DEBI LALL SAHU Vs. EMPEROR

JUDGEMENT

(1.) The petitioner has been convicted of an offence under Section 52, Prisons Act. The offence consists of having refused to eat food prescribed by the prison diet scale from 11 to 14 February 1943. For this offence the petitioner has been awarded one year's rigorous imprisonment. An appeal against the conviction to the Sessions Judge was dismissed as being barred by limitation. It has been contended in this Court in the first place that the omission to take the food offered to the petitioner from 11 to 14 February 1943 did not constitute an offence because the omission implied no criticism of the quantity or the quality of the diet prescribed by the authorities, but was due merely to the petitioner's intention to fast while Mr. Gandhi was doing the same thing. In my view this contention must fail. The motive for not eating the food offered to him has nothing to do with the offence dealt with by section 52.

(2.) It is next contended that the Magistrate who has convicted the petitioner had no jurisdiction to do so. This contention involves an examination of some of the provisions of the Jail Code and of the Prisons Act. By Section 45 of the Act certain acts are declared to constitute prison offences when committed by a prisoner. Among these acts is the wilful disobedience of any regulation of the prison which has been declared by rules made under Section 59 to be a prison offence. In exercise of the powers conferred by Section 59 the rule-making authority has declared that refusing to eat food prescribed by the prison diet scale is a prison offence within the meaning of Section 45 of the Act. Section 48 confers upon the Superintendent of the Jail the power to punish persons guilty of a prison offence. The kinds of punishment which may be awarded to an offender are prescribed by Section 46 of the Act. Section 52 empowers the Superintendent of Jail to send an alleged offender for trial by a Magistrate if in the Superintendent's opinion the offence committed is not adequately punishable by himself either by reason of the frequency with which it has been committed or otherwise. The section requires the Superintendent to furnish the Magistrate with a statement of the circumstances. In the present case the Superintendent sent to the Magistrate a statement of the acts alleged to constitute the prison offence with which the petitioner was charged.

(3.) There was no allegation in the statement that the Superintendent was unable adequately to punish the offender, nor was the Superintendent examined as a witness to state that in his opinion the offence was not adequately punishable by himself. It is for these reasons that it has been contended that the Magistrate had no jurisdiction to try the offender or alternatively, that the conviction should not be maintained in the absence of a finding by the Magistrate that the offence committed by the petitioner was not adequately punishable by the Superintendent.