Punjab-Haryana High Court
Charanjit Singh vs State Of Punjab And Others on 21 January, 2010
Criminal Misc. No. 8338 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Misc. No. 8338 of 2009
Date of decision: 21-1-2010
Charanjit Singh .........Petitioner
Vs
State of Punjab and Others .........Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present: Shri Vijay K. Jindial, Advocate, for the petitioner
Shri R.S.Rawat, Assistant Advocate General, Punjab
HARBANS LAL, J.
This petition has been moved by Charanjit Singh under Section 482 of the Code of Criminal Procedure read with articles 226/227 of the Constitution of India for quashing of punishment awarded by Superintendent of Jail, Hoshiarpur respondent No.3 being violative of Articles 14, 19 and 21 ibid and also the provisions of the Prisons Act as well as Punjab Jail Manual.
The brief facts giving rise to this petition are that the petitioner was tried in a case registered vide FIR No. 10 dated 17.1.2001 under Sections 302/307/482/120-B and Section 5 of the Arms Act, Police Station Garhshankar, District Hoshiarpur. He was convicted and sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/- under Section 302 of the Indian Penal Code and was further sentenced to undergo rigorous imprisonment for 5 years and to pay fine of Rs.1000/- under Section 307 read with Section 34 of the Indian Penal Code and was also sentenced to Criminal Misc. No. 8338 of 2009 2 undergo rigorous imprisonment for 5 years and to pay fine of Rs.1,000/- under Section 449 of the Indian Penal Code with a further direction that all the sentences shall run concurrently. He is continuously confined in Jail, as life convict since 18.9.2003. While confined in District Jail, Hoshiarpur, he was involved in a totally false case and was awarded forfeiture of earned remissions for 12 days on the allegation that he had kept a mobile phone in his custody. This punishment for the jail offence has created hurdle in the matter of temporary release under parole, furlough and the same is likely to create hindrance in his premature release and also deprived him of several other benefits, which he was usually entitled to on account of good conduct. A perusal of the order Annexure P-1 will reveal that he has been found guilty for the offence under para 543(12) and para 544(5) of the Punjab Jail Manual. The Superintendent of Jail has ordered to forfeit 12 days earned remissions. The mobile phone was ordered to be kept in custody of Deputy Superintendent of Jail. The order passed by the Superintendent of Jail was approved by the learned Sessions Judge, Hoshiarpur vide his order No. 4460 dated 26.5.2007 Annexure P-1/A. As per para 540 of the Punjab Jail Manual, Mobile does not fall under the list of prohibited articles. Para 543 which relates to acts declared to be prison offences under the Prison Act also reveals that the act of keeping Mobile phone is not a prison offence.
In joint reply filed by the respondents it has been averred that on 17.5.2007 the Deputy Superintendent of Jail, Hoshiarpur found one Mobile wrapped in newspaper inside the electricity board in jail and he inquired about the same from the petitioner, who said that this Mobile belongs to him and he had brought the same after he went on six weeks parole and when he surrendered back in the jail, he kept it inside the Criminal Misc. No. 8338 of 2009 3 electricity board. By keeping Mobile phone inside the jail, he committed jail offence. The petitioner was found to have committed violation of Para 543(12) and Para 544(5) of the Punjab Jail Manual and his 12 days earned remissions was forfeited for committing this offence by keeping Mobile inside the jail. The learned Sessions Judge, Hoshiarpur granted judicial appraisal vide his order No. 4460 dated 26.5.2007 according to law. Therefore, this petition being not maintainable is liable to be dismissed.
I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.
