PETITIONER:
RANBIR, SINGH SEHGAL
Vs.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT:
02/11/1961
BENCH:
SUBBARAO, K.
BENCH:
SUBBARAO, K.
SINHA, BHUVNESHWAR P.(CJ)
SHAH, J.C.
DAYAL, RAGHUBAR
MUDHOLKAR, J.R.
CITATION:
1962 AIR 510 1962 SCR Supl. (1) 295
ACT:
Jail Administration-Separation of prisoners-
Cellular confinement-Validity of-Rule permitting
separate confinement by right-Constitutionality
of-Prisons Act, 1894(9 of 1894), Punjab Jail
Manual Paras, 571,575-Constitution of India, Art.
14.
HEADNOTE:
In May, 1959, the appellant was sent to
Ambala Jail as an undertrial prisoner. On account
of certain jail offences alleged to have been
committed by him the Superintendent of Jail
segregated him from other prisoners and kept him
in a separate cell. He was convicted in June,
1960. Though he was
296
not alleged to be guilty of any jail offence or
indiscipline after this date he was still confined
in a separate cell without being allowed to
communicate with other prisoners; he was only
allowed to come out in the compound attached to
the cell for one hour in the morning and for one
hour in the evening. In December, 1960, the
Governor ordered that the appellant be treated as
a B" class prisoner. Even after this he was still
kept in a separate cell with this difference that
he locked up only at night and was allowed to move
in the compound attached to the cell during the
day. But he was still not allowed to communicate
with others. The Prisons Act provided for the
separation of prisoners and s.28 thereof permitted
convicted criminal prisoners to be confined in
cells either in association or individually.
Paragraph 571 of the Punjab Jail Manual provided
that so far as possible all convicts shall be kept
separate both by day and by night. Paragraph 575
provided that a convict who could not be confined
in a cell by day by reason that he was required
for some jail service shall be confined in a cell
by night. The appellant contended that his
confinement was under para 575, that para 575
offended Art. 14 of the Constitution and that the
Superintendent of Jail acted mala fide and
discriminated against him by keeping him in
solitary confinement.
^
Held, that para 575 of the Punjab Jail Manual
did not offend Art. 14 of the Constitution. This
paragraph was a part of an integrated scheme for
the maintenance of discipline of prisoners by
providing for their separation. The classification
was made on the basis of sex and the nature of
the prisoners and depended on the availability of
cells; is had a reasonable relation to the object
sought to be achieved. The power to separate was
entrusted to the highest officer in the jail who
was ordinarily expected to act reasonably,
objectively and without bias.
Held, further (per Sinha, C. J., Subba Rao,
Shah and Mudholkar, JJ.) that the confinement of
the appellant in a separate cell in the manner it
was being done was illegal. The separation of the
appellant so as to seclude him from communicating
with or from the sight of other prisoners
certainly amounted to cellular confinement if not
to solitary confinement. This could only be done
as a measure of punishment, and even then the
prisoner was entitled to have one hour's exercise
every day and to have his meals in association
with one or more prisoners. The appellant was
discriminated from other prisoners and, under the
colour of the rules for separation, was illegally
confined in a manner of authorised by law.
Per Dayal,J.-There was no discrimination or
illegality in keeping the petitioner in a separate
cell. The mere fact
297
that a person was kept in a separate cell did not
make his confinement solitary, cellular or
separate. Paragraph 571 of the Jail Manual
provided that subject to cell accommodation and
requirement of labour all convicts be kept
separate both by day and by night. Paragraph 575
provided an exception that where the convict could
not be kept separate by day he could be kept
separate by night. The entire scheme of the
Prisons Act and the rules was that ordinarily a
prisoner was to be kept separate and that only in
cases of limitation of providing separate cells
were prisoners to be kept together. There was no
provision that a prisoner kept in a cell was to be
specially. allowed to associate or mix with other
prisoners.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 120 of 1961.
Appeal by special leave from the judgment and
order dated March 17, 1961 of the Punjab High
Court in Criminal Writ No. 2 of 1961.
