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PETITIONER: RANBIR, SINGH SEHGAL

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT: 02/11/1961

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. SINHA, BHUVNESHWAR P.(CJ) SHAH, J.C. DAYAL, RAGHUBAR MUDHOLKAR, J.R.

CITATION:  1962 AIR  510            1962 SCR  Supl. (1) 295

ACT:      Jail Administration-Separation  of prisoners- Cellular confinement-Validity  of-Rule  permitting separate  confinement  by  right-Constitutionality of-Prisons  Act,  1894(9  of  1894),  Punjab  Jail Manual Paras,  571,575-Constitution of India, Art. 14.

HEADNOTE:      In May,  1959,  the  appellant  was  sent  to Ambala Jail  as an undertrial prisoner. On account of certain  jail offences  alleged  to  have  been committed  by   him  the  Superintendent  of  Jail segregated him  from other  prisoners and kept him in a  separate cell.  He was  convicted  in  June, 1960. Though he was 296 not alleged  to be  guilty of  any jail offence or indiscipline after this date he was still confined in  a  separate  cell  without  being  allowed  to communicate with  other  prisoners;  he  was  only allowed to  come out  in the  compound attached to the cell  for one  hour in the morning and for one hour  in  the  evening.  In  December,  1960,  the Governor ordered  that the appellant be treated as a B"  class prisoner. Even after this he was still kept in  a separate cell with this difference that he locked up only at night and was allowed to move in the  compound attached  to the  cell during the day. But  he was  still not allowed to communicate with others.  The Prisons  Act  provided  for  the separation of prisoners and s.28 thereof permitted convicted criminal  prisoners to  be  confined  in cells  either   in  association  or  individually. Paragraph 571  of the  Punjab Jail Manual provided that so far as possible all convicts shall be kept separate both  by day  and by night. Paragraph 575 provided that  a convict who could not be confined in a  cell by  day by  reason that he was required

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for some  jail service shall be confined in a cell by  night.   The  appellant   contended  that  his confinement was  under para  575,  that  para  575 offended Art.  14 of the Constitution and that the Superintendent  of   Jail  acted   mala  fide  and discriminated  against   him  by  keeping  him  in solitary confinement. ^      Held, that para 575 of the Punjab Jail Manual did not  offend Art.  14 of the Constitution. This paragraph was  a part  of an integrated scheme for the maintenance  of  discipline  of  prisoners  by providing for their separation. The classification was   made on  the basis  of sex and the nature of the prisoners  and depended on the availability of cells; is  had a reasonable relation to the object sought to  be achieved.  The power to separate was entrusted to  the highest  officer in the jail who was  ordinarily   expected  to   act   reasonably, objectively and without bias.      Held, further  (per Sinha,  C. J., Subba Rao, Shah and  Mudholkar, JJ.)  that the confinement of the appellant  in a separate cell in the manner it was being  done was illegal. The separation of the appellant so  as to seclude him from communicating with  or   from  the   sight  of  other  prisoners certainly amounted  to cellular confinement if not to solitary  confinement. This  could only be done as a  measure of  punishment, and  even  then  the prisoner was  entitled to have one hour’s exercise every day  and to  have his  meals in  association with one  or more  prisoners.  The  appellant  was discriminated from  other prisoners and, under the colour of  the rules for separation, was illegally confined in a manner of authorised by law.      Per Dayal,J.-There  was no  discrimination or illegality in keeping the petitioner in a separate cell. The mere fact 297 that a  person was kept in a separate cell did not make  his   confinement  solitary,   cellular   or separate.  Paragraph   571  of   the  Jail  Manual provided that  subject to  cell accommodation  and requirement  of   labour  all   convicts  be  kept separate both  by day  and by night. Paragraph 575 provided an exception that where the convict could not be  kept separate  by day  he  could  be  kept separate  by  night.  The  entire  scheme  of  the Prisons Act  and the  rules was  that ordinarily a prisoner was  to be kept separate and that only in cases of  limitation of  providing separate  cells were prisoners  to be  kept together. There was no provision that a prisoner kept in a cell was to be specially. allowed  to associate or mix with other prisoners.

