been informed of the offence alleged against him and given a proper opportunity of presenting his version of the case. The competent authority shall conduct an inquiry into the case. No prisoner shall be punished except in accordance with the terms of rules.
(3)No prisoner shall be punished twice for the same offence provided that any security measure such as separate confinement, hand cuffing, cellular confinement and the like taken for the safe custody of a refractory and dangerous prisoner or for preventing him from committing mischief or the stoppage of privileges which are otherwise admissible to well behaved prisoners only, shall not be construed as prison punishment for this purpose.?
73. Rule 304 speaks about enquiry before punishment, which reads as follows:-
?(1)Prisoners are liable to be punished for prison offences as per rules irrespective of the class in which they are placed-- (2)No prisoner shall be punished for any statement or complaint made to a visitor.
(3)Whenever prisoners are produced before the Superintendent for punishment, the Superintendent shall conduct a thorough enquiry in a fair manner. It shall not become a mechanical process for the mere awarding of punishments. Enquiry shall be conducted as promptly as possible. During enquiry, the accused shall be present. Witnesses shall be brought in one at a time.
(4)Every precaution shall be taken to ensure that the enquiry is conducted in an orderly manner. Prisoners shall be thoroughly searched before being brought before the enquiry officer. Violent prisoners may be properly secured during enquiry.
(5)In case of serious violation of prison discipline, the Superintendent may order the recording of statements of the persons concerned. When the Superintendent thinks that recording of statement is not necessary, he shall briefly record the salient facts of the case in the appropriate column in the punishment book in Form No.15. If a prisoner has committed any infringement of the prison rules through ignorance or excusable carelessness, the Superintendent, shall admonish him without recording in the said Forms.
(6)The officer, who conducts the preliminary investigation shall present his report and witnesses if any. The report shall be presented in a language that is commonly understood in the locality or by the accused.
Where necessary and available, an interpreter may be provided. The accused and his witnesses, if any, shall be heard.
(7)After the Superintendent is satisfied that all relevant facts of the case have come to light, he shall record his decision in the register. After enquiry, the punishment shall be promptly implemented as per rules. (8)The punishment awarded to prisoners shall be noted down in the punishment book in Form No.15. The Jailor shall certify that the punishments have been carried out. The punishment book shall be placed before the Superintendent for his perusal as soon as the punishment has been carried out.?
74. Chapter 27 deals with interviews and communications with prisoners. Rule 541 of the rules reads as follows:-
?541.Facilities to be granted to unconvicted Criminal Prisoners and Civil Prisoners in the matter of Interviews and letters.-- (1) Unconvicted criminal prisoners and civil prisoners shall be granted all reasonable facilities at proper times and under proper restrictions for interviewing or otherwise communicating either orally or in writing, with their relatives, friends, and legal advisers.
Provided that in respect of accused or undertrial prisoners under the Terrorists and Disruptive (Prevention) Activities Act 1987 (Central Act 28 of 1987) the relatives and friends, who desire to interview them, shall produce a certificate from the concerned Village Administrative Officer or Member of Legislative Assembly of the Constituency concerned as to the residence and relationship to such accused or undertrial prisoners.
G.O.Ms.No.1409 Home (Pr.III) Dept. Dated 23.09.96 (I.G.Nos.47034 / AB5 / 95 dated 10.10.96.
(2) Every interview between an unconvicted prisoner and his legal adviser shall take place within sight but out of hearing of a prison official. A similar concession shall be allowed by the Superintendent in the case of an interview with any near relative of the unconvicted prisoner. (3) When any person desires an interview with an unconvicted criminal prisoner in the capacity of the prisoner's legal adviser, he shall apply in writing, giving his name and addresses and stating to what branch of the legal profession he belongs and he must satisfy the Superintendent that he is the bonafide legal advisor of the prisoners with whom he seeks an interview and that he has legitimate business with him.
(4) Any bonafide confidential written communication prepared by an unconvicted criminal, prisoner as instructions to his legal advisor may be delivered personally to such legal advisor or to his authorised nominee without being previously examined by the Superintendent. For the purpose of this rule, the term, 'legal advisor' means a legal practitioner within the meaning of Legal Practitioners Act, 1879 (Central Act XVIII of 1879).?
75. Chapter 30 deals with transfers. Rules, 568, 570 and 571 are as follows:-
568.Grounds, reasons and circumstances of transfer.-- Prisoners may be transferred from one prison to another for the following reasons namely:
(i) For custody and treatment in a suitable institution in accordance with the classification, procedure;
(ii) For attendance in court for the purpose of standing trial, or giving evidence;
(iii) On medical grounds;
(iv) On humanitarian grounds, in the interest of their rehabilitation;
(v) For post-release vigilance by the police;
(vi) For providing essential services;
(vii) On grounds of security, expediency of any other grounds; and
(viii) For other special reasons, if any.
570.Powers of Inspector General.-- (1) The Inspector General subject to the order and under the control of the Government is authorised to sanction the transfer from one prison to another within the State of such prisoners as are referred to in section 29 of the Prisons Act, 1990 (Central Act III of 1900) except those under sentence of death.
(2) The powers to transfer any prisoner under sentence of death from one prison to another shall vest with the State Government?.
571.Transfer of Sick Prisoners.--(1) No prisoner who is in hospital shall be transferred except for the benefit of his health. (2) When the Medical Officer is of opinion that the transfer of a sick prisoner to another prison is likely to lead to his recovery, or materially to prolong his life, be shall forward a brief statement of the case to Superintendent, mentioning the prison to which a transfer is desirable. The Superintendent shall submit the case to the Inspector- General for orders. (3)The Superintendent shall, on the requisition in writing of the Medical Officer, supply extra diet, clothing and bedding to prisoners about to be transferred. Medicines with instructions for their use shall, if necessary be supplied to the officer in-charge of the escort.
(4)The Medical Officer shall be responsible to see that all hospital entries are made upto date in the Medical case sheet at the time of transfer of the prisoner.
(5)No prisoner who is incapable of ordinary hard labour on account of age, sickness or infirmity shall be recommended for transfer unless under special circumstances.
76. Chapter 38 deals with under-trial prisoners. Rules 820, 826 and 828 are as follows:-
820.Transfer of an undertrial or remand prisoner on emergency or on administrative grounds.-- During an emergency or on administrative grounds, the Inspector General is authorised to transfer undertrial or remand prisoners from one prison to another within the State, provided that if a prisoner is transferred to a place outside the jurisdiction of the court concerned, prompt intimation shall be sent to the court. The prisoner shall be produced before the court on the due date.