WITH
Petition No. 147 of 1961.
Petition under Art. 32 of the Constitution of
India for enforcement of Fundamental Rights.
The appellant/petitioner in person.
H. S. Doabia, Additional Advocate-General,
Punjab, Gopal Singh and P. D. Menon. for
respondent (in the appeal and the petition.)
1961. November 2. ‘The Judgment of Sinha, C.
J., Subba Rao, Shah and Mudholkar, JJ, was
delivered by Subba Rao, J. Dayal, J. delivered a
separate Judgment.
SUBBA RAO, J.-Both these matters are
connected and raise the same questions, and they
may be disposed of together.
Ranbir Singh Sehgal, the petitioner in the
writ petition, is now a prisoner in the Central
Jail Ambala, in the State of Punjab. He was
prosecuted for committing offence in different
places. On June 13, 1961, he was convicted by the
Additional District Magistrate, Ambala, under s. 5
of the Indian Explosive Substances Act and
sentenced to
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5 years rigorous imprisonment and to pay a fine of
Rs. 2,000/-. The petitioner has preferred an
appeal against the said conviction and sentence,
and the said appeal is now- pending the High Court
of Punjab. On January 30, 1961, the Additional
Sessions Judge (II), Ambala, convicted the
petitioner under ss. 120-B and 399 of the Indian
Penal Code and sentenced him to 7 years rigorous
imprisonment and a fine of Rs. 2,000/- under the
former section, d to 5 years rigorous imprisonment
and a fine of Rs. 2,000/- under the latter
section. The petitioner preferred an appeal
against this conviction and sentence to the High
Court of Punjab and the same is now pending there.
The other eases are not disposed of and they are
still pending in various courts. The petitioner
was arrested by the Ambala, police on September
11, 1958, and was detained in police custody for a
period of about 8 months, and on May 7, 1959, he
was transferred to judicial custody at Ambala. On
June 13,1960, he was convicted under the Indian
Arms Act, and from that date he is in the Central
Jail, Ambala,, as a convicted prisoner. On
December 15, 1960, the Governor of Punjab ordered
that the petitioner should be treated as a ‘B’
class prisoner. On February 9, 1961, he filed a
petition under Art. “26 of the Constitution in the
High Court of Punjab at Chandigarh, questioning
inter alia his confinement in that prison on the
ground that para. 575 of the Punjab Jail Manual
where under he was confined to a separate cell in
the prison, offended Art. 14 of the Constitution,
and that in fact discriminatory treatment was
meted out to him not for the maintenance of
discipline but for extraneous reasons. That
petition was dismissed by the said High Court on
March 17, 1961, and Criminal Appeal No. 120 of
1961 was filed against the said order by special
leave granted by this Court. That apart he also
filed the present writ petition (Writ Petition No.
147 of 1961) in this Court under Art. 32 of the
Constitution covering the same ground. The
prisoner
299
argued his own case. He raised before us two
points, namely, (1) para. 575 of the Punjab Jail
Manual offends Art. 14 of the Constitution in as
much as it confers arbitrary power on the
Superintendent of Jail to deal with a prisoner
under the colour of the said provision in a brutal
way circumventing other stringent provisions of
the Prisons Act and other paragraphs of the Punjab
Jail Manual conceived in the interest and fair
treatment of prisoners, (2) the Superintendent of
Jail, for extraneous reasons on the pretext of
disciplinary action, gave him solitary confinement
in a cell since the date he was transferred to
that Jail, and thus acted with mala fide. that
apart, he discriminated him in the matter of
treatment from other prisoners and even from the
co-accused, who were convicted along with him, and
thus offended Art. 14 of the Constitution.
The first question falls to be decided on the
relevant provisions of the Indian Penal Code, the
Prisons Act, and the Punjab Jail Manual. There are
three types of punishment, namely, (i) solitary
confinement,(ii) cellular confinement, and (iii)
separate confinement. Solitary Confinement means
such confinement with or without labour as
entirely secludes the prisoner both from sight of,
and communication with, other prisoners. The
punishment of solitary confinement can be imposed
by a Court only, and, in view of its dangerous
potentialities stringent conditions are imposed
thereon. No person can be sentenced to undergo
solitary confinement for more than three months.
