Chandrakant Jha v. State of NCT of Delhi

1. By this petition the petitioner assails the punishment ticket dated 7th January, 2020 and the consequent order of 15th March, 2021, passed by the learned Inspecting Judge, Central Jail No. 2, Tihar for alleged recovery of a mobile phone, mobile battery and a SIM card. The petitioner has been in judicial custody since 30th May, 2007 serving his sentence having been awarded life imprisonment by the learned ASJ in proceedings arising out of FIR No. 609/2006, under Sections 302/201 IPC, registered at PS Hari Nagar. The order of sentence was dated 6th February, 2013 and the petitioner has been incarcerated since 2007 and therefore in custody for about 18 years.

2. As per the petitioner, his mother passed away on 21st January, 2020, and when he went to make a phone call to his family he was informed about the punishment awarded to him. The petitioner wrote a letter to Superintendent Tihar Jail inquiring about the said punishment and requesting for a copy of the punishment ticket. On 21st January, 2020 and 27th January, 2020, when the petitioner was released on parole by orders of this Court and met his advocate and collected a copy of Nominal Roll dated 13th January, 2020 which had been sent by the Jail Authority to this Court, he saw it was mentioned therein of the said punishment for seizure of an alleged mobile phone of the petitioner. An application was therefore preferred by the petitioner before the learned Inspecting Judge, Tis Hazari Court objecting to the imposition of the said punishment, dated 24th January, 2020. The petitioner was granted the opportunity to be heard over Video Conferencing but could not explain his case to the Judge. The learned Inspecting Judge thereby passed the impugned order dated 15th March, 2021, stating that there was no sustainable explanation of the prisoner and the punishment awarded by the Jail Authorities was approved.

3. Learned counsel for the petitioner contends that the same was in violation of Section 48(3) of Jail Prisons Act 2000 and Rule 1270 of Jail Prison Rule which provided that no punishment shall be imposed without judicial appraisal of the Sessions Judge. Further, the State has not placed on record copy of the video footage which ought to have been made by the Jail Authorities at the time of the alleged search and no efforts were made to place any details relating to mobile and the SIM card or call record which were allegedly recovered from the petitioner. The State in its supplementary report has itself mentioned that as per the punishment ticket of 07th January, 2020 a surprise search had been carried out in Ward-3, Central Jail No.2 where one Samsung mobile phone with battery and SIM card were recovered from the cell of the petitioner and it was confiscated. He was produced before the Superintendent and after hearing him, the Superintendent punished him with the stoppage of telephone and canteen facilities for a period of one month.

4. Learned counsel for the petitioner contends that a perusal of the punishment ticket, as per the counsel of the petitioner shows that his thumb impression was taken after the hearing on 21st January, 2020 since the punishment ticket was never handed over and no opportunity had been given. Thumb impression on the said ticket is of 21th provides no evidence that he had been heard or supplied with the show cause notice. The procedure for awarding punishment as provided in Rule 1272 and 1273 of Delhi Prison Rules, 2018 were not followed. No notice in writing was given, no statements of concerned witnesses were recorded, no evidence or reasoning was given by the Superintendent and there was no elaboration as to what the petitioner had allegedly stated in this defense.

5. Learned counsel for the petitioner contends that as per Section 48(3) of the Jail Prisons Act, 2000 and Rule 1273 of the Rules, the punishment has to be sent within the two days for judicial appraisal whereas in this case punishment was appraised on 31st January, 2020. The imposition of this punishment would prejudice the case of the petitioner for consideration of his parole/furlough and premature release and for this reason he has not been released for the last three years.

6. Reliance was placed on the decision of this Court in Vipin Sharma v. State (GNCT of Delhi), W.P (Crl.) 44/2021 dated 18th August, 2022 as also in Rana Pratap Singh v. State of NCT of Delhi, W.P. (Crl.) NO. 2434/2022 decision dated 13th February, 2023.

7. Further reliance was placed on Praveen Rana v. State (GNCT of Delhi), W.P.(Crl.) No. 242/2022 decision dated 29th March, 2022 where it had been observed that provisions of Rule 1272 and 1273 had not been complied with and the matter was remanded back for fresh hearing.

8. Learned ASC has refuted the contentions of the petitioner’s counsel and stated that while surprise search was on 7th January, 2020, on 21st January, 2020, the petitioner was heard and sufficient opportunity was given before handing down the punishment of stoppage of Mulakat, canteen and ICS facility for a period of one month. The petitioner also gave his thumb impression after substantial hearing. This was also considered by the learned Jail Inspecting judge and the petitioner was again heard before approval of the said punishment. As regards the alleged show cause notice under Rule 1272 of Delhi Prisons Rule (DPR), the language involves the use of the phrase “should” which as per the Black’s Law Dictionary would mean a discretion as opposed to the use of the word “shall” in Rule 1273 which would be mandatory. As regards the statement of witnesses being recorded, it was mentioned that the petitioner was the only person lodged in Cell No.10, Ward No.3, Central Jail No.2. It was further stated that the punishment was only noted as a misconduct and was awarded on 21st January, 2020 subject to the appraisal/approval of the Jail Inspecting Judge. Reliance was placed on the decision of the Hon’ble Supreme Court in State v. N.S. Gnaneswaran, (2013) 3 SCC 594, where it was held that if a provision is to be declared as mandatory the test to be applied is as to whether non-compliance with the provision could render entire proceedings invalid or not. Whether the provision is mandatory or directory, depends upon the intent of the legislature and not upon the language for which the intent is clothed.

9. Thus, it was submitted by the ASC that within jail premises, to maintain discipline, speed of procedure is often of essence and as long as inmate is aware of the allegation and had full opportunity to defend, it cannot be said that there is non-compliance of procedure because show cause was given orally and not in writing and that itself would render it void. It would have to be tested if any prejudice was caused to the accused and the procedure adopted was so unfair as to be manifestly arbitrary.

10. On a perusal of the records before this Court, in particular of the Nominal Roll dated 13th January, 2020, it is evident that the recovery of the mobile phone with SIM card was noted as part of the jail conduct on 7th January, 2020. Therefore, on 13th January, 2020, as per the Jail Superintendent, the punishment had already been recorded on 7th January,

2020. Therefore, it is difficult to reconcile the submission of the learned ASC stating that on 21st January, 2020, the petitioner was heard and sufficient opportunity was granted to the petitioner and after substantial hearing, punishment was awarded to the petitioner. Ex facie on 13th January, 2020, the punishment had already been recorded in the Nominal Roll given. The question of hearing being given on 21th punishment being accorded thereafter does not arise.

11. Be that as it may, even on the assumption that the petitioner was heard before the punishment was awarded on 21st January, 2020, it is also evident that no written show cause notice was given to the petitioner in relation to the said offense. The punishment ticket has a handwritten note underneath which does not indicate if a prior notice was given. Further, while issuing the punishment ticket, there is also no record that an inquiry was conducted in compliance with Rule 1273 of Delhi Prison Rules, 2018. It is evident that the procedure as mandated under Rule 1272 and 1273 was not complied with. At least there is nothing on record to support the same.

12. Just showing the punishment tickets to the petitioner may not account for compliance with Rules 1272 and 1273 since stoppage of Mulakat, canteen facility and ICS facility for a period of one month are certainly major punishments and therefore the procedure ought to have been strictly complied with. Even the order dated 15th March 2021, summarily records that there was no suitable explanation given by the prisoner without adverting to the facts and circumstances as stated in the application preferred by the petitioner (assailing the punishment accorded). In fact the petitioner states in the application that only on 21st September 2020 when he went out to the control room of the jail at 8:00 a.m. in the morning to call home since he came to know that his mother has expired at 05:00 a.m. he came to know that this punishment ticket had been issued. Other detailed sequence of events relating to alleged search being conducted are also narrated in the said application.

13. Further even Black’s Law Dictionary, as well as the Oxford’s English Dictionary define ‘should’ as the past tense of the verb ‘shall’. It is no longer res integra that ordinarily use of the word ‘shall’ is mandatory and raises a presumption that the provision is imperative by nature.

14. The contention of the learned ASC, even if accepted for Rule 1272, may not extend to Rule 1273, where there is at least a mandate for the Superintendent to hold an inquiry touching every prison offence committed or alleged to have been committed by a prisoner and the said inquiry has to be conducted in quasi- judicial manner recording statements of witnesses and giving full opportunity to the offender for his defence. Further, findings and punishment in the manner provided under law should be recorded after applying judicial mind by the Superintendent in his own hand in the prisoner’s history ticket. There is nothing on record to suggest that this procedure has been complied with. Therefore, even notwithstanding the interpretation of the word “should'' in Rule 1272, the mandate in Rule 1273 at least would need to be complied with.