826.Other privileges.-- In the matter of other privileges, special class undertrial or remand prisoners shall be treated in the same way as "A"
class convicts and undertrial or remand prisoners of the ordinary class, as "B" class convicts, subject to the rules and orders for the time being in force.
Explanation.-- Rules regulating interview and communications in Chapter XXVII shall apply to undertrials.
828.General discipline.--(1) Undertrial or remand prisoners shall not be subjected to more restraint than is necessary for their safe custody, the maintenance of discipline and the enforcement of prison rules. They may be permitted to work in their yard if they desire it, but shall not be employed outside it.
(2)They shall not be kept in their cells by day, but any undertrial or remand prisoner who wishes to remain in his cell shall be allowed to do so.
77. Chapter 51 deals with certain Registers to be maintained. Register No.1086 deals with prisoners punishment book, which is as follows:-
?The entries to be made in the Prisoners Punishment Book (Register No.16) are laid down in Section 51 of the Prisons Act, 1984 (Central Act IX of 1894).
The book shall be maintained in Form No.15 under the immediate supervision of the Superintendent by the Jailor or some other subordinate deputed in writing in the entry of the particulars relating to a prisoner and his offence when not entered by the Jailor himself, must be with his cognizance, while those of the punishments and dates of award shall be in the Superintendents own handwriting. In ordinary cases, reports against prisoners shall be made direct in this book, but in the cases of serious offences against discipline, the entries may have to be copied from the Jailors report book.?
78. Chapter 53 deals with medical registers and forms. Register Nos.1102 and 1103 are as follows:-
?1102.Register Number 60 ? In the Register of inpatients in Form No.80 referred to in rule 703 the prescribed details in respect of every prisoner under observation or treatment for more than 24 hours who is not placed on the out patient or the Invalid Gang Register shall be recorded. The in- patient register shall be maintained under the control and responsibility of the Medical Officers who shall himself enter the name of the patient's disease in accordance with revised nomenclature of diseases employed in the monthly return of sick prisoners.
1103.Register Number 61.-- In the out patients' Register in Form No.81, referred to in rule 703 the prescribed details of all prisoners under treatment for such trifling ailments as do not render admission to hospital necessary, shall be entered.?
79. Now, let us consider some of the decisions on the aspect of the rights of the prisoners.
(a) In Sunil Batra v. Delhi Administration, reported in 1980 (3) SCC 488: AIR 1980 SC 1579, it was observed:
? 31 . Thus, it is now clear law that a prisoner wears the armour of basic freedom even behind bars and that on breach thereof by lawless officials the law will respond to his distress signals through ?writ? aid. The Indian human has a constant companion - the Court armed with the Constitution. The weapon is ?habeas? the power is Part III and the projectile is Batra 1978 (4) SCC 494 at p.495: AIR 1978 SC 1675 (supra).
No iron curtain can be drawn between the prisoner and the Constitution. It is, therefore, the Court's concern, implicit in the power to deprive the sentence of his personal liberty, to ensure that no more and no less than is warranted by the sentence happens. If the prisoner breaks down because of mental torture, psychic pressure or physical infliction beyond the licit limits of lawful imprisonment the Prison Administration shall be liable for the excess.?
(b) In Sheela Barse vs. State of Maharashtra, reported in AIR 1983 SC 378, the Apex Court held as follows:-
"The legal assistance to a poor or indigent accused who is arrested and put in jeopardy of his life or personal liberty is a constitutional imperative mandated not only by Article 39-A but also by Articles 14 and 21 of the Constitution. It is necessary sine qua non of justice and where it is not provided, injustice is likely to result and undeniably every act of injustice corrodes and foundations of democracy and rule of law. Imagine the helpless condition of a prisoner who is lodged in a jail who does not know to whom he can turn for help in order to vindicate his innocence or defend his constitutional or legal rights or to protect himself against torture and ill- treatment or oppression and harassment at the hands of his custodians. It is also possible that he or the members of his family may have other problems where legal assistance is required but by reason of his being incarcerated, it may be difficult if not impossible for him or the members of his family to obtain proper legal advice or aid. It is therefore absolutely essential that legal assistance must be made available to prisoners in jails whether they be under-trial or convicted prisoners."
(c) In David Patrick Ward and another vs. Union of India and others, reported in 1992 SCC (Cri) 814 = 1992 (4) SCC 154, it was a case falling under the National Security Act, 1980. The detenu was a British national. Competence of the Inspector General of Prison has not been assailed by the petitioner therein. Though copy of the order transferring the prisoner from Naini Jail (Allahabad, U.P.) to Tihar Jail (Delhi) is enclosed in the typedset of papers and furnished to the petitioner, the same was not challenged by a Writ of Certiorari.
(d) In Sathyamoorthi vs. Government of Tamil Nadu (HCP.No.1653 of 1993, decided on 09.12.1993), Writ of Habeas Corpus has been filed, seeking for a direction to the respondents therein, to transfer the petitioner therein, from Madras Central Prison to Madurai Central Prison. In the said judgment, a criminal case under the provisions of the Terrorists and Disruptive Activities (Prevention) Act, read with Section 120-B IPC, was registered against the petitioner therein and 15 others. He was initially detained in Madurai Prison. He was visited by his parents, sisters and other relatives. For administrative reasons, he was transferred from Madurai Central Prison to Madras Central Prison. Aggrieved by the same, Writ of Habeas Corpus has been filed.
Learned Public Prosecutor has opposed the application, on the ground that a Writ of Habeas Corpus will not lie, for transferring the prisoner from one prison to another, inasmuch as, he cannot be said to be under any illegal detention. Administrative convenience was one of the reasons submitted by the prosecutor. Though the learned counsel for the petitioner has placed reliance on the decisions in Sunil Batra v. Delhi Administration reported in AIR 1980 SC 1579 = 1979 (1) SCR 392 = 1978 Crl.L.J 1741 and 1980 (2) SCR 557 = 1980 Crl. L.J. 1099 and the decision in Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and Others, reported in A.I.R. 1981 S.C. 746, while agreeing with the proposition regarding the entitlement of the rights of the prisoner to have interview with family and friends, posed the following question, for consideration.
?But the question here is, whether, on the facts and circumstances of this case, the petitioner can move this Court for the issue of a writ of habeas corpus, and whether there is justification in the prayer to transfer the petitioner from Madras Central Prison to Madurai Central Prison.?
The Hon'ble Division Bench at paragraph 5 of the judgment held as follows:-
?In our considered opinion, we are of the view that for the purpose of transfer of a prisoner from one prison to another, the petitioner cannot move this Court by way of writ of habeas corpus.?
