NASIR MAHMOOD Versus SUPERINTENDENT, CAMP JAIL

Two undertrial prisoners have, by this writ petition, impugned the action of Superintendent, Camp Jail, Lahore (respondent No. 1) directing that fetters be imposed on the petitioners and that they be moved from cell to cell each night (Urdl)".

2. An application was moved before the Additional Deputy Commissioner (General) protesting against the action of the Superintendent Jail which was allegedly based on a male fide report of Senior Superintendent of Police (respondent No. 2). The Superintendent Jail submitted the report on that application that the petitioners were fettered "under para. 388 of the Punjab Jail Manual on the request of the Senior Superintendent of Police, Lahore vide his letter No. 78365‑C dated 14‑11‑1972'`. The contents of the letter of the S. S. P. were also briefly referred to in the report.

3. When this writ petition came up before me fn. Motion hearing on 7‑2‑1973, I passed the following order:

"Learned counsel contends that according to para. 388 quoted by the Jail Superintendent in his letter addressed to the District Magistrate (Annex. 'B'), fetters cannot be applied to an undertrial in Jail premises. The para. permits the same for the purpose of safety from jail premises to the Courts and back. With regard to para. 661, which has not been relied upon by the Jail Superintendent, learned counsel states that it is an extraordinary provision to apply when special acts were to be performed by the Jail authorities, record of which it was necessary to maintain; and as according to him no such action was taken or reason was available under this Paragraph, therefore, the Jail Superintendent has quoted para. 388 only.

A separate application has been filed with the request that a bailiff be deputed to take into custody the records of the jail and Police relating to the petitioners for the dates when they were taken to the District Courts and to verify the assertions mace in this petition which, as explained by the learned counsel, relate to the fact whether or not the petitioners are, in fact kept in fetters in jail premises.

(2) The question of interpretation of para. 388 requires consideration. Admit. Notice.

(3) No need to send the bailiff immediately. Notice for tomorrow to the Advocate‑General in the miscellaneous application. The learned A. G. should make the relevant record available in Court for perusal."

On the next day the learned Advocate‑General produced the record for they perusal of the Court and the learned counsel for the petitioners. In the order of that date, I observed as follows:‑

" .I do not think it necessary either to procure any other record through a bailiff of this Court or to keep this file in Court. Learned Advocate‑General has admitted that the petitioners are being kept in fetters even in jail premises."

4. In the written statement filed by the respondents, main reliance has beers placed on the letter of the S. S P., dated 14‑11‑72 and the Short order passed thereon by the Superintendent Jail on 15‑11‑72 (copy of which has been placed on record) which are reproduced below:‑

"Subject: Fetters to Undertrials. Memorandum:

Nasir & Teti and Khalid sons of Abdul Hamid caste Arain resident of Raj Garb, involved in case F. I. R. No. 978 dated 21‑11‑1971 under section 302/34, P. P. C., P. S. Mozang were arrested and confined in your jail. Their co‑accused namely Zia and Shabbir absconded and declared as P. Os.

The Inspector/S.H.O. Mozang has received secret information that the same undertrials in connivance with their co‑accused (P. Os.) and relatives are planning for their escape either from the jail or from the custody of escorting guard.

The said undertrials are stated to be of dangerous and des perate character, and they always misbehave with the escorting guard whenever they are brought from the jail. There its immense likelihood of their escape.

It is, therefore, requested that the said undertrials may please be kept under fetters inside the jail and in future will be produced under fetters before the Court, as provided under para. 388 of the Punjab Jail Manual.

(Sd.)

Senior Superintendent of Police,

Lahore

Fetter them, put them on daily Urdi, put up tomorrow.

(Sd.) S. J.

15‑11‑72

Seen.

(Sd.) S. J. 17‑11‑72."

It has been claimed in the written statement that the action has been taken under Paragraphs 656 and 732(1) read with Para graph 1010 of the Jail Manual. Reliance earlier placed on Para. 388 both by the S. S. P. and the Superintendent Jail has now been given up.

