Allowed

Selvam @ Selvaraj v. the Principal Secretary to

Madras HC1 Aug 2014HCP(MD)/494/2014

Case brief

AI extract

What is this about?

A life convict challenged denial of premature release based on alleged overstay of leave despite acquittal. The court held that unproved wilfulness could not support an adverse prison-behaviour entry, allowed the petition, and directed immediate release under the government remission order unless required in another case.

What did the court decide?

Respondents directed to extend benefits of G.O.Ms.No.1155/Home (Pri.IV) Department/2009 and release the petitioner forthwith unless required in another case.

Selvam @ Selvaraj Vs the Principal Secretary to — Criminal Trial and Appeal | Madras HC (2014)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 01.08.2014 CORAM :

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THE HONOURABLE MR.JUSTICE S.MANIKUMAR AND THE HONOURABLE MS.JUSTICE V.S.RAVI

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HABEAS CORPUS PETITION(MD)No.494 of 2014

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Selvam @ Selvaraj ... Petitioner

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Vs.

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The Stae of Tamil Nadu, Rep by The Principal Secretary to Government, Home (Prison) Department, TN Govt. Chief Secretariat, St.George Fort, Chennai-9. 2) The Additional Director General of Police/ Inspector General of Prisons, C.M.D.A. Towers II, No.1, Gandhi Irvin Road, Egmore, Chennai-8.

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The Superintendent of Prison, Trichy Central Prison, Trichy. ... Respondents

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Prayer : Petition filed under Article 226 of the Constitution of India, directing the respondents to produce the petitioner by name Selvam @ Selvaraj Son of Soundararjan, aged about 44 years now lodged and confined at Central Prison, Trichy, before this Hon'ble Court and set him at liberty forthwith, by extending the benefits of the Government Order in G.O.(Ms)No.1155/Home (Pri IV) Department/2009 dated 11.09.2008.

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For Petitioner : Mr.R.Alagumani For Respondents : Mr.C.Mayil Vahana Rajendran Additional Public Prosecutor

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O R D E R

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(Order of the Court was made by S.MANIKUMAR, J. )

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Seeking production of the petitioner herein, before this Court and to set him at liberty, by extending the benefits of the Government Order in G.O.(Ms)No.1155/Home (Pri IV) Department/2009 dated 11.09.2008, the present Habeas Corpus Petition has been filed.

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https://hcservices.ecourts.gov.in/hcservices/ 2. According to the petitioner, he was charge sheeted in Crime No.133 of 1995 by the Inspector of Police, Kumbakonam North Police Station. By judgment, dated 05.10.1998, in S.C.No.15 of 1997, on the

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file of Sessions Court, Trichy, he was convicted for the offences under Sections 302 IPC and sentenced to undergo life imprisonment. He filed an appeal in C.A.No.369 of 1999. Pending appeal, he was released on bail. However, the appeal came to be dismissed on 14.01.2003, confirming the sentence. He was re-admitted to Prison.

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On the occasion of Perarignar Anna Centenary Birth Anniversary, the Government have issued G.O.Ms.No.1155, Home (PRI.IV) Department, dated 11.09.2008, for premature release of life convict prisoners, on 15.09.2008, subject to the conditions, inter alia, (i) who have completed seven years of actual imprisonment as on 15.09.2008; (ii) who are aged 60 years and above and have completed five years of actual imprisonment on 15.09.2008; and (3) subject to the satisfaction of the other conditions imposed in G.O.Ms.No.1762, dated 20.07.1987.

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According to the petitioner, the Additional Director General of Police/Inspector General of Prisons, Chennai, 2^nd respondent, has furnished a list of 1340 life prisoners, who have completed seven years of actual imprisonment as on 15.09.2008, including three life convict prisoners of Tamil Nadu, undergoing their sentence in the prisons of Kerala State, on reciprocal basis and another list of 66 life convicts, who are aged 60 years and above and have completed five years of actual imprisonment as on 15.09.2008, eligible for premature release. He has also recommended for premature release of these 1406 life convicts on 15.09.2008 and only one prisoner was not eligible for premature under Article 161 of Constitution of India.

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According to the petitioner, he had completed more than 7 years of imprisonment, but his name was not included in the list, without any reason. When he enquired about the same, he was informed that a case under Section 224 of the Indian Penal Code, was registered for overstayal. As per G.O.Ms.No.1762, dated 20.07.1987, prisoners convicted under Section 224 IPC., are not eligble for the concession of premature release. According to the petitioner, he was acquitted in the case registered under Section 224 IPC. He was under confinement for over 18 years. According to him, placing reliance on a decision of this Court in H.C.P.No.627 of 2013, wherein, it has been held that for extension of the benefit of the Government Order, overstayal should not be taken into consideration, he has made several representations. Upon failure to consider the same and left with no other alternative, he filed this petition, for the relief, as stated supra.

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From the records and inviting the attention of this Court to the contents of the Government Order, relied on, Mr.C.Mayilvaghana Rajendran, learned Additional Public Prosecutor submitted that as per G.O.(MS) No.1762, Home (Prison.IV) Department, Dated 20.07.1987, in Para No.(i), prisoners convicted of rape, forgery, decoity, terrorist crimes, offences against the state and prisoners sentenced under sections 224, 376, 396, to 400, 402, 467, 471, 472, 474, 489 A, 489 B and 489 D of Indian Penal Code should not be considered for premature release.