In the said judgment, while agreeing with the contention of the learned Public Prosecutor that there was necessity, and due to administrative convenience, transfer was effected, the Hon'ble Division Bench at paragraph 6, of the judgment further observed that, ?Merely because the parents of the petitioner and others cannot come down to Madras frequently to see the petitioner, that cannot by itself be a reason to concede the request of the petitioner, when the respondent places before the Court the administrative reasons behind the transfer of the petitioner from Madurai Central Prison to Madras Central Prison.?
Ultimately, the Hon'ble Division Bench dismissed the Habeas Corpus Petition, stating that the relief sought for cannot be granted.
(e) In Dhanalakshmi vs. The State by the Secretary, Home Department (Prisons), Madras and others, reported in 1995 (1) MWN (Cr.) 91, a Hon'ble Division Bench of this Court addressed a question whether a Writ of Habeas Corpus is maintainable, for the purpose of transfer of a prisoner from one prison to another. Paragraph 4 of the judgment is reproduced hereunder:-
?4..... In Gulam Saarwar v. Union of India , A.I.R. 1967 S.C. 1335, their Lordships of the Constitutional Bench of the Apex Court had the occasion to consider the scope of a writ of habeas corpus and in such process of consideration, extracted the relevant portion from Corpus Juries Secundum, Vol. 39 at Page 24, thus, ?The writ of habeas corpus is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designed time and place, with the day and cause of his caption and detention to do so, submit to and receive whatsoever the court or Judge awarding the writ shall consider in that behalf. Blacestone in his commentaries said of this writ thus:
It is a writ antecedent to statute, and throwing its roof deep into the genus of our common law . . . . . It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I. This writ has been described by John Marshal, C.J. as a great constitutional privilege. An eminent Judge observed, there is no higher duty than to maintain it unimpaired. It was described as a mangna carta of British liberty. Heavy penalties are imposed on a Judge who wrongfully refuses to entertain an application for a writ of habeas corpus . The history of the writ is the history of the conflict between power and liberty. The writ provides a prompt and effective remedy against illegal restraints. It is inextricably inter-twined with the fundamental right of personal liberty. Habeas corpus, literally means ?have his body?. By this writ the court can direct to have the body of the person detained to be brought before it in order to ascertain whether the detention is legal or illegal. Such is the predominant position of the writ in the Anglo-Saxon jurisprudence.? The scope of Writ of habeas corpus is also dealt with in Administrative Law by H.W.R. Wade (Administrative Law by H.W.R. Wade, Sixth Edition) and the relevant passages occur at pages 620 and 621 as reflected below: ?Habeas corpus cannot be used as a means of appeal but only of review. In other words, the court is concerned with the question whether the order of detention is made within jurisdiction or ought to be quashed, but not with the question whether it is correct on its merits. This is the familiar distinction between appeal and review which runs right through administrative law. Accordingly habeas corpus will be granted if it can be shown that the order of detention is ultra vires on any of the normal grounds such as a wrong finding of jurisdictional fact: or if the order is vitiated by error on the fact of the record or if (it seems) it is supported by no evidence. The House of Lords has pointed out the close similarity between the grounds for habeas corpus and the grounds for judicial review generally . . . . . where there has been excessive delay in bringing a prisoner up for trial, or in executing an order for his deportation, he can use habeas corpus so as to bring himself before the court and the court will give suitable directions by declaration or otherwise. But habeas corpus will not avail to challenge the conditions of detention, provided that the detention itself is lawful. A prisoner retains all his personal rights and remedies, except in so far as the law deprives him of them. In case of maltreatment, he can use ordinary or prerogative remedies, including certiorari and mandamus , if he claims the right to be moved to another prison, or to be held under better conditions, he can apply for judicial review, but normally the court will not interfere with the management of a prison. Non-observance of the prison rules, however, will opt normally entitle him to sue.?
In an unreported decision of this court in Sathyamoorthi v. Government of Tamil Nadu , H.C.P. No. 1653 of 1993, learned Judges, constituting the Division Bench observed, ?In our considered opinion, we are of the view that for the purpose of transfer of a prisoner from one prison to another the petitioner cannot move this court by way of writ of habeas corpus.?
While coming to such a conclusion, learned Judges happened to consider the judgment of the Supreme Court namely first Sunil Batra's case, (1979) 1 S.C.R. 392: 1978 Cri.L.J. 1741, second Sunil Batra's case , (1980) 2 S.C.R. 557: 1980 Cri.LJ. 1099 and the case of Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and Others , A.I.R. 1981 S.C. 746.?
(f) In Nagarajan vs. State of Tamil Nadu, reported in 2003 (2) CTC 235, though the matter related to a case of detention, under the Preventive Laws, the Hon'ble Supreme Court, at paragraphs 11 and 12 held as follows:-
?11. It is also useful to refer the earlier decision of the Supreme Court in the case of A.K. Roy vs. Union of India reported in 1982 Supreme Court Cases (Criminal) 152. While confining the detenus in different places, the provisions of preventive detention and personal liberty under Article 21 of the Constitution of India, their Lordships have concluded, "73. ..... It is neither fair no just that a detenu should have to suffer detention in "such place" as the Government may specify. The normal rule has to be that the detenu will be kept in detention in a place which is within the environs of his or her ordinary place of residence. If a person ordinarily resides in Delhi, to keep him in detention in a far off place like Madras or Calcutta is a punitive measure by itself which, in matters of preventive detention at any rate, is not to be encouraged. Besides, keeping a person in detention in a place other than the one where he habitually resides makes it impossible for his friends and relatives to meet him or for the detenu to claim the advantage of facilities like having his own food. The requirements of administrative convenience, safety and security may justify in a given case the transfer of a detenu to a place other than that where he ordinarily resides, but that can only be by way of an exception and not as a matter of general rule. Even when a detenu is required to be kept in or transferred to a place which is other than his usual place of residence, he ought not to be sent to any far off place which, by the very reason of its distance, is likely to deprive him of the facilities to which he is entitled.
Whatever smacks of punishment must be scrupulously avoided in matters of preventive detention.
74. Since Section 5 of the Act provides for, as shown by its marginal note, the power to regulate the place and conditions of detention, there is one more observation which we would like to make and which we consider as of great importance in matters of preventive detention. In order that the procedure attendant upon detentions should conform to the mandate of Article 21 in the matter of fairness, justness and reasonableness, we consider it imperative that immediately after a person is take in custody in pursuance of an order of detention, the members of his household, preferably the parent, the child or the spouse, must be informed in writing of the passing of the order of detention and of the fact that the detenu has been taken in custody. Intimation must also be given as to the place of detention, including the place where the detenu is transferred from time to time. This Court has stated time and again that the person who is taken in custody does not forfeit, by reason of his arrest, all and every one of his fundamental rights. It is, therefore, necessary to treat the detenu consistently with human dignity and civilized norms of behaviour.?
