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2009 DIGILAW 903 (CAL)

Pancham Alias Kebal Rai v. STATE OF WEST BENGAL

2009-12-14

PINAKI CHANDRA GHOSE, S.P.TALUKDAR

body2009
Judgment :- S.P. TALUKDAR, J. (1.) By filing an application, being C.R.A.N. No. 1600 of 2009, the convict/appellant, Pancham @ Kebal Rai, sought for his release from the condemned cell and prayed for direction for shifting to the general ward. The backdrop of the present case is :- (2.) The appellant/convict was tried for the offences under Sections 302/394 of I.P.C. The case, being Sessions Case No. 97 of 2005 [S.T. No. 1(12)05], ended in the judgment and orders dated 16.09.2008, 18.09.2008, 20.09.2008 and 23.09.2008. Learned Trial Court found the appellant guilty of the offence under Sections 302/394 of I.P.C. He was sentenced to death for the offence under Section 302 of I.P.C. and was further sentenced to suffer imprisonment for life for his conviction under Section 394 of the I.P.C. Learned Trial Court quite rightly referred the matter to this Court for confirmation of the sentence of death. (3.) Mr. Jayanta Narayan Chatterjee, appearing as learned Counsel for the appellant/convict, submitted that the appellant had been kept confined in the condemned cell in view of the sentence of death inflicted upon him. Mr. Chatterjee submitted that since such sentence awaits confirmation, it was not right on the part of the prison authorities to keep him in the condemned cell. (4.) He, thus, approached this Court for directing the concerned authorities for shifting him to general ward. (5.) Here in this case, we are not called upon to decide whether capital punishment as inflicted upon the appellant is justified or not. We are not adjudicating whether such death sentence deserves to be confirmed or not. This can only be decided at the appropriate stage. We, however, feel tempted to reproduce what Lord Denning wrote about it : (Ref.: The Family Story, P-164-165). "Is capital punishment right or wrong? In giving evidence before the Royal Commission on Capital Punishment I was in favour of it for murder most foul. That was 3 many years ago now. Some years afterwards I changed my mind. It is not a legal question. It is a question of policy. It is an ethical question. Is it right that we, as a society, should do a thing hang a man which none of us individually would be prepared to do, or even to witness? On such ground I changed my mind. Parliament was right to abolish capital punishment. It was right to abolish flogging. It is a question of policy. It is an ethical question. Is it right that we, as a society, should do a thing hang a man which none of us individually would be prepared to do, or even to witness? On such ground I changed my mind. Parliament was right to abolish capital punishment. It was right to abolish flogging. Those days are past." It is, perhaps, needless to mention that those words of Lord Denning have been reproduced without even remotely intending to hint anything about the fate of the verdict. In this application filed by the appellant/convict, we are concerned about the fundamental rights and far more, the basic human rights of a prisoner who has been sentenced to death but such verdict is awaiting confirmation. Basic human rights cannot be halted at the prison gates and can be enforced within the prison campus. The physical restrictions imposed on a convict may not be more than reasonably necessary for security. After all, "when the prison trauma prevails, prison justice must invigilate." (6.) Mr. Chatterjee, deriving inspiration from the decision of the Apex Court in the case between Sunil Batra Vs. Delhi Administration and Ors., as reported in AIR 1978 SC 1675 , submitted that it is not proper on the part of the prison authorities to dump the convict in a condemned cell that too, when such sentence awaits confirmation. He also referred to the Division Bench decision of this Court in the case between Anup Biswas and Anr. Vs. State, as reported in 1991 C.Cr.LR (Cal) 12. Learned Division Bench of this Court in the said case held that the expression prisoner under sentence of death as meant by Section 30(2) of the Prisons Act of 1894 is the prisoner 4 whose sentence of death is conclusive, final and unalterable by any judicial or constitutional procedure. (7.) It was observed that the prisoner whose sentence of death has not reached finality is not excluded from the consideration of human treatment. In course of hearing, question had been raised as to whether the prayer for shifting the appellant/convict from condemned cell to the general ward can at all be dealt with without having an application under Article 226 of the Constitution before us. Section 482 of the Code of Criminal Procedure saves the inherent powers of High Court. In course of hearing, question had been raised as to whether the prayer for shifting the appellant/convict from condemned cell to the general ward can at all be dealt with without having an application under Article 226 of the Constitution before us. Section 482 of the Code of Criminal Procedure saves the inherent powers of High Court. It reads : "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." (8.) The expression to secure the ends of justice has far reaching consequence. It certainly deserves a very liberal interpretation. Ordinarily, the inherent power of the Court is exercised when there is no provision, nor any prohibition. But there are instances where there is demand for exercise of such inherent power for keeping pace with the ever changing concept of law and justice. (9.) The need is for the civil society to appreciate and accept that the prison inmates are not denuded of their human rights at the entry point except to the extent necessary for incarceration; and their dignity must be respected in recognition of their worth as human beings with potential for better contribution to the society as its reformed members. The 5 spirit of liberty is that there may be a society where the least shall be heard and considered side by side with the greatest and the mightiest. (10.) This may not be fully applicable for those who are sentenced to death but that sentence itself is yet to reach finality. It can only be said to have reached a final stage, an irreversible conclusion when it is beyond any judicial scrutiny and when it cannot have any further access to even constitutional remedies. (11.) Considering all such facts and circumstances, we think it just and proper to respond favourably to the grievance of the appellant/convict. The present application being C.R.A.N. No. 1600 of 2009 is, thus, disposed of with direction upon the O.P./State to shift the appellant/convict from the condemned cell in the concerned correctional home to the general ward. (11.) Considering all such facts and circumstances, we think it just and proper to respond favourably to the grievance of the appellant/convict. The present application being C.R.A.N. No. 1600 of 2009 is, thus, disposed of with direction upon the O.P./State to shift the appellant/convict from the condemned cell in the concerned correctional home to the general ward. The State respondent, however, be at liberty to take appropriate steps not only for the safety and security of the appellant/convict but as well as of others in the correctional home. (12.) Let xerox plain copy of this order, duly countersigned by the Assistant Registrar (Court), be handed over to the learned Counsel for the parties on usual undertaking.