Nirbhai Singh and ors. vs State of Punjab

Ujagar Singh, J.

The petitioners have challenged their jail punishment dated 29.7.1986, on the ground that no opportunity was afforded to them to defend the case, statements of the witnesses were not recorded in their presence, no show cause notice was ever given to them and no charge was ever levelled against them, so much so that no proper enquiry was ever held by the authorities concerned and they were unheard, without allowing them to lead defence. Thus, the punishment is challenged on the ground of complete failure of statutory and settled provisions of law.

Reply was filed by Shri Narotam Singh, Superintendent Central Jail Bhatinda on behalf of the State and respondents 2 and 3. Therein it is averred that the petitioners had committed serious offence and a regular enquiry was conducted which was completed on 7.3.1987. The findings of the enquiry are as under :

"Findings in the inquiry conducted against the prisoners (convicts) No. 1, Suchnam Singh son of Gurcharan Singh, No. 2, Jagir Singh son of Mohinder Singh, No. 3 Vidya Sagar Singh son of Munshi Ram, No. 4 Bishan Singh son of Pritam Singh and No. 5 Nirbhai Singh son of Ganga Singh transferred to Central Jail, Patiala on 29.7.1986 on administrative ground."

"On the night of 29.7.1986, 5 convicts and 35 extremists undertrials were transferred to Central Jail Patiala and District Jail Nabha respectively.

The above named convicts were transferred for administrative reasons on the orders of the Inspector General of Prisons, Punjab. At the time of transfer the 5 convicts showed resentment about their transfer from Amritsar Jail and resorted to abusing the jail officials when they were in police custody outside the main gate.

In this connection a detailed inquiry was conducted by me and the statements of the officials were also recorded. The statements of all the 5 convicts were recorded by superintendent Jail Patiala at Central Jail Patiala and were sent to the undersigned by the said Superintendent for further necessary action. The inquiry has revealed that the prisoners in question had misbehaved due to resentment for their transfer from this jail to Patiala Jail. It was not proved that they were maltreated or abused or beaten by the jail staff, at the time of transfer. There allegations and their complaint that their personal articles were taken by the jail staff and warder guard were found baseless. This has been done with the ulterior motive of tarnishing the image of the administration. These prisoners who were lifers were transferred due to their stay at this jail was found undesirable. There were secret reports that they had sympathy with the terrorist elements in the jail and were trying to create indiscipline and disorder. After taking into account the evidence before me I came to the conclusion that these prisoners had committed jail offence and deserve jail punishment for the same. I, therefore, order a cut of 12 days earned remission in each case and they are to remain in cell ward under para 575 of P.J.M. The case be sent to Hon''ble Session Judge, Amritsar for judicial appraisal. "

It is also mentioned therein that the punishments have been judicially appraised by the District and Sessions Judge, Amritsar on 26.3.1987. During arguments, punishment record was summoned. The record shows that witnesses Sarvashri K.D. Sharma, Assistant Superintendent, Central Jail, Amritsar, Surinder Kohli, Dy. Supdt. (Factory) Hall, Central Jail, Amritsar; Inder Singh, Asstt. Supdt. Jail, Jit Singh, warder, Ram Kishan, warder; Charanjit Singh Head warder; Sardul Singh, Line Officer; Teja Singh, Head Warder; Piare Lal Virdi, Welfare Officer; Darshan Singh, Assistant Superintendent and Kuldip Singh were examined on different dates in Central Jail, Amritsar and they were also cross examined by the Enquiry Officer himself. These statements have been recorded in absence of the petitioner, as it is clear from the record that by that time, the petitioners had been transferred from the Jail to Central jail, Patiala. The file further shows that Suchnam Singh, petitioner, Jagir Singh, petitioner, Nirbhai Singh petitioner, examined themselves in Patiala Jail. In this view of the matter, the enquiry in Central Jail, Amritsar was not held in accordance with the principles of natural justice. Section 46 of the Prisons Act, 1894 requires that the Superintendent may examine any person touching any such offence and determine thereupon and punish such offence by different punishments mentioned therein. The word `determine'' has been interpreted to mean a regular enquiry in the presence of the delinquent convict and giving him proper opportunity of defence. This would mean that the witnesses have to be examine in his presence and he is to be allowed proper opportunity to crossexamination them and then lead defence evidence. As discussed above, the witnesses were not examined in the presence of the petitioners and thus they were deprived of the opportunity of crossexamination them. The circumstances further show that no opportunity to lead defence evidence was given before awarding jail punishment. The order of jail punishment dated 29.7.1986 is, therefore, liable to be set aside.

So far as the appraisal by the learned Session Judge, vide his order dated 26.3.1987, is concerned the order passed on that date does not show that the petitioners were given any opportunity to bring to the notice of the Sessions Judge the facts leading to the jail punishment and that they had no opportunity to point out the illegalities committed during the enquiry by the Jail authorities. This order of judicial appraisal is quasi judicial order and that, too, passed by a Senior Judicial Officer of the Superior Judiciary of this High Court and it is always expected that while judicially appraising the jail punishment, a notice is required to be issued to the convicts to whom jail punishment is awarded for ends of justice. If such opportunity is given, these matters can be decided satisfactorily at that level just by cursorily going through the punishment record.

In view of the above observations, this petition is accepted and the order of Jail punishment dated 29.7.1986 is quashed. With this, order of judicial appraisal also stands set aside.