There is a limit prescribed on the punishment of
solitary confinement that can be imposed on a
prisoner: it shall not exceed (a) one month, if
the term of imprisonment does not exceed six
months, (b) two months, if the term of
imprisonment exceeds six months, but does not
exceed one year, and (c) three months if the term
exceeds one year: (vide s. 73 of the Indian Penal
Code). Section 74 of the Indian Penal Code says,
300
In executing a sentence of solitary
confinement, such confinement hall in no case
exceed fourteen days at a time with intervals
between the periods of solitary confinement
of not less duration than such periods, and
when the imprisonment awarded shall exceed
three months, the solitary confinement shall
not exceed seven days in any one month of the
whole imprisonment awarded, with intervals
between the periods of solitary confinement
of not less duration than such periods.”
Section 29 of the Prisons Act reads,
“No cell shall be used for solitary
confinement unless it is furnished with the
means of enabling the prisoner to communicate
at any time with an officer of the prison,
and every prisoner so confined in a cell for
more than twenty-four hour, whether as a
punishment or otherwise, shall be visited at
least once a day by the Medical officer or
Medical Subordinate.”
Cellular confinement is a punishment which can be
imposed on a prisoner by a Superintendent of Jail.
A Superintendent of Jail can punish in a suitable
case a prisoner by imposing on him cellular
confinement for a period not exceeding fourteen
days, provided that after each period of cellular
confinement an interval of not less than such
period must elapse before the prisoner is again
sentenced to cellular or solitary confinement.
Cellular confinement in defined to mean such
confinement with or without labour as entirely
secludes a prisoner from communication with, but
not from sight of, other prisoners. Separate
confinement is defined to mean such confinement
with or without labour as secludes a prisoner from
communication with, but not from sight of, other
prisoners, and allows him not less than one hour’s
exercise per diem and to have his meals in
association with one or more
301
other prisoners. Separate confinement for a period
not exceeding three months can be imposed on
prisoner in a suitable case by the Superintendent
of Jail. (Vide s. 46(8) of the Prisons Act).
Section 47 of the Prisons Act prohibits the
combination of cellular confinement with separate
confinement so as to prolong, the total period of
seclusion to which a prisoner shall be liable.
Solitary confinement can he given only by a court
and the other two by a Superintendent of Jail for
jail offences. The provisions conceived in the
interest of the physical, moral and mental health
of prisoners impose stringent conditions in
carrying out those sentences in order to prevent
their abuse. But in the interest of maintaining
discipline among the inmates of jail, the Prisons
Act and the Jail Manual prescribe rules for a
separation of prisoners. The separation of
prisoners depends upon the nature of the prisoner,
the class to which he belongs and the availability
of adequate number of cells. Section 27 of the
Prisons Act provides that, (1) in a prison
containing female as well as male prisoners, the
females shall be imprisoned in separate buildings,
or separate parts of the same building, in such
manner as to prevent their seeing, or conversing
or holding any intercourse with the male prisoners
(2) in a prison where male prisoners under the age
of twenty-one are confined, means shall be provide
for separating them altogether from the other
prisoners and for separating those of them who
have arrived the age of puberty from those who
have not (3) unconvicted criminal prisoners shall
be kept apart from convicted Criminal prisoners;
and (4) civil prisoners shall be kept apart from
criminal prisoners. Section of the said Act says,
“Subject to the requirements of the last
foregoing section, convicted criminal
prisoners may be confined either in
association or
302
individuals in cell or partly in one way and
partly in the other”.
Presumably in exercise of the power conferred
on the State Government by s. 59 of the Prisons
Act, certain rules were framed for the separation
of prisoners and they are contained in the Jail
Manual. Under para. 571 of the Jail Manual, ‘shall
convicts shall, so far as the requirements of
labour and the cell accommodation of the Jail will
allow, be kept separate both by day and by night.”