12. It is clear from the mandate of the Supreme Court that in order to satisfy "fairness", "justness" and "reasonableness", as provided under Article 21 of the Constitution of India, the detenu / person arrested will be kept in a place, which is within his / her ordinary place of residence. However, as pointed out by their Lordships, due to administrative convenience, safety and security it would be open to the Jail authorities to transfer the detenu / person to a place other than that he ordinarily resides. However, as observed by their Lordships that can only be by way of an exception and not as a matter of general rule. .....?
(g) In Kalyan Chandra Sarkar v. Rajesh Ranjan, reported in (2005) 3 SCC 284, at paragraphs 21, 22 and 23, the Hon'ble Supreme Court held as follows:-
?21. The fundamental right of an undertrial prisoner under Article 21 of the Constitution is not absolute. His right of visitation as also other rights are provided in the Jail Manual. The respondent as an undertrial prisoner was bound to maintain the internal discipline of the jail. Such a fundamental right is circumscribed by the prison manual and other relevant statutes imposing reasonable restrictions on such right. The provisions of the Bihar Jail Manual or other relevant statutes having not been declared unconstitutional, the respondent was bound to abide by such statutory rules.
22. In D. Bhuvan Mohan Patnaik v. State of A.P.(1975 93) SCC 185 = 1974 SCC (Cri) 803) this Court observed that a convict has no right to dictate whether guards ought to be posted to prevent escape of prisoners as the same causes no interference with the personal liberty or their lawful preoccupations.
23. Therefore, in our opinion, a convict or an undertrial who disobeys the law of the land, cannot contend that it is not permissible to transfer him from one jail to another because the Jail Manual does not provide for it.
If the factual situation requires the transfer of a prisoner from one prison to another, be he a convict or an undertrial, courts are not to be a helpless bystander when the rule of law is being challenged with impunity. The arms of law are long enough to remedy the situation even by transferring a prisoner from one prison to another, that is by assuming that the Jail Manual concerned does not provide such a transfer. In our opinion, the argument of the learned counsel, as noted above, undermines the authority and majesty of law. The facts narrated hereinabove clearly show that the respondent has time and again flouted the law even while he was in custody and sometimes even when he was on bail. We must note herein with all seriousness that the authorities manning Beur Jail and the doctors concerned of Patna Medical College Hospital, for their own reasons, either willingly or otherwise, have enabled the respondent to flout the law. In this process, we think the authorities concerned, especially the authorities at Beur Central Jail, Patna, are not in a position to control the illegal activities of the respondent. Therefore, it is imperative that the respondent be transferred outside Bihar.?
Addressing the contention that transfer of prisoner to another jail, would defeat his right of fair trial and his family members would not be in a position to meet him, the Hon'ble Apex Court at paragraphs 42 to 45 of Kalyan Chandra Sarkar's case has held as follows:-
?42. Learned counsel for the respondent contended that if the respondent is transferred out of Bihar, it would defeat his right for a fair trial inasmuch as he will not be in a position to attend the proceedings and instruct his counsel effectively. He also contended that the respondent has a right in law to be present in the trial against him. It was his further contention that sending the respondent from Bihar would keep him away from his family which would be a negation of his basic human right.
43. It is true that in a normal trial the Criminal Procedure Code requires the accused to be present at the trial but in the peculiar circumstances of this case a procedure will have to be evolved, which will not be contrary to the rights given to an accused under the Criminal Procedure Code but at the same time protect the administration of justice.
Therefore, as held by this Court in the case of State of Maharashtra v. Dr. Praful B. Desai (2003 (4) SCC 601 = 2003 SCC (Cri) 815) and Sakshi v. Union of India (2004 (5) SCC 518 = 2004 SCC (Cri) 1645) we think the above requirement of the Code could be met by directing the trial by video- conferencing facility. In our opinion, this is one of those rare cases wherein a frequent visit from the place of detention to the court of trial in Bihar would prejudice the security of both the respondent and others involved in the case, apart from being a heavy burden on the State exchequer. It is in this background CBI has submitted that the prisons at Chennai, Palayamkottai Central Jail, Vellore Central Jail, Coimbatore Central Jail all in the State of Tamil Nadu and Mysore Central Jail in the State of Karnataka have video- conferencing facilities. Therefore the respondent can be transferred to any one of those jails.
44. While it is true that it is necessary in the interest of justice to transfer the respondent out of the State of Bihar, we are required to keep in mind certain basic rights available to the respondent which should not be denied by transferring the respondent to any one of the jails suggested by CBI. It will cause some hardship to the wife and children of the respondent who we are told are normally residents of Delhi, his wife being a Member of Parliament and two young children going to school in Delhi. Taking into consideration the overall fact situation of the case, we think it appropriate that the respondent be transferred to Tihar Jail at Delhi and we direct the seniormost officer in charge of Tihar Jail to make such arrangements as he thinks are necessary to prevent the reoccurrence of the activities of the respondent of the nature referred to hereinabove and shall allow no special privileges to him unless he is entitled to the same in law. His conduct during his custody in Tihar Jail will specially be monitored and if necessary be reported to this Court. However, the respondent shall be entitled to the benefit of the visit of his family as provided for under the Jail Manual of Tihar. He shall also be entitled to such categorisation and such facilities available to him in law.
45. We also direct that the trial of the case in Patna shall continue without the presence of the appellant by the court, dispensing such presence, and to the extent possible shall be conducted with the aid of video- conferencing. However, in the event of the respondent making any application for his transfer for the sole purpose of being present during the recording of the statement of any particular witness, same will be considered by the learned Sessions Judge on its merit and if he thinks it appropriate, he may direct the authorities of Tihar Jail to produce the accused before him for that limited purpose. This, however, will be in a rare and important situation only and if such transfer order is made the respondent shall be taken from Tihar Jail to the court concerned and if need be, detained in appropriate jail at the place of trial and under the custody and charge of the police to be specially deputed by the authorities of Tihar Jail who shall bear in mind the factual situation in which the respondent has been transferred from Patna to Delhi.?
