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Suraj Gupta v/s State of Chhattisgarh, Through the Secretary, Home (Jail) Department, Chhattisgarh & Others


    WPCR No. 534 of 2020

    Decided On, 26 February 2021

    At, High Court of Chhattisgarh

    By, THE HONOURABLE MR. JUSTICE SANJAY K. AGRAWAL

    For the Petitioner: R.R. Soni, Advocate. For the Respondents: Sunil Otwani, Addl. A.G., Ratan Pusty, Advocate, appears as Amicus Curiae.



Judgment Text

“Convicts are not, by mere reason of the conviction, denuded of all th fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison­house entails by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to “practise” a profession. A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment, likewise, even a convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law.”

1. The above­stated statement of law rendered by their Lordships of the Supreme Court in the matter of D. Bhuwan Mohan Patnaik v. State of Andhra Pradesh (1975) 3 SCC 185) aptly applies to the facts of the present case as petitioner/prisoner complains about violation of his fundamental right guaranteed under Article 21 of the Constitution of India while forfeiting his earned remission.

2. Petitioner herein is a convicted prisoner undergoing sentence in Central Jail, Bilaspur for commission of offences under Sections 302, 307 and 149 of IPC. By way of this writ petition, he has called in question forfeiture of 10 days of his earned remission by order dated 22/04/2020 passed by the Jail Superintendent finding him guilty of committing prison offence under Section 45 of the Prisons Act, 1894. It has been questioned on the ground that such a forfeiture of his earned remission, without affording him an opportunity of hearing, is in violation of his fundamental right guaranteed under Article 21 of the Constitution of India.

3. Mr. R.R. Soni, learned counsel for the petitioner, would submit that remission forfeited by the Jail Superintendent on account of prohibited article found in possession of the petitioner, which is a prison offence under Section 45(12) of the Prisons Act, 1894, is absolutely unjust and improper and is in violation of petitioner's fundamental right under Article 21 of the Constitution of India as no enquiry was conducted by the Jail Superintendent as contemplated in Rule 734 of Chhattisgarh Prisons Rules, 1968 nor the petitioner was afforded an opportunity of hearing in that enquiry, as such, the impugned order passed by the Jail Superintendent deserves to be set aside.

4. Mr. Sunil Otwani, learned Additional Advocate General, would however support the impugned order and submit that the instant petition deserves to be dismissed.

5. Mr. Ratan Pusty, learned counsel appearing as Amicus Curiae, would submit that a careful perusal of the record would show that petitioner's 10 days earned remission has been forfeited by the Jail Superintendent without affording him an opportunity of hearing as an adverse report has been submitted by the Octagon Officer to the Jailor who has then submitted his report to the Jail Superintendent and that has been simply agreed upon and petitioner's 10 days of earned remission has been forfeited. He would rely upon the decision rendered by the Madhya Pradesh High Court in the matter of Anand Rao v. Inspector General of Prisons, Bhopal (1982 MPLJ 73 (DB)) to support his submission that without following the due procedure as prescribed in Rule 734 of Chhattisgarh Prisons Rules, 1968, petitioner's earned remission could not have been forfeited.

6. I have heard learned counsel for the parties, considered their submissions and went through the records with utmost circumspection.

7. Section 45 of the Prisons Act, 1894 enumerates the acts which are prison offences. Receiving, possessing or transferring any prohibited article is also a prison offence (Item No. 12 of Section 45 of the Act). Under Section 46 of the Act, the Superintendent may examine any person touching any such offence and determine thereupon and punish such offences by ­

(1) to (2) XXXX XXXX XXXX

(3) such loss of privileges admissible under the remission system for time being in force as may be prescribed by rules made by the State Government. Section 59 further authorises the State Government to make rules on various matters mentioned in that section. One of the matters mentioned is “defining the acts which shall constitute prison offences”. Thus, by rules, the State Government can supplement the prison offences enumerated in Section 45 of the Prisons Act. Rule 723 of Chhattisgarh Prisons Rules, 1968 enumerates the acts which are also prison offences and punishments for prison offences are mentioned in Rule 724. Forfeiture of remission earned in excess of four days, not but exceeding one month is a major punishment under Rule 724(2)(a) [para I and II]. Rule 734(1) provides that every commmission of a prison offence shall be reported to the Jail Superintendent who shall make such enquiries as may be found necessary and come to a decision as to the commission of the said offence or otherwise. The rule further provides that a record of the enquiry has to be maintained mentioning ­

(a) name of the prisoner,

(b) prison offence reported,

(c) date of offence,

(d) details of offence,

(e) name of witnesses proving the offence,

(f) finding of the competent authority and the reasons therefor and in the case of punishment awarded, the nature thereof, and

(g) date of infliction of punishment.