Paragraph 572 deals with the occupation of vacant
cells, and para. 573 says that “‘convicts of the
habitual class shall be subjected to the system of
separation prescribed in the preceding rules, in
rotation.” Paragraph 574 provides. If, at any
time, there are more cells in any jail than
suffice for the separation of all convicts of the
habitual class, prisoners of the casual class
shall be confined in cells, both by day and night,
in rotation.” Then comes the impugned provision,
namely, para. 576, which reads:
“A convict who would ordinarily came
under the operation of any of the preceding
rules relating to the separation of
prisoners, but cannot be confined in a cell
by day, by reason that he is required for
some jail service, shall be confined in a
cell by night.”
There rules, along with the provisions of the
Prisons Act, form an integrated scheme conceived
for the maintenance of discipline of prisoners,
and the preferential treatment in the allotment of
cells is based upon sex, age, nature of the crime
committed and the nature of the prisoners, and
also the availability of cells.
The question is whether para. 575 of the Jail
Manual offends Act. 14 of the Constitution. The
said provision is only in a group of rules
providing for the separation of prisoners and it
only says that if a prisoner to whom any of the
prison rules
303
applies cannot be confined to a cell by day shall
be confined in a cell by night. It pre-supposes
that the prisoner concerned belongs to the
category to whom a separate cell is allotted and,
by reason of his being required for jail service,
cannot be confined to the cell by day: in such a
case it says that he shall be confined to the cell
by night. It is only a rule providing for a
contingency when a prisoner who should be so
confined in a cell both by day and night cannot be
confined by day in such a cell. But the objection
may be taken to mean that the other rules, along
with this rule enable a Superintendent of Jail to
put a prisoner in a cell offends Art. 14 of the
Constitution.
It is settled law that Art. 14 of the
Constitution permits classification, and the said
classification must bear just and reasonable
relation to the object of the legislation. The
object of the said provision is to maintain
discipline among the inmates of jail. The
classification is made on the basis of sex and the
nature of the prisoners and also on the
availability of cells. The classification has
certainly a reasonable relation to the object
sought to be achieved by the legislation nor can
the power conferred on the Superintendent to
separate prisoners be said to be arbitrary. The
object of the conferment of the said power is very
limited, and the provisions clearly lay down the
conditions for separation. The power to separate
is entrusted to the highest officer in the jail
premises, who may ordinarily be expected to not
reasonably, objectively and without bias. In these
circumstances, we must hold that para. 575 of the
Jail Manual in it setting does not offend the
provisions of Art. 14 of the constitution.
The next question is whether in purported
exercise of the said power the Superintendent in
the present case acted with mala fide and meted
out discriminatory treatment to the petitioner and
thus offended Art. 14 of the constitution the
304
affidavit filed in the Writ Petition, the
petitioner made certain allegations against the
Superintendent in respect of his treatment in
jail. The said allegations may be summarized thus:
The petitioner was transferred to the judicial
custody at the Central Jail Ambala, on May 7,
1959, after protracted police custody of over
eight months. On the very day of his arrival in
the Jail, the petitioner was looked up in solitary
confinement in a cell in the condemned prisoners
block and lock up period of 24 hours inside the
cell was clamped.” Though several representations
were made by the relatives of the petitioner to
the higher authorities, no redress was given to
him. He was sought to be kept in the cell for 13
months till June 13, 1 when he was convicted in
one of the cases filed against him. On June 14,
1960, the Superintendent of the Jail again ordered
the petitioner to be looked up in complete
solitary confinement under para. 575 of the Punjab
Jail Manual, and again a confinement of 24 hours
inside the cell was “clamped”. On December 15,