(h) In R.Jeyarani vs. Additional Director General of Police(Prisons), Chennai and two others (HCP(MD)No.390 of 2014, decided on 08.07.2014), the petitioner therein sought for a Writ of Habeas Corpus, to produce the detenue, a life convict and consequently to transfer him from Central Prison, Trichy, to Central Prison, Palayamkottai. Grounds raised were that due to ill-health and old age, mother could not travel 700 kms from her residence. Wife and children were put to financial constraint. The Habeas Corpus Petition was opposed on the ground that there was indiscipline of the detenue in the Central Prison, Palayamkottai, and on the orders of the Additional Director General of Police/Inspector General of Prisons, Chennai, the life convict was transferred. It was submitted that though the detenue was inflicted with minor prison punishments, he did not correct himself. Holding that the grounds sought for transfer, as unacceptable and by observing that prisons are meant for correction, prayer sought for was declined.
80. In this Habeas Corpus Petition, power of the Additional Director General of Police-cum-Inspector General of Prisons, Chennai, 2nd respondent, has not been questioned, except to the extent that when the husband of the petitioner had objected to the illegal activities in Madurai Central Prison, without heeding to his request, transfer has been effected from Central Prison, Madurai to Trichy. Though in the supporting affidavit, the petitioner has stated that in Madurai Central Prison, a Jailor, by name, Mr.Jeyaraman, belonging to the same community, as that of the deceased Kumarapandian, threatened her husband that he would transfer him to some other prison, to restrict his right to have legal assistance, no where in the petition dated 04.04.2014, sent to the Registrar, Madurai Bench of Madras High Court, Chairperson, Human Rights Commission, Chennai, Chairperson, Legal Services Authority, Trichy, Chairperson, Legal Services Authority, Madurai and Inspector of Police, K.K.Nagar Police Station, Trichy, the petitioner has made any allegation against the said Mr.Jeyaraman, regarding threat of transfer of the prisoner from Central Prison, Madurai to Central Prison, Trichy. Only in the affidavit filed before this Court, such an allegation has been made. At this juncture, this Court deems it fit to extract the averments made in Paragraph 8 of the supporting affidavit filed to the Habeas Corpus Petition, "Wherein my husband stated that the Madurai Prison Jailor, namely, Jeyaraman is belonged to the same community of the aforesaid Kumarapandiyan and he threatened my husband that he would transfer my husband to some other prison to restrict the legal help. And with the inducement of the said Jailor, Jeyaraman, my husband has been transfered to Trichy Central Prison, wherein, the Trichy Prison guards, namely, Sadagopan, Punniyamurthy, Vijayaraj and 7 persons had given admission attack to my husband and thereafter, my husband objected about the illegal activities to the said Superintendent and the Additional Superintendent of Jail. But they replied that an order is received from the Madurai Prison to kill my husband and they would do the same."
81. We have perused the letter dated 04.04.2014 of the petitioner. On the allegations made against Mr.Jeyaraman that he was instrumental in transferring the petitioner's husband, there is absolutely no material in the letter, dated 04.04.2014, sent to the various authorities. Though allegations of threat of transfer, on caste bias, have been made against Mr.Jeyaraman, Jailor, Central Prison, Madurai, he has not been impleaded as a party in this petition. So also, though allegations have been made against certain prison guards, Madurai Central Prison, none of them have been named, in the letter dated 04.04.2014, though the prisoner was confined for nearly nine months at Madurai Central Prison. Therefore, the contentions of the petitioner, at Paragraph 8 of the supporting affidavit, wherein, she has made allegations against Mr.Jeyaraman, Jailor, Madurai Central Prison, is a new fact introduced in the affidavit.
82. From the reading of the representation, dated 04.04.2014, it could be deduced that the petitioner has stated that on 04.04.2014, she could not meet her husband immediately, but after taking permission from the higher authorities, she was allowed to meet him. At this juncture, it could be seen from the counter affidavit filed by respondents 4 and 5 that on 03.04.2014 at about 12.00 Hours, husband of the petitioner and three other remand prisoners instigated communal feelings of other prisoners and acted against the prison administration. On the report of the Jailor, a detailed enquiry was conducted by the Additional Superintendent of Prisons, Central Prison, Trichy and finding him guilty, for having committed the prison offence, Under Section 45 of the Prison Act, 1894 (Central Act IX of 1894) r/w. Rules 297(8), (ii), (44) and 57 of Tamil Nadu Prison Manual Volume II, interview facility was stopped for a period of three months, as a prison punishment, under Section 46 of the Prisons Act, 1894 (Central Act IX of 1594), a minor punishment, as per Rule 302(a)(4) of the Tamil Nadu Prison Manual Volume - II. It is the further case of the respondent that though interview facility was stopped, still on humanitarian grounds, the petitioner was permitted to see her husband.
83. However, in her representation, dated 04.04.2014, it is the contention of the petitioner that her husband had informed her, about the torture at the Central Prison, Madurai and Trichy. But there are no materials to indicate in the said representation, dated 04.04.2014 that between 18.07.2013 and 02.04.2014, neither the prisoner nor the petitioner had sent any representation or complaints to the higher authorities, alleging physical assault at Madurai Central Prison.
84. However, it is the statement of the petitioner that when two Advocates, met the prisoner at the Central Prison, Trichy, he informed them about the torture, who in turn have brought to the notice of the Jailor, Central Prison, Trichy, for which, the Jailor assured that he would conduct an enquiry and take appropriate action. It is the statement of the petitioner that the Jailor assured that in future, such things would not happen.