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By referring to the Conviction Certificate, learned Additional https://hcservices.ecourts.gov.in/hcservices/ Public Prosecutor further submitted that the petitioner, Life Convict No.96142, was released on emergency leave for 3 days on 23.07.2003, from the Central Prison. But the prisoner did not return to the prison, on

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the due date, i.e., 27.03.2003, on the expiry of the above leave period granted to him. Later, he was arrested by Kumbakonam East Police in Crime No.1139/2003, registered under Section 224 I.P.C., and re-admitted in the Central Prison, on 26.12.2003.

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Learned Additional Public Prosecutor further submitted that in

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Crime No.1139/2003 registered under Section 224 IPC, the petitioner was acquited by the learned Judicial Magistrate, Kumbakonam on 22.09.2005.

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Learned Additional Public Prosecutor further submitted that as per G.O.(Ms)No.1155, Home (PRI.IV) Department, dated 11.09.2008, the general behavior of the prisoners in the Prison should be satisfactory. But, the petitioner did not return from leave, on the due date, ie., on 27.03.2003 and he was readmitted to the Prison only on 26.12.2003. Thus, he submitted that there is a violation of conditions of the Tamil Nadu Suspension of Sentence Rules, 1982, during leave and thus, the prisoner has committed Prison offence, as per Rule 297(62) of Tamil Nadu Prison Rules, 1983. Therefore, he submitted that when the behavior of the petitioner in the prison was not satisfactory, his name was not considered for premature release. According to the Prosecutor, the petitioner has undergone sentence for 15 years, 01 month and 21 days, as on 25.07.2014. For the abovesaid reasons, he prayed for dismissal of the petition.

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Before adverting to the facts of this case, we deem it fit to incorporate the Government Orders, referred to, by the learned counsel for the parties.

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G.O.Ms.No.1762, Home (Prison VI) Department, dated 20th July 1987

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Prisons – Report of All India Committee on Prison Reforms Chapter – XX Para 17.2 Recommendation No.560 – Rules for eligibility of convicted prisons are for considering premature release should be reviewed and rationalised category of prisoners not eligible for consideration of premature release – Recommendation accepted – Orders – Issued.

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Read:-

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1)From the Government of India Letter No.15011/22/83, GRA IV dated 12.09.1983.

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2)G.O.Ms.No.1064, Home, dated 24.04.1986

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3)From the Director General of Prisons Madras, Letters No.14407/M/86-1, dated 08.03.1986 and 27.02.1987.

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ORDER

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In Para 17.2 of Chapter XX of its report the All India Committee has recommended that the following categories of prisoners should not be eligible for consideration of premature release

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i. Prisoners convicted of rape, forgery, Decoity, terrorist crimes, offences against the State and Prisoners sentenced under Sections 224, 376, 396 to 400, 402, 467, 471, 474, 489A, 489B and 489D of Indian Penal Code.

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https://hcservices.ecourts.gov.in/hcservices/ ii. Prisoners convicted of economic offences, black marketing, smuggling and misuse of power and authority. iii. Prisoners sentenced under prevention of Corruption

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Act, Suppression of Immoral traffic in Women and Girls Act, Drugs Act and Prevention of Food Adulteration Act.

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2.As there is no provision either in the Tamil Nadu Prison Manual Volume II or in the guidelines issued vide G.O.Ms.No.1064, Home dated 24.04.1986 for not considering the category of prisoners for premature release, the Government after careful consideration accept the recommendation of All India Committee on prison Reforms in Para 17.2 of Chapter XX of its report and direct that the following category of Prisoners should not be considered for premature release.

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i. Prisoners convicted of rape, forgery, Decoity, terrorist crimes, offences against the State and Prisoners sentenced under Sections 224, 376, 396 to 400, 402, 467, 471, 472, 474, 489A, 489B and 489D of Indian Penal Code.

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ii. Prisoners convicted of economic offences, black marketing, smuggling and misuse of power and authority and

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iii. Prisoners sentenced under prevention of Corruption Act, Suppression of Immoral traffic in Women and Girls Act, Drugs Act and Prevention of Food Adulteration Act.

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3.The Director General of Prisons is requested to send necessary draft amendment to rule 341 of Tamil Nadu Prison Manual Volume-II.

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(By order of the Governor)

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T.V.Venkatraman Special Commissioner and Secretary to the Government

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The conditions for premature release, as per G.O.Ms.No.1155/Home (Pri IV) Department/2009, dated 11.09.2008, are (i) who have completed seven years of actual imprisonment as on 15.09.2008; (ii) who are aged 60 years and above and have completed five years of actual imprisonment on 15.09.2008; and subject to the satisfaction of the other conditions imposed in G.O.Ms.No.1762, dated 20.07.1987. As per G.O.Ms.No.1762, prisoners convicted of rape, forgery, decoity, terrorist crimes, offences against the state and prisoners sentenced under sections 224, 376, 396, to 400, 402, 467, 471, 472, 474, 489 A, 489 B and 489 D of Indian Penal Code should not be considered for premature release.