5. Learned counsel for the petitioners has vehemently con tended, on the basis of averments made in the writ petition, that there was no report/record with the police which could disclose that the petitioners had misbehaved in so far as their custody in or outside the jail for a period of about one year is concerned. In this connection he has referred to various rules (Jail/Police) where under submission of written reports of misbehaviour by undertrial prisoners is necessary. According to him, one of the eye‑witnesses in the original criminal case against the petitioners is the son of Ch. Muhammad Bashir, a retired Sub‑Inspector of Police, who was at the relevant time posted at Police Station Civil Lines. Lahore. An apprehension has been expressed that the letter from the S. S. P. was procured by these interested persons so as to harm the petitioners. On the question of legality of the orders passed and action taken, learned counsel contended that the only material before the Superintendent Jail for placing fetters on the petitioners was qua para. 388 (and not para. 656) of the Jail Manual whereunder the petitioners could be kept in fetters out side the jail premises only, for taking them to and from the Court. Any other action for putting them in fetters inside the jail premises under para. 656, according to the learned counsel, should be supported .by other record of the jail which must in clude the registers relating to fetters and the history ticket and further tbat for taking any such action the Superintendent Jail is required by law to pass an order supporting it with "special reasons." In the absence of all this, any order passed under para. 388, it is contended, could not be used for an action under para. 656 for the purpose of keeping the petitioners in fetters continuously during the period that they spend inside the jail. He raised similar arguments with regard to another protective measure called Urdi whereunder the cell of the undertrial prisoner is changed each night. He also challenged the report of the S. S. P. and action thereon under para. 388 of the Jail Manual for the purpose of taking the petitioners in fetters, to the Court premises.

6. Learned counsel for the respondents, with equal vehemence, contended that the action taken by the Superintendent Jail was within his discretion and the material to the form of the letter of S. S. P. being sufficient for putting the petitioners under fetters for a continuous period under para. 656 and for placing them on Urdi under para. 732, the spirit of para. 1010, if adhered to this Court should not interfere with such exercise of discretion as in the present case. He thought that the Superintendent Jail had, as he put it, "mistakenly" cited para. 388 in his report submitted to the A. D. C. (G).

7. Paras. 388, 626. 654, 656, 658, 661, 664, 666, 732 and 3010 of the Jail Manual read as follows :‑

"388. When the attendance of an undertrial prisoner is required in Courts, the Prosecuting Deputy Superintendent of

Police shall send, o the jail a list of such prisoners on the even ing before the day on which their presence in Court is required.

The Assistant Superintendent incharge of undertrial prisoners shall deliver the prisoners requisitioned in the list to the officer incharge of the police escort deputed for the purpose. The Police shall be responsible for the safe custody of any prisoner committed to their charge till he is brought back and delivered to the jail or discharged from custody by order of the Court. It is for the police to decide whether such prisoners shall be handcuffed or fettered and Instructions shall accordingly be given to the jail by the prosecuting Deputy Superintendent of Police.

626. (i) A prisoner who had escaped from jail shall, on recapture, be placed in fetters.

(ii) The period for which he shall be kept in fetters may be fixed up by the Superintendent having regard to the circumstances of the escape. An order imposing fetters under this paragraph shall be subject to review by the Inspector‑General at the time of his inspection of the jail.

654. (i) No convict inside the jail other than a camp jail or a temporary jail shall be fettered except on the ground that he is violent, dangerous or had escaped or attempted to escape. Long‑term convicts and convicts under sentence of transport ation may be fettered while confined in a district jail pending transfer to a central jail.

(ii) Where in exceptional circumstances not covered by the above sub‑paragraph, fetters have to be imposed on a prisoner, the Superintendent shall record the reasons for doing so in the history ticket.

656. If the Superintendent considers it necessary to impose fetters on any convict or undertrial prisoner he shall record in the history ticket the reason for the imposition of the fetters and the period for which these are imposed. A record shall also be kept in the fetters register giving the number and name of the prisoner, the date on which fetters were imposed, the period for which imposed, and the reasons for considering the use of fetters necessary. The date on which fetters are actually removed should also be noted in the register.

