Mohinder Singh vs State of Punjab and anr.

Jai Singh Sekhon, J.

Through this writ petition, the petitioner seeks the quashment of the order of the Superintendent Jail, Ferozepore awarding different punishments on 1941981, 21121984, 1131986, 20.6.86 and 11111989 under section 44 of the Prisons Act.

So far as the jail punishments awarded on 1941981 and 17121984 are concerned, more than 5 years have elapsed since these punishments were awarded. In view of the decision of this Court in Gurmit Singh v. State of Punjab, 1988(2) Recent Criminal Reports 490: 1988(2) All India Criminal Law Reporter 987 , these jail punishments shall no longer offer any hindrance to the consideration of the premature release of the petitioner by the concerned authorities.

Regarding the jail punishments awarded on 1131986, 20.6.1986 and 111986 it transpires that the grouse of the petitioner is that the enquiry was not conducted in accordance with the procedure laid down under section 46 of the Prisons Act as the petitioner was never afforded opportunity to crossexamine the witnesses and to defend himself. It is also maintained that the enquiry was conducted by the Assistant Superintendent Jail and the Superintendent Jail had passed the final order.

in the return filed by the respondents, it is maintained that the abovereferred jail punishments were awarded by the Superintendent Jail after following the due procedure and the prisoner was afforded an opportunity to examine the witnesses. Details of the procedure followed by the Superintendent jail is also appended as Annexure R. to the written reply.

I have heard the learned counsel for the parties besides perusing the record.

Regarding the jail punishment awarded on 11.3.1986 the report of the Assistant Superintendent Jail and the orders passed by the Superintendent Jail are as under :

"No. 111 7.3.86.

The prisoner reported that he took Rs. 50/ in cash from prisoner Baldev Singh for purchase of shoes. But this amount as per his statement he had given to prisoner Bohar Singh son of Pala Singh, whose interview had come, for purchase of biris but he neither brought any article nor returned his money. I made a report to Head Warder chakkar. On discreet enquiries, it is revealed that this prisoner was keeping Rs. 50/ in cash, which is against rules. This prisoner is indulging in the sale of intoxicant tablets. Prisoner has committed an offence of keeping cash money with him. Pending orders of Superintendent Jail be sent to segregation ward.

Sd/

Asst. Supdt.

JUDGMENTs of the Supdt. Jail.

11386.

Prisoner is present. He has stated that Rs. 50/ which he has given to prisoner Bohar Singh were found. Head Warder Nasib Chand has stated that Rs. 50/ which were found from prisoner Bohar Singh were his (prisoner Mohinder Singh) and he had never brought this to the notice of any officer. Head Warder Nasib Chand and Assistant Superintendent Krishan Dev have stated that both these prisoners have complaint of dealing in intoxicant tablets.

Prisoner has committed an offence of "Keeping cash money and he has been found guilty of this offence. The prisoner is awarded the punishment of six days earned remission cut, he be kept in segregation ward for 15 days. Case be sent for appraisal to the Distt. & Sessions Judge, Ferozepur."

A bare perusal of the same leaves no doubt that almost the entire enquiry had been conducted by the Assistant Superintendent Jail and not by the Superintendent Jail whereas section 46 of the Prisons Act specifically empowers the Superintendent Jail only to hold the enquiry and award the jail punishments. The matter does not rest here. as there is no indication available from the enquiry conducted by the Assistant Superintendent Jail or the Superintendent Jail that the prisoner was afforded any opportunity to crossexamine the witnesses or lead any evidence in defence. A single Bench of this Court in Inderjit Singh v. State of Punjab and others, 1982(2) C.L.R. 129, after placing reliance on the Division Bench decision of the Bombay High Court in Danial H. Walcott J. Prisoner at Central Prison,Nagpur v. Superintendent, Nagpur Central Prison, 1972(1) Criminal Law Journal 673 has held in para 10 of the judgment as under :

"I have gone through the record produced by Shri G.S. Bains, learned Assistant Advocate General, appearing for the State of Punjab. It is apparent that the statement of the jail doctor was not recorded in the presence of the petitioner. He was also not afforded any opportunity to project his viewpoint and rebut the evidence if any. Therefore, the impugned order dated December 4, 1980 passed by respondent No. 3 is violative of section 46 of the Act and is liable to be quashed. I order accordingly. However, it will be open to the authorities to proceed in the matter afresh in accordance with law and the observations made in this judgment."

Thus, there is no option but to conclude that the enquiry was not conducted in the manner prescribed under section 46 of the Act.

Regarding the punishment awarded on 2061986 to the prisoner, it transpires that the Assistant Superintendent and the Superintendent Jail had dealt with the matter as under :

"No. 1V 19686Today on 1961986 prisoner Devinder Singh son of Puran Singh was caught with 8 meters of cloth. This cloth he stated that he had purchased for Rs. 15/ from prisoner Mohinder Singh who had stolen this from Khaddi section (Handloom). This prisoner is habitual of stealing and he admits that he stole cloth from Khaddi section (handloom). Prisoner is sent to Ward No. 2 till further orders.

JUDGMENTs of the Superintendent Jail 2686. The prisoner is present. He has stated that he has not given this cloth. Prisoner Devinder Singh in his statement has stated that he gave coupon worth Rs. 15/ for this cloth to prisoner Mohinder Singh. Head Warder Khushal Chand in his statement has stated that 8 meters of cloth was found on search from prisoner Devinder Singh. This cloth was given by prisoner Mohinder Singh who was working in handloom section in the presence of prisoner Mukhtiar. Prisoner is guilty of stealing and giving cloth from jail factory.

Prisoner is awarded the punishment of cross bars fetters for five days, he will also be kept in the cell for that period. Cloth be deposited in jail factory. Punishment announced."

There is no indication available from the abovereferred proceedings whether the statement of any witness was recorded in the presence of the prisoner or that he was afforded an affective opportunity to defend himself. Thus, while awarding this punishment also, the required procedure under section 46 of Prisons Act was not followed.

Regarding the punishment of verbal warning awarded on 11111989 to the prisoner, it transpires that the prisoner had returned to the jail one day late from his parole. There is no indication from the order whether the statement of the prisoner was recorded in order to ascertain the circumstances, which resulted in this delay.

For the foregoing reasons, jail punishments awarded to the petitioner under the orders dated 1131986. 2061986 and 11111989 are also quashed by accepting this petition while the punishments awarded on 1941981 and 21121984 have already been held to be of no consequence while considering the premature release case of the petitioner.

The writ petition stands disposed of in these terms.