Harish Chander vs State of Haryana

V. S. Aggarwal, J.

Petitioner Harish Chander seeks quashing of the punishment awarded to him on account of jail offence.

The relevant facts are that petitioner was arrested on 23.8.1982 with respect to offence punishable under Section 302 IPC. On 10.9.1983 the learned Sessions Judge, Ambala sentenced him to undergo imprisonment for life and a fine of Rs. 1,000/. In default of payment of fine, he was to undergo further rigorous imprisonment for 3 months.

The petitioner was on furlough. On 19.10.1993 he surrendered in jail at 7.30 p.m. The Assistant Superintendent Jail thereupon recorded :

"19.10.1993 : I was on night duty on 19.10.1993. Harish Chander s/o Lakhmi Chand, prisoner, after exhausting furlough period, came to surrender in jail at 7.30 when it had already been declared "all okay". He was under the influence of liquor. The prisoner was spitting time and again. He was not in his senses. He was abusing badly. I immediately informed the Deputy Superintendent, Jail, on telephone at his residence. As per the orders of the Deputy Superintendent, Jail, Medical Officer was sent for from his residence through one Anil Kumar, driver. The prisoner was medically examined. During medical examination, Shri Shukla, Dr. Sahib, found the prisoner under the influence of liquor. Because he was full of intoxication, he was kept separately in a cell. To come in jail under the influence of liquors is a jail offence."

Subsequently, the Superintendent Jail sentenced the petitioner under Section 46(4) of the Prisons Act read with Punjab Jail Manual to a cut of three months remissions. The learned Sessions Judge, Ambala after hearing the petitioner reduced the withdrawal of benefit of earned remissions to two months.

By virtue of the present petition, it is urged that no reasonable opportunity was given to the petitioner. The proceedings were conducted in a mechanical manner. No right was given to the petitioner to crossexamine the witnesses and further that the petitioner could not be convicted because he has not committed any offence while in jail. The admission made by the petitioner as per him should be ignored.

In the reply filed, the said petition has been contested. It was pointed that petitioner had himself given in writing that he was late and was under the influence of liquor. The punishment awarded was judicially appraised by the learned Sessions Judge, Ambala during the inspection of the District Jail. The punishment was reduced to two months forfeiture of the remissions. It is denied that in the facts of the case, it could be held that there was no determination of the jail offence.

There is no controversy that under Section 46 of the Prisons Act, the Superintendent may examine any person touching the offence and determine thereupon before punishing the prisoner under the provisions of the Act. The expression ''determine'' is certainly meaningful. It implies that the punishing authority has to apply its mind to the facts and circumstances of the case before reaching a conclusion. In normal circumstances, it is implicit that delinquent convict is associated with the process of determination. He has to be given an opportunity of being heard.

Can the petitioner claim in the facts of the present case that no such opportunity was given or that neither any formal notice was served nor the opportunity to crossexamine the witnesses was given ? In the facts of the case the said contention is devoid of any merit. The petitioner had been called by the Superintendent Jail. On 21.10.1993 the Superintendent Jail recorded :

"Prisoner is present before me. The prisoner has admitted and has given in writing that he on 19.10.1993 when came in jail for surrendering after exhausting the furlough period, then he was under the influence of liquor and he had taken the liquor. Medical examination was also got done which also established that the prisoner had taken liquor. From the statement of witnesses, it become clear that the prisoner was under the influence of liquor and he was abusing and using unparliamentary language. He came in jail after it was declared ''okay''. He should have presented himself before the jail is closed. The prisoner was given full opportunity to produce witnesses or documentary proof in his support but he could not produce anything. He deserves punishment. I sentence him to impose a cut of 3 months earned remissions. The punishment is subject to the approval of Inspector General of Prisons, Haryana, Mani Majra, Chandigarh. The judicial appraisal be got done. This punishment I have imposed as per my powers under Section 46(4) of the Prisons Act read with para 613(4) of the Punjab Jail Manual."

Not only this when the learned Sessions Judge, Ambala was on jail inspection, even before the learned Sessions Judge the petitioner admitted as under :

"I have heard him and have also gone through the record. Convict admits that he was under the influence of liquor when he came to the jail after the expiry of period of parole. He had taken liquor because petition had been decided in his favour and he was to be released from the jail. However, subsequently stay order was obtained by the Government and the matter was still pending."

Once it is admitted that petitioner was under the influence of liquor, then it is an idle formality that formal notice should be issued. A hypertechnical view in the facts of the present case will not be required, keeping in view the admission made by the petitioner, not only before the Superintendent Jail but also before the learned Sessions. Under para 608(28) of the Punjab Jail Manual committing of a nuisance in any part of the prison has been declared to be a prison offence. It is borne from the record that the petitioner was abusing and spitting when he came and, therefore, it must follow that he had committed the jail offence.

Learned counsel for the petitioner urged that offence if any was committed outside the jail when the petitioner consumed the liquor and consequently he could not be convicted of the jail offence. In his view, the offence was complete when the petitioner consumed the liquor outside the jail. Indeed to this extent the argument is valid but the subsequent act cannot be lost sight of. The petitioner was abusing filthy and spitting. This act was inside the jail which entailed punishment referred to above. In these circumstances, the argument so advanced must fail.

For these reasons, the petition being without merit must fail and is dismissed.