Tej Ram vs State of Haryana

S.K. Jain, J.

Tej Ram, petitioner herein, was awarded imprisonment for life and other sentences on 11.8.1987. He is presently confined in District Jail, Rohtak. While undergoing sentence, he was awarded Jail punishment of forfeiture of 10 days earned remission under Para 613(1) of the Punjab Jail Manual on 11.3.1991. Validity of the said punishment has been challenged by him through the present petition as the same was likely to work as impediment against him in way of his premature release under Article 161 of the Constitution of India as also in considering his case for temporary release (parole/furlough) in future. According to him, the impugned order was illegal, arbitrary and violative of Articles 14, 19 and 21 of the Constitution of India. No inquiry was ever conducted before holding him guilty and judicial appraisal was not got done before inflicting the punishment.

A careful scrutiny of the proceedings with regard to punishment dated 18.3.1991 reveals that there has been no regular inquiry besides conjectural approach. The punishment for 10 days cut in earned remission was awarded to the petitioner for staying out of the village during the period of parole w.e.f. 1.1.1991 to 23.1.1991. A report in this regard was made by the Assistant Superintendent on 5.3.1991, which reads as under :

"The convict had to spend the parole in village Rithoj, Police Station Sohna, District Gurgaon. According to police report, the convict did not pass the parole in the village. Accordingly he did not comply of conditions given in the warrant of parole. The Head Office vide letter No. 3606 CI/G5 dated 23.1.1991, ordered to take action against the convict.

The convict alongwith the ticket is produced for further action."

On the same date, the Deputy Superintendent directed the production of the petitioner before the Superintendent Jail. He was, however, produced before the Superintendent, District Jail, Rohtak on 18.3.1991, who passed the following order :

"The convict was produced. Heard. The police reported twice against the convict. The police reported twice that the convict has not passed the parole in a particular place. The Inspector General of Prisons ordered to take appropriate action against Judicial the convict. So, a cut in remission for ten days is ordered appraisal be got done."

Annexure R5/T is the true translation of the report of Assistant Superintendent dated 5.3.1990, recommendation of the Deputy Superintendent dated 5.3.1991, order of the Superintendent, District Jail, Rohtak dated 8.3.1991 and copy of the order dated 4.4.1991 passed by Sessions Judge, Rohtak (Camp at District Jail, Rohtak). The three worded order of the Sessions Judge is reproduced below :

"Judicially appraised. Approved.

Sd/

Sessions Judge,

Camp at District Jail, Rohtak.

4.4.1991"

From the above scrutiny of the record it is evident that the Jail punishment was passed on the basis of the report of the Deputy Superintendent.

Section 46 of the Prisons Act does not by itself provide detailed procedure in the matter of determination of prison offence. Neither are there rules dealing with this question. Section 46(2) casts duty on the Superintendent Jail to examine any person touching offence and he cannot delegate it to a subordinate authority. The word determination in Section 46 itself involves judicial approach. The process of determination implies the application of mind by the Superintendent to the material before him and he has to determine objectively whether the person charged with a prison offence has been proved to have committed that offence. In the absence of any definite rules for guidance as to how inquiry is to be made (except the provision regarding examination of a person i.e. Section 46(2) of the Prisons Act) such an inquiry which is quasi judicial in nature must be made according to the principles of natural justice. The right to be heard is an essential characteristic of natural justice. A perusal of the impugned order and the Annexures attached with the petition as well as the written statement would reveal that there is nothing on record to show that such an inquiry was ever held before awarding the punishment. The jail authorities were conscious of the absence of definite rules for guidance as to how the inquiry was to be made and, therefore, vide letter No. 19514/40GIR5, R9 2.8.1969 dated 17.5.1982 (Annexure P4). Inspector General, Prisons, issued following instructions to the Superintendents of all the jails :

"xx xx xx xx xx

On the basis of these observations, it is advised that while awarding your final decision in such cases, speaking order must be recorded on the history ticket of the prisoner by saying that the witnesses were examined in the presence of the accused 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 charge levelled against the prisoners stands proved or not and if proved, what punishment has been awarded to him."

A perusal of the record shows that even the above said departmental instructions were not followed in the case in hand. Except Annexure R5, which has been reproduced above, no other order of the Sessions Judge, Rohtak has been produced. It is undisputed proposition that since after the decision of Sunil Batra''s case, AIR 1980 SC 1579 judicial appraisal with respect to every jail punishment is to be carried out. This order of judicial appraisal is quasi judicial in nature and District and Sessions Judge is expected that while appraising the order of jail punishment, he should issue a notice to the convict so that the convict can point out any illegality or irregularity which may have been committed by the jail authorities. A simple and cursory look at the order of the jail authorities awarding the punishment cannot be described to be a judicial appraisal. The order on the foot of Annexure R5, as quoted above, cannot be described to be a due compliance of principles required for judicial appraisal.

In view of the above discussion, I hereby accept this criminal misc. petition and quash the impugned punishment (Annexure P1 dated 18.3.1991 as also Annexure R5). The petition stands disposed of accordingly.