MANJEET SINGH Vs. STATE OF U P

JUDGEMENT

(1.) S. K. Phaujdar, J. The petitioner, Manjeet Singh, had been prose cuted under the provisions of the TADA and was under detention in Agra Central Jail, Agra, at the relevant time pending his trial for the offence. He sent an application to the Hon'ble Chief Justice, Allahabad High Court, alleging therein a irregularities in the prison so far under trials were con cerned. The application was treated as a habeas corpus writ petition and the District Judge, Agra, was asked to conduct an inquiry into the allegations made in the application. The report of the District Judge, Agra, indicated that the allegations of awarding punishment of fetters to the petitioner was true. It was stated that the petitioner was escorted from Agra Central Jail to the court and when he came back, he was found drunk. The petitioner was called to the court and his statement was recorded. He denied the allegations made against him and asserted that the punishment of fetters was imposed on him as he had dared to raise a voice of protest against the misdeed of Jail Authorities. The then Jailor and Jail Superin tendent of Agra Central Jail were asked to appear and they had filed their counter-affidavits in the matter. They were also orally examined in court and their statements were recorded.

(2.) ACCORDING to the Jailor and Jail Superintendent, Manjeet Singh was escorted to the court of C. J. M. , Agra from the Jail on 20-10-1992. When he came back he was found drunk. He was produced before the jail doctor who found that the petitioner had consumed alcohal before coming back to the jail. ACCORDINGly, the Jail Superintendent awarded him a punishment of fetters for a month. Subsequently, on 13-11-1992, the peti tioner allegedly gave an undertaking that there would be no recurrence of such incident and fetters were withdrawn. The jail authorities also con tended that the petitioner had misbehaved with the jail officials. It was further asserted that consumption of alcohal was also a misconduct for which the petitioner was liable for punishment under the jail rules. The rules of procedure of administration in Jails in U. P. ate contained in the U. P. Jail Manual (in short the Manual ). Chapter XVIII of this Manual speaks of the procedure for admission of prisoners into the jails for their detention and also of maintenance of discipline in the jail by an under trial prisoners. Clause 427 under this Chapter speaks of punish ments that could be awarded to under trial prisoners. Under this Clause 427, an under trial prisoner is liable to be punished for breach of prison discip line with punishments that varies from formal warning to link-fetters and bar-fetters. The rules provide that the use of handcuffs, link-fetters and bar-fetters, as far as possible, should be avoided and the same may be used only in very special circumstances with full reasons for awarding such punishment. This rule also requires that the court concerned (i. e. the court under whose jurisdiction a person is kept as an under trial prisoner) shall, invariably, be informed of the reasons for using handcuffs, link-fetters and bar- fetters, in each case by the Jail Authorities. This clause also requires that the punishment so awarded shall be subject to the conditions laid down in Clauses 814 and 815. Clause 429 of the Manual requires that no under-trial prisoner should be fettered as a matter of routine. Such fetter could be awarded only as a punishment and that too, under proper intimation to the court concerned. In case of great risk of violence, punishment of fetters may be imposed for safety under information to the court concerned. 4. Chapter XXX of the U. P. Jail Manual deals with the punish ments. Clause 814 therein states what are the minor punishments and Clause 815 enumerates the major punishments. Putting a prisoner under bar-fetter is a major punishment under Clause 815. Clause 27 requires that any punishment to an undo trial prisoner shall be subject to clauses 814 and 815, clause 815 again authorises only the Superintendent of a Jail to award the punishments and Clause 813 indicates that the Superintendent, while awarding punishment to a prisoner, for prison offences, shall endea vour to apportion the penalty to the needs of the case. Major punishments are to be awarded for offences involving serious violence or repetition of serious breach of the rules. It further requires that if a prisoner commits any infringement of the Jail Rules through ignorance or excusable carelessness, the Superintendent shall admonish him without recording a charge. If such infringement amounted to an offence it shall be recorded on the prisoner's history-sheet. 5. Article 21 of the Constitution of India states "no person shall be deprived of his life or personal liberty except according to the procedure established by law". The protection given by Article 21 extends to a prisoner detained in custody. The Supreme Court had held in the case of Sunil Batra v Delhi Administration, AIR 1980sc 1579 (para 4) that "a prisoner is entitled to invoke Article 21 for protection of his rights. Protec tion of the prisoner within his rights is part of the office of Article 32". Thus, the right emanating from Article 21 is equally applicable to a prisoner in custody and he cannot be deprived of his liberty except according to the procedure established by law. The right of personal liberty includes the right to move freely and is a freedom free from physical restraint of a person by incarceration or otherwise. When a person is an under trial he is already suffering a curtailment of his liberty in a member prescribed by law and the curtailment cannot further be narrowed down and the under trial cannot be subjected to more restraints than that was necessary and permis sible and in no case, such curtailment could be without compliance of the procedure established by law. When a person not in jail commits any offence he is to be arrested and tried and sentenced only in accordance with the procedure established by law, be also gets a chance to defend himself. The same right cannot be denied to a person simply because he is behind the bar. If an under trial is charged with any discipline or prison offence, he must have the right to be heard and the prison authorities may not and must not impose punishment without giving him this minimum opportunity of being heard. They may not award any punishment to him without following the procedure established by law. It is true that a detailed trial for an alleged prison in discipline is not