JUDGMENT 1. A Journalist's effort to probe into Social behavior of capital sentence condemned prisoner in his death cell before he is actually hanged, and the State functionaries denial has resulted in this avoidable litigation. Penology, deterrent ,jurisprudence is another facet of this probe of Meharchand, who has murdered his brother, brother's wife and their three children, in a trifling family fued arising from partition amongst brothers. 2. Shri Prakash Sharma, the petitioner, is a Staff Reporter of 'Univarta'. Hindi being of UNI, a news agency of India. The petitioner has filed this writ petition with the following prayer : "that your Lordships' may kindly be pleased to accept this writ petition and be further pleased to direct the respondents to permit the petitioner to interview the condemned prisoner Meharchand Jat who is at present lodged in Central Jail, Jaipur and is to be executed on 3. 5. 1983 at 5 a.m." It is common ground that, one Mehar Chand Jat, Bamalvas, at present lodged in Central Jail, Jaipur who is resident of village Tehsil Nohar, District Sri ganganagar, is under sentence of death passed by the Additional Sessions Judge, Nohar (District Sriganganagar) and confirmed by the High Court of Rajasthan at jodhpur. This death sentence has also been confirmed by the Supreme Court of India in appeal. 3. It is not in dispute that the execution of this death sentence is to take place in the Central Jat, Jaipur on 3rd May, 1983 at 5 a.m. The petitioner is anxious to conduct and hold an interview of Mehar Chand Jat, the condemned prisoner, in order to highlight the social behaviour. The added dimensions of the requirement of this interview, as prayed, is involvement of the press in the national debate about the propriety of the retention of death sentence in the statutes in the new context of various facets of reformatory jurisprudence. 4. The petitioner, therefore, tried to obtain the permission to conduct the interview of the condemned prisoner and with that intent went to the Central jail, Jaipur on 1st May, 1983, and contacted Shri Ramjeewan, the Jailer, on duty at that time. After hearing the petitioner, Shri Ramjeewan, the jailer informed the petitioner that he was unable to extend permission to him to interview the condemned prisoner as he was not empowered in that behalf. The petitioner thereafter was advised to contact the Superintendent. After hearing the petitioner, Shri Ramjeewan, the jailer informed the petitioner that he was unable to extend permission to him to interview the condemned prisoner as he was not empowered in that behalf. The petitioner thereafter was advised to contact the Superintendent. As advised, the petitioner contacted the Superintendent Shri Rai Singh Yadav at his residential premises and duly apprised him of his anxiety to interview the condemned prisoner. While declining the permission, the petitioner was advised to get in touch with either D. I. G. or I. G of Persons. The petitioner's efforts proved abortive as the DIG was out of station and the IG was out of the State. The chances of the petitioner to interview the condemned prisoner received further set back when he came to learn that even the Jail Minister was not in town. 5. Having failed to obtain the order of permission to have an interview of the condemned prisoner-Shri Mehar Chand Jat from the administrative authorities, the petitioner approached this Court under Articles 226 & 227 of the Constitution of India. The petitioner filed the writ petition today and since the execution of death sentence of the condemned prisoner is going to take place tomorrow, i.e, on 3rd May, 1983 at 5 a. m., the learned counsel for the petitioner, Shri Jagdeep Dhankhar, obtained the permission for listing the case today and in view of his application filed separately today, which he has moved after filing of the writ petition, the case has now been listed for consideration before this Court, today, in supplementary cause list. 6. A copy of this application was given to the learned Government Advocate, Shri M. I. Khan, who was prompt enough to call the jailer, Shri Kalyan Mal and also tried to obtin the information as far as possible. 7. Shri Dhankhar prayed that in view of the decision of their Lordships of the Supreme Court and the directions issued therein in (l) Smt. Prabha Dutt v. Union of India & others ( AIR 1982 SC 6 ) , the direction should be issued by this Court for permitting interview to the representative of the UNI. 8. Shri Khan, the learned Government Advocate submitted that no formal refusal has been made by the jail authorities as the Superintendent of Central jail Jaipur, the respondent No. 2. was not approached properly by the petitioner. 8. Shri Khan, the learned Government Advocate submitted that no formal refusal has been made by the jail authorities as the Superintendent of Central jail Jaipur, the respondent No. 2. was not approached properly by the petitioner. It was then pointed out that it is for the condemned prisoner to express his desire for an interview if he so likes and since that has not been done, the petitioner at his own initiative cannot be allowed to hold interview of the condemned prisoner. Moreso, at this crucial time when the condemned prisoner is to face the execution of the death sentence within 18 hours. Shri Khan further submitted that the purpose of the petitioner is commercial and, therefore, this Court should not permit such interviews. 