Harnek Singh vs State of Punjab and anr.

Surinder Singh, J.

The facts giving rise to this writ Petition under Articles 226/227 of the Constitution of India are hardly in dispute. The Petitioner Harnek Singh was found guilty under section 304, Indian Penal rode, and was sentenced to ten years Rigorous Imprisonment which he is undergoing in Central Jai, Patiala. During the course of his confinement, he applied for temporary release on furlough for three weeks under section 4 of the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962. It is stated that the application for the grant of furlough was forwarded by the Superintendent Central Jail, Patiala to the Inspector General of Prisons Punjab, who granted the furlough to the petitioner. According to the information of the petitioner, the order granting furlough to him was communicated by the Inspector General of Prisons to the Superintendent, Central Jail, Patiala. It, however, transpires that on December 19, 1982, the petitioner was found to be under the influence of some intoxicating tablets and the Superintendent of Jail ordered on December 20, 1982 a cut of four days in the earned remission and also imposed barfetters for one month. In addition, the petitioner was denied the facility of release on furlough. The present petition has been filed in consequence of the aforesaid order of the Superintendent of jail.

The main and, in fact, the only grievance of the learned counsel for the petitioner is that the impugned order passed by the Superintendent of Jail on December 20, 1982 in connection with the incident which occurred a day earlier, was not an order passed in accordance with the law, as the Superintendent of Jail or any other Authority did not hold any inquiry into the alleged incident nor was the evidence of any witness recorded in that behalf in the presence of the petitioner. On the other hand, the penality was imposed upon the petitioner straightaway on an alleged admission of the offence, which he never made. In fact, it is also stated that the copy of the order passed on December 20, 1982 was never supplied to the petitioner and he was able to make a note of the same only from the extract noted on the History Ticket of the petitioner maintained by the Jail Authorities, The said extract has been reproduced in Para 6 of the petition.

In reply to the above allegations in the Writ Petition, an affidavit of the Inspector General of Prisons, Punjab, has been filed in which he main stand taken up is that the petitioner was informed of the punishment awarded to him and the contents of that order were explained to him. The proceedings ordered in the History Ticket of the petitioner have been reproduced in extenso in para 6 of the reply. The contention on behalf of the State is that since the petitioner had admitted his guilt, nothing further remained to be done in the matter. It is, however, averred that two officials, namely Shri Balbir Singh Batra Assistant Superintendent and Shri B. L. Sethi, Pharmacist had been examined in presence of the petitioner who, had refused to crossexamine them.

In so far as the factual aspect of the rival stands taken up by the parties is concerned, I am constrained to find that the learned Inspector General of prisons seems to have made an averment in Para 9 of the reply which is not supported by the record of the Jail Authorities. The proceedings record in the History Ticket of the petitioner merely indicate that the two officials mentioned above put up their separate notes in regard to the incident which took place on December 19, 1982 and the case was then put up before the Deputy Superintendent who passed on the same for orders of the Superintendent of Jail. The last mentioned officer passed the order on December 20, 1982 in which it is observed that the convict had admitted his offence and, had said nothing in defence. After these observation, the Superintendent of Jail proceeded to impose the penalty of four days cut in the earned remission and imposition of bar fetters for one month. It is also not disputed that the petitioner''s prayer for grant furlough has also been denied on account of the abovementioned punishment. There is absolutely no indication on the record that any statements of the two officials, namely Shri Balbir Singh, Batra, Assistant Superintendent, and Shri B. L. Sethi, Pharmacist were recorded by some Officer in the presence of the petitioner, or that the petitioner had refused to crossexamine these witnesses. The learned counsel for the State is also unable to point out any material on the record which would support the averment to this effect made in Para 9 of the written reply. Indeed, it would be desirable for a deponent to check up the correctness or otherwise of the facts mentioned in an affidavit which is to be submitted to a court of law.

The learned counsel for the petitioner has placed strong reliance upon a judgment of this Court rendered in Criminal Writ Petition No. 62 of 1981 (Inderjit Singh v. State of Punjab and other) decided by a learned Single Judge of this Court on January 15, 1982 copy where of has been attached with the petition as Annexure P1. The facts of the said case are absolutely akin to those in the case in hand. The objection taken in that case too was about the illegality of the inquiry held by the jail Authorities before imposing a penalty upon the convict for the alleged commission of a Jail offence. It has emphasized by the learned Judge in the said judgment, following the ratio in all earlier Division Bench of the Bombay High Court that even though section 46 of the Prisons Act did not by itself provide any detailed procedure in the matter of determination of prison offences still section 46 (2) of the Act casts a duty on the Superintendent to examine any person touching such offence. It was further held that the word determine in section 46 involved a, judicial approach to matter which necessary implied an objective application of mind by the Superintendent of the jail to the material before him. Another guideline which has laid down is that inquires of this nature being quasijudicial must conform to the principles of natural justice which postulated a right to the delinquent to be heard and the recording of the evidence of the relevant witnesses in the presence of the delinquent prisoner Applying the said principles the learned Single Judge in the case referred to above, quashed the order passed by the Superintendent of Jail under section 46 of the Act, though it was left open to Authorities to proceed with the matter afresh in accordance with law, in the right of the observations made in that judgment.

The observations in Inderjit Singh''s case (supra) are fully attracted to the present case. In a further attempt to wriggle out of the ratio of the case, the learned State counsel merely submitted that the petitioner pleaded guilty to the offence alleged against him and hence nothing further was required to be done before imposing a penalty. I fail to see the logic of this argument. The learned State counsel was unable to show from the record if any, particular allegation on constituting a Jail offence had been specifically put to the petitioner to which his plea of guilty had been recorded either under the signatures or otherwise. The mere observation in the impugned order "admits his offence" does not serve the purpose of a quasijudicial consideration of the matter, when there is nothing to show as to what was the offence which was put to the petitioner by way of a charge of allegation.

It is significant to note that in so for as the departmental, action is concerned, the petitioner has placed on record a copy of the circular letter issued by the Inspector General of Prisons dated May 17, 1982, addressed to the Superintendents of all Jails in Punjab in which a specific reference is made to the observations of this Court in Inderjit Singh''s case (supra) and a direction was issued that before taking decision in cases involving offences committed by the prisoners, the Superintendents of Jails, should conform to the following procedure.

"On the basis of these observations it is advised that while awarding your final decision in such cases, a speaking order must be record on the History Ticket of the prisoner by saying that the witnesses were examined in the presence of the accused prisoner and he was given an opportunity to crossexamine them. It should also be recorded that he was afforded full opportunity to defend himself. Finally it should be recorded as to whether the charges levelled against the prisoner stand proved or not, and if proved what punishment has been awarded to him."

It is needless to repeat that the above instructions issued by the Inspector General of prisons have not been carried out by the Superintendent of Jail, who imposed the penalty upon the petitioner vide his order, dated December 20, 1982. The result is that this order is not only an illegal order but violates the principles of natural justice. The same is accordingly quashed. It may, however, be observed that it would be open to the Jail Authorities to reconsider the matter in the light of the above observations and decide the same afresh. The question as to whether the petitioner is to be allowed to proceed on furlough, will also be considered afresh.

The writ Petition succeeds and is disposed of accordingly.