Learned counsel for the petitioner strenuously urged that the impugned order dated 23.5.2007 passed by Deputy Superintendent, Jail, Hoshiarpur is wholly illegal, arbitrary and whimsical and the same deserves to be set aside. He further punctuated that in view of Sunil Batra Vs. Delhi Administration AIR 1980 SC 1579 the petitioner ought to have been afforded opportunity of being heard before he was punished for the alleged offence by passing a speaking order by the learned District & Sessions Judge, Hoshiarpur. A glance through the order dated 26.5.2007 Annexure P- 1/A rendered by the learned District & Sessions Judge Hoshiarpur would reveal that it has been handed down in derogation of the observations rendered by the Supreme Court in Sunil Batra's case. In terms of Section 46 of the Prison Act, it was incumbent upon the Jail Superintendent to hold regular inquiry by following rule of natural justice. The petitioner was not given any opportunity to defend his case. The Superintendent Jail has not recorded the statements in the presence of the petitioner. Besides this, the opportunity to cross-examine the witnesses was not given to the petitioner. The punishment has been awarded on the basis of the alleged confession of Criminal Misc. No. 8338 of 2009 4 the prisoner before him. Such confession is of no consequence as the same was recorded while the petitioner was in custody and under the control of the Superintendent Jail and furthermore the same was not recorded in his own words. In the absence of exact words it cannot be ascertained, whether or not confession was voluntary in nature. Worse still, the learned Sessions Judge has not given any effective hearing to the prisoner before approving the punishment for the jail offence. He failed to pass self speaking order. Para 544(5) of the Punjab Jail Manual makes offence only if the petitioner was holding any communication with an outsider, but there was no such allegation in the proceedings recorded by the Jail Authorities. Thus the action of the Jail Authorities in forfeiting 12 days earned remissions is without any authority of law. To buttress this stance, he has sought to place abundant reliance upon Jagir Singh @ Jagir Chand Vs. State of Haryana and others 1989(2) Recent Criminal Reports(Criminal) 569, Tej Ram Vs. State of Haryana and others 1993(1) Recent Criminal Reports (Criminal) 412, Mukesh Versus Superintendent of Jail Karnal 1994(1) Recent Criminal Reports(Criminal) 193, Moti Lal Versus State of Punjab and others 1992(1) Recent Criminal Reports(Criminal) 370, and Sukhdev Singh Vs. State of Punjab and another 1990(1) Recent Criminal Reports(Criminal)88.
The learned State counsel countered these arguments by urging with great eloquence that as would be apparent from Annexure P-1 the extract of history ticket carrying proceedings dated 17.5.2007, the petitioner had admitted that the Mobile which was found did belong to him. In view of such confession, the Jail Authorities were not required to afford the opportunity of being heard to the petitioner. This contention merits rejection for the reasons to be recorded hereinafter.
Criminal Misc. No. 8338 of 2009 5
Annexure P-1/A the order dated 26.5.2007 passed by the learned District & Sessions Judge, Hoshiarpur reads as under:-
"Appraisal is hereby approved with regard to the punishment awarded to convict Charanjit Singh S/o Swaran Singh by you vide your order dated 23.5.2007."
Palpably, this order is cryptic about the fact that the entire record was produced and it was perused by the learned Sessions Judge, Hoshiarpur or that the petitioner was afforded an opportunity of being heard before agreeing to judicial appraisal. This order of judicial appraisal is quasi judicial order. It is always expected that while judicially appraising the jail punishment, a notice is required to be issued to the convicts to whom jail punishment is awarded in the ends of justice. If such an opportunity is given, these matters can be decided satisfactorily at that level just by cursorily going through the punishment recorded as held in Nirbhai Singh and others Vs. State of Punjab 1988(1) Recent Criminal Reports(Criminal)