85. The prisoner has been transferred to the Central Prison, Trichy, on 03.04.2014. Representations have been made on 04.04.2014 to the effect that she went to the Central Prison, Trichy, in the Morning on the said date. At this juncture, this Court deems it fit to extract the contents from the letter, dated 04.04.2014, ",e;epiyapy; new;W (03/04/2014) vdJ fztiu kJiu b$apypypUe;J jpUr;rp kj;jpa rpiwf;F khw;wp tpl;ljhft[k;. jpUr;rpapy; vdJ fztiu rpiwf;fhtyh;fs; moj;J Jd;g[Wj;Jtjhft[k;. b$apypy; ,Ue;J tpLjiyahd xUth; vdf;F nghd; K:yk; jfty; mspj;jhh;/ mjd;go eh';fs; v';fs; kJiu tHf;fwp"Uf;F nghd; bra;J. mth; K:ykhf jpUr;rpapy; fkUjPd; kw;Wk; Mde;jFkhh; vd;w ,uz;L tHf;fwp"h;fis rpiwapy; brd;W vdJ fztiu ghh;f;f mDg;gpndhk;/ mth;fsplk; vdJ fzth; jd;id kJiu rpiwapnyna rpiw mjpfhhpfs; moj;jjhft[k;. jpUr;rp rpiwapYk; rpiwf;fhtyh;fs; jd;id moj;J. Jd;g[Wj;jp. jdpikr; rpiwapy; milj;J itj;jpUg;gjhft[k;. vdJ fzth; mth;fsplk; brhy;ypajhf bjhptpj;jdh;/ nkYk;. rpiw mjpfhhpapd; (b$apyh;) ftdj;jpw;F ,jid tHf;fwp"h;fs; bfhz;L brd;wjhft[k;. b$apyh; mth;fsplk; tprhhpj;J eltof;if vLg;gjhft[k;. ,dpnky; mt;thW eilbgwhky; ghh;j;Jf; bfhs;tjhft[k; cWjpaspj;jjhf tHf;fwp"h;fs; v';fsplk; bjhptpj;jdh;/"
86. When the petitioner, in her representation, dated 04.04.2014, addressed to the various authorities, as stated supra, has stated that certain prison guards in Trichy Central Prison, have assaulted her husband, which fact has been brought to the notice of the prison officials, in her representation, dated 15.04.2014, addressed to the Additional Director General of Police/Inspector General of Prisons, Chennai, the petitioner has alleged that the whoever is transfered to Trichy Central Prison, they would be given "Admission Attack". In this representation, dated 15.05.2014, for the first time, the petitioner has alleged that orders have been received by Mr.Palani, Superintendent of Central Prison, Trichy and Mr.Senthil Kumar, Additional Superintendent of Central Prison, Trichy, from the Madurai Central Prison, to keep her husband in a solitary confinement and to torture him, and on their instigation, the prison guards, at Central Prison, Trichy, have assaulted the petitioner's husband. According to the petitioner, Advocates who met her husband at Central Prison, Trichy, has brought to the notice of the Jailor and that he had assured to enquire and take appropriate action.
87. As stated supra, in the representation, dated 04.04.2014, nothing has been stated against the Superintendent of Central Prison, Trichy and Additional Superintendent of Central Prison, Trichy, by the petitioner. It is a fact that the Chairperson, Legal Services Authority, Trichy and Chairperson, State Human Rights' Commission, Chennai, acting on the petition dated 04.04.2014, have directed the Additional Director General of Police/Inspector General of Prisons, Chennai, respectively, to enquire into the matter and take necessary action. Both the authorities have been requested to send details of the action taken and thereafter, the present Habeas Corpus Petition has been filed on 13.06.2014.
88. As regards the contention that when the petitioner's husband filed a petition in petition in C.C.No.24 of 2007, on the file of the learned Judicial Magistrate, Thenkasi, alleging manhandling of the prisoner, perusal of the same shows that the petitioner therein has alleged that on 02.05.2014, when he was produced before the learned Judicial Magistrate, Nilakottai, through video conferencing, for extension of remand, the prisoner reported to the Learned Judicial Magistrate that for three months, all his applications were kept pending. Enraged over the same, Mr.Palani, Superintendent of Prisons, Trichy Central Prison, Trichy and Mr.Senthil Kumar, Additional Superintendent of Prison, Central Prison, Trichy, Mr.Eswaramoorthy, Operation Cellphone Team, Mr.Punniyamoorthi, Mr.Vijayaraj and three other police officials physically attacked the prisoner and due to the same, he sustained injuries in the neck, hand and thigh. In his petition, apprehending life and to provide him treatment, he has requested for transfer to some other prison. Going through the petition, vide order, dated 09.05.2014, we find that the learned Judicial Magistrate, Thenkasi, has recorded as follows:
"Heard and petition perused. Accused produced before me at 1.30 P.M. on 09.05.2014 for remand extension & stated that he was assaulted by jail authorities & he has injuries on the right side hip and right thigh. Send letter to the Superintendent Central Prison, Trichy, to give necessary medical treatment to the accused and submit the treatment report to this Court."
89. Reading of the order, dated 09.05.2014, only indicates that the learned Judicial Magistrate, Thenkasi, has recorded, what the prisoner has stated. Section 54 of the Criminal Procedure Code reads as follows:
"54. Examination of arrested person by medical practitioner at the request of the arrested person When a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which will establish the commission by any other person of any offence against his body, the Magistrate shall, if requested by the arrested person so to do direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of justice."
90. After recording the statement of the prisoner, the learned Judicial Magistrate, Tenkasi, has directed the Superintendent Central Prison, Trichy, to give necessary medical treatment. Reading of the order, does not indicate that the learned Judicial Magistrate, Tenkasi, has directed examination of the body of the prisoner, by any medical practitioner and recorded any finding that there were injuries in the body. The order of the learned Magistrate does not indicate any specific finding as regards the injuries alleged to have been sustained. She has only directed the Superintendent of Central Prison, Trichy to give medical treatment and submit the treatment report to the Court.
91. In response to the said order, the Superintendent of Central Prison, Trichy, has sent a reply in proceedings No.8810/Tha.Ku.5/2014, dated 27.05.2014, to the learned Judicial Magistrate, Thenkasi, denying the allegations of physical assault made by the prisoner. The Superintendent of Central Prison, Trichy, has stated that the prisoner was not assaulted and there were no injuries and as per the Medical Certificate, dated 17.05.2014 his physical condition was normal. In the said letter, he has also stated that the contents of the petition, were false. Along with the said letter, Medical Certificate of the Assistant Surgeon, Central Prison Dispensary, Central Prison, Trichy, dated 17.05.2014, has been enclosed, which reads as follows:
"This is to certify that RP 1203, Mohamed Haneefa, S/o.Meeran Mydeen, Central Prison, Trichy. He was treated in Central Prison, Dispensary Trichy. He is clinically normal at present."
92. Records from the Prison Dispensary have been produced. Though the learned counsel for the petitioner strenuously contended that the learned Judicial Magistrate, Thenkasi, ought to have directed examination of the prisoner, by a medical practitioner, in the order, dated 09.05.2014 and also submitted that the prisoner sustained injuries, in the light of the report, dated 27.05.2014, denying the allegations of the physical assault and injury and the Medical Certificate of the Assistant Surgeon, Central Prison Dispensary, Central Prison, Trichy, dated 17.05.2014 and when the prisoner has not chosen to the challenge the order, dated 09.05.2014, in the manner known to law, as per the provisions of the Criminal Procedure Code, it would be inappropriate to assail the correctness of the same, in this writ petition, seeking for transfer of a prisoner from the Central Prison, Trichy to Central Prison, Madurai. Though maintainability of a Habeas Corpus Petition, filed for transfer of prisoner from one prison to another, was not raised and argued, still this Court has taken note of the decision in Dhanalakshmi's case, cited supra, which has considered another Hon'ble Division Bench judgment in HCP.No.1653/1993.
