Allowed

Amit Mishra v. State of Chhattisgarh

Chhattisgarh HC17 Mar 2023WPCR/110/2023

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh quashed an order forfeiting ten days of earned remission imposed on a prisoner. The Court held the punishment violated fundamental rights under Article 21 as the prisoner was not given an opportunity to explain his conduct or cross-examine witnesses, violating the principles of natural justice under the relevant Prisons Rules.

What did the court decide?

Order dated 06.07.2022 forfeiting petitioner's 10 days earned remission was quashed. Liberty reserved to respondent No.02 to proceed according to law.

Amit Mishra Vs State of Chhattisgarh — Criminal Trial and Appeal | Chhattisgarh HC (2023)

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[Writ Petition (Criminal) No. 110 of 2023]

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Writ Petition (Criminal) No. 110 of 202 3

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Amit Mishra, S/o Shri Kaushal Prasad Mishra @ Kaushal Mishra, aged about 34 years, R/o Village Salka, Police Station Kota, District Bilaspur (Chhattisgarh)

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---- Petitioner

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Versus

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State of Chhattisgarh, through its Secretary, Home (Jail) Department, Mantralaya, Mahanadi Bhawan, Raipur, District - Raipur, (Chhattisgarh)

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The Director General, Prisons and Correctional Services Chhattisgarh, Head Quarter- Prisons and Correctional Services Chhattisgarh, Raipur (Chhattisgarh)

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The Jail Superintendent, Central Jail, Bilaspur (Chhattisgarh)

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---- Respondents

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For Petitioner : Mr. Rishi Rahul Soni, Advocate For State/Respondents : Mr. Neeraj Pradhan, Panel Lawyer

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Radhakishan Agrawal

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Order On Board (17.03.2023)

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Sanjay K. Agrawal, J

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1. In this writ petition filed under Article 226 of the

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[Writ Petition (Criminal) No. 110 of 2023]

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Constitution of India, the petitioner has called in question the impugned order dated 06.07.2022 (Annexure-P/01), passed by the respondent No.03 herein, whereby punishment of forfeiture of 10 days earned remission has been imposed upon the him in respect of the prison offence allegedly committed on 06.07.2022 and further questioned their action in not granting leave/parole to him in accordance with the Chhattisgarh Prisoner’s Leave Rules, 1989.

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2. The petitioner herein is a convicted prisoner, who is languishing in Central Jail, Bilaspur and undergoing sentence of imprisonment for life imposed upon him by the Court of Additional Sessions Judge (FTC), Bilaspur vide judgment dated 24.11.2015 for having committed offence under Section 376 of IPC and also under Section 06 of the Protection of Children from Sexual Offences Act, 2012. The petitioner has committed prison offence on 06.07.2022, as he has breached the security inside the prison and got himself involved in fight and also assaulted security personals (i.e. prisoners who were assigned security duties inside the jail) and, therefore, the respondent-jail

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authorities have imposed punishment of forfeiture of 10 days earned remission on the petitioner and further by order dated 12.08.2022 it has been held that on account of committing aforesaid prison offence, he is not entitled for leave/parole in accordance with the Chhattisgarh Prisoner’s Leave Rules, 1989.

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3. The aforesaid action of the respondents has been sought to be challenged by way of this writ petition on the ground that it has been done without affording reasonable opportunity of hearing to the petitioner and same is violative of his fundamental rights guaranteed under Article 21 of the Constitution of India.

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4. The respondents have filed their return, inter-alia , stating that the petitioner was found involved in commission of prison offence and after following due procedure in this regard appropriate punishment for forfeiting 10 days earned remission has been imposed upon him and further on account of committing prison offence he has been held to be not entitled for grant of leave/parole, which is strictly in accordance with law, as such, the writ petition deserves to be dismissed.

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[Writ Petition (Criminal) No. 110 of 2023]

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5. Mr. Rishi Rahul Soni, learned counsel appearing for the petitioner submits that punishment of forfeiture of earned remission imposed upon the petitioner by the Superintendent of Jail (respondent No.03) on account of alleged misconduct on his part inside the prison is absolutely unjustified and improper and same is violative of his fundamental rights guaranteed under Article 21 of the Constitution of India, as neither any formal enquiry was conducted by the Superintendent of Jail as contemplated under Rule 734 of the Chhattisgarh Prisons Rules, 1968 nor the petitioner (prisoner) was afforded an opportunity of hearing. As such, the impugned action on the part of the respondents in imposing punishment of forfeiture of 10 days’ earned remission is liable to be set aside and present petition deserves to be allowed.

