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2003 DIGILAW 663 (KER)

Acharaparambath Pradeepan v. State of Kerala

2003-10-22

J.B.KOSHY, K.THANKAPPAN

body2003
Judgment :- Koshy, J. Five accused in Sessions Case No.146/2001 on the file of the Court of Session, Thalassery, who were convicted for offence under section 302 of IPC along with other offences, are the petitioners/appellants. The Sessions Court found that the murder committed by them will come in the category of rarest in rare cases and capital punishment was imposed on them subject to confirmation by the High Court and they were sent to jail under a warrant. They were confined in condemned cell as provided under Sec. 30(2) of the Prisons Act, 1894 read with Kerala Prisons Rules, 1958 it is the contention of the petitioners that the sentence of death passed by the Sessions Court is not final, till it is confirmed by the High Court and therefore they should be allowed all privileges which are granted to other prisoners. Learned Director General of Prosecution submitted that age old practice in the State is to put such prisoners in though they are kept in a separate ward in separate rooms. This is done for the safety of the prisoners as well as for enabling the State to make them available for execution of the sentence after confirmation of the same. Before going into the merits of the case, we refer to the statutory provisions in this regard. 2. Section 366 of the Code of Criminal Procedure provides as follows:- “366. Sentence of death to be submitted by Court of Session for confirmation 1) When the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court. 2) The Court passing the sentence shall commit the convicted person to jail custody under a warrant. Section 30 of the prisons Act, 1894 reads as follows: - “30. Prisoners under sentence of death—(1) Every prisoner under sentence of death shall immediately on his arrival in the prison after sentence, be searched by order of, the jailer and all articles shall be taken from him which the jailer deems it dangerous or inexpedient to leave in his possession. (2) 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 guard. (2) 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 guard. Chapter XLVII of the Kerala Prisons Rules, 1958 (in short Rules) deals with prisoners sentenced to solitary confinement. Chapter XLVIII deals with prisoners sentenced to death. Rules 780 and 781 of the Rules are as follows: - “780. Search of prisoner.—When a prisoner sentenced to death is searched under Section 30 of the TC prisons Act or Central Act every article of private clothing shall be taken away from him as well as all other articles of every description whether money, jewellery, or otherwise, and he shall be supplied with a suit of convicts clothing. 781. Confinement in a condemned cell.-- The petitioner shall then be removed to one of the condemned cells. The Jailer shall inspect the cell before the prisoner is placed in it, and shall satisfy himself of its fitness and security. No prisoner under sentence of death shall be placed in a cell having only a wooden door, and if there is an external wooden door in addition to the granted door, it shall be kept open.” Similar provision is contained in Chapter LIX of the Kerala Prison Manual. 3. It is the submission of the petitioners that even though Section 30(2) of the prisons Act, 1894 is held to be valid, that is applicable only to prisoners sentenced to death. Chapter XLVIII of the Rules are also applicable only to prisoners sentenced to death. Petitioners are not prisoners under sentence of death. Until the sentence of death passed by the Court of Session is confirmed by the High Court, they cannot be termed as prisoners sentenced to death as contemplated under Sec.30(1) of the prisons Act and Chapter XLVIII of the Rules. 4. The petitioner mainly relied on a decision of the Supreme Court in Sunil Batra v. Delhi Administration and others, AIR 1978 SC 1675. In the above decision the Supreme Court held that a person can be said to be sentenced to death only after all judicial and other constitutional remedies are over. The Supreme Court held as follows: - “223. The expression. “Prisoner under sentence of death” in the context of sub-sec. In the above decision the Supreme Court held that a person can be said to be sentenced to death only after all judicial and other constitutional remedies are over. The Supreme Court held as follows: - “223. The expression. “Prisoner under sentence of death” in the context of sub-sec. (2) of section 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 carry out without intervention from any outside authority. In a slightly different context in State of Maharashtra V. Sindhi, (1975) 3 SCR 574: (AIR 1975 SC 1665) it was said that the trial of an accused person under sentence of death does not conclude with the termination of the proceedings in the Court of Session because of the reason that the sentence of death passed by the Sessions Court is Subject to confirmation by the High Court. A trial cannot be deemed to have concluded till an executable sentence is passed by a competent court. In the context of S.303 of the Indian Panel Code it was said in Abdul Azeez v. State of Karnataka, (1977) 3 SCR 393. (AIR 1977 SC 1485) that an accused cannot be under sentence of imprisonment for life at the time of commission of the second murder unless he is actually undergoing such a sentence or there is legally extant a judicially final sentence which he is bound to serve without the requirement of a swparate order to breathe life into the sentence which was otherwise dead on account of remission under S. 401 Cr.P.C. Therefore, the prisoner can be said to be under the sentence of death only when the death sentence of death only when the death sentence is beyond judicial scrutiny and would be operative without any intervention from any other authority. Till then the person who is warded capital punishment cannot be said to be a prisoner under sentence of death in the context of S.30, sub-sec. (2). This interpretative process would, we hope, to a great extent relieve the torment and torture implicit in sub-sec.