CHARANJIT SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) 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.

(2.) 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 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 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 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.

(3.) 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."