93. As rightly contended by the learned Additional Public Prosecutor that when the prisoner has alleged torture and beaten up, by the prison authorities at Central Prison, Madurai, at the instigation of one Mr.Jeyaraman, Jailor, Central Prison, Madurai, stated to have belonged to the same community, as that of the deceased Kumarapandian, in the Sessions case, which fact has also been discussed in the foregoing paragraphs, as not established, now the petitioner has sought for re-transfer to the same prison, ie., Central Prison, Madurai.
94. Power of the Additional Director General of Police/Inspector General of Prisons, Chennai, 2nd respondent, to transfer a prisoner, from one prison to another, is provided in Section 29 of the Code of Criminal Procedure. As observed earlier, Section 26 of the Prisons Act, 1894, also indicates that a prisoner can be removed from one prison to another. Transfer has been ordered by the Deputy Inspector General of Prisons, Madurai, after his personal visit, on 02.04.2014, to the Central Prison, Madurai and when he himself has found that his advice to the prisoner, did not have the desired effect and after consideration of the report submitted by the Superintendent of Central Prison, Madurai and other materials, he has informed the same to the Additional Director General of Police/Inspector General of Prisons, Chennai, 2nd respondent and after receiving orders from the Additional Director General of Police/Inspector General of Prisons, over phone, transfer has been effected. The said order of transfer effected on 03.04.2014, has also been subsequently ratified by the Additional Director General of Police/Inspector General of Prisons, Chennai, on 11.07.2014. Therefore, on the facts and circumstances of this case, transfer of the prisoner on 03.04.2014, for the reasons stated supra, cannot be said without jurisdiction.
95. Conduct of the prisoner has been found to be unsatisfactory. As per the details furnished, the prisoner is stated to have acted against the Prison Rules. Report of the Superintendent of Central Prison, Madurai and Petitions of the co-prisoners, support the reasons, contained in the letter, dated 02.04.2014, extracted supra. We have also perused the punishment book.
96. Though learned counsel for the petitioner submitted that all the punishments have been inflicted only after 03.04.2014, after the transfer of the prisoner to Central Prison, Trichy and that the rights of the prisoner to meet his relatives or his counsel, have been denied, when the trial has commenced and also submitted that there is a violation of principles of natural justice, this Court cannot set aside the punishments, unless and until, the same are challenged in the manner known to law.
97. As per sub rule 4 of Rule 20 of the Prison Rules, 1983, every order of a Superintendent shall be subject to the revision of the Additional Director General.
98. Perusal of the punishment book, does not reveal that orders of punishments have been served on the prisoner. Procedure as contemplated requires to be followed. But the fact remains that there are punishments. Whether the said punishments have been inflicted on the prisoner, by the competent authorities, without there being any bias or violation of the procedure contemplated under the Tamil Nadu Prison Rules, can be tested, only if they are challenged in the manner known to law. Unless and until, the prisoner is served with the orders passed by the Superintendent of Prisons, he cannot challenge the same, to the competent authority or in a Court of law. At this juncture, we wish to consider a judgment of the Bombay High Court in Danial H.Walcott vs. Superintendent, Nagpur Central Jail, reported in 1972 (74) BOMLR 436 = 1972 Cr.LJ 67, wherein, when the punishment on a prisoner was challenged, on the ground of violation of principles of natural justice, at paragraphs 9 and 10, the Hon'ble Supreme Court held as follows:-
9. It is no doubt true that Section 46 of the Prisons Act does not in terms provide for an elaborate enquiry but it requires the Superintendent to examine any person touching any such offence and then there is a duty cast upon the Superintendent to determine upon such examination whether an offence has been committed or not. Now, the learned Assistant Government Pleader contends that recording of the statements by Shinde is sufficient compliance with Section 46 of the Prisons Act. It is difficult for us to accept this argument. We are unable to see how Shinde who was a Jailor could perform the function which is required to be performed by the Superintendent himself by Section 46 of the Prisons Act. Apart from that, there is not even an averment in the return that these statements were recorded by Shinde. The statements are written out by the prisoners themselves; they are under their signatures and they appear to us to be merely in the nature of a communication addressed by these prisoners to the Superintendent of jail. Writing out such a communication by the prisoner himself and addressed to the Superintendent cannot amount to examination by the Superintendent. In case the Superintendent desires to examine any person the duty to examine him is on the Superintendent alone and no provision has been brought to our notice which enables the Superintendent to have such an examination made by a subordinate authority. The word "examine", according to Chambers' and the Oxford Dictionary means "to question" and it is in that sense that the word is used in Section 46. Where a readymade written-statement is submitted by a person to the Superintendent, such a person cannot be said to have been examined by the Superintendent as required by Section 46. It is also significant to note that Section 46 requires the Superintendent to "determine" upon the examination of the person whether an offence has been committed or not. According to the Oxford Dictionary the word "determine"
means : "ending of a controversy or suit by the decision of a judge or arbitrator; judicial or authoritative decision or settlement of the matter at issue; the settlement of a question by reasoning or argumentation." The word 'determine' itself involves a judicial approach. Section 46 thus clearly required the Superintendent to apply his mind to the material which comes before him as a result of examining a person or persons and on the basis of that material ho has to come to the conclusion whether an offence has been committed or not. The process of determination implies the application of mind by the Superintendent to the material before him and he has to determine objectively whether the person charged with a prison offence has been proved to have committed that offence. The enquiry claimed to have been made by the Superintendent was, in our view, clearly in violation of the provisions of Section 46 of the Prisons Act.
10. The power to determine whether a person has committed an offence or not is essentially a judicial power though the person who exercises it under Section 46 of the Prisons Act is not a Court. The consequences of a finding given against the prisoner under Section 46 by the Superintendent are penal in nature in two ways. The prisoner found guilty of the prison offence has to suffer the punishment which is awarded to him and it is not disputed that this punishment also adversely affects the remission to which he is otherwise entitled under the Prison Rules for good conduct. In the instant case it is not disputed that the petitioner himself will be deprived of a remission which he would have otherwise earned because an adverse entry in the Punishment Register has been made against him. It is difficult to appreciate how with the penal consequences that follow the determination by the Superintendent that the prisoner is guilty of a prison offence it is possible for the Superintendent to say that an enquiry into the prison offence could be made behind the back of the prisoner who is sought to be punished for such a prison offence. The enquiry contemplated by Section 46 of the Prisons Act, 1894 is clearly of quasi-judicial nature and must therefore be made according to the principle of natural justice. The right to be heard is an essential characteristic of natural justice. The concept of right to be heard was explained by Lord Denning in Kanda v. Govt. of Malaya [1962] A.C. 322 in the following words (p. 337):
If the right to be heard is to be a real light which is worth anything, it must carry with it a right in the accused man to know the case, which is made against him. He must know what evidence has been given and what statements have been made affecting him : and then he must be given a fair opportunity to correct or contradict them. This appears in all the cases from the celebrated judgment of Lord Lorebirn L.C. in Board of Education v. Rice [1911] A.C. 179, 182 down to the decision of their Lordships' Board in University of Ceylon v. Fernando [1960] 1 All E.R. 631 P.C. It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The Court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the judge without his knowing.