thought of under the Jail Manual and it has been left to the prison authorities to determine what was good for maintenance of prison discipline. But the procedural safeguard for an under trial is still retained by the provisions in the Manual to ensure that whenever a punishment of handcuffs, link-fetters or bar-fetters is imposed on him, there must be very special circumstances to justify such punish ment. The prison authorities are further required to inform the court whenever they award punishment of handcuffs etc. In addition to the protection of clause 427 of the Jail Manual, there are special safeguards in clause 429 against punishment of fetters. Such punishment of fetters could be awarded only in the case of "great risk of violence" and here too, proper intimation to the court concerned is a must. 6. The procedural safeguards which have been provided in the matter of awarding punishment to under trial prisoners are solely for the purpose of protecting the valuable rights of under trials as guaranteed under Art. 21 of the Constitution of India and these provisions in the Jail Manual must, therefore be strictly followed. To quote the words of the Supreme Court "human dignity is not to be ignored even in prisons. Solitary confinement and putting fetters should be resorted to only in rarest of rare cases for security reasons. " AIR 1981 SC 625. The Supreme Court upheld this view in a recent decision also in the case of M. P. Diwedi, as reported in JT 1996 (1) SC 495. It was held herein that handcuffs and other fetters are not to be forced on the prisoner while lodged in jail or while being transported to or from jail. 7. In the present application we are required to see if the procedural safeguards in the matter of awarding punishments to the prisoners have been strictly followed by the prison authorities. The Jailor and Jail Superin tendent who were there in Agra Central Jail at the relevant time were given sufficient opportunity to produce before this Court the documents whereby they claimed that the court was informed of the award of the punishment of fetters to the petitioner Manjeet Singh. These two officers failed to produce such letter in original and even failed to get the office copy thereof. The Jail Superintendent, Sri P. K. Misra, indicated in his affidavit that he had asked the Deputy Jailor to send the intimation to the court concerned but the letter could not be produced as the concerned officer Shri K. P. Singh had since taken another service and had gone to another place. This officer Shri K. P. Singh was the Deputy Jailor at the Agra Central Jail at the relevant time. He has also sworn an affidavit before this Court and stated that he was asked by the Superintendent to inform the court concerned about the punishment of fetters awarded to Manjeet Singh and he did inform the court accordingly. He proposed to explain his failure to produce the documents on the ground that the courts in Agra were closed due to a strike called by the Advocate and as such the letter could not be found. There was no explanation either in his affidavits of these two officers or in their oral statements before this Court as to what had hap pened to the office copy of the letter which should have been in the jail office. The very incident that Manjeet Singh had come drunk while coming back from the court is also not free from doubt. We fail to understand how the prisoner could have consumed alcohol when he was escorted by two constables from jail to court and back. If at all he had consumed alcohol as alleged, it could not have happened without the connivance or at least without the knowledge of these constables. These two Police personnel were let off by the jail authorities on their begging apology and not even a report of their conduct was made to the superior police officers. We are constrained to hold from them material produced before us that there were no good ground for awarding punishment of fetters to Manjeet Singh for the alleged incident dated 20-10-1992, as the provisions of Jail Manual repeatedly warns that punishment of fetters could have been inflicted only under very special circumstances and only if it was necessary to avoid a risk of grave violence. The law also requires that even if the Jail Authori ties were satisfied that circumstances for awarding such a punishment were there, information to the court concerned was necessary. This was not a hollow procedure but was an essential element towards protecting the funda mental right of personal liberty of the petitioner against arbitrary action of the jail authorities. We hold that the action of the jail authorities in awarding the punishment was not according to the procedure established by law and was arbitrary and uncalled for. It was contended that Manjeet Singh had since been transferred to another jail and the concerned Deputy Jailor had taken a job in another department. This would make no differ ence in fixing the responsibility of violation of Article 21, From the mate rials before us we are of the view that the law did cast a responsibility on the Superintendent of the Jail to follow on certain procedure while award ing a punishment and the Superintendent was primarily liable to follow the rules in letters and spirit, If he thought it proper to get the rules followed through one of his subordinates and the rules were not really followed by that subordinate, the ultimate responsibility must be shouldered by the Jail Superintendent. We are, therefore, of the opinion that it was the Jail Superintendent, Sri P. K. Misra, of Agra Central Jail, Agra, who must be held liable for the violation of the rules and for danial of the right to the petitioner that was guaranteed under Article 21 of the Constitution of India and by the procedure laid down in the Jail Manual. This gross violation can only be compensated monetarily at this state and in view of the circum stances of the case, we direct that the Jail Superintendent, Agra Central Jail, Shri P. K Mishra, shall pay to Manjeet Singh, the petitioner, a com pensation of Rs. 5,000 within a period of three months from today failing which the State Government shall realise the same from his pay or other wise and see that the same is paid to Manjeet Singh. Compliance of this order must be reported by 11-7-1996. Copy of this order be sent to Sri P. K. Misra, Jail Superintendent, Agra Central Jail, Agra and also to the Secretary, Home Department Government of U. P. and a copy be also delivered to Manjeet Singh, the petitioner, within one month from today. Order accordingly. .