JUDGMENT:      CRIMINAL  APPELLATE   JURISDICTION:  Criminal Appeal No. 120 of 1961.      Appeal by special leave from the judgment and order dated  March 17,  1961 of  the  Punjab  High Court in Criminal Writ No. 2 of 1961.                        WITH

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    Petition No. 147 of 1961.      Petition under Art. 32 of the Constitution of India for enforcement of Fundamental Rights.      The appellant/petitioner in person.      H. S.  Doabia,  Additional  Advocate-General, Punjab,  Gopal   Singh  and   P.  D.   Menon.  for respondent (in the appeal and the petition.)      1961. November  2. ’The Judgment of Sinha, C. J.,  Subba   Rao,  Shah  and  Mudholkar,  JJ,  was delivered by  Subba Rao,  J. Dayal, J. delivered a separate Judgment.      SUBBA  RAO,   J.-Both   these   matters   are connected and  raise the  same questions, and they may be disposed of together.      Ranbir Singh  Sehgal, the  petitioner in  the writ petition,  is now  a prisoner  in the Central Jail Ambala,  in  the  State  of  Punjab.  He  was prosecuted for  committing  offence  in  different places. On  June 13, 1961, he was convicted by the Additional District Magistrate, Ambala, under s. 5 of  the   Indian  Explosive   Substances  Act  and sentenced to 298 5 years rigorous imprisonment and to pay a fine of Rs.  2,000/-.  The  petitioner  has  preferred  an appeal against  the said  conviction and sentence, and the said appeal is now- pending the High Court of Punjab.  On January  30, 1961,  the  Additional Sessions  Judge   (II),  Ambala,   convicted   the petitioner under  ss. 120-B  and 399 of the Indian Penal Code  and sentenced  him to 7 years rigorous imprisonment and  a fine  of Rs. 2,000/- under the former section, d to 5 years rigorous imprisonment and  a  fine  of  Rs.  2,000/-  under  the  latter section.  The   petitioner  preferred   an  appeal against this  conviction and  sentence to the High Court of Punjab and the same is now pending there. The other  eases are  not disposed of and they are still pending  in various  courts. The  petitioner was arrested  by the  Ambala, police  on September 11, 1958, and was detained in police custody for a period of  about 8  months, and on May 7, 1959, he was transferred  to judicial custody at Ambala. On June 13,1960,  he was  convicted under  the Indian Arms Act,  and from that date he is in the Central Jail,  Ambala,,   as  a   convicted  prisoner.  On December 15,  1960, the Governor of Punjab ordered that the  petitioner should  be treated  as a  ’B’ class prisoner.  On February  9, 1961,  he filed a petition under Art. "26 of the Constitution in the High Court  of Punjab  at Chandigarh,  questioning inter alia  his confinement  in that prison on the ground that  para. 575  of the  Punjab Jail Manual where under  he was confined to a separate cell in the prison,  offended Art. 14 of the Constitution, and that  in  fact  discriminatory  treatment  was meted out  to  him  not  for  the  maintenance  of discipline  but   for  extraneous   reasons.  That petition was  dismissed by  the said High Court on March 17,  1961, and  Criminal Appeal  No. 120  of 1961 was  filed against  the said order by special leave granted  by this  Court. That  apart he also filed the present writ petition (Writ Petition No. 147 of  1961) in  this Court  under Art. 32 of the Constitution  covering   the  same   ground.   The