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Material on record shows that Kumbakonam East Police has registered a case in Cr.No.1139/2003, under Section 224 IPC. The said crime has been taken on file in C.C.No.46 of 2004, by the learned Judicial Magistrate, Kumbakonam. Vide judgment, dated 22.09.2005, the learned Judicial Magistrate, Kumbakonam, has acquitted the petitioner. At this juncture, we deem it fit to consider some of the relevant provisions in the Prisons Act, 1894, are as follows:

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Prison-offences.— The following acts are declared to be prison-offences when committed by a prisoner:-

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(1) such wilful disobedience to any regulation of the prison as shall have been declared by rules made under section 59 to be a prison-offence;

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(2) any assault or use of criminal force;

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(3) the use of insulting or threatening language;

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https://hcservices.ecourts.gov.in/hcservices/ (4) immoral or indecent or disorderly behaviour;

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(5) wilfully disabling himself from labour;

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(6) Contumaciously refusing to work;

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(7) filing, cutting, altering or removing handcuffs, fetters or bars without due authority;

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(8) wilful idleness or negligence at work by any prisoner sentenced to rigorous imprisonment.

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(9) wilful mismanagement of work by any prisoner sentenced to rigorous imprisonment;

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(10) wilful damage to prison-property;

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(11) tampering with or defacing history-tickets, records or documents;

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(12) receiving, possessing or transferring any prohibited article;

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(13) feigning illness;

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(14) wilfully bringing a false accusation against any officer or prisoner;

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(15) omitting or refusing to report, as soon as it comes to his knowledge, the occurrence of any fire, any plot or conspiracy, any escape, attempt or preparation to escape, and any attack or preparation for attack upon any prisoner or prison-official; and (16) conspiring to escape, or to assist in escaping, or to commit any other of the offences aforesaid.

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Punishment of such offences.— The Superintendent may examine any person touching any such offence, and determine thereupon, and punish such offence by-

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(1) a formal warning:

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Explanation— A formal warning shall mean a warning personally addressed to a prisoner by the Superintendent and recorded in the punishment book and on the prisoner’s historyticket;

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(2) change of labour to some more irksome or severe form [for such period as may be prescribed by rules made by the State Government;

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(3) hard labour for a period not exceeding seven days in the case of convicted criminal prisoners not sentenced to rigorous imprisonment;

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(4) such loss of privileges admissible under the remission system for the time being in force as may be prescribed by rules made by the State Government;

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(5) the substitution of gunny or other coarse fabric for clothing of other material, not being woollen, for a period which shall not exceed three months;

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(6) imposition of handcuffs of such pattern and weight, in such manner and for such period, as may be prescribed by rules made by the State Government;

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(7) imposition of fetters of such pattern and weight, in such manner and for such period, as may be prescribed by rules made by the State Government;

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(8) separate confinement for any period not exceeding [three] months;

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Explanation— Separate confinement means such confinement with or without labour as secludes a prisoner from communication with, but not from sight of, other prisoners, and https://hcservices.ecourts.gov.in/hcservices/ allows him not less than one hour’s exercise per diem and to have his meals in association with one or more other prisoners;

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(9) penal diet, that is, restriction of diet in such

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manner and subject to such conditions regarding labour as may be prescribed by the State Government:

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Provided that such restriction of diet shall in no case be applied to a prisoner for more than ninety-six consecutive hours, and shall not be repeated except for a fresh offence nor until after an interval of one week;

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(10) cellular confinement for any period not exceeding fourteen days:

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Provided that after each period of cellular confinement an interval of not less duration than such period must elapse before the prisoner is again sentenced to cellular or solitary confinement:

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Explanation— Cellular confinement means such confinement with or without labour as entirely secludes a prisoner from communication with, but not from sight of, other prisoners;

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(11) penal diet as defined in clause (9) combined with [cellular] confinement ;

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(12) whipping, provided that the number of stripes shall not exceed thirty:

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Provided that nothing in this section shall render any female or civil prisoner liable to the imposition of any form of handcuffs or fetters, or to whipping.

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Plurality of punishments under section 46.— [(1)] Any two of the punishments enumerated in the last foregoing section may be awarded for any such offence in combination, subject to the following exceptions, namely:-

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(1) formal warning shall not be combined with any other punishment except loss of privileges under clause (4) of that section;

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(2) penal diet shall not be combined with change of labour under clause (2) of that section, nor shall any additional period of penal diet awarded singly be combined with any period of penal diet awarded in combination with cellular confinement;

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(3) cellular confinement shall not be combined with separate confinement, so as to prolong the total period of seclusion to which the prisoner shall be liable;

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(4) whipping shall not be combined with any other form of punishment except cellular or separate confinement or loss of privilege admissible under the remission system;

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(5) no punishment shall be combined with any other punishment in contravention of rules made by the State Government.

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[(2)] No punishment shall be awarded for any such offence so as to combine with the punishment awarded for any other such offence, two of the punishments which may not be awarded in combination for any such offence.