8. It appears from the record that in the instant case, on the allegation that petitioner was found in possession of prohibited article, the Octagon Officer submitted his report on 15/04/2020 to the Jailor, which states as under:­

“LANGUAGE”

9. Thereafter, the Jailor, on 22/04/2020, made the following recommendation to the Jail Superintendent which was then simply approved by the Jail Superintendent on the same date and as such, the order of forfeiture of 10 days of petitioner's earned remission was passed, which has been supplied to the petitioner under the Right to Information Act, 2005 and has been filed as Annexure P/1 in the instant petition:­

“LANGUAGE”

10. Thus, it is quite vivid that in the instant case, the enquiry has only been made by the Octagon Officer and the report has been submitted to the Jailor, who has then recommended forfeiture of petitioner's 10 days of earned remission to the Jail Superintendent, but without giving an opportunity to the petitioner to explain his conduct, penalty of forfeiture of earned remission has been imposed upon him by the Jail Superintendent as he agreed to the recommendation made by the Jailor for forfeiting 10 days of remission earned by the petitioner.

11. The Supreme Court (Constitution Bench) in the matter of Sunil Batra v. Delhi Administration (1978) 4 SCC 494) has clearly held that prisoners are entitled to all constitutional rights unless their liberties have been constitutionally curtailed.

12. The Madhya Pradesh High Court considered the issue of affording opportunity of hearing being given to the prisoner while forfeiting his earned remission in the matter of Anand Rao (supra) and followed the decision of the Supreme Court in Sunil Batra (supra) and in paragraph 5 of the judgment, it has clearly been held that the prisoner is entitled to opportunity to explain his conduct and the material appearing against him in the enquiry before he is found guilty of a prison offence. The Division Bench speaking through G.P. Singh, C.J. pertinently observed as under:­

“5. It is now well settled that there exists no iron curtain between the prisoners and the Constitution and that a prisoner is not denuded of his fundamental rights except to the extent lawful incarceration by its own compulsion has the effect of withdrawing or limiting these rights. So even a prisoner is entitled to the right guaranteed under Art. 21 that he shall not be deprived of his life or personal liberty except according to procedure established by law and the law establishing the procedure must be right, just and fair and not arbitrary, fanciful or oppressive (Sunil Batra v. Delhi Administration, AIR 1978 SC 1675 at pp. 1793, 1798)). Penalty of forfeiture of remission earned by a prisoner affects his right of personal liberty because that would result in continuing his incarceration for a longer time and would deprive him of the right of early release on the basis of remission. Procedure for imposition of the penalty of forfeiture must, therefore, meet the requirements of Art. 21 in that it must be just and fair and not arbitrary and oppressive. It is in this background that the procedure prescribed by R. 734 must be interpreted. It must be taken to be implicit that the enquiry contemplated by the rule, subject to the requirements of prison security and discipline, must be consistent with the principles of natural justice and the prisoner concerned must be given opportunity to explain his conduct and the material appearing against him in the enquiry before he is found guilty of a prison offence. It will appear from the facts stated earlier that the petitioner at no stage was asked to explain his conduct or the material appearing against him in the enquiry. He was not heard at all before imposition of penalty. This lends a serious infirmity to the impugned order.”

13. Reverting to the facts of the present case, admittedly, no such opportunity has been granted to the petitioner to explain his conduct and even otherwise, no enquiry was conducted by the Jail Superintendent while forfeiting petitioner's earned remission as pursuant to the recommendation made by the Jailor, petitioner's 10 days' earned remission has been forfeited, which is violative of petitioner's fundamental right guaranteed under Article 21 of the Constitution of India. Consequently, the order dated 22/04/2020 passed by the Jail superintendent forfeiting 10 days of petitioner's earned remission is hereby quashed.

14. The instant writ petition is accordingly

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allowed. However, petitioner is at liberty to file fresh application for grant of leave/parole in accordance with law. The Court appreciates the assistance rendered by Mr. Ratan Pusty, learned counsel appearing as Amicus Curiae, on such a short notice. 15. Before parting with the record, it is appropriate to invite the attention of the jail authorities towards sympathetic approach to be adopted while awarding hard punishment to the prisoners as highlighted by Their Lordships of the Supreme Court in the matter of Shri Rama Murthy v. State of Karnataka (AIR 1997 SC 1739) which states as under:­ “39. The aforesaid seems to us a more rational way to deal with prison vices rather than awarding hard punishment to them. We may not be, however, understood to say that the jail authorities need not take action against the prisoners indulging in vices; but in the situation in which they are placed, a sympathetic approach is also required.” 16. I hope and trust that the jail authorities will keep in mind the above­mentioned binding observation of the Supreme Court while awarding punishment to the prisoners.
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