1960, the Governor of Punjab ordered that the
petitioner should be treated as a ‘B’ class
prisoner, and even thereafter he was not
transferred to the general ward of the prison
where others’ class prisoners were kept confined,
but he was kept in the same condemned prisoners
wards Though the look-up period of 24 hours inside
the cell was considerably reduced the ban imposed
on his association with other prisoners had not
been relaxed. The petitioner was not allowed even
to meet his co-accused who were in the general
ward of the prison. While the other prisoners in
the jail including the petitioner’s co-accused
were given numerous facilities i.e. of association
work and recreation he was completely segregated
in a cell without any such facilities. The jail
authorities adopted this method of torture for
ulterior purposes,
305
The Superintendent of the Jail filed a
counter affidavit. His answer to the grave
allegations may be stated thus: on the very day
of his arrival in the jail the petitioner behaved
rudely and impertinently towards the jail staff
and in a defiant way tried to undermine jail
discipline. he was not kept in solitary cell for
ulterior motives. He committed 12 jail offences
and he was punished for them. After he was
convicted he was put in a separate cell and that
he was allowed one hour in the morning and one
hour in the evening for exercise and also to have
his bath outside the courtyard. After he was
classified as a ‘B’ class prisoner, he was given
amenities to which a ‘B’ class prisoner was
entitled under the rules, but in the interest of
jail discipline he was segregated from other
prisoners. The cell in which the petitioner was
kept was one of the cells in block of 32 cells out
of which only were allocated for condemned
prisoners and the rest were utilized for separate
confinement for the segregation of hardened and
troublesome convicted criminal prisoners. The
petitioner was confined in the cell only for the
night and he could move about in the open compound
of the cell throughout the day.
The affidavit and the counter affidavit
disclose the following admitted facts: The cell in
which the petitioner was and is confined is one of
the cell in the block of 32 cells out of which 8
cells are used for condemned prisoners. The cell
has a small separate enclosure of its own. From
the date the petitioner entered the prison, that
is, on May. 7, 1959, till he was convicted, that
is, on June 13, 1960, when he was an under-trial
prisoner, he was separately confined to a cell.
though the superintendent vaguely says that the
petitioner was not looked-up in a solitary cell,
he practically admits that the petitioner was
given separate confinement in a cell as punishment
for jail offences committed by him. Though he
306
denies that the petitioner was kept in a cell for
24 thee hours, he does not say what facilities
were provided for him to move about or mix with
other prisoners. The statement of offences
committed by the J. petitioner and the punishments
inflicted on him filed by the Superintendent does
not contain any details and is thus vague. Section
12 of the Prisons Act enjoins on a Superintendent
to maintain a punishment book, and s. 51 thereof
requires him to enter the details therein. But the
statement before us does not strictly comply with
that section and it is represented in court that
no other register is maintained in the jail. The
statement, vague as it is, shows that even on the
first day of imprisonment, the petitioner was kept
in a separate cell and the offence alleged to have
been committed by him is that he was rude and
impertinent. The subsequent entries show that the
petitioner attempted to break articles and even
struck his head against wall or door. These acts
of the petitioner appear to us to be more due to
the effect of the inhuman and discriminatory
treatment given to him even when he was an under
trial prisoner rather than a conscious attempt on
his part to commit any jail offences. Be that as
it may, we are not concerned at this stage whether
the petitioner had committed those offences, for
those were committed at a time when he was an
under-trial prisoner with which we are not now
directly concerned. The facts remain that even as
an under-trial prisoner from the date he entered
the premises of the jail, he was segregated from
other prisoners and kept in a separate cell.