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Award of punishments under sections 46 and 47.— (1) The Superintendent shall have power to award any of the punishments enumerated in the two last foregoing sections, subject, in the case of separate confinement for a period exceeding one month, to the previous confirmation of the Inspector General.

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https://hcservices.ecourts.gov.in/hcservices/ (2) No officer subordinate to the Superintendent shall have power to award any punishment whatever.

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Punishments to be in accordance with foregoing

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sections.— Except by order of a Court of Justice, no punishment other than the punishments specified in the foregoing sections shall be inflicted on any prisoner, and no punishment shall be inflicted on any prisoner otherwise than in accordance with the provisions of those sections.

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Power to make rules.— The State Government may make rules consistent with this Act—

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(1) defining the act which shall constitute prisonoffences;

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(2) determining the classification of prison-offences into

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serious and minor offences;

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(3) fixing the punishments admissible under this Act which shall be awardable for commission of prison-offences or classes thereof;

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(4) declaring the circumstances in which acts constituting both a prison-offence and an offence under the Indian Penal Code (Act 45 of 1860)may or may not be dealt with as a prisonoffence;

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(5) for the award of marks and the shortening of sentences;

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(6) regulating the use of arms against any prisoner or body of prisoners in the case of an outbreak or attempt to escape;

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(7) defining the circumstances and regulating the conditions under which prisoners in danger of death may be released; (8) for the classification of prisons, and description and construction of wards, cells and other places of detention;

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(9) for the regulation by numbers, length or character of sentences, or otherwise, of the prisoners to be confined in each class of prisons;

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(10) for the government of prisons and for the appointment

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of all officers appointed under this Act;

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(11) as to the food, bedding and clothing of criminal prisoners and of civil prisoners maintained otherwise than at their own cost;

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(12) for the employment, instruction and control of convicts within or without prisons;

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(13) for defining articles the introduction or removal of which into or out of prisons without due authority is prohibited;

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(14) for classifying and prescribing the forms of labour and regulating the periods of rest from labour;

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(15) for regulating the disposal of the proceeds of the employment of prisoners;

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(16) for regulating the confinement in fetters of prisoners sentenced to transportation;

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(17) for the classification and the separation of prisoners;

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(18) for regulating the confinement of convicted criminal prisoners under section 28;

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(19) for the preparation and maintenance of historyhttps://hcservices.ecourts.gov.in/hcservices/ tickets; (20) for the selection and appointment of prisoners as officers of prisons;

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(21) for rewards for good conduct;

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(22) for regulating the transfer of prisoners whose term of transportation or imprisonment is about to expire; subject, however, to the consent of the State Government of any other State to which a prisoner is to be transferred;

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(23) for the treatment, transfer and disposal of criminal lunatics or recovered criminal lunatics confined in prisons;

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(24) for regulating the transmission of appeals and petitions from prisoners and their communications with their friends;

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(25) for the appointment and guidance of visitors of prisons;

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(26) for extending any or all of the provisions of this Act and of the rules thereunder to subsidiary jails or special places of confinement appointed under section 541 of the Code of Criminal Procedure, 1882 (10 of 1882), and to the officers employed, and the prisoners confined, therein;

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(27) in regard to the admission, custody, employment, dieting, treatment and release of prisoners; and

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(28) generally for carrying into effect the purposes of this Act.”

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This Court also deems it fit to consider Rule 297 of the Tamil Nadu Prison Rules, 1983. Chapter 18 deals with offences and punishments. As per Rule 297(62), relied on by the Prosecutor, breaches of the conditions of emergency and other leave, are the acts, which are forbidden and every prisoner, who wilfully commits any of the following acts shall be deemed to have wilfully disobeyed the regulations of the prison and to have committed a prison offence within the meaning of Section 45 of the Prisons Act. As per Rule 300 of the said Rules, when in the opinion of the Superintendent any of the following offences are established, against any prisoner, he shall refer the case to the Magistrate, exercising jurisdiction for enquiry in accordance with the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), namely:

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(1) Offences punishable under Sections 147, 148 and 152 of the Indian Penal Code (Central Act XLV of 1980)

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(2) Offences punishable under Sections 222, 223 and 224 of the Indian Penal Code (Central Act XLV of 1860)

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(3) Offences punishable under Sections 304A, 309, 325 and 326 of the Indian Penal Code (Central Act XLV of 1860)

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(4) Any offence triable exclusively by the Court of Sessions.

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Rule 301 of the abovesaid Rules, empowers the Superintendent of Prison in other cases, to determine, with respect to any other act, which constitutes both a prison offence and an offence under the Indian Penal Code (Central Act XLV of 1860, whether he will use his own powers of punishment or move the Magistrate possessing jurisdiction to enquire into it in accordance with the Code of Criminal Procedure, 1973 (Central Act 2 of 1974).

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Rule 302 deals with the classification of punishments and the said Rule is extracted hereunder: https://hcservices.ecourts.gov.in/hcservices/

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“The punishments enumerated in section 46 of the Prisons Act, 1894 (Central Act IX of 1894), shall be classified into

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minor and major punishment. Minor punishment:

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(a) Minor:- The following punishment shall be considered as minor punishments, namely,

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(1) Formal warning;

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(2) Change of labour for a stated period to a some more irksome or severe form;

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(3) Forfeiture of remission earned, not exceeding four days;

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(4) Forfeiture of class, grade or prison privileges for a period of not exceeding three months;

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(5)Temporary reduction from a higher to a lower class or grade.

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(6) Cellular confinement for not more than seven days;

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(7) Separation in a cell for not exceeding 15 days at a time.

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(8) handcuffing for not exceeding 12 hours at a time (and

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9 omitted)

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7 & 8 above G.O.Ms.No.2291, Home Dept., dated 12.10.90 I.G.'s No.7806/G1/90.

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(b) Major:- The following punishments shall be considered

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major punishments, namely,

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(1) Hard labour in the case of prisoners not sentenced to rigorous imprisonment, namely

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(2) Forfeiture of remission earned, exceeding four but not exceeding twenty days.

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(3) Forfeiture of remission earned, in excess of twenty

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days;

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(4) Forfeiture of class, grade or prison privileges for a period exceeding three months;

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(5) Exclusion from the remission system for a period exceeding five months;

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(7)Permanent reduction from a higher to a lower class or grade;

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(8) Cellular confinement for a period exceeding seven

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days;

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(9) Separate confinement for a period exceeding fourteen

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days; and

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(10) Any combination of minor punishments admissible under Section 47of the Prisons Act, 1894 (Central Act IX of 1894).

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Rules 303 and 304 of the Tamil Nadu Prison Rules, 1983, deal with awarding punishments and the enquiry before punishment and the said Rules are extracted hereunder:

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“303. Awarding Punishments:- (1) The Superintendent shall examine any person touching any prison offence and determine thereupon whether to award a minor or major punishment and his determination shall be noted down while awarding punishment.

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(2) No prisoner shall be punished unless he has been informed of the offence alleged against him and given a proper opportunity of presenting his version of the case. The competent authority shall conduct an inquiry into the case. No prisoner shall be punished except in accordance with the terms of rules. https://hcservices.ecourts.gov.in/hcservices/

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(3) No prisoner shall be punished twice for the same offence provided that any security measure such as separate

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confinement, handcuffing, cellular confinement and the like taken for the safe custody of a refractory and dangerous prisoner or for preventing him from committing mischief or the stoppage of privileges which are otherwise admissible to well behaved prisoners only, shall not be construed as prison punishment for this purpose.

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Enquiry before punishment:- (1) Prisoners are liable to be punished for prison offences as per rules irrespective of the class in which they are placed-

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(2) No prisoner shall be punished for any statement or complaint made to a visitor.

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(3) Whenever prisoners are produced before the Superintendent for punishment, the Superintendent shall conduct a thorough enquiry in a fair manner. It shall not become a mechanical process for the mere awarding of punishments. Enquiry shall be conducted as promptly as possible. During enquiry, the accused shall be present. Witnesses shall be brought in one at a time.

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(4) Every precaution shall be taken to ensure that the enquiry is conducted in an orderly manner. Prisoners shall be thoroughly searched before being brought before the enquiry officer. Violent prisoners may be properly secured during enquiry.

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(5) In case of serious violation of prison discipline, the Superintendent may order the recording of statements of the persons concerned. When the Superintendent thinks that recording of statement is not necessary, he shall briefly record the salient facts of the case in the appropriate column in the punishment book in Form No.15. If a prisoner has committed any infringement of the prison rules through ignorance or excusable carelessness, the Superintendent, shall admonish him without recording in the said Forms.

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(6) The officer, who conducts the preliminary investigation shall present in his report and witnesses if any. The report shall be presented in a language that is commonly understood in the locality or by the accused. Where necessary and available, an interpreter may be provided. The accused and his witnesses, if any, shall be heard.

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(7) After the Superintendent is satisfied that all relevant facts of the case have come to light, he shall record his decision in the register. After enquiry, the punishment shall be promptly implemented as per rules.

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(8) The punishment awarded to prisoners shall be noted down in the punishment book in Form No.15. The Jailer shall certify that the punishments have been carried out. The punishment book shall be placed before the Superintendent for his perusal as soon as the punishment has been carried out.”

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Thus, from the reading of the Rules, stated supra, certain acts are forbidden and every prisoner, who wilfully commits any of the following acts, enumerated in Rule 297, shall be deemed to have wilfully disobeyed the regulations of the prison and to have committed a prison https://hcservices.ecourts.gov.in/hcservices/ offence within the meaning of Section 45 of the Prisons Act, 1894 and it is left to the discretion of the Superintendent of Prisons, if in his opinion, for reference to the Court of competent Magistrate, depending

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upon the offence and it is also left to his discretion to impose punishments, enumerated in Rule 302, by following the procedure contemplated in Rule 304 of the said Rules.

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In Rule 297 of the Tamil Nadu Prision Rules, 1989, the expression “wilfully commits” has been used. The words 'wilful' and 'wilfully' have been explained in few dictionaries and decisions. Let us see the dictionary meaning of the said words,

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(i) In Black's Law Dictionary (Seventh Edn.) at page 1559 the word "wilful" has been defined thus:

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"Willfulness" implies an act done intentionally and designedly; a conscious failure to observe care; conscious; knowing; done with stubborn purpose, but not with malice.

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(ii) In the book, A Dictionary of Law by L.B. Curzon, at page 361 the words 'wilful and 'wilful default' have been defined thus: 'Wilful' deliberate conduct of a person who is a free agent, knows what he is doing and intends to do what he is doing.

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(iii) in volume 45 of words and phrases, the word 'wilful' has been very clearly defined thus:

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'wilful'—intentional; not incidental or involuntary;

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done intentionally, knowingly and purposely, without justifiable excuse as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently;

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in common parlance word 'wilful' is used in sense of intentional, as distinguished from accidental or involuntary.

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'wilful' refers to act consciously and deliberately done and signifies course of conduct marked by exercise of volition rather than which is accidental, negligent or involuntary.

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(iv) in volume iii of webster's third new international dictionary at page 2617, the word 'wilful' has been defined thus :

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“governed by will without yielding to reason or without regard to reason; obstinate - perversely self-willed.”

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now let us consider some of the decisions, relating to the words, 'wilful' and 'wilfully'.

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(i) has designedly been used to express the mental element to constitute an offence. the word ‘wilful’ is a word of description. it describes the act constituting an offence, viz, submission of false return. submission of false return cannot be a wilful submission unless the debtor has deliberately made the return with the knowledge that he was excluding a taxable item. [re govindarajulu cherry (1951) 1 mad lj 348, (1951) mad wn 244 = lw 275,6 dlr (mad) 173].

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(ii) the meaning to be attached to the words ‘wilful’ has to be ascertained on a close examination of the scheme and nature of the legislation in which the words appear and the context in which they are used. in s.53 of india post office act 1898, the word ‘wilful was used by the legislature to mean only such detention which is deliberate and for some purpose, it is, reasonable to think that s 53 when the word https://hcservices.ecourts.gov.in/hcservices/ ‘wilfully was used, the legislature also intended that the detention would be punishable only if made for some purpose. ramchandra n. kulkarni v. state of mysore, air 1964 sc 1701 : (1964 ) 7 scr 606 : 1964

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(2) cr lj 609. dt. 01.04.1964.

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(iii) ‘wilful means ‘deliberate or intentional and not accidental or by inadvertence’. [kedarnath v state 1965 all 233].

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(iv) the word ' wilful' when used in statutes, connotes different concepts. in certain cases ‘wilful’ may mean ‘wantonly’. in certain other cases, it may mean ‘intentionally,’ or ‘deliberately’ and in other cases, it may merely man ‘consciously’. [madras state waqf board v tajmul husain, air 1968 mad 332].

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(v) ‘wilfully’ means ‘intentionally’ or ‘deliberately’. but from the mere fact that entries were made wilfully, it does not necessarily follow that they were made with intent to defraud’. [ hemam singh v state air 1976 sc 2140, p 2145, (1976) cr lj 913, (1976) cr lr (sc) 178].

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(vi) ‘wilfully’ means that the act is done deliberately and intentionally and not by accident or inadvertence, but so that the mind of the person who does the act goes with it. it includes some element of evil motive and want of justification. [ramprawesh singh v mpsrtc, gwalior (1980) 2 mp wn 173].

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(vii) wilful - an act is said to be wilful, if it is intentional, conscious and deliberate. [rakapalli raja rg rao v naragani g sehararao air 1989 sc 2185, (1989) 4 scc 255, p 258].

¶202

(viii) generally, the word ‘wilful , as used in courts of law, implies nothing blameable but merely that the person, of whose action or default the expression is used, is a free agent, and that what has been done arises from the spontaneous action of his will. it amounts to nothing more than this, that he knows that he is doing, and intends to do what he is doing and is free agent. [income tax v brojoya (1995) 1 olr213].

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(ix) means an act or omission, which is done voluntarily and intentionally, and with the specific intent to do something the law forbids, or with the specific intent to fail to do something, the law requires to be done, that is to say, with bad purpose either to disobey or to disregard the law. it signifies a deliberate action done with evil intent or with a bad motive or purpose, ashok paper kamgar union v. dharam gowdas, (2003) 11 scc 1 (15).

¶204

(x) an act is said to be 'wilful' if it is intentional, conscious or deliberate. the expression 'wilful' excludes casual, accidental, bona fide or unintentional acts or genuine inability. it is to be noted that a wilful act does not encompass accidental, involuntary or negligence it must be intentional, deliberate calculated and conscious with full knowledge of legal consequences flowing there from. the expression wilful means an act done with a bad purpose, with an evil motive. it is thing to which the person doing it knows that what he is doing and intended to do what he is doing. [state of orissa v. md. illyas, air 2006 sc 258 : 2006 https://hcservices.ecourts.gov.in/hcservices/ (1) scc 275 : 2005 (9) scale 466 : 2005 (8) supreme 25 : 2005 (10) it 64 : 2005 (36) aic 955 : 2005 air scw 5925 : 2005 (8) scj 797 : 2005 (8) slt 820 : 2006 (2) srj 185]

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foreign decisions on the words “wilful” and “wilfully” are as

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follows:

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(i) the words "wilful" and "wilfully" are frequently used in many statutes. the meaning given to these words have differed in different context. some times, any intentional act has been held to be a wilful act (in re young and harston, (1885) 31 ch e 168 : 53 lt 837).

¶209

(ii) wilfully, means deliberately and intentionally, r. v. senior (1899) 1 qb 283: 68 lj qb 175.

¶210

In Rule 297 of the Tamil Nadu Prison Rules, 1983, the expressions “wilfully commits any of the following acts, shall be deemed to have wilfully disobeyed the regulations of the prison and to have committed a prison offence, within the meaning of Section 45 of the Prisons Act”, makes it clear that the acts enumerated in Rule 297, should have been done consciously, intentionally, the conduct should be wilful, not inadvertent or mere omission.

¶211

Rule 297 of the Tamil Nadu Prison Rules, 1983, starts with a prefix, “wilfully commits and deemed to have willfulness disobeyed the regulations of the prison Rules and thus said to have committed an offence within the meaning of Section 45 of the Prison Act, 1894”, then, such act or acts, implies that it should have been done, with the knowledge and intention to do so. An act, which is forbidden, by law or an offence said to have been committed, is discussed from careless, thoughtless or inadvertent action. It refers to an act, which is not a mere negligence or inadvertence. If breach of emergency and leave rules, constitute an offence, attracting penal laws, then the element of Mens Rea has to be proved. From the language used in Rule 297 of the Tamil Nadu Prison Rules, 1983, and the other rules, extracted above, it is needless to state that the legislature has clearly intended that the acts enumerated in Rule 297, are forbidden and constitute an offence.

¶212

From the material on record, it is abundantly clear that the detenu has been acquitted of the Crime No.1139 of 2003, registered under Section 224 IPC, on the file of Kumbakonam East Police Station, vide judgment made in C.C.No.46/2004 dated 22.09.2005 by the learned Judicial Magistrate, Kumbakonam. When acquittal has been recorded by the competent court of criminal jurisdiction, it cannot be said that there is a wilful commission of act, which would be amounting to violation of the Prison Regulations and deemed to constitute an offence, under Section 45 of the Prison Act, 1894. Once the aspect of wilfulness is not proved, the alleged breach of any enumerated acts, would not fall under Rule 297 (62) of Tamil Nadu Prison Rules, 1983, and on the alleged act, which could not be proved before the court of law, the Superintendent of Prison, Central Prison, Trichy, ought not to have recorded the general behaviour of the prisoner in prison as “Not Satisfactory”. Satisfaction of not maintaining good behaviour in the Prison can be recorded only when the misconduct is wilfulness. When the detenu has already been acquitted by the competent court of criminal jurisdiction, we are of the view that the Superintendent of Prison, Central Prison, Trichy, ought not to have https://hcservices.ecourts.gov.in/hcservices/ recorded the behaviour of the prisoner as “Not Satisfactory”.

¶213

¶214

On an earlier occasion, when similar objection was raised by the State in HCP(MD)No.793/2014 on the aspect of acquittal and still considering the behaviour of the prisoner, falling within Rule 297(62) of Tamil Nadu Prison Rules, 1983, this Court negatived the contention. In the abovesaid case, when the prisoner was acquitted, in a case registered, under Section 224 IPC, by the competent court of criminal jurisdiction, the Superintendent, Central Prison, Trichy, has recorded the behaviour of the prisoner therein, inside the prison, as satisfactory. Whereas, in the present case on hand, on the same set of facts, (i.e) when the prisoner has been acquitted of the offence under Section 224 IPC, the very same Superintendent of Prison, Central Prison, Trichy, has recorded the general behaviour, as not satisfactory. Satisfaction of behaviour of the prisoners on the same set of facts, cannot be made, according to the whims and fancies of the authority. Different yardsticks cannot be applied by the Superintendent of Prison, and it would amount to discrimination, violating Article 14 of the Constitution. Considering the language employed in Rule 297(62) of Tamil Nadu Prison Rules, 1983, we make it clear that once, wilfulness is not proved, the question of considering the alleged misconduct under Rule 297 (62) of Tamil Nadu Prison Rules, 1983, does not arise.

¶215

Test of preponderance of probability, cannot be made applicable to a case, where wilfulness, in committing an act has to be proved. Though an act committed by the prisoner may attract internal action or reference before the competent court of criminal jurisdiction, for the deemed offence, yet in both the cases, the element of wilfulness, has to be specifically proved.

¶216

In the case on hand, the Prison authorities having chosen to make a reference to the competent court of criminal jurisdiction, for prosecution, under Section 224 IPC, and failed to prove wilfulness, cannot, once again consider the very same act and make an entry in the Conviction Certificate that the behaviour of the prisoner inside the Prison as “Not Satisfactory”.