658. (i) The Superintendent shall review In the beginning of every quarter cases of all the prisoners who are wearing fetters for safe custody and note the result in his order book.

(ii) The Inspector‑General may, at the time of inspection, satisfy hi‑self that there are sufficient reasons for the imposi tion of fetters.

(iii) Fetters imposed for safe custody shall be removed imme diately when the Superintendent is satisfied by the prisoner's conduct or other circumstances that their imposition is no longer necessary.

(iv) When a prisoner has been in fetters for six months and the Superintendent considers their imposition necessary for a further period he shall report the circumstances to the Inspector‑General for his orders.

661. Fetters shall not ordinarily be imposed on the follow ing except for special reasons which shall be recorded by the Superintendent to their history tickets.

(i) convicts, the un-expired period of whose term of imprison ment is less than six months;

(ii) convicts who have undergone three‑fourth of their sub stantive sentence of imprisonment;

(iii) undertrial prisoners;

(iv) prisoners under sentence of death; or

(v) convicts who are being produced in Court.

664. All prisoners under fetters shall be provided with, gaiters to prevent abrasion.

666. An annual statement showing particulars of the cases if) which fetters were imposed during the year, shall be submit ted to the Inspector‑General by the 20th of January each year.

732. Special precautions should be taken for the safe custody of dangerous prisoners and the following rules should be strictly observed:‑

(i) A list of such prisoners shall be prepared under the signatures of the Deputy Superintendent and a separate register (Register No. 14) shall be maintained by him for all dangerous prisoners whose place of night confinement should be marked daily by the Deputy Superintendent and carried out by the Chief Head warder.

(ii) On being admitted to jail they should be confined in the most secure building available and placed under the charge of trustworthy warders. They should be confined in different barracks or cells each night.

(iii) . .

(iv) They may lies fettered if necessary. The special reasons for having course to fetters should be fully recorded by the Superintendent in the prisoner's history ticket.

(v)

(vi)

(vii).......... ..

(viii ) . ..

1010. 'the Superintendent shall use his discretion in ordering such precautions as may be necessary for the security of any important or dangerous prisoner, whether he has received any warning from the Magistrate or not. As the Superintendent is the sole judge of the, measures necessary for the safe custody of the prisoners, he shall be responsible for seeing that the precautions taken are reasonably sufficient for the purpose."

9. There is no serious contest on the question whether the instructions, which are to be given by the Prosecuting Deputy

Superintendent of Police under para. 388, can also be given by his superior, namely. Senior Superintendent of Police. The intention underlying para. 388 is clear that it is the responsibility of the police to keep the undertrial prisoner in safe custody till he is committed to the charge of the jail authorities or is discharged from custody by the order of the Court. In case the police decides that a prisoner is to be taken to the Court in fetters, the jail authorities would have no discretion to refuse to put him in fetters. There fore, the Superintendent Jail had no discretion or power to refuse the request of the Senior Superintendent of Police for an action under para. 388 of the Jail Manual. Thus the order, in so far as it relates to the action under para. 388, for putting the petitioners under fetters for purpose of attendance in Court, is not without lawful authority. There is not enough material on this petition to come to a definite conclusion that this action (under para. 388) was mala fide. I therefore, decide this question accordingly.

9. Under para. 732(i), the jail authorities have the power and jurisdiction to confine any undertrial prisoner "in different barracks or cells each night" if in their judgment he is a dangerous type. For coming to a conclusion either that be is a dangerous person or that it is necessary to confine him in different barrack or cell each night, it is not necessary under the relevant law to give any "special reasons" nor it is necessary to link such an order with any other essential requirement like entry in the history ticket or any other record. In this behalf the jail authori ties can act on any information even if it emanates from the Superintendent of Police. In this case, on receipt of the letter from the S. S. P. which contained some information adverse to the petitioners, the Superintendent Jail was not necessarily requir ed to do anything else before directing the change of cells each night (Urdl). If, therefore, he straightaway passed the order of Urdi on receipt of a report from the S. S. P., as he did in this case, the order would neither be illegal nor without lawful authority; and there being no material for coming to a conclu sion that the Superintendent Jail did so with any mala fide inten tion, his action in this behalf also cannot be held to be otherwise than lawful. I, therefore, hold accordingly.