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prisoner 299 argued his  own case.  He  raised  before  us  two points, namely,  (1) para.  575 of the Punjab Jail Manual offends  Art. 14  of the Constitution in as much  as   it  confers   arbitrary  power  on  the Superintendent of  Jail to  deal with  a  prisoner under the colour of the said provision in a brutal way circumventing  other stringent  provisions  of the Prisons Act and other paragraphs of the Punjab Jail Manual  conceived in  the interest  and  fair treatment of  prisoners, (2) the Superintendent of Jail, for  extraneous reasons  on the  pretext  of disciplinary action, gave him solitary confinement in a  cell since  the date  he was  transferred to that Jail,  and thus  acted with  mala fide.  that apart, he  discriminated  him  in  the  matter  of treatment from  other prisoners  and even from the co-accused, who were convicted along with him, and thus offended Art. 14 of the Constitution.      The first question falls to be decided on the relevant provisions  of the Indian Penal Code, the Prisons Act, and the Punjab Jail Manual. There are three types  of punishment,  namely, (i)  solitary confinement,(ii)   cellular confinement, and (iii) separate confinement.  Solitary Confinement  means such  confinement   with  or   without  labour  as entirely secludes the prisoner both from sight of, and  communication   with,  other  prisoners.  The punishment of  solitary confinement can be imposed by a  Court only,  and, in  view of  its dangerous potentialities stringent  conditions  are  imposed thereon. No  person can  be sentenced  to  undergo solitary confinement  for more  than three months. There is  a limit  prescribed on the punishment of solitary confinement  that can  be  imposed  on  a prisoner: it  shall not  exceed (a)  one month, if the term  of  imprisonment  does  not  exceed  six months,  (b)   two  months,   if   the   term   of imprisonment exceeds  six  months,  but  does  not exceed one  year, and (c) three months if the term exceeds one  year: (vide s. 73 of the Indian Penal Code). Section 74 of the Indian Penal Code says, 300           In  executing  a  sentence  of  solitary      confinement, such confinement hall in no case      exceed fourteen days at a time with intervals      between the  periods of  solitary confinement      of not  less duration  than such periods, and      when the  imprisonment awarded  shall  exceed      three months,  the solitary confinement shall      not exceed seven days in any one month of the      whole imprisonment  awarded,  with  intervals      between the  periods of  solitary confinement      of not less duration than such periods." Section 29 of the Prisons Act reads,           "No cell  shall  be  used  for  solitary      confinement unless  it is  furnished with the      means of enabling the prisoner to communicate      at any  time with  an officer  of the prison,      and every  prisoner so confined in a cell for      more than  twenty-four  hour,  whether  as  a      punishment or  otherwise, shall be visited at      least once  a day  by the  Medical officer or      Medical Subordinate."

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Cellular confinement  is a punishment which can be imposed on a prisoner by a Superintendent of Jail. A Superintendent  of Jail can punish in a suitable case  a  prisoner  by  imposing  on  him  cellular confinement for  a period  not exceeding  fourteen days, provided  that after each period of cellular confinement an  interval of  not  less  than  such period must  elapse before  the prisoner  is again sentenced to  cellular  or  solitary  confinement. Cellular  confinement  in  defined  to  mean  such confinement with  or without  labour  as  entirely secludes a  prisoner from  communication with, but not  from  sight  of,  other  prisoners.  Separate confinement is  defined to  mean such  confinement with or without labour as secludes a prisoner from communication with,  but not  from sight of, other prisoners, and allows him not less than one hour’s exercise  per  diem  and  to  have  his  meals  in association with one or more 301 other prisoners. Separate confinement for a period not exceeding  three  months  can  be  imposed  on prisoner in  a suitable case by the Superintendent of Jail. (Vide s. 46(8) of the Prisons Act).      Section 47  of the  Prisons Act prohibits the combination of  cellular confinement with separate confinement so  as to prolong, the total period of seclusion to  which a  prisoner shall  be  liable. Solitary confinement  can he given only by a court and the  other two by a Superintendent of Jail for jail offences.  The provisions  conceived  in  the interest of  the physical, moral and mental health of  prisoners   impose  stringent   conditions  in carrying out  those sentences  in order to prevent their abuse.  But in  the interest  of maintaining discipline among  the inmates of jail, the Prisons Act and  the Jail  Manual prescribe  rules  for  a separation  of   prisoners.  The   separation   of prisoners depends upon the nature of the prisoner, the class to which he belongs and the availability of adequate  number of  cells. Section  27 of  the Prisons  Act   provides  that,  (1)  in  a  prison containing female  as well  as male prisoners, the females shall be imprisoned in separate buildings, or separate  parts of  the same  building, in such manner as  to prevent  their seeing, or conversing or holding any intercourse with the male prisoners (2) in a prison where male prisoners under the age of twenty-one are confined, means shall be provide for separating  them  altogether  from  the  other prisoners and  for separating  those of  them  who have arrived  the age  of puberty  from those  who have not  (3) unconvicted criminal prisoners shall be kept  apart from  convicted Criminal prisoners; and (4)  civil prisoners  shall be kept apart from criminal prisoners. Section of the said Act says,           "Subject to the requirements of the last      foregoing   section,    convicted    criminal      prisoners   may   be   confined   either   in      association or 302      individuals in  cell or partly in one way and      partly in the other".      Presumably in exercise of the power conferred on the  State Government  by s.  59 of the Prisons