¶217

At this juncture, this Court deems it fit to consider a decision of the Apex Court in State of Haryana vs. Ghaseeta Ram, reported in 1997 (3) SCC 766, wherein, for commission of certain offences, the prisoner therein was imposed with a punishment by the competent court of criminal jurisdiction. Subsequently, for the very same act, the Jail Superintendent also imposed a punishment on the prisoner. When the prisoner questioned the same, under Section 482 of the Criminal Procedure Code, the High Court of Punjab and Haryana held that it amounted to double jeopardy. When the correctness of the order was tested on appeal, the Hon'ble Apex Court at paragraphs 13 and 14, held as follows:-

¶218

"13. So far as the commission of heinous offences are concerned, Section 52 of the Prisons Act is in parimateria the same as para 627 of the Manual. An analysis of the two provisions shows that where a prisoner is guilty of commission of any offence against prison discipline which in the opinion of the Superintendent of Jail is not adequately punishable by infliction of any of the punishments which he has the power under the Act https://hcservices.ecourts.gov.in/hcservices/

¶219

or the Manual to impose, he may forward the offending prisoner to the Court of the District Magistrate or to any Magistrate of

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¶221

the First Class, having jurisdiction to enquire into and try the offence, together with a statement of the circumstances under which the prisoner was being so forwarded for trial in accordance with law. The trial court upon conviction, may sentence the prisoner to undergo imprisonment in addition to any term for which the prisoner was undergoing imprisonment when he committed such an offence. The trial court may also convict and punish the prisoner for committing various offences referred to in para 610 of the Manual for which he was charged and tried by it. Para 611 of the Manual leaves it to the discretion of the Superintendent of Jail, to determine with respect to any other act which constitutes both a prison offence and an offence under the Indian Penal Code, whether he will use his own powers of punishment or forward the prisoner to a competent Magistrate exercising jurisdiction to enquire into the offence in accordance with the Code of Criminal Procedure. The exercise of powers under Section 52 of the Prisons Act or para 627 of the Manual, however, is subject to the proviso that no person shall be punished twice for the same offence.

¶222

From an analysis of the provisions of the Prisons Act and the Manual (supra) it follows that where the offence, which is both a prison offence and an offence under the Indian Penal Code, or is otherwise a heinous offence, and is committed by the prisoner after his admission to jail, for which the Superintendent of Jail can impose punishment, which in his opinion is adequate for the said offence, he may proceed to impose the punishment on the prisoner under the Prisons Act and the Manual by following the procedure prescribed therein. But where he is of the opinion that adequate punishment cannot be inflicted by him, as his power to award punishment in that behalf is limited by the Act or the Manual, he shall forward the prisoner to the competent court having jurisdiction to try the offence. Where the Superintendent of Jail, has inflicted punishment, which in his opinion was adequate punishment for the offence, then the prisoner cannot also be forwarded to the Magistrate for trial and be punished for the same offence twice in view of the bar contained in the second proviso to Section 52 of the Prisons Act and para 627 of the Manual."

¶223

Thus reading of the judgment makes it clear that there cannot be two punishments for the same offence. As per Rule 301 of the Tamil Nadu Prison Rules, 1983, the Superintendent of Prisons has got the discretion, either to impose appropriate punishment, under the Prison Rules, 1983, or to prosecute the prisoner, in a court of competent jurisdiction. The Superintendent of Prisons can take recourse to either one of the modes and not both.

¶224

In the case on hand, the Superintendent of Prison, Trichy, had opted to prosecute the prisoner and failed. In the light of the judgment of the Apex Court, he cannot take action against the prisoner under the Prison Rules. Under law, when he is precluded from taking action, mere https://hcservices.ecourts.gov.in/hcservices/ accusation of overstayal, ought not to have been taken, as the basis for recording the behaviour inside the prison, as “Not Satisfactory”.

¶225

¶226

When the enumerated acts are deemed to be offences, under Section 45 of the Prisons Act, 1894, mere accusation against the prisoner that he had committed breach of of conditions of emergency and other leave, alone, is not sufficient. In the case on hand, breach of the conditions of emergency and other leave, followed by legal consequences, has failed in the court of law. Accusation of breach of overstay of leave, availed in the year 2003, now made after ten years, cannot be accepted and even taking it for granted, that there was overstayal, it does not amount to conviction, as contemplated in G.O.Ms.No.1155/Home (Pri.IV) Department/2009, dated 11.09.2008.

¶227

As per G.O.Ms.No.1155/Home (Pri.IV) Department/2009, dated 11.09.2008, on the occasion of Birth Centenary of Perarignar Anna on 15.09.2008, life convicts can be released prematurely, subject to the conditions, viz., (i) who have completed seven years of actual imprisonment as on 15.09.2008; (ii) who are aged 60 years and above and have completed five years of actual imprisonment on 15.09.2008; and subject to the satisfaction of the other conditions imposed in G.O.Ms.No.1762, dated 20.07.1987.

¶228

In the result, the Habeas Corpus Petition is allowed. The respondents are directed to apply the benefits of G.O.Ms.No.1155/Home (Pri.IV) Department/2009, dated 11.09.2008, to the case of the petitioner, release him forthwith, if his presence is not required in connection with any other case.

Sd/-

Assistant Registrar

\True copy\

Sub Assistant Registrar

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