Now coming to the second period, that is, the
period commencing from the date he was convicted
till he was classified as a ‘B’ class prisoner,
that is from June 14 1960 to December 15, 1960,
the petitioner alleges that he was kept in
solitary confinement as before throughout 24 hours
of the day. In the counter-affidavit of the
Superintendent
307
it is not denied that the petitioner was kept in a
separate cell, but it is stated therein that he
was given one hour in the morning and one hour in
the evening for exercise and also he was allowed
to have his bath outside the courtyard of the
cell. The Superintendent does not state that he
allowed the petitioner to communicate with others
or to talk to other prisoners. It is not stated
whether he was allowed for exercise to go out of
the separate enclosure of the cell or whether he
was allowed to mix up with other prisoners or to
talk to them. During this period, the petitioner
did not commit any jail offences and, therefore,
his separate confinement in a cell could not be a
punishment for an offence, but only for the
maintenance of discipline in the jail and for
convenience of accommodation. There is nothing on
the record to suggest that he was guilty of any
indiscipline during this period. If so, his
confinement in a separate cell for a period of six
months without allowing`him to communicate with
others is a punishment of either cellular
confinement, separate confinement or solitary
confinement. The restrictions imposed on the
prisoner on the pretext of separate allotment of a
cell ignored even the limitations on the said
confinements prescribed by s. 73 of the Indian
Penal Code or s. 46 of the Prisons Act. The
confinement of the prisoner in a separate cell in
the manner it was done was certainly illegal.
Coming to the third period after he was
classified as a ‘B’ class prisoner, the petitioner
says that he was kept in the same condemned
prisoners’ book with the exception that the look-
up period of 24 hours inside the cell was
considerably reduced, but the ban imposed on his
association with other prisoners was not relaxed.
The Superintendent does not say that the
petitioner was allowed to communicate or to speak
with other prisoners. He also admits that the
petitioner was continued to the
308
cell only in the night and that he can move about
within the open compound of the cell throughout
the days to put it in other words, the
Superintendent admit that the petitioner is
confined in a cell J. with a small separate
enclosure and that the prisoner can only move in
that enclosure in the morning. This kind of
confinement is either a solitary confinement or
cellular confinement, for it secludes the prisoner
from communicating with or from the sight of other
prisoners. If it is not a solitary confinement, it
would certainly be a cellular confinement. Even in
a separate confinement as a punishment the
prisoner should be allowed to have one hour’s
exercise per diem and to have his meals in
association with one or more prisoners. The
Superintendent therefore, acted illegally in
confining the prisoner in the manner he did, and
he is not entitled to do so under the rules
prescribed for separation of prisoners. It may
also be mentioned that during this period, there
is no allegation that the petitioner’s conduct was
otherwise bad.
It is said that the confinement is neither
solitary, cellular or separate, for he is allowed
to go to courts. The fact that a prisoner is to be
sent to a court on summons has no bearing on the
question whether the confinement is legal or not.
On the facts disclosed in the case, we have no
doubt that, for one reason or other, which is not
clear from the record, the petitioner was
discriminated from other prisoners and, under the
colour of the rules for separation, was illegally
confined in a manner not authorized by law.
Before closing we would like to make some
general remarks. The modern development of
criminology has revolutionized the system of
treatment of convicted prisoners. The old brutal
treatment has given place to more humane one. The
concept of vengeance by society and of the
deterence is fast disappearing and is being
replaced by the concept of correction and
rehabilitation.
309
Though our jail administration is moving with
times, it is not keeping pace with advanced
countries. A statute may reflect the modern trend
and may contain salutary provisions for fair
treatment of prisoners; but in practice much
depends upon the Superintendent, who is expected
to implement them in the spirit in which they are
conceived. A superintendent of a jail may be a
good disciplinarian, but it is not enough: he
should also be a humanitarian possessing
conscience and having an awareness that to his
care is entrusted an abnormal class of society
deserving more a sympathetic approach and sincere
attempt at rehabilitation than that of
vindictiveness. In this case, the Superintendent,
as we have already stated, not only did not carry
out the spirit of the rules but also broke the
letter of the law and illegally placed the
petitioner practically in solitary confinement
from May 7, 1959 up to date.
In the result we hold that the confinement of
the petitioner in a separate cell in the manner it
is being done in this case is illegal and we
direct the respondent to confine the petitioner in
the prison in strict compliance with the
provisions of the Prisons Act and the rule made
thereunder. It is for the Government to consider,
in the circumstances of this case, whether it is a
fit case for transferring the petitioner to some
other jail.
Writ Petition No. 147 of 1961 is allowed to
the said extent, and there will be a similar order
in criminal Appeal No. 120 of 1961.
RAGHUBAR DAYAL, J.-I have had the advantage
of perusing the judgment prepared by my learned
brother, Subba Rao J., and agree with him that
paragraph 575 of the Punjab Jail Manual does not
offend the provisions of the Constitution.
I however do not agree that there had been
any illegal confinement of the appellant.
310
The appellant was admitted to the jail as an
undertrial prisoner for offences under s. 19 of
the Indian Arms Act and under s. 5 of Indian
Explosive Substances Act and the allegation was
that he was concerned in a conspiracy with others
to muder certain persons and to create disorder
and anarchy in India. He behaved rudely and
impertinently on admission into jail and showed a
defiant attitude. In there circumstances,
according to the affidavit of the Superintendent
of the Jail, the appellant was ordered to be kept
in cell under paragraph 569-A of the Jail Manual
to maintain jail discipline. The entry in the
punishment register, in this connection, states in
the column meant for noting the offences: ‘He is
very rude and impertinent. He has defiant attitude
and tries to undermine the jail discipline.’ I am
of opinion that it was not necessary for the jail
authorities to make a more detailed note in the
register with respect to the various acts
committed or words spoken by the appellant on the
occasion.
Section 51 of the Prisons Act provides what
is to be recorded in this punishment book and
requires to be recorded, among other matters, the
prison-offence of which the prisoner is guilty. It
does not require a detailed account of the actions
of the prisoner which constituted the prison-
offences. The description of the offences
committed, suffices for the purpose of this
register. The entry is not made for the purpose of
adjudication of the offences or for the purposes
of the appellate authority, if any. It is just a
record of the conduct of the accused and the
action taken. The Superintendent, in this case,
did not inflict any punishment of solitary
confinement or separate confinement on the
appellant for his conduct. He simply ordered that
the appellant be kept in a cell under paragraph
469-A of the Jail Manual.
There had been eleven other occasions when
the appellant committed prison offences. Those
311
offences and the action taken there are also
mentioned in the punishment register and a copy of
those entries has been filed in Court. What I have
said in connection with the nature of the entry in
connection with the incident on the day of
admission, applies equally to the other entries
mentioned above.
The Superintendent has denied the allegations
made by the appellant that he was kept in a
separate cell, not in the interests of the jail
discipline, but for ulterior motives or under
orders of a vindictive Government. There is no
material on the record to suggest that the
Superintendent of the jail was actuated, in
passing the order for keeping the appellant in a
separate cell, by any consideration other than
that of the interests of jail discipline.
Therefore, the mere fact that the appellant was
kept in a separate cell from the moment of his
admission in jail does not indicate malafides on
the part of the jail Superintendent.
The appellant was kept segregated in a
separate cell after his conviction as well, in
view of paragraph 575 of the Jail Manual. He was
allowed an hour in the morning and an hour in the
evening for exercise. He was allowed to have a
bath in the court-yard outside the cell. The fact
that the Superintendent did not state in his
affidavit that he allowed the petitioner to
communicate with others or to talk to other
prisoners or that the appellant was allowed to mix
up with other prisoners or to converse with them,
does not necessarily mean that he disallowed any
such thing or that, if he did so, the
Superintendent acted against rules of law. The
Superintendent denied that the appellant’s request
to meet Hari Das was disallowed. There is no
allegation that he had not been afforded the
facilities which are to be provided to a prisoner
or to a B-class prisoner kept in a cell and
therefore there was no occasion for the
Superintendent to state about matters not
complained of.
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The mere fact that a person is kept in a
separate cell will not make his confinement
solitary, cellular or separate, though the
difference between it and any of them be not
appreciable.
Section 27 of the prisons Act provides for
separation of prisoners. If there happens to be
only one prisoner of a particular category, he is
necessarily to be kept separate from others. His
being kept alone from other prisoners and his not
being allowed to mix with other prisoners will not
be called solitary or cellular or separate
confinement. It is just an incident that he
happens to be the only prisoner of a particular
category and had therefore to be kept separated
from all other prisoners in the jail.