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Act, certain  rules were framed for the separation of prisoners  and they  are contained  in the Jail Manual. Under para. 571 of the Jail Manual, ’shall convicts shall,  so far  as the   requirements  of labour and the cell accommodation of the Jail will allow, be kept separate both by day and by night." Paragraph 572  deals with the occupation of vacant cells, and  para. 573  says that "’convicts of the habitual class shall be subjected to the system of separation prescribed  in the  preceding rules, in rotation." Paragraph  574  provides.  If,  at  any time, there  are  more  cells  in  any  jail  than suffice for  the separation of all convicts of the habitual class,  prisoners  of  the  casual  class shall be confined in cells, both by day and night, in rotation."  Then comes  the impugned provision, namely, para. 576, which reads:           "A convict  who  would  ordinarily  came      under the  operation of  any of the preceding      rules   relating   to   the   separation   of      prisoners, but  cannot be  confined in a cell      by day,  by reason  that he  is required  for      some jail  service, shall  be confined  in  a      cell by night."      There rules, along with the provisions of the Prisons Act,  form an  integrated scheme conceived for the  maintenance of  discipline of  prisoners, and the preferential treatment in the allotment of cells is  based upon sex, age, nature of the crime committed and  the nature  of the  prisoners,  and also the availability of cells.      The question is whether para. 575 of the Jail Manual offends  Act. 14  of the  Constitution. The said  provision  is  only  in  a  group  of  rules providing for  the separation  of prisoners and it only says  that if  a prisoner  to whom any of the prison rules 303 applies cannot  be confined to a cell by day shall be confined  in a  cell by  night. It pre-supposes that  the   prisoner  concerned   belongs  to  the category to  whom a separate cell is allotted and, by reason  of his being required for jail service, cannot be  confined to  the cell by day: in such a case it says that he shall be confined to the cell by night.  It is  only  a  rule  providing  for  a contingency when  a  prisoner  who  should  be  so confined in a cell both by day and night cannot be confined by  day in such a cell. But the objection may be  taken to  mean that the other rules, along with this  rule enable a Superintendent of Jail to put a  prisoner in  a cell  offends Art. 14 of the Constitution.      It  is  settled  law  that  Art.  14  of  the Constitution permits  classification, and the said classification  must   bear  just  and  reasonable relation to  the object  of the  legislation.  The object  of  the  said  provision  is  to  maintain discipline  among   the  inmates   of  jail.   The classification is made on the basis of sex and the nature  of   the  prisoners   and  also   on   the availability  of  cells.  The  classification  has certainly a  reasonable  relation  to  the  object sought to  be achieved  by the legislation nor can the  power  conferred  on  the  Superintendent  to