(2) of S.30, reducing the period of such confinement to a short duration. 224. Till then the person who is warded capital punishment cannot be said to be a prisoner under sentence of death in the context of S.30, sub-sec. (2). This interpretative process would, we hope, to a great extent relieve the torment and torture implicit in sub-sec.(2) of S.30, reducing the period of such confinement to a short duration. 224. What then is the nature of confinement of a prisoner who is awarded capital sentence by the Sessions Judge and no other punishment from the time of sentence till the sentence becomes automatically executable? Section 366(2) of the Cr.P.C. 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-sec. (2) of S.366is 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 eh 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. The above decision was followed again by the Supreme Court in Kishore Singh Ravindr Dev etc. v. State of Rajasthan, AIR 1981 SC 625. The Director General of Prosecution relied on a Constitutional Bench decision of the Supreme Court in Smt. Triveniben v. State of Gujarat, AIR 1989 SC 1335. After considering Section 366 the Supreme Court held as follows: - “This no doubt authorizes the Court of Session to commit a person sentenced to death to jail custody under a warrant. But this section does not contemplate how long he has to be in jail. Clause (1) of S.366 provides that when the Court of Session passes a sentence of death the proceedings shall be submitted to the High Court and the sentence shall not be executed unless it is confirmed by the High Court. But this section does not contemplate how long he has to be in jail. Clause (1) of S.366 provides that when the Court of Session passes a sentence of death the proceedings shall be submitted to the High Court and the sentence shall not be executed unless it is confirmed by the High Court. It is therefore apparent that sub clause (2) provided for committing the convicted persons to jail awaiting the confirmation of the sentence by the High Court. It is also clear that when a person is committed to jail awaiting the execution of the sentence of death, it is not imprisonment but the prisoner has to be kept secured till the sentence awarded by the Court is executed and it appears that it is with that purpose in view that sub-sec.(2) of S.366 simply provided for committing the convicted persons to jail custody under a warrant.” In paragraph 20 of the above judgment after quoting Sunil Batra’s case held as follows:- “21. It is therefore clear that the 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 and in this view the aspect of solitary confinement has already been dealt with in the above noted case but it must be said that the life of the condemned prisoner in jail awaiting execution of sentence must be such which is not like a prisoner suffering the sentence but it is also essential that he must be kept safe as the purpose of the jail custody is to make him available for execution after the sentence is finally confirmed. It is the contention of the petitioners that in Triveniben’s case the Supreme Court had considered mainly the effect of delay in execution of death sentence. After confirmation of the death sentence, if there is delay in execution of the sentence, the delay by itself will automatically convert the death sentence into a life imprisonment. It is the contention of the petitioners that in Triveniben’s case the Supreme Court had considered mainly the effect of delay in execution of death sentence. After confirmation of the death sentence, if there is delay in execution of the sentence, the delay by itself will automatically convert the death sentence into a life imprisonment. The Supreme Court in that case held that no time limit can be prescribed in execution of the sentence and but undue delay will entitle a prisoner who is sentenced to death to convert the punishment to life imprisonment. In the above decision the Supreme Court also considered the nature of confinement in jail of person who was sentenced to death. In fact in Triveniben’s case the Constitutional Bench accepted the decision of Sunil Batra’s case with regard to persons who are convicted under Section 302 and sentenced to death by Session Court and who were kept in jail awaiting confirmation of sentence by the High Court. In this case the petitioners were convicted under Section 302 along with other offences and sentenced for death by the Session Court subject to confirmation by the High Court. High Court had not confirmed the sentence. So we are considering the case only regarding the jail custody of such prisoners whose death sentence is yet to be confirmed by the High Court. 5. It is the contention of the learned Director General of Prosecution that, even though subject to confirmation, the Court of Session had already passed the sentence and therefore the petitioners are to be treated as persons sentenced to death and therefore Sec.30(2) of the Prisons Act, 1894 is applicable to them. Sec. 366(1) of the Cr.P.C. Provides that when the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court. Therefore it is the contention that even in confirmation of High Courts is necessary, it is a sentence of death. We are unable to accept the above proposition because Section 366(1) itself very clearly says that sentence of death by the Session Court is subject to confirmation by the High Court. Therefore, unless it is confirmed by the High Court, it cannot be said that one is sentenced to death. We are unable to accept the above proposition because Section 366(1) itself very clearly says that sentence of death by the Session Court is subject to confirmation by the High Court. Therefore, unless it is confirmed by the High Court, it cannot be said that one is sentenced to death. Further under Section 366 (2) the word used is “convicted person” and not a “persons sentenced to death”. So, the Sessions Court is empowered to send them in jail as they are convicted under Section 302. The provisions of the Prison Manual as well as Sec.30(2) of the prisons Act deals only the prisoners under sentence of death. According to the learned Director General of Prosecution, only when a murder is committed in a most heinous way, in rarest case death sentence is imposed after convicting for an offence under Sec. 302 IPC. Then nature of imprisonment shall not be better that others who are given the minimum sentence for Sec.302 IPC. It was also contended that whenever right of appeal is provided against conviction of sentence, it cannot be stated that all such persons are not sentenced for imprisonment till appellate remedies are over. Whatever may be the force in the argument by the prosecution, we are bound by the Apex Court decision. The Apex Court decision in Sunil Batra’s case clearly held that unless the death sentence is confirmed by the High Court, it cannot be treated as prisoners sentenced to death. In the above circumstances, the petitioners cannot be sent to condemned cell. The Supreme Court also held that such practice of keeping prisoners in condemned cell before confirmation is a pre-constitutional practice and such practices should be avoided. Therefore, practice adopted in the jail till now cannot be a ground of putting the petitioners in solitary confinement or separate condemned cells. Only for death sentence, confirmation by High Court is necessary. Hence, we are unable to accept the contention raised by the prosecution. 6. It is submitted that these persons are kept in 11th Block of Kannur Central Prison and they are put in separate cells as per practice. It is stated that in the Kannur Central prison more than 150 prisoners are accommodated and if they are kept along with other prisoners, it will not be safe especially, they are convicted in a political crime and other political prisoners are also in the jail. It is stated that in the Kannur Central prison more than 150 prisoners are accommodated and if they are kept along with other prisoners, it will not be safe especially, they are convicted in a political crime and other political prisoners are also in the jail. Therefore, for the safety of the petitioners/accused also, they should be kept in separately from the other prisoners. It is further argued that the prisoners who are sentenced to death subject to confirmation are likely to be more violent and they may try to escape and state should be able to produce them when the sentence is confirmed. As held by the Supreme Court in Sunil Batra’s case as well as Triveniben’s case, the prisoner who is convicted under Section 302 and sentence to death by the Sessions Court subject to confirmation of the High Court sent to jail is not undergoing rigorous imprisonment or simple imprisonment. Even though jail authorities will be justified in taking precautionary measures and imposing special conditions like putting in separate wards etc. Considering the safety, it cannot imply that each one should be kept in a separate room as it will amount to solitary confinement whatever the term used. Day and night watch also can be arranged for security and safety of the prisoners. The Jail authorities are competent to take all steps for safety and security of the petitioners in conformity with the Jail Rules, but they cannot be treated as condemned prisoners and put to condemned cell or separate cell. In this connection, we also refer a Division Bench decision of the Delhi High Court in Kehar singh and another v. The State and others, 1987 CRL.L.J. 291. 7. The petitioners who are sent to jail under warrant under Section 366(2) of the Cr.P.C. are convicted prisoners. They are entitled to be classified as per the Jail Rules and Manuals and they are entitled to similar privileges which are granted to other prisoners. It is for the jail authorities to decide the safety measures to be imposed and taking step for classification of prisoners as per rule. In the result, we arrive at the following conclusions:- 1) The petitioners herein are convicted prisoners under Section 302 but their death sentence is subject to confirmation by the High Court. It is for the jail authorities to decide the safety measures to be imposed and taking step for classification of prisoners as per rule. In the result, we arrive at the following conclusions:- 1) The petitioners herein are convicted prisoners under Section 302 but their death sentence is subject to confirmation by the High Court. 2) Till their final executable sentence is passed, the petitioners cannot be treated as condemned prisoners for the purpose of Sec.30(2) of the prisons Act, 1894. 3) Pending confirmation of the sentence, the petitioners are to be treated as convicted prisoners. They are to be treated not under Chapter XLVIII of the Kerala Prisons Rules. 1958 as prisoners sentenced to death but as convicted prisoners under Chapter XLV of the Kerala Prisons Rules, 1958. 4) The Petitioners are entitled to classification facilities. 5) The jail authorities are competent to take all steps to ensure safety and security of the petitioners subject to conformity with the Jail Rules. 8. Therefore, petitioners shall be removed from condemned cell and they shall not be put in separate cells. But Jail authorities are free to impose any restriction ensuring the security and safety of the prisoners. The applications are disposed of as above.