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Presumably in exercise of the power conferred on the State Government by s. 59 of the Prisons Act, certain rules were framed for the separation of prisoners and they are contained in the Jail Manual. Under para. 571 of the Jail Manual, 'shall convicts shall, so far as the requirements of labour and the cell accommodation of the Jail will allow, be kept separate both by day and by night." Paragraph 572 deals with the occupation of vacant cells, and para. 573 says that "'convicts of the habitual class shall be subjected to the system of separation prescribed in the preceding rules, in rotation." Paragraph 574 provides. If, at any time, there are more cells in any jail than suffice for the separation of all convicts of the habitual class, prisoners of the casual class shall be confined in cells, both by day and night, in rotation." Then comes the impugned provision, namely, para. 576, which reads:

The next question is whether in purported exercise of the said power the Superintendent in the present case acted with mala fide and meted out discriminatory treatment to the petitioner and thus offended Art. 14 of the constitution the affidavit filed in the Writ Petition, the petitioner made certain allegations against the Superintendent in respect of his treatment in jail. The said allegations may be summarized thus:

The petitioner was transferred to the judicial custody at the Central Jail Ambala, on May 7, 1959, after protracted police custody of over eight months. On the very day of his arrival in the Jail, the petitioner was looked up in solitary confinement in a cell in the condemned prisoners block and lock up period of 24 hours inside the cell was clamped." Though several representations were made by the relatives of the petitioner to the higher authorities, no redress was given to him. He was sought to be kept in the cell for 13 months till June 13, 1 when he was convicted in one of the cases filed against him. On June 14, 1960, the Superintendent of the Jail again ordered the petitioner to be looked up in complete solitary confinement under para. 575 of the Punjab Jail Manual, and again a confinement of 24 hours inside the cell was "clamped". On December 15, 1960, the Governor of Punjab ordered that the petitioner should be treated as a 'B' class prisoner, and even thereafter he was not transferred to the general ward of the prison where others' class prisoners were kept confined, but he was kept in the same condemned prisoners wards Though the look-up period of 24 hours inside the cell was considerably reduced the ban imposed on his association with other prisoners had not been relaxed. The petitioner was not allowed even to meet his co-accused who were in the general ward of the prison. While the other prisoners in the jail including the petitioner's co-accused were given numerous facilities i.e. of association work and recreation he was completely segregated in a cell without any such facilities. The jail authorities adopted this method of torture for ulterior purposes, The Superintendent of the Jail filed a counter affidavit. His answer to the grave allegations may be stated thus: on the very day of his arrival in the jail the petitioner behaved rudely and impertinently towards the jail staff and in a defiant way tried to undermine jail discipline. he was not kept in solitary cell for ulterior motives. He committed 12 jail offences and he was punished for them. After he was convicted he was put in a separate cell and that he was allowed one hour in the morning and one hour in the evening for exercise and also to have his bath outside the courtyard. After he was classified as a 'B' class prisoner, he was given amenities to which a 'B' class prisoner was entitled under the rules, but in the interest of jail discipline he was segregated from other prisoners. The cell in which the petitioner was kept was one of the cells in block of 32 cells out of which only were allocated for condemned prisoners and the rest were utilized for separate confinement for the segregation of hardened and troublesome convicted criminal prisoners. The petitioner was confined in the cell only for the night and he could move about in the open compound of the cell throughout the day.

The appellant was kept segregated in a separate cell after his conviction as well, in view of paragraph 575 of the Jail Manual. He was allowed an hour in the morning and an hour in the evening for exercise. He was allowed to have a bath in the court-yard outside the cell. The fact that the Superintendent did not state in his affidavit that he allowed the petitioner to communicate with others or to talk to other prisoners or that the appellant was allowed to mix up with other prisoners or to converse with them, does not necessarily mean that he disallowed any such thing or that, if he did so, the Superintendent acted against rules of law. The Superintendent denied that the appellant's request to meet Hari Das was disallowed. There is no allegation that he had not been afforded the facilities which are to be provided to a prisoner or to a B-class prisoner kept in a cell and therefore there was no occasion for the Superintendent to state about matters not complained of.

Further, Note 1 enjoins that no irksome conditions be attached to such separation. We are not shown that any such conditions were attached to the order for keeping the appellant in a cell.

Note 2 further empowers the Superintendent of the Jail to keep a convict separate if he be of opinion that his association with others of his class is detrimental to good order and discipline in the jail. The Superintendent states in his affidavit he that he was of such opinion.

The entire scheme of the Act and the rules is that ordinarily a prisoner should be kept separated from others and that it is only in view of limitations of providing separate cells for each prisoner that prisoners of a particular category are kept together in a large hall. The order classifying the appellant as a B-class prisoner further necessitated his being kept separate from other prisoners.