356. The doctrine of Audi Alteram Partem contemplates that no one should be condemned unheard. Here in this case, as alleged by the respondents, it is on the basis of confession made by the petitioner that the earned remissions for 12 days have been forfeited. Such confession has been made before the jail authorities, who were persons in authority. As a matter of abundant caution as well as for own satisfaction, the learned Sessions Judge was required to have examined the record. Besides this it ought to have been ensured from the petitioner that he has suffered the confession without any duress. The documents supportive of such confession have not been appended to the reply. In the absence thereof, it is very difficult to say that reasonable opportunity was given to the petitioner to cross-examine the Criminal Misc. No. 8338 of 2009 6 witnesses. In Inderjit Singh Vs. State of Punjab and others 1982(2) Chandigarh Law Reporter 129, it has been held that "it is apparent from the above statutory provisions that the Superintendent (Jail) has to determine as to whether a convict has committed any jail-offence. The word 'determine' means "to come to a decision". It implies that the punishing authority has to apply its mind to the facts and circumstances of the case and reach a conclusion. It is implicit in this process that the delinquent convict is associated with the process of determination. The statements of the witnesses, conversant with the facts, have to be recorded in the presence of the convict. Thereafter, he has to be given an opportunity of being heard so that he may refute the allegations made against him." In the present one, in the proceedings dated 19.5.2007 recorded in the history ticket of the petitioner, it has been mentioned that the petitioner had stated that Mobile was brought in through the under trial Ashok Kumar alias Ashoki. The charger of the Mobile could not be found in the room of the petitioner. When the prisoner was inquired in the presence of Ashok Kumar alias Ashoki, then he refused to admit that the Mobile was received from outside through the said under trial. It is further mentioned that now he stated that he got the Mobile through another convict Ravinder Singh alias Panda. In the proceedings dated 23.5.2007, it has been mentioned that the petitioner has admitted that the Mobile which has been found belongs to him and in this connection prisoner Jagtar Singh also got recorded his statement, but there is nothing to show that the petitioner was given an opportunity to cross-examine this witness. On 23.5.2007 the case was sent to the learned Sessions Judge for Judicial appraisal. From the proceedings dated 17.5.2007 recorded in the history ticket of the convict, it transpires Criminal Misc. No. 8338 of 2009 7 that virtually the jail punishment was passed on the basis of the report of the Deputy Superintendent, Jail. Section 46 of the Prison Act does not by itself provide detailed procedure in the matter of determination of prison offence, nor are there rules dealing with the question. Section 46(ii) ibid casts duty upon the the Superintendent of Jail to examine any person touching offence and he cannot delegate his such power to his subordinate authority. Vide letter No. 19514/40-GI-R-5-R-9-2-8-69 dated 17.5.1982 Inspector General of Prison has issued the following instructions to Superintendents of Jails.
" xx xx xx xx xx xx On basis of these observations, it is advised that while awarding your final decision in such cases, speaking order must be recorded on the history ticket of the prisoner by saying that the witnesses were examined in the presence of the accused and he was given an opportunity to cross-examine them. It should also be recorded that he was afforded full opportunity to defend himself. Finally, it should be recorded as to whether the charge levelled against the prisoner stands proved or not and if proved, what punishment has been awarded to him."
In view of these instructions, it was imperative upon the Jail Authorities to pass a speaking order on the history ticket of the petitioner by saying that the witnesses were examined in his presence and he was given an opportunity to cross-examine them and to defend himself and that the charge levelled against him stands proved or not. The respondent having not appended any document with their reply revealing the compliance of afore-referred instructions, it is not possible to say that the jail authorities had acted in adherence thereto. In view of Sunil Batra's case judicial Criminal Misc. No. 8338 of 2009 8 appraisal in relation to every judicial punishment is to be carried out. Annexure P-1/A reflects the non-application of mind by the learned District & Sessions Judge.
In view of the above discussion, I hereby accept this Criminal Miscellaneous petition and quash the impugned punishment dated 23.5.2007 awarded by the Jail Superintendent as well as Annexure P-1/A the impugned order dated 26.5.2007 passed by the learned District & Sessions Judge, Hoshiarpur. Sequelly, the petitioner shall be entitled to consequential benefits as if the said punishment was never awarded to him.
(HARBANS LAL) JUDGE January 21, 2010 RSK Registry is directed to send a copy of this judgment to the Jail Superintendents and the District & Sessions Judges in the States of Haryana, Punjab and Union Territory, Chandigarh for guidance.
(HARBANS LAL) JUDGE January 21, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes