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22. Having held that the petitioners are neither under-trials nor can they be considered as prisoners condemned to death then the question arises under what class of prisoners they are to be treated. Mr. Arora contended that the petitioners would fall in the category of 'convicted' criminal prisoners and they would have to be dealt with under Chap. XVII of the Jail Manual.

23. I see force in this contention.

24. Chapter XVII deals with classification and separation of prisoners. The instructions contained in Chap. XVII have been framed to give effect to the provisions contained in Chap. V of the Prisons Act, 1894, which provides for the separation of various kinds of prisoners. Prisoners have been classified in the two classes civil prisoners and criminal prisoners. The criminal prisoners are further classified in two categories - convicted criminal prisoners and unconvicted criminal prisoners. The petitioners would fall in the category of 'convicted' criminal prisoners.

25. Para 576-A of the Jail Manual provides that the convicted prisoners shall be divided into three classes, namely, A, B and C classes. The claim of the petitioner is not for A class. Class B and Class C prisoners have been defined as follows :

"(2) Class 'B' will consist of prisoners who by social status, education or habit of the life have been accustomed to a superior mode of living. Habitual prisoners may be included in this class by order of the Inspector-General of Prisons.

(3) Class 'C' will consist of prisoners who are not classified in classes A and B."

26. The admitted fact is that the petitioners are being treated as class 'C' prisoners. The further admitted fact is that the petitioners before their conviction were treated as class B under-trials. It is not understandable on what reasoning after conviction the petitioners ceased to be class 'B' prisoners and become class 'C' prisoners. They were probably placed in this category because of the instructions contained in Chap. XXXI of the Jail Manual. I have earlier observed that these instructions do not apply to the petitioners.

41. Another factor that must have probably weighed with the authorities, perhaps, was their social status, life style and qualifications. In my opinion, therefore, there is no reason as to why they should be stripped off the 'B' class prisoner facilities at least till they are declared as condemned prisoners in the eye of law.

42. Mr. Arora's contention that the power to classify into 'A' and 'B' categories vests in the Government under Para 576-A and that the prisoners must apply to the Government for the same, to my mind, does not appear to be relevant. The reason for saying so is that the petitioners during their trial before the Sessions Court were given 'B' class facilities. There is no change either in their status or in the situation and I find it difficult to understand as to why they can be stripped off all those facilities till they are not declared as condemned prisoners. I am, therefore, of the view of that as convicted prisoners, there is no other option with the jail authorities but to restore those facilities to the petitioners. In conclusion, therefore, I fully agree with my learned brother, R. N. Aggarwal J. that the petitioners are neither under-trials nor are they prisoners condemned to death and that the petitioners are convicted prisoners and are entitled to 'B' class facilities as long as the sentence of death awarded to them does not become final and conclusive.