From the above observations it is clear that the principles of natural justice require that where a question of fact has to be determined on oral evidence the determination must be made after giving an opportunity to the person against whom the evidence is sought to be used to test the veracity of the witnesses by their cross-examination and he must be given an opportunity to meet the case which is sought to be made out against him on the evidence so recorded. Admittedly no statements of the co-prisoners were recorded in the presence of the petitioner nor is there any material to show that the petitioner was informed of those statements at any time. There is not even an averment to that effect in the return filed on behalf of the respondent. If the enquiry regarding the commission of the alleged prison offence would have been made in the presence of the petitioner, the petitioner would have had an opportunity to show by cross-examination of the persons on whose statements the Superintendent wanted to rely that those statements could not be accepted as true or that they did not make out the alleged prison offence. Such an opportunity has been denied to the petitioner and the enquiry was therefore in violation of the principles of natural justice. At paragraph 11, Court observed as follows:-
?The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. In a welfare State like India which is regulated and controlled by the rule of law it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which arc considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi-judicial power. These observations clearly bring out the concept that the instrumentalities of the State who are charged with a duty must discharge their function, in a fair and just manner. While it cannot be disputed that disciplined behaviour by a prisoner must no doubt be enforced it is also clear he must be dealt with fairly and justly. Fair and just treatment to the prisoner who is said to be charged with a prison offence and the punishment for which has serious consequences can be ensured only if the enquiry under Section 46(1) of the Prisons Act is made by the Superintendent in accordance with the principles of natural justice.
We may also observe that though the provisions of Section 46 of the Prisons Act do not in terms require the Superintendent to state the reasons for finding the prisoner guilty of the prison offence, it is necessary that the reasons for finding the prisoner guilty are stated by him. An order which does not give reasons does not fulfil the elementary requirements of a quasi- judicial process. See Govindrao v. State of M.P. . As observed by the Supreme Court in M.P. Industries Ltd. v. Union of India (1966 (1) SCR 466 = AIR 1966 SC 671).
...The least a tribunal can do is to disclose its mind. The compulsion of disclosure guarantees consideration. The condition to give reasons introduces clarity and excludes or at any rate minimizes arbitrariness; it gives satisfaction to the party against whom the order is made; and it also enables an appellate or supervisory Court to keep the tribunals within bounds. A reasoned order is a desirable condition of judicial disposal.?
99. In yet another decision in Shivraj S/o. Hanmantrao Patil vs. The State of Maharashtra and others, reported in 1993 (3) BomCR 717, the punishment imposed on the prisoner was challenged. Following a decision in Danial H.Walcott vs. Superintendent, Nagpur Central Jail, reported in 1972 (74) BOMLR 436 = 1972 Cr.LJ 673, the punishment was quashed with a direction to provide an opportunity to the prisoner and proceed further.
100. Right to legal assistance cannot be denied to a prisoner.
Indignity, torture, to any prisoner should not be made by the authorities, whatever be the gravity of the crime alleged. Of course, the jail authorities have to maintain discipline among the prisoners and if there is a violation of the prison rules, appropriate penalty can be awarded. But such penalties awarded should satisfy the test of fairness and reasonableness, and should adhere to the rule of law. The prisoner continues to be a human being. Allegations levelled against the prisoner, for which, he is detained as an undertrial prisoner, may be grave, but that does not amount to guilt.
101. Therefore, in the light of the discussion and decisions, we direct the Superintendent of Central Prison, Trichy, to furnish the copies of the orders of punishment, inflicted on the prisoner, on the dates, stated supra, within three days from the date of receipt of a copy of this order, so as to enable the prisoner to challenge the same, in the manner known to law. Prisoner is at liberty to challenge the same, within one week thereafter. Considering the punishments imposed, the prisoner shall not cause any delay. Welfare officers be permitted to assist him.
102. In A.S. Mohammed Rafi Vs. State of TN, reported in (2011) 1 SCC 688, the Supreme Court held that every person, however wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may be regarded by the society, has a right to be defended in a court of law and correspondingly, it is the duty of the lawyers to defend him. In the said judgment, the resolution passed by the Bar Association not to defend certain accused policemen in criminal cases has been held to be violative of rights of accused guaranteed under Article 22(1) of the Constitution.
103. The prisoner is at liberty to challenge the punishments. Welfare officer shall render necessary assistance in terms of Rule 117 of the Prison Rules, 1983. The prison authorities are directed to adhere to rule 142 of the rules. Any revision petition filed by the prisoner, in terms of rule 20(4) of the prison rules, to the Additional Director General of Police and Inspector General of Prisons, Chennai, should be disposed of, as expeditiously as possible, by not later than one month, from the date of receipt of a copy of such petition. Personal hearing is not contemplated in the rules. While adverting to the grievance of the prisoner, the authorities are directed to keep in mind the directions of the courts, discussed in the foregoing paragraphs. Till such time, as an interim measure, the prisoner shall be permitted to speak to his wife and counsel, subject of course to the prison regulations. The above direction would not curtail the right of the prisoner, to challenge the punishments before the court of law, if he is able to establish violation of the principles of natural justice and the court of competent jurisdiction would address the issue accordingly.
104. For the foregoing reasons, we are not inclined to issue a direction to transfer the prisoner back to the Central Prison, Madurai. The Habeas Corpus Petition is disposed of with the above directions.
To
1) The State of Tamil Nadu, rep by Secretary to Government, Home (Prison IV) Department, Fort St.George, Chennai-600 009.
2) The Additional Director General of Police, Egmore, Chennai-600 0085.
3) The Superintendent of Central Prison, Madurai.
4) Mr.Palani, The Superintendent of Prison, Trichy Central Prison, Trichy.
5) Mr.Senthil Kumar, The Additional Superintendent, Central Prison, Trichy.