9. Shri Khan then pointed out that, in case this Court issues such directions then the authorities would implement them and no delay should be made in deciding this matter because under the pretext of the pendency of this application, an effort may be made to get the execution of the death sentence stayed, which should not be permitted. 10. Having heard the learned counsel for the petitioner and the Government Advocate, I am inclined to accept the joint request that it is matter of extreme urgency, and therefore, should be decided forthwith by giving precedence over all other matters. 11. In view of the important decision of the Apex court of this country in Smt. Prabha Dutt v. Union of India (supra), where their Lordships allowed the permission to the Reporter of the Hindustan Times and other news agencies, Times of India, India Today, the Press Trust of India and the United News of India to have the interviews of the two condemned prisoners, namely, Villa and Ranga, the principles of law on this branch of constitutional developments is now free from doubt and require no more debate. Their Lordships of the Supreme Court observed as under:- "Before considering the merits of the application we would like to observe that the constitutional right to freedom of speech and expression conferred by Article 19 (1) (a) of the Constitution. which includes the freedom of the press, is not an absolute right, nor indeed does it confer any right on the press to have an unrestricted access to means of information. which includes the freedom of the press, is not an absolute right, nor indeed does it confer any right on the press to have an unrestricted access to means of information. The press is entitled to exercise its freedom of speech and expression by publishing a matter which does not invade the rights of other citizens and which does not violate the sovereignty and integrity of India, the security of the State, public order. decency and morality. But in the instant case. the right claimed by the petitioner is not the right to express any particular view or opinion but the right to means of information through the medium of an interview of the two prisoners who are sentenced to death. No such right can be claimed by the press in the first instance, the person sought to be interviewed is willing to be interviewed. The existence of a free press does not imply or spell out any legal obligation on the citizens to supply information to the press. such for example, as there is under Section 161 (2) of the. Criminal Procedure Code No data has been made avail able to us on the basis of which it would be possible for us to say that the two prisoners are ready and willing to be interviewed. We have, however no data either that they are not willing to be interviewed and, indeed, if it were to appear that the prisoners themselves do not desire to be interviewed, it would have been impossible for us to pass an order directing that the petitioner should be allowed to interview them. While we are on this aspect of the matter, we cannot overlook that the petitioner has been asking for permission to interview the prisoners right since the President of India rejected the petitions filed by the prisoners for commutation of their sentence to imprisonment for life, we are proceeding on the basis that the prisoners are willing to be interviewed." 12. Their Lordships then discussed Rule 552A, 549 (4), and R.559 A of the Manual for the Superintendence and Management of Jails applicable to Delhi wherein the prisoners were allowed to have interviews and other communications with his relatives, friends and legal advisers. Their Lordships then discussed Rule 552A, 549 (4), and R.559 A of the Manual for the Superintendence and Management of Jails applicable to Delhi wherein the prisoners were allowed to have interviews and other communications with his relatives, friends and legal advisers. Their Lordships then took notice of the fact that, the Journalists or newspapermen are not expressly referred to in clause (4) of R 519 but then held that, that does not mean that they can always and without good reasons be denied the opportunity to interview a condemend prisoner. 13. Their Lordships then observed that if there are any weightly reasons for droving it, then the same can be considered but in the case of Ranga and Billa. no such consideration has been pressed before the Apex Court by the Government and jail authorities and, therefore, their Lordships observed thus:- "But no such consideration has been pressed upon us and therefore, we do not see any reason why newspapermen who can broadly, and we suppose without great fear of contradiction, be termed as friends of the society be denied the right of an interview under clause (4) of R. 549." 14. It would thus be seen that the Press People has been termed broadly as it lends of the Society by the Apex Court of this country. 15. With the above bedrock in the form of the established and settled diction of law laid down by the Apex Court, there is no difficulty in permitting the interview with the condemned prisoner by the Press representative who had applied for it before this Court. 