JUDGMENT S. Ahmed, J. : Two applications, one by Anup Biswas @ Bishnu in Cr. App. 429/90 and another by Prosenjit @ Bhola Tapadar in Cr. App 433/90. purportedly both under s 482 of the Code of Criminal Procedure 1973, are taken up for consideration and disposal. 2. These two criminal appeals arose against an order sentencing both the petitioners to death by the learned Sessions Judge. Death Reference Case is also pending in respect of the sentences so awarded by the learned Sessions Judge. All these three matters have been directed to be taken up together and are pending before us. 3. By these two applications, the petitioners have stated that after the sentence of death so awarded to each of them by the learned Sessions Judge, they are being kept in solitary confinement and they are being kept away from the sound of the human voice; they are compelled to live in seclusion and they are not being permitted to mix up with any other person kept in the said Jail. Under these circumstances, by these two applications, they have prayed for a direction on the jail authorities to remove the petitioners forthwith from the condemned cell and to discontinue their solitary confinement imposed upon then and also to keep the petitioners in ordinary cell with other prisoners and to allow the petitioners to mix, mingle talk, sit with other prisoners in jail. 4. Mr. Roy argued the applications and Mr. Dutt appearing for the other petitioner adopted the same. 5. Mr. Roy bas contended that the prisoners are in custody of the jail authorities in terms of sub-s. (2) of s. 366 of the Code of Criminal Procedure. It cannot be contended that excepting the sentence of death which may be executed on being confirmed by this Court and also after the time for application for clemancy has passed away the order can be executed. So long the order has not become executable in that sense the detention of the prisoner in jail cannot be treated as a punishment imposed on him. He further submitted that solitary confinement is a punishment that may be awarded to a prisoner by a competent court. Solitary c9nfinement may also be ordered by the appropriate jail authority as a measure of punishment. He further submitted that solitary confinement is a punishment that may be awarded to a prisoner by a competent court. Solitary c9nfinement may also be ordered by the appropriate jail authority as a measure of punishment. Since solitary confinement has not been awarded by any of these two authorities on the petitioners, they cannot be kept in solitary confinement as solitary confinement is a class of punishment as described in the Penal Code itself. Accordingly, he submits that the jail authorities have no power to keep them in solitary confinement. In making his submission, Mr. Roy has mainly relied on the decision of Sunil Batra v. Delhi Administration AIR 1978 SC 1675 . In that case, the Supreme Court held as follows: "Section 366 (2) Cr. P.c. read with Form 40 authorises only safe keeping which is the limited jurisdiction of jail. : Section 366(2) enables the Court to commit the convicted person who is awarded capital punishment to jail custody under a warrant. It is implicit in the warrant that the prisoner is neither awarded simple nor rigorous imprisonment. The purpose behind enacting sub-s. (2) of S. 366 is to make available the prisoner' when the sentence is required to be executed. He is to be kept in jail custody. But this custody is something different from custody of a convict suffering simple or rigorous imprisonment. He is being kept in jail custody for making him available for execution of the sentence as and When that situation arises. After the sentence becomes executable he may be kept in a cell apart from other prisoners with a day and night watch, But even here, unless special circumstances exist, he must be within the sight and sound of other prisoners and be able to take food in their company." 6 The learned Public Prosecutor appearing for the State has placed before us S. 30 of the Prisons Act, 1894 In sub-s. (2) it provides that every such prisoner shall be confined in a cell apart from all other prisoners and shall be placed by day and by night under the charge of a guard. – The prisoner referred to in sub-s. (2) .is a prisoner under sentence of death. – The prisoner referred to in sub-s. (2) .is a prisoner under sentence of death. Sub-section (1) of s. 30 provides that a prisoner under sentence of death shall immediately on his arrival in prison after sentence, be searched by, or by order of that Jailor and all articles shall be taken from him which the Jailor deems it dangerous or inexpedient to leave in his possession. Learned Public Prosecutor further submits that since in Sunil Batra's case the Supreme Court did not hold, though considered s. 30, to be ultra vires, this court cannot direct the jail authorities not to comply with the provisions of s. 30, particularly, sub-s. (2). 7. Learned Public Prosecutor has also placed reliance on a decision reported in 1990 Cr LJ 1810 (Triveniben v. State of Gujarat). Our attention was drawn to paragraphs 19 and 21. In this case, the Supreme Court also observed that "a prisoner who is sentenced to death and is kept in jail custody under a warrant under s. 366(2) is neither serving rigorous imprisonment nor simple imprisonment. In substance he is in jail so that he is kept safe and protected with the purpose that he may be available for execution of the sentence which has been awarded." 8. In this context, the Supreme Court further observed in the said decision that detention of such a prisoner on whom sentence of death has been awarded by the learned Sessions Judge is not a double jeopardy and not in violation of Article 20 of the Constitution of India. 