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separate prisoners  be said  to be  arbitrary. The object of the conferment of the said power is very limited, and  the provisions  clearly lay down the conditions for  separation. The  power to separate is entrusted  to the  highest officer  in the jail premises, who  may ordinarily  be expected  to not reasonably, objectively and without bias. In these circumstances, we  must hold that para. 575 of the Jail Manual  in it  setting does  not  offend  the provisions of Art. 14 of the constitution.      The next  question is  whether  in  purported exercise of  the said  power the Superintendent in the present  case acted  with mala  fide and meted out discriminatory treatment to the petitioner and thus offended Art. 14 of the constitution the 304 affidavit  filed   in  the   Writ  Petition,   the petitioner   made certain  allegations against the Superintendent   in respect  of his  treatment  in jail. The said allegations may be summarized thus: The petitioner  was transferred  to  the  judicial custody at  the Central  Jail Ambala,  on  May  7, 1959, after  protracted  police  custody  of  over eight months.  On the  very day  of his arrival in the Jail, the petitioner was looked up in solitary confinement in  a cell  in the condemned prisoners block and   lock  up period of 24 hours inside the cell was  clamped." Though several representations were made  by the  relatives of  the petitioner to the higher  authorities, no  redress was  given to him. He  was sought  to be kept in the cell for 13 months till  June 13,  1 when  he was convicted in one of  the cases  filed against  him. On June 14, 1960, the Superintendent of the Jail again ordered the  petitioner   to  be  looked  up  in  complete solitary confinement under para. 575 of the Punjab Jail Manual,  and again  a confinement of 24 hours inside the  cell was  "clamped". On  December  15, 1960, the  Governor of  Punjab  ordered  that  the petitioner  should  be  treated  as  a  ’B’  class prisoner,  and   even  thereafter   he   was   not transferred to  the general  ward  of  the  prison where others’  class prisoners were kept confined, but he  was kept  in the  same condemned prisoners wards Though the look-up period of 24 hours inside the cell  was considerably reduced the ban imposed on his  association with  other prisoners  had not been relaxed.  The petitioner was not allowed even to meet  his co-accused  who were  in the  general ward of  the prison.  While the other prisoners in the jail  including  the  petitioner’s  co-accused were given numerous facilities i.e. of association work and  recreation he  was completely segregated in a  cell without  any such  facilities. The jail authorities adopted  this method  of  torture  for ulterior purposes, 305      The  Superintendent   of  the  Jail  filed  a counter  affidavit.   His  answer   to  the  grave allegations may   be  stated thus: on the very day of his  arrival in the jail the petitioner behaved rudely and  impertinently towards  the jail  staff and in  a defiant  way  tried  to  undermine  jail discipline. he  was not  kept in solitary cell for ulterior motives.  He committed  12 jail  offences

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and  he  was  punished  for  them.  After  he  was convicted he  was put  in a separate cell and that he was  allowed one  hour in  the morning  and one hour in  the evening for exercise and also to have his bath  outside  the  courtyard.  After  he  was classified as  a ’B’  class prisoner, he was given amenities  to  which  a  ’B’  class  prisoner  was entitled under  the rules,  but in the interest of jail  discipline  he  was  segregated  from  other prisoners. The  cell in  which the  petitioner was kept was one of the cells in block of 32 cells out of  which  only    were  allocated  for  condemned prisoners and  the rest were utilized for separate confinement for  the segregation  of hardened  and troublesome  convicted   criminal  prisoners.  The petitioner was  confined in  the cell only for the night and he could move about in the open compound of the cell throughout the day.      The  affidavit   and  the  counter  affidavit disclose the following admitted facts: The cell in which the petitioner was and is confined is one of the cell  in the  block of 32 cells out of which 8 cells are  used for  condemned prisoners. The cell has a  small separate  enclosure of  its own. From the date  the petitioner  entered the prison, that is, on  May. 7,  1959, till he was convicted, that is, on  June 13,  1960, when he was an under-trial prisoner, he  was separately  confined to  a cell. though the  superintendent vaguely  says that  the petitioner was  not looked-up  in a solitary cell, he practically  admits  that  the  petitioner  was given separate confinement in a cell as punishment for jail offences committed by him. Though he 306 denies that  the petitioner was kept in a cell for 24 thee  hours, he  does not  say what  facilities were provided   for  him to move about or mix with other  prisoners.   The  statement   of   offences committed by the J. petitioner and the punishments inflicted on  him filed by the Superintendent does not contain any details and is thus vague. Section 12 of  the Prisons Act enjoins on a Superintendent to maintain  a punishment  book, and s. 51 thereof requires him to enter the details therein. But the statement before  us does not strictly comply with that section  and it  is represented in court that no other  register is  maintained in the jail. The statement, vague  as it is, shows that even on the first day of imprisonment, the petitioner was kept in a separate cell and the offence alleged to have been committed  by him  is that  he was  rude  and impertinent. The  subsequent entries show that the petitioner attempted  to break  articles and  even struck his  head against  wall or door. These acts of the  petitioner appear  to us to be more due to the  effect  of  the  inhuman  and  discriminatory treatment given  to him  even when he was an under trial prisoner  rather than a conscious attempt on his part  to commit  any jail offences. Be that as it may, we are not concerned at this stage whether the petitioner  had committed  those offences, for those were  committed at  a time  when he  was  an under-trial prisoner  with which  we are  not  now directly concerned.  The facts remain that even as an under-trial  prisoner from  the date he entered