16. The analogous provision in Rajasthan is provided in Cl. 30 of the Part XXII of the Rajasthan Jail Manual which reads as tinder:- "30. Interviews and letters of condemned convicts-Every convict under sentence of death shall be allowed such interviews and the communications with his relatives, friends and legal advisers as the Superintendent thinks reasonable. In such cases the Magistrate of the district to which the convict, belongs may, when desired by the convict, be requested by the Superintendent to communicate to a friend or relation of the convict his desire for an interview." Apart from that, cl. 32 of the Part XXII of the Rajasthan Jail Manual gives extra powers to the Superintendent of jail. 17. 32 of the Part XXII of the Rajasthan Jail Manual gives extra powers to the Superintendent of jail. 17. Shri Khan submitted that the interview is being held for commercial purpose, need not detain this Court from issuing any direction because before the Supreme Court, there was not only one representative but half a dozen Press representatives who where allowed to interview the condemned prisoners, namely, Villa and Ranga and, that execution has attained serious notoriety in this country in view of the heinous nature of the crime, and the effort of the prisoners, Ranga and Billa to withhold the execution of death sentence by moving a series of petitions for obtaining the orders before the Supreme Court. If in a case of that magnitude and such notoriety the Apex Court permitted the Press people to have an interview for about an hour. I am of the opinion that there is no good reason to refuse the same. 18. Shri Dhankhar the learned counsel for the petitioner has mentioned that the deterrent punishment theory also gets encouragement and fulfillment, if news paper representatives interviewed the condemned prisoners and give publicity to such execution. Be that as it may. I would not like to give any considered decision on this aspect of the case. The least, which can be said is that, in a country where the crime is on increasing spade, the relevancy of deterrent punishment cannot be undermined and it certainly acts as great deterrent to the criminals or people having criminal mind if it is known that the majesty of law comes with strong hand against the criminals for maintaining the law and order and peace in society. 19. I am of the opinion that the Press can certainly play the important role in this respect and deterrent theory of punishment can really be boon to the society if the punishment inflicted to the criminals is known to the people at large so that recurrence of such crimes can be prevented. 20. In the ancient India, according to Kautilya the death sentence or such serious punishment was given to the condemned prisoner with beat of drum. 20. In the ancient India, according to Kautilya the death sentence or such serious punishment was given to the condemned prisoner with beat of drum. All the citizens were told and warned on beat of drum that such and such prisoner and accused had committed this crime and his sentence is going to be executed in the eye of the public at such time and place and, all should be present and observe, how committing of the crime results in serious penalty. They were warned that, if any body would repeat such, crime he would have to face such dire consequences. 21. Even in this age, in many countries, criminal trials of serious offences is televised and people observe on television, how the trials take place and the punishment is given. In the middle-east and Muslim countries, the sentences are executed in the presence of people, so that they can have deterrent and exemplary effect. 22. The media including the Press, Radio, Television can play an important role in propagating she effects of crimes and the severe sentence with which the criminals are punished so that the society at large feel "secured and the criminals and ante-social elements realise the grave consequences of committing crime as they would be exposed to such punishments. The evils and damaging effects of the crimes shown in the films in cinema houses can be counter checked by the fear and terror created if such execution of sentences of criminals in serious offences is exhibited by the media on television, Radio and through the Press. 23. According to one view, if the condemned prisoners, namely Ranga and Billa's execution of death sentence would have been carried out publicly or in any case photographed through the media on Television etc. then, many future criminals would have been prevented from killing innocent children, like the children of Shri Chopra of Delhi. 24. Kautilya and other eminent jurists of that age and even the jurisprudence as it exists in many,other countries emphasised the importance of the deterrent theory and also emphasised that the punishment must be made known to all people and in that context, the prayer of Shri Dhankhar assumes the additional importance. 25. 'Dandaniti', the Penology has been very important in the old Indian judicial system (Indian Judiciary-Total-Revolution Wanted, paras 64, 65, 66, 67, 68, 71 Article contributed at Jaipur on 11.9.1982 of Hindi Vidhi Samelan). 25. 'Dandaniti', the Penology has been very important in the old Indian judicial system (Indian Judiciary-Total-Revolution Wanted, paras 64, 65, 66, 67, 68, 71 Article contributed at Jaipur on 11.9.1982 of Hindi Vidhi Samelan). In reply to the question of righteous Udhisthira, Bhisma said, praising' virtues of,penology- "Danda Nitihi,Swadharmeshu, Chaturvarnyam, Niyachhati." n.Muhfr % loZ/kesZ"kq] prqoZ.;e fu;kfPNr The Science of Penology leads all men on the path of their respective duties. 26. It has also been given primacy in the State duties. It is not possible to translate Dharma correct in the English Language. It is said that- "Dharanat Dharama ityahuh Dharmo Dharayate Prajah." /kkj.kkr /kekZ bR;kn%] /kekZ /kkj;rs iztk % AA That which binds and upholds citizens in society is 'Dharma'. 'Dharmo' aims not only at,, maintenance of law and order in society but also for promotion of their welfare-both material and spiritual. The philosophers have sounded "Dhatma Eva Hatohanti, Dharmo Rakshati Rakshitaha". /keZ ,oa grksgfUr /keksZ j{kfr j{krk% This means, Dharma gives protection to those who adopt it and destroys it According to Mehrishi Manu, if we give up the principles of Penology, strong -will devour the weaker as fisherman kills the fish and it would become Law of fishes, Kautilya said "Baleeyana Balam Hi Grasate Dandadharabhave." (The strong would swallow the weak in the absence of the weilder of the road.") 27. Kautilya and Manu both have emphasised to award punishment pari passm with the crime, Manu said -- "Adandyan Dandyan Raja Dandanschavapya Dandayan, Ayasho Mahadapnoti Narakanchiva Gachhati." vn.M;k n.M;kUjktknlm;kWa'pSokI;n.M;u v;'kks egknkIuksfr pSo xPNkfrA A oSfnd euqLe`fr A = AA l0 ;0 6791 "Unjust punishment destroys reputation during life and fame after death; it even obstructs in the next life the path to heaven, unjust punishment, therefore, let the king by all means avoid.") This is deterrent cum reformative theory of punishment. In the context, Kautlya's warning is significant, "Dandapraneetaha Kamakrodhabhyamavaua janadwa Vanaprastha Parivarajakanapi Krodhapati Kimanga Punargrudhasthan." n.M;.khrk % dkedks/kkeoKkukn~ok okui~ LFkk] ifjZoktudkufi dks/kk;fr fdexka iquxZgL;kuA oSfnd euqLe`fr A =A 669 ("Used unjustly, whether in passion or in contempt, it enrages even forest anchoritis and wandering ascetics, how much more the house-holders? ") 28. But Mane's view was that Law R. Order can be ensured by punishment "Sarvo Dandajito Loke Durlabhohi Shuchirnaraha Dandasya Hi Bhayath Sarvan Jagadbhogaya Kalpata." (Chapter VII, SL. ") 28. But Mane's view was that Law R. Order can be ensured by punishment "Sarvo Dandajito Loke Durlabhohi Shuchirnaraha Dandasya Hi Bhayath Sarvan Jagadbhogaya Kalpata." (Chapter VII, SL. 22) "(The whole race of man is kept in order by fear of punishment: for, a guiltless man is hard to be found ; through fear of punishment, The world is enabled to enjoy its blessings."). 29. In the ancient age, in the times of Kautliya also the punishing system was that the accused was brought to display before the public before condemning him to death and then it was proclaimed by the beat of drums that it was the man who committed such a serious and heinous crime for which he was being given death sentence, and if any other person will commit such a similar crime, he will be like wise punished to death, publicly. 30. In one of my monograph under the caption, Indian judiciary-Wanted Total Revolution, which was contributed in Hindi Vidhi Samelan held at Jaipur on 11th September, 1982, I have opined as under. "Hang Ranga & Billa on the Red Fort. By not passing the adequate sentence, the criminals have started thinking that it is not difficult to get scot free after committing the crime. The occurrences of public rapes, dacoity in Batiks, increasing traffic accidents and various abominable economic offences are indications that reformatory theory of punishment is not pragmatic, may it be idealistic. To adopt the theory of Penology is a practical aspect and not the remnant of savage age. Death sentence should be resorted to in appropriate crimes. If it is trade use of publicly it can be of more utility. For this purpose the means of communication publicity like television, radio and news papers should be utilised. To hang the Ranga Billa in the esplanade of the Red Fort and telecast it on television and radio is the demand of time. 31. The above are my views as jurist for what law 'should be' and not judgment or decision on interpretation of law as it exists. 32. To hang the Ranga Billa in the esplanade of the Red Fort and telecast it on television and radio is the demand of time. 31. The above are my views as jurist for what law 'should be' and not judgment or decision on interpretation of law as it exists. 32. It is therefore, ordered that the Superintendent, Central Jail, Jaipur would allow the petitioner, Shri Prakash Sharma s/o late Shri Hari Prasad Sharma, at present working as staff Reporter, 'Univarta', Hindi wing of UNI, at Jaipur, an interview with Mehar Chand Jat, it condemned prisoner lodged in Central Jail, Jaipur against whom the execution of death sentence is to be made. This interview should be permitted at 4 p. m. today, i. e. the 2nd of May, 1983 inside Central Jail, Jaipur according to Jail Manual, taking all security precautions for period of half an hour arid this should be subject to the consent of the condemned prisoner Shri Mehar Chand jat. 33. Shri Kalyan Mal the Jailor, is present in Court to assist the learned Government Advocate and this direction has been given in their presence in the open court today and must be carried out. 34. The Registry of this bench should convey the formal order containing the operative part of the judgment to the jail authorities and Superintendent of Central Jail, Jaipur and send it with a special messenger forthwith. 35. The writ petition is accepted as indicated above without any order as to costs. *******