10. The resolution of the question relating to keeping the petitioners continuously in fetters in jail premises, in addition to sending them in fetters to Court under para. 388 and putting them on Urdi under para. 732(ii), has presented some amount of difficul ty; as on the one band the Superintendent Jail is the sole judge of the measures necessary for the safe custody of the prisoners particularly the dangerous ones; on the other, there are innumer able provisions, which it Is not denied have the force of law, which show that keeping an undertrial prisoner in fetters for a continuous period is an undesirable punishment and has not to be resorted to except for special reasons. A judicious synthesis of the two aspects of exercise of power by the Superintendent Jail in such a matter, therefore, is necessary. After carefully considering the relevant provisions in this behalf, some of which have been quoted above. I have come to the con clusion that if the jail authorities substantially comply with the main provisions of law In coming to the conclusion that a parti cular undertrial prisoner Is to be kept in safe custody In a parti cular manner, then they are the sole judge for the "measures" to be adopted by them in this behalf. When they do decide in favour of a certain measure, of course, after following the provisions of law, this decision with regard to special precautions would be treated as falling within their discretionary field and would not be normally interfered with by this Court in Its extraordinary writ jurisdiction except on grounds of male fide, fraud, misrepresenta tion and similar other grounds. But if, while directing different types of precautions, any mandatory provision of law is violated, so as to cause prejudice to a prisoner, this Court would not hesitate to set aside such an order.

11. I have already held that the orders of the jail authorities in matters of Urdi and fetters outside the jail for attendance in Courts do not violate any provisions applicable thereto; but the same cannot be held with regard to the confinement of the petitioners in fetters within the Jail premises for a continuous period. On facts, it is agreed on all sides that no separate order in this behalf was passed by any jail authority. Reliance has been placed only on the order dated 15‑11‑72 "fetter them, put them on daily Urdi." This order in so far as the fetters are concerned, I am satisfied, was passed under para. 388 of the Jail Manual which, as discussed above, applies to the confinement in fetters of the prisoners outside the jail and for attendance In Courts. The above factual position gets sufficient and very significant support from two circumstances: firstly that the S. S. P. had sought from the Superintendent Jail a specific action under para, 388; and secondly that the Superin tendent Jail had, In a report submitted to the A. D. C.(G), cate gorically stated that this part of the order was passed under para. 388. It is thus clear that though an order was passed under para. 388 by the Superintendent Jail, no other order was passed by him for confining the petitioners in fetters in jail premises for a period of time under para. 656. The claim, that the same above mentioned order (which is undoubtedly brief in so far as it relates to the fetters) was passed in exercise of powers under para. 656, in view of the earlier admission of the Superintendent Jail, is not only an afterthought but also appears to be an unfortunate improvement made by him on his earlier stand presumably on advice of his subordinates who, during the course of arguments in this Court, kept on insisting that this order eves passed under para. 656. In view of the above glaring realities appearing on the face of the record, I hold that the Superintendent Jail has passed no order under para. 656 for keeping the petitioners in fetters in the jail premises for any length of time. A clumsy effort was made by the subordinates of the Superintendent Jail during the hearing of this petition that on account of the fact that the records of jail relating to some of the questions involved in this case were burnt, therefore, it should be presumed that the Impugned action has been taken in accordance with law. It is an absolutely untenable position for many reasons.

Firstly, the enquiries made in this behalf indicated that the entire record was not burnt and that, at least, one register, which was produced before this Court which contained also the entries relating to the period prior to the fire, indicated that no order was passed in this case under para. 656.