Section 28 allows convicted criminal
prisoners to be confined either in association or
individually in cells or partly in one way and
partly in the other. The discretion is with the
Superintendent of the Jail. The Act contemplates
an individual prisoner to be kept in a cell.
It is clear from the provisions of paragraphs
571 to 575 of the Jail Manual that the rules
contemplate convicted prisoner to be kept
separate. Paragraph 571 of the Jail Manual
provides that all convicts, subject to cell
accommodation and requirements of labour, be kept
separate both by day and by night, and justifies
the segregation of the appellant as a convicted
criminal in a separate cell. Paragraphs 572, 573
and 574 lay down the order in which convicted
prisoners are to be selected for being kept
separate in cells when each of them cannot be so
kept. All these provisions are consistent with
what is enacted in s. 28 of the Prisons Act.
Paragraph 575 reads:
“A convict who would ordinarily come
under the operation of any of the preceding
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rules relating to the separation of
prisoners, but cannot be confined in a cell
by day, by reason that he is required for
some jail service, shall be confined in a
cell by night.
Note 1-Separation under paragraphs 571
to 575 is distinct from ‘solitary’
confinement and ‘separate’ confinement
inflicted as a punishment under section 46 of
the Prisons Act, and is restricted merely to
the separation of individual prisoners either
by day or night for purposes of jail
management; such separation is not to have
any irksome conditions attached to it.
Note 2-Paragraphs 571 to 575 are of
general application. If, in the opinion of
the Superintendent, the presence of any
convict in association with others, is
detrimental to good order and discipline or
is likely to encourage or lead to the
commission of any offence, such convict
should be kept separate, in preference to
others of his class.”
These provisions provide an exception to the
provisions of paragraphs 571 to 574 and allow the
convicted prisoner to be kept in a cell during
night only instead of both by day and by night, in
case he cannot be confined in the cell by day for
reasons that he be required for jail service. Note
1 makes it clear that keeping prisoners separate
in view of the provisions of paragraphs 571 to 575
is not ‘solitary’ or ‘separate’ confinement which
can be inflicted as punishment and is merely
separation of the prisoner for purposes of jail
management.
Further, Note 1 enjoins that no irksome
conditions be attached to such separation. We are
not shown that any such conditions were attached
to the order for keeping the appellant in a cell.
Note 2 further empowers the Superintendent of
the Jail to keep a convict separate if he be of
opinion that his association with others of his
class
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is detrimental to good order and discipline in the
jail. The Superintendent states in his affidavit
he that he was of such opinion.
The entire scheme of the Act and the rules is
that ordinarily a prisoner should be kept
separated from others and that it is only in view
of limitations of providing separate cells for
each prisoner that prisoners of a particular
category are kept together in a large hall. The
order classifying the appellant as a B-class
prisoner further necessitated his being kept
separate from other prisoners.
There is no provision in the Act or the rules
that a prisoner kept in a cell be specially
allowed to associate or mix with other prisoners.
The main grievance of the appellant is that
he was not allowed to associate with his co-
accused, even for purpose of consultation with
respect to the defence to be put up and the
grounds to be taken in the appeal. The whole
object of keeping convicted prisoners segregated
in jail is defeated if they are allowed to meet
and discus matters even when they are under
special orders for being kept separate on account
of their conduct being considered detrimental to
jail discipline. If it was really necessary for
the appellant to have consultations with his co-
accused for the purpose of the case, it was open
to him to obtain orders of the Court and
facilities for such consultations, if considered
necessary, could have been given just as
facilities are provided for accused to consult
their counsel.
I am therefore of opinion that the Jail
authorities committed no discriminatory or illegal
act against the appellant in keeping him in a
separate cell. I would therefore dismiss both the
writ petition and the appeal.
BY COURT. In accordance with the opinion of
the majority, the Writ Petition and the Appeal are
allowed to the extent indicated in the majority
judgment.
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