PRADEEPAN Vs. STATE OF KERALA

JUDGEMENT

(1.) FIVE accused in Sessions Case No. 146/2001 on the file of the Court of Sessions, Thalassery, who were convicted for offence under S. 302 of IPC along with other offences, are the petitioners/appellants. The Sessions Court found that the murder committed by them will come in the category of rarest in rate cases and capital punishment was imposed on them subject to confirmation by the High Court and they were sent to jail under a warrant. They were confined in condemned cell as provided under S. 30 (2) of the Prisons Act, 1894 read with Kerala Prisons Rules, 1958. It is the contention of the petitioners that the sentence of death passed by the Sessions Court is not final, till it is confirmed by the High Court and therefore they should be allowed all privileges which are granted to other prisoners. Learned Director General of Prosecution submitted that age old practice in the State is to put such prisoners in the condemned cell. It is further submitted that the petitioners are provided all other facilities, which are given to the prisoners, even though they are kept in a separate ward in separate rooms. This is done for the safety of the prisoners as well as for enabling the State to make them available for execution of the sentence after confirmation of the same. Before going into the merits of the case, we refer to the statutory provisions in this regard.

(2.) S. 366 of the Code of Criminal Procedure provides as follows:- " 366. Sentence of death to be submitted by Court of Session for confirmation 1)When the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court. 2) The court passing the sentence shall commit the convicted person to jail custody under a warrant. " S. 30 of the Prisons Act, 1894 reads as follows:- " 30. Prisoners under sentence of death- (1)Every prisoner under sentence of death shall, immediately on his arrival in the prison after sentence, be searched by, or by order of, the Jailer and all articles shall be taken from him which the Jailer deems it dangerous or inexpedient to leave in his possession. (2)Every such prisoner shall be confined in a cell apart from all other prisoners, and shall be placed by day and by night under the charge of guard. " Chap. XLVII of the Kerala Prisons Rules, 1958 (in short Rules) deals with prisoners sentenced to solitary confinement. Chap. XLVIII deals with prisoners sentenced to death. R. 780 and 781 of the Rules are as follows: " 780. Search of prisoner.- When a prisoner sentenced to death is searched under S. 30 of the TC Prisons Act or Central Act every article of private clothing shall be taken away from him as well as all other articles of every description whether money, jewellery or otherwise, and he shall be supplied with a suit of convicts clothing. 781. Confinement in a condemned cell.- The petitioner shall then be removed to one of the condemned cells. The Jailer shall inspect the cell before the prisoner is placed in it, and shall satisfy himself of its fitness and security. No prisoner under sentence of death shall be placed in a cell having only a wooden door, and if there is an external wooden door in addition to the granted door, it shall be kept open. " Similar provision is contained in Chap. LIX of the Kerala Prison Manual.

(3.) IT is the contention of the learned Director General of Prosecution that, even though subject to confirmation, the Court of Session had already passed the sentence and therefore the petitioners are to be treated as persons sentenced to death and therefore S. 30 (2) of the Prisons Act, 1894 is applicable to them. S. 366 (1) of the Cr. P. C. provides that when the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court. Therefore it is the contention that even in confirmation of High Court is necessary, it is a sentence of death. We are unable to accept the above proposition because S. 366 (1) itself very clearly says that sentence of death by the Session Court is subject to confirmation by the High Court. Therefore, unless it is confirmed by the High Court, it cannot be said that one is sentenced to death. Further under S. 366 (2) the word used is "convicted person" and not a "person sentenced to death". So, the Sessions Court is empowered to send them in jail as they are convicted under S. 302. The provisions of the Prison Manual as well as S. 30 (2) of the Prisons Act deals only the prisoners under sentence of death. According to the learned Director General of Prosecution, only when a murder is committed in a most heinous way, in rarest case death sentence is imposed after convicting for an offence under S. 302 IPC. Then nature of imprisonment shall not be better than others who are given the minimum sentence for S. 302 IPC. IT was also contended that whenever right of appeal is provided against conviction of sentence, it cannot be stated that all such persons are not sentenced for imprisonment till appellate remedies are over. Whatever may be the force in the argument by the prosecution, we are bound by the Apex Court decision. The Apex Court decision in Sunil Batra's case clearly held that unless the death sentence is confirmed by the High Court, it cannot be treated as prisoners sentenced to death. In the above circumstances, the petitioners cannot be sent to condemned cell. The Supreme Court also held that such practice of keeping prisoners in condemned cell before confirmation is a pre - constitutional practice and such practices should be avoided. Therefore, practice adopted in the jail till now cannot be a ground of putting the petitioners in solitary confinement or separate condemned cells. Only for death sentence, confirmation by High Court is necessary. Hence, we are unable to accept the contention raised by the prosecution.