Secondly, the original order dated 15‑11‑72, which was admittedly not burnt, and the connected proceedings were and could be available with the respondents for reconstruction of the record, if not more, at least the most essential part of it, namely the history tickets of the petitioners without which it would be doubtful if the petitioners could be kept in such a confinement at all. The requirements as to maintenance and contents of history tickets, according to various paragraphs of the Jail Manual, are too obvious and essential to be ignored at all. I gave more than sufficient opportunity to the respondents to produce the original or reconstructed history tickets of the petitioners. At one occasion, one officer informed that the jail was under inspection and that the required history tickets could not be sorted out of big bundles of the tickets within short time at their disposal. After adjournment, on another occasion, another officer stated that the history tickets were not available because the same having been burnt about two months earlier had not even by now been recon structed. On either position, I am constrained to remark that sorry state of affairs prevails in this jail. No doubt the prisoners or some of them might be responsible for it but the mistakes, lethargy and inaction on the part of the authorities concerned cannot be allowed to escape unnoticed. I refrain from making any further comment on this because it is stated that some cases relating to the riots in the jail are pending adjudication in proper Courts and any further opinion might prejudice the position of one or the other party in those cases. And it is also for that reason I would clarify that the observations made in this judgment shall not Influence the mind of the Courts dealing with those cases as they are only in the context of the records made available to this Court and the position explained by the two officers during the hearing of the arguments.

Thirdly, as would be presently shown, the action under para. 656 is so serious and important that it has to be supported by "special reasons" and is limited within prescribed conditions laid down by law. The Superintendent Jail cannot be credited with any innocent ignorance in this behalf. If any action would have been taken under this paragraph he would have certainly men tioned the same in the report submitted to the A. D. C.(G). Moreover, such an action could not have been taken without a specific order supported by "special reasons". And if an order had ever been passed by him, it might have been indicated in the report to the A. D. C.(G) or it might have been asserted as least In the written statement filed in this Court which is significantly silent about any other order passed under para. 656. As already noticed, reliance was placed only on the order passed on 15‑11‑72 on receipt of the communication dated 14‑11‑72 from the S. S. P.

And fourthly (this is most important), during the early hear ings of this case, I vividly remember, the Advocate‑General was asked whether there was any other order, apart from the one referred to above, for keeping the petitioners in fetters even in jail premises; to which he had, after consulting the jail authorities, replied in tie negative. I, therefore, hold that there was no such order.

12. As to whether the impugned action of keeping an undertrial prisoner confined in fetters for any length of time in jail premises can be taken even without a specific order supported by special reasons with reference to the specific entries In the history tickets and the other relevant registers, I am in no doubt that it is not permissible under the law. My reasons arcs as follows t‑

(i) An action under para. 388, which is of lesser import and cannot be treated as of lessor prejudice to an undertrial prisoner, permits the jail authorities to act on the advice of the police, simpliciter. This provision is in a different part of the Jail Manual while the impugned action under para. 656 falls under another part mostly relating to measures, a large number of which are punitive.

(it) An action under para. 656 is subject to scrutiny by Inspector‑General as in the case of an action under para. 626. This is further supported by para. 658 which requires submis sion of a statement in respect of prisoners in fetters. Such a scrutiny cannot be effective without there being a speaking order in support of action under para. 656 so that the Inspector General may form an opinion of his own with regard to the advisability or otherwise of keeping a prisoner in fetters in jail out this, it would be noted, is not a requirement qua the action under para. 388.

(iii) Para. 626 provides that a prisoner who once escapes from jail shall, on re‑capture, be placed in fetters but with a condi tion that the period for which he shall be kept in fetters may be fixed by the Superintendent having regard to the circumstances of the escape. Such an order shall, as earlier noted, be subject to review by the Inspector‑General. It is obvious that even a prisoner, who once escapes, can be ordered to be kept under fetters only for a limited period to be fixed "having regard to the circumstances of the escape." That being so, it is un imaginable that an intending escapee, against whom there is only a complaint (as was in the present case on 14‑11‑72, than he would try to escape) would be kept in fetters as is claimed by the respondents, without any orders and that too without specifying the period and reasons.

(Iv) Para. 654(ii) provides that in cases of exceptional circums tances not covered by sub-pare. (1) thereof which relates to con victs, in order to "impose" fetters on a prisoner, that Superin tendent shall record the reasons for doing so. The case of at; undertrial prisoner could fall under this sub‑pare. and it cannot at all be imagined that the fetters could be imposed on him without recording any reasons.