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6. Learned State counsel supported the impugned action of the respondents and submits that the jail authorities before imposing aforesaid punishment has conducted necessary enquiry, wherein statement of the petitioner has been taken and the Octagon Officer to Jailor has also taken statement of other prisoners also, namely, Raja Babu and Om @ Bhau

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[Writ Petition (Criminal) No. 110 of 2023]

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on 07.07.2022 and after finding the petitioner to be involved in prison offence, the impugned punishment of forfeiture of 10 days’ earned remission has been imposed upon him, which is strictly in accordance with law.

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7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records with utmost circumspection.

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8. Before proceeding further, it is relevant to quote following observations made by the Supreme Court in the matter of

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D. Bhuwan Mohan Patnaik v. State of Andhra Pradesh 1 which 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:

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“Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house 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

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1 (1975) 3 SCC 185

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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.”

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9. 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 -

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(4) 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

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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 commission 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 -

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(a) name of the prisoner,

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(b) prison offence reported,

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(d) details of offence,

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(e) name of witnesses proving the offence,

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

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(g) date of infliction of punishment.

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10. A careful perusal of the record filed alongwith the writ petition and the return would show that on 06.07.2022

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certain objectionable conduct of the petitioner in assaulting security personals/prisoners, who were assigned security duty in jail, was noticed, pursuant to which Superintendent of Jail directed for registration of jail offence. Thereafter, on the next day (i.e. 07.07.2022) statements of the petitioner as well as two other prisoners, namely, Raja Babu and Om @ Bhau were recorded and Octagon Officer to Jailor prepared a report in that regard, which was submitted before the Deputy Superintendent of Jail, wherein he recommended punishment of forfeiture of 10 days’ earned remission to be imposed upon the petitioner. On the basis of said recommendation of the Octagon Officer, the impugned punishment has been imposed upon the petitioner by the Superintendent of Jail vide Annexure-P/4. Thus, it is clear that in the instant case only enquiry to the extent of recording of statements of the petitioner and two other prisoners, namely, Raja Babu and Om @ Bhau has been done by the Octagon Officer and on the recommendation of the Deputy Superintendent of Jail, punishment of forfeiture of 10 days’ earned remission has been imposed upon the petitioner, that too without giving him reasonable opportunity of being heard to explain his

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conduct and neither he has been allowed to cross-examine the two witnesses, namely, Raja Babu and Om @ Bhau nor copy of enquiry report has been served upon him and simply on the recommendation of the Deputy Superintendent of Jail the impugned punishment has been impugned upon the petitioner.

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11. The Supreme Court (Constitution Bench) in the matter of Sunil Batra v. Delhi Administration 2 has clearly held that prisoners are entitled to all constitutional rights unless their liberties have been constitutionally curtailed.

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12. The Madhya Pradesh High Court in the matter of Anand

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Rao v. Inspector General of Prisons, Bhopal3 while following the decision of the Supreme Court in Sunil Batra (supra) considered the issue of affording opportunity of hearing being given to the prisoner while forfeiting his earned remission and clearly held in Para-05 of the judgment 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.

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2 (1978) 4 SCC 494

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3 1982 MPLJ 73 (DB)

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pertinently observed as under:

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“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.

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He was not heard at all before imposition of penalty. This lends a serious infirmity to the impugned order.”

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13. Reverting to the facts of the present case in light of the aforesaid principles of law laid down in above-stated judgments, admittedly, no such opportunity has been granted to the petitioner to explain his conduct and except recording of his statement alongwith two other witnesses/prisoners no enquiry was conducted by the Jail Superintendent while forfeiting petitioner’s earned remission as pursuant to the recommendation made by the Deputy Superintendent of Jail, petitioner’s 10 days’ earned remission has been forfeited, which is violative of his fundamental rights guaranteed under Article 21 of the Constitution of India. Consequently, the order dated 06.07.2022 (Annexure-P/01), passed by Superintendent of Jail forfeiting petitioner’s 10 days’ earned remission is hereby quashed. However, liberty is reserved in favour of the respondent No.02 to proceed in accordance with law and the petitioner is also at liberty to file fresh application for grant of leave/parole in accordance with law.

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14. Consequently, the writ petition is allowed to the extent

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indicated hereinabove. No order as to cost(s).

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Sd/Sd/- (Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge

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s@if

Amit Mishra v. State of Chhattisgarh

Case brief

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Amit Mishra v. State of Chhattisgarh

Case brief

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