Jamadar Singh for the release of Sansari Singh Detenu vs State of Punjab and ors.

Harphul Singh Brar, J.

This Criminal Writ Petition has been filed by the petitioner Jamadar Singh for quashing two jail punishments awarded to Sansari Singh convict confined in District Security Jail, Nabha, on the grounds given in the petition that no enquiry was conducted before holding the convict guilty, neither any witness was examined in his presence nor was any opportunity to crossexamine the witnesses afforded to him. It was only on the basis of the unilateral statements, rather after recording the allegations only the Jail Authorities have proceeded to award the punishments. It is further averred in the petition that so far as the convict understands, prior concurrence of the Sessions Judge concerned was not obtained before imposing the punishments for the abovesaid jail offences, and that only material against the convict is that he confessed his guilt before the Superintendent, Jail.

It is stated in the reply that it is wrong to say that the convict was not associated with enquiry. The detailed enquiry was conducted. Statement of this convict was recorded. This convict confessed his guilt by delivering confessional statements. Statements of the witnesses were also recorded in the presence of the convict. This convict was given full opportunity to crossexamine the witnesses and defend his case to prove himself innocent. But on the basis of the confessional statement of the convict and statements of the eyewitnesses the offences committed by this convict were proved beyond doubt. Therefore, this convict was awarded jail punishment. The proper procedure was adopted by the Superintendant Jail while holding the convict guilty. These punishments have been approved by the learned District and Sessions Judge, Patiala vide order No. 5323/EB, dated October 1, 1988. The order regarding judicial appraisal is annexed as Annexure X3.

I have gone through Annexure R. 1 with regard to first jail punishment awarded to the convict Sansari Singh on July 3, 1988. Charge was, levelled against the petitioner by Assistant Superintendent. Annexure R. 1 shows that no evidence was recorded by the Superintendent, Jail and there was, thus, no question of allowing opportunity to the convict to crossexamine any witnesses.

I have also gone through Annexure R. 2 with regard to second jail punishment awarded to the convict Sansari Singh on the same date. i.e. July 3, 1988. Charge was levelled this case against the petitioner by the Assistant Superintendent In this case, the Superintendent has written as under :

"Convict is present. He was heard. He was given a chance to defend himself. Statements of the witnesses were recorded and a detailed enquiry was conducted convict. Confesses his guilt. And on the basis of the statements of witnesses offence is proved and is of serious nature. Open Air Jail was installed for the reformation and rehabilitation of the convicts and is only single jail in the State. This jail is a minimum security jail. There is no main wall around it. Convicts work in the area of 1000 acres independently. Due to the activities of such convicts the prestige of jail is lowered and is a loss to the other convicts as the facilities available to them are abolished.

Therefore, this convict deserves no mercy. His 18 months'' earned remission is cut. The punishment was read over to the convict. The case was sent for appraisal and confirmation."

But it does not show as to how many were the witnessess, what enquiry was conducted and for what reasoning the Superintendent held the convict guilty of the offence and what were the facts and circumstances on which he was persuaded to hold the convict guilty of the offence.

The word "determine" in Section 46 of the Prisons Act, 1894 has been interpreted by this Court to indicate that the Punishing Authority being a quasijudicial Authority has to determine in a quasijudicial manner, which means that witnesses against the convict have to be examined in his presence and he has to be allowed an opportunity to crossexamine them. Therefore, the convict has a right to lead evidence in defence and then after hearing arguments, the case has to be decided.

It is then stated in the reply to the petition that the abovesaid two jail punishments were approved by the District and Sessions Judge, Patiala, vide order No. 5323/EB, dated October 1, 1988, Copy Annexure R. 3, What is said to be an order of approval is a Memorandum from the District and Sessions Judge, Patiala, to the Superintendent, Open Air Jail, Nabha, which reads as under :

"Subject : Appraisal of Jail Punishment, proposed to convict Sansari S/o Birbal on 371988...

Reference your letter No. 874/M dated 471988 on the subject cited above.

The punishment awarded by you vide order dated 3788 is hereby approved. However, you are directed that in future you should obtain prior approval of this Court before awarding any punishment to the convicts."

A reading of Annexure R. 3 clearly shows that no prior approval of the District and Sessions Judge was taken. It does not show as to whether the facts and circumstances of this case were gone into by the District and Sessions Judge with a view to find out whether the jail punishments were valid, or not. It has been held by this Court in Surjit Singh v. State of Haryana and another, 1988(1) Recent C.R. 564, about Judicial appraisal as under :

"..the facts and circumstances of the case have to be gone into by the District and Sessions Judge with a view to find out whether the jail punishment is valid or not. When the violation of the Rules/Regulations has to be determined judicially then judicial appraisal has to be on a higher footing specially when the judicial appraisal has to be done by a judicial officer of the status of a District and Sessions Judge."

It is, thus, clearly seen from the contents of Annexure R. 3 that it does not fulfil the requirements of a `judicial appraisal.''

In view of the discussion above, this Criminal Writ Petition is allowed. The judicial appraisal recorded by the District and Sessions Judge, Patiala, copy Annexure R. 3 and the orders of jail punishments recorded vide Annexures R. 1 and R. 2 are quashed.