(v) Para. 656 specifically mentions undertrial prisoner a requires the Superintendent that before he imposes fetters on him, he shall record the reasons for such an imposition and as mention the period thereof. Other mandatory requirements for such an action are also mentioned in this paragraph. The provision relates to imposition of a serious disability that it cannot at all be treated as only directory.

(vi) Para. 658 requires the Superintendent Jail to review in the beginning of every quarter cases of all the prisoners who are wearing fetters and has to note the result in his order book. Apart from the fact that nothing was done In this case, the principle underlying the provision is obvious that this being a punishment it cannot be for an indefinite and unlimited period.

The Superintendent himself has to review the situation, at least, an the beginning of every quarter and under pare. 658(iii) he is required by law to immediately remove the fetters when he feels satisfied on account of the conduct of the prisoner or other circumstances that such an imposition is no longer necessary. And under para. 658(iv) the period cannot go beyond six months without orders of the Inspector‑General. All these provisions show that such an action as under discussion cannot be taken without following the specific procedure which is of mandatory character.

(vii) Para. 661 makes the matter further clear, in that fetters cannot ordinarily be imposed on various categories of inmates of the jail including undertrial prisoners except "for special reasons which shall be recorded by the Superintendent in their history tickets". The use of the word "ordinarily" has to be read in conjunction with the expression "special reasons."

Thus the Superintendent must be conscious of some special reasons which he must record before he takes any such action.

(viii) Wearing of the fetters for some time admittedly con fines the movement of a person and also causes anguish and pain with or without hurt. In the latter case, para. 664 provides that the prisoners under fetters shall be provided with gaiters "to prevent abrasion". Even if gaiters are provided there can be no certainty that hurt of any type would not be caused. It is only for possible prevention of abrasion. Contusions with out abrasions can still result with continuous wearing of fetters even with gaiters. Thus it being punishing action cannot be taken without written "special reasons".

(ix) Para. 732 no doubt gives discretion to the Superinten dent Jail to take special precautions for the safe custody of dangerous persons. As already observed, it is also in his own discretion and judgment to come to a conclusion whether or not some undertrial prisoner is a dangerous person or not. But the paragraph requires that "the following rules should be strictly observed." In the various sub‑pares. which are described and are to be treated as rules, it is provided in sub‑pare. (iv) that only, if necessary, such persons are to be kept in fetters but not without the Superintendent 'fully" recording the "special reasons". As is obvious from the language, the recourse to fetters even under the stated limitations bas to be taken only if it is really necessary. In some cases, even a finding that an undertrial prisoner is a dangerous person would not necessarily mean that he has to be confined in fetters and that is why it is essential that special reasons should be recorded.

13. Para. 1010 no doubt gives discretion to the Superinten dent with regard to precautions to be taken by him in respect of important and dangerous prisoners and he is the sole judge with regard to measures that are necessary but that does not at all obviate the necessity of following the provisions in various other paragraphs discussed above which have the mandatory force. Once the Superintendent follows those provisions in respect of an action under discussion, then it is in his sole judgment on his discretion to keep the prisoner under fetters. Unless the pre‑requisite requirements of law are fulfilled, as discussed above the action of putting an undertrial prisoner in confinement of fetters in jail premises for any length of period is not only restrictive in character but also punitive. Such an action is clearly distinguishable from the one under para. 388 and cannot be condoned even if the lapse qua mandatory provision on the part of the Superintendent is not motivated by malice.

14. In the light of the above discussion, I hold that the action of the jail authorities, in so far as it relates to the keeping of the petitioners in fetters inside the jail premises without observ ing the mandatory provisions of law as to the recording of special reasons and other formalities, is not only illegal and without law ful authority bus is also not supported by any lawful order. As no such order Is available, therefore, it is not necessary to go into the question whether it was taken passed mala fide or otherwise. This action is set aside as without lawful authority. There shall be no order as to costs.

15. This order shall not be a bar to the jail authorities taking any action now, which they consider necessary in the cir cumstances of the case, in accordance with law.

S. A. H. Petition accepted.