Malak Singh vs State of Punjab and anr.

K.S. Bhalla, J.—Petitioner Malak Singh was awarded imprisonment for life after conviction under section 302 of the Indian Penal Code by Additional Sessions Judge, Jalandhar, and he at present is confined in Central jail, Ferozepur. While under going sentence he was awarded jail punishment on 2.9.1986 when he was confined in Central Jail, Ludhiana. Validity of the said punishment has been challenged by Malak Singh through present petition, as the same was likely to work as impediment in his way for consideration of his case for premature release under Article 161 of the Constitution of India. According to him, the order of punishment was illegal, without jurisdiction, ultra vires of the Prisons Act and against the principles of natural justice as the process of determination was not properly followed nor there was proper judicial appraisal.

Careful scrutiny of the proceedings with regard to punishment dated 291986 reveals that there has been no regular enquiry besides conjactural approach. Intoxicating tablets allegedly were recovered from one Raghbir Singh, an inmate of a different ward who informed the jail authorities that he had obtained the same from petitioner Malak Singh. Reports with regard thereto were made by Assistant Superintendent and Deputy Superintendent of Jail as is clear from annexure R2. JUDGMENT of the Superintendent Jail dated 291986 awarding jail punishment also appears to have been passed on the basis of the said reports as is clear from that annexure. No statement of convict Raghbir Singh was recorded by the Jail Superintendent much less in the presence of the petitioner. Statement of Madan Lal annexure R1 does not show if the same was recorded in the presence of the petitioner or that he was afforded an opportunity to crossexamine him. According to Madan Lal he had seen petitioner giving intoxicating tablets to convict Raghbir Singh who was confined in barrack No. 1 and he informed Head Wardar Kewal Krishan about that fact. No statement of Head Warder Kewal Krishan has either been recorded. Annexure R3 are some observations made by Supdt. of Central Jail by which it has been tried to show that the petitioner was given full opportunity to crossexamine the witnesses. It is mentioned therein that Deputy Superintendent produced convict Malak Singh before the Superintendent and statements against him were read over to him. That document speaks of plural terminology and clearly indicates that there were more than one witnesses. The file however, provides solitary statement or Madan Lal annexure R1, wherein it is nowhere mentioned if opportunity for crossexamination was afforded. According to annexure R1 statements were read out to the petitioner when he was produced before the Superintendent Central Jail by the Deputy Superintendent and that necessarily implies that statement of Madan Lal was not recorded in the presence of the petitioner. Thus clearly proceedings for awarding jail punishment were not properly conducted. Proceedings under Section 46 of the Prisons Act are quasijudicial in nature and the orders passed under that Act bring penal consequences to a prisoner. Therefore, the proceedings should always be in conformity with the principles of natural justice. Also the application of the mind is to be that of the punishment authority. The witnesses are required to be examined by the Jail Superintendent himself and delinquent should also be given an opportunity to crossexamine the witnesses. This is the only recognised manner in which the Superintendent can determine upon any jail offence. Recovery of the tablets was neither made by Madan Lal nor the same was made in his presence. Statements of convict Raghbir Singh and Head Warder Kewal Krishan who are the persons who recovered tablets from convict Raghbir Singh were therefore necessary to be recorded to bring home the lapse to the petitioner. It was held in Inderjit Singh v. State of Punjab and others, 1982(2) CLR 129, that it is apparent from the statutory provision that the Jail Superintendent has to determine as to whether a convict has committed any jail offence and he having not so determined properly, the jail punishment becomes invalid and cannot stand.

It also goes without saying that no punishment can be awarded to a prisoner without judicial appraisal of the Sessions Judge in view of Sunil Batra''s case, AIR 1980 Supreme Court 1579. Annexure R4 is the communication of Sessions Judge, Ludhiana, wherein it is simply mentioned that the punishment awarded to convicts Raghbir Singh and Malak Singh vide order dated 291986 had been seen by him. Seeing of punishment by the Sessions Judge by itself is not sufficient. On the other hand, he is required to take into consideration the facts and circumstances of the case. Had the Sessions Judge gone into the facts and circumstances of the case and noticed that neither Raghbir Singh from whom the intoxicating tablets allegedly were recovered nor the person who had made that recovery was examined by the Jail Superintendent, he could not have possibly approved the punishment. Appraisal or appraisement means the estimation of quality and in order to appraise the order of punishment the Sessions Judge is required to estimate the worth of the same. That having been not done in this case, the order of, punishment is bad on that score as well.