9. In Sunil Batra's case (supra), this question was raised, considered and decided by the Supreme Court. Supreme Court held that Section 30(2) of the Prisons Act, is not violative of Article 14 or Article 19 of the Constitution, but in arriving at the conc'1usion, the Supreme Court also considered when the provision of Section 30 (2) of the Prisons Act is attracted. It observed : " The expression 'prisoner under sentence of death' in the context of sub-sec (2) of S. 30 can only mean the prisoner whose sentence of death has become final, conclusive and indefeasible which cannot be annulled or voided by any judicial or constitutional procedure. In other words, it must be a sentence which the authority charged with the duty to execute and carry out must proceed to curry out without intervention from any outside authority. In other words, it must be a sentence which the authority charged with the duty to execute and carry out must proceed to curry out without intervention from any outside authority. Therefore, the prisoner can be said to be under the sentence of death only when the death sentence is beyond judicial scrutiny and would be operative without any other authority. Till then the person who is awarded capital punishment cannot be said to be a prisoner under sentence of death in context of s. 30 sub-sec. (2). This interpretive process would, to a great e1ttent relieve the torment and tortuore imlicit in sub-sec. (2) of S. 30 reducing the period of such confinement to a short duration." 10. In view of the decision arrived at by the Supreme Court and the interpretation put forward, the prisoner under sentence of death, appearing in s. 30 of the Prisons Act, we have to hold that the petitioners in the instant case cannot be treated as 'prisoner under sentence of death' and accordingly, they cannot be meted out the treatment as contemplated by s. 30, particularly sub-s. (2) of that Section. 11. In the instant case, the petitioners have alleged that they arc being kept in solitary confinement. This has not been denied by filing any affidavit on behalf of the State. Learned Public Prosecutor has submitted that such prisoners are kept in separate barracks along with other prisoners on whom similar sentences have been imposed by the learned Sessions Judge. Be that as it may, in these applications, we are simply concerned with the question whether these petitioners can be kept in solitary confinement. In view of the decision of the Supreme Court and the conclusion arrived at, we agree with Mr. Roy that in the facts and circumstances, these two petitioners cannot be kept in solitary confinement apart from any other prisoners and also a way from the sight and sound of other prisoners. 12. Learned Public Prosecutor submitted that since it is the duty of the prison authorities to keep the prisoners for his safety and security, they are at liberty to keep the prisoners in the manner as they deem proper to secure this availability when the sentence is to be executed. 12. Learned Public Prosecutor submitted that since it is the duty of the prison authorities to keep the prisoners for his safety and security, they are at liberty to keep the prisoners in the manner as they deem proper to secure this availability when the sentence is to be executed. Accordingly, he submits that in doing so, they have to follow the rules framed under the provisions of Prisons Act which is popularly known as Jail Code. We are not concerned with the question how the jail authorities will implement the observations made by the Supreme Court. If necessity arises the administration can very well issue proper direction keeping in view the interpretation put by the Supreme Court of s. 30. 13. Mr. Roy also submitted that the prisoners should be allowed to mix with other prisoners kept in the same jail as otherwise their seclusion may be a psychological torment on them which may ultimately work against their physical well being 14. Mr. Roy further submitted that such detention will be against the principles of Article 19 as well We do not propose to go in details on this aspect of the matter as we simply direct the jail authorities to treat the prisoners involved in these two applications, in a humane manner so that they are not subjected to any psychological torture. They will be at liberty to make such arrangement as may appear to them to be sufficient to meet the purposes, we have indicated above. 15. Accordingly, these two applications succeed. We direct the opposite party. Slate of West Bengal to keep these two petitioners in jail custody providing them sufficient safely and security and also not to keep them in solitary confinement. We further direct that in dealing with these prisoners, the authorities concerned must keep in mind the directions as contained in Sunil Batra' s case (supra). 16. Learned Public Prosecutor prays for stay of this order and also for leave to appeal to the Supreme Court. Since our decision is based on the principles laid down by the Supreme Court, leave to appeal is refused. The stay of this order will affect the petitioners and accordingly the stay is refused. 17. Let a copy of this order be kept in t he other file also. Since our decision is based on the principles laid down by the Supreme Court, leave to appeal is refused. The stay of this order will affect the petitioners and accordingly the stay is refused. 17. Let a copy of this order be kept in t he other file also. 18 Let a Xerox copy of this order be handed over to the learned Advocates, after their compliance with the usual formalities in this regard. A.K. Bhattacharji J.: I agree. Application allowed; directions given.