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the premises  of the  jail, he was segregated from other prisoners and kept in a separate cell.      Now coming to the second period, that is, the period commencing  from the  date he was convicted till he  was classified  as a  ’B’ class prisoner, that is  from June  14 1960  to December 15, 1960, the  petitioner   alleges  that  he  was  kept  in solitary confinement as before throughout 24 hours of  the  day.  In  the  counter-affidavit  of  the Superintendent 307 it is not denied that the petitioner was kept in a separate cell,  but it  is stated  therein that he was given  one hour in the morning and one hour in the evening  for exercise  and also he was allowed to have  his bath  outside the  courtyard  of  the cell. The  Superintendent does  not state  that he allowed the  petitioner to communicate with others or to  talk to  other prisoners.  It is not stated whether he  was allowed  for exercise to go out of the separate  enclosure of  the cell or whether he was allowed  to mix  up with other prisoners or to talk to  them. During  this period, the petitioner did not  commit any  jail offences and, therefore, his separate  confinement in a cell could not be a punishment  for  an  offence,  but  only  for  the maintenance of  discipline in  the  jail  and  for convenience of  accommodation. There is nothing on the record  to suggest  that he  was guilty of any indiscipline  during   this  period.  If  so,  his confinement in a separate cell for a period of six months without  allowing‘him to  communicate  with others  is   a  punishment   of  either   cellular confinement,  separate   confinement  or  solitary confinement.  The   restrictions  imposed  on  the prisoner on the pretext of separate allotment of a cell ignored  even the  limitations  on  the  said confinements prescribed  by s.  73 of  the  Indian Penal Code  or s.  46  of  the  Prisons  Act.  The confinement of  the prisoner in a separate cell in the manner it was done was certainly illegal.      Coming to  the  third  period  after  he  was classified as a ’B’ class prisoner, the petitioner says that  he  was  kept  in  the  same  condemned prisoners’ book  with the exception that the look- up  period   of  24  hours  inside  the  cell  was considerably reduced,  but the  ban imposed on his association with  other prisoners was not relaxed. The  Superintendent   does  not   say   that   the petitioner was  allowed to communicate or to speak with other  prisoners. He  also  admits  that  the petitioner was continued to the 308 cell only  in the night and that he can move about within the  open compound  of the  cell throughout the  days   to  put   it  in   other  words,   the Superintendent  admit   that  the   petitioner  is confined in  a  cell  J.  with  a  small  separate enclosure and  that the  prisoner can only move in that  enclosure  in  the  morning.  This  kind  of confinement is  either a  solitary confinement  or cellular confinement, for it secludes the prisoner from communicating with or from the sight of other prisoners. If it is not a solitary confinement, it would certainly be a cellular confinement. Even in

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a  separate   confinement  as   a  punishment  the prisoner should  be allowed  to  have  one  hour’s exercise  per  diem  and  to  have  his  meals  in association  with   one  or  more  prisoners.  The Superintendent  therefore,   acted  illegally   in confining the  prisoner in  the manner he did, and he is  not entitled  to  do  so  under  the  rules prescribed for  separation of  prisoners.  It  may also be  mentioned that  during this period, there is no allegation that the petitioner’s conduct was otherwise bad.      It is  said that  the confinement  is neither solitary, cellular  or separate, for he is allowed to go to courts. The fact that a prisoner is to be sent to  a court  on summons has no bearing on the question whether  the confinement is legal or not. On the  facts disclosed  in the  case, we  have no doubt that,  for one reason or other, which is not clear  from   the  record,   the  petitioner   was discriminated from  other prisoners and, under the colour of  the rules for separation, was illegally confined in a manner not authorized by law.      Before closing  we would  like to  make  some general  remarks.   The  modern   development   of criminology  has   revolutionized  the  system  of treatment of  convicted prisoners.  The old brutal treatment has  given place to more humane one. The concept  of   vengeance  by  society  and  of  the deterence  is   fast  disappearing  and  is  being replaced  by   the  concept   of  correction   and rehabilitation. 309 Though our  jail  administration  is  moving  with times,  it  is  not  keeping  pace  with  advanced countries. A  statute may reflect the modern trend and  may  contain  salutary  provisions  for  fair treatment  of  prisoners;  but  in  practice  much depends upon  the Superintendent,  who is expected to implement  them in the spirit in which they are conceived. A  superintendent of  a jail  may be  a good disciplinarian,  but it  is  not  enough:  he should   also   be   a   humanitarian   possessing conscience and  having an  awareness that  to  his care is  entrusted an  abnormal class  of  society deserving more  a sympathetic approach and sincere attempt   at    rehabilitation   than    that   of vindictiveness. In  this case, the Superintendent, as we  have already stated, not only did not carry out the  spirit of  the rules  but also  broke the letter  of   the  law  and  illegally  placed  the petitioner  practically  in  solitary  confinement from May 7, 1959 up to date.      In the result we hold that the confinement of the petitioner in a separate cell in the manner it is being  done in  this case  is  illegal  and  we direct the respondent to confine the petitioner in the  prison   in  strict   compliance   with   the provisions of  the Prisons  Act and  the rule made thereunder. It  is for the Government to consider, in the circumstances of this case, whether it is a fit case  for transferring  the petitioner to some other jail.      Writ Petition  No. 147  of 1961 is allowed to the said extent, and there will be a similar order in criminal Appeal No. 120 of 1961.

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    RAGHUBAR DAYAL,  J.-I have  had the advantage of perusing  the judgment  prepared by  my learned brother, Subba  Rao J.,  and agree  with him  that paragraph 575  of the  Punjab Jail Manual does not offend the provisions of the Constitution.      I however  do not  agree that  there had been any illegal confinement of the appellant. 310      The appellant  was admitted to the jail as an undertrial prisoner  for offences  under s.  19 of the   Indian Arms  Act and  under s.  5 of  Indian Explosive Substances  Act and  the allegation  was that he  was concerned in a conspiracy with others to muder  certain persons  and to  create disorder and  anarchy  in  India.  He  behaved  rudely  and impertinently on  admission into jail and showed a defiant   attitude.    In   there   circumstances, according to  the affidavit  of the Superintendent of the  Jail, the appellant was ordered to be kept in cell  under paragraph  569-A of the Jail Manual to maintain  jail discipline.  The  entry  in  the punishment register, in this connection, states in the column  meant for  noting the offences: ’He is very rude and impertinent. He has defiant attitude and tries  to undermine the jail discipline.’ I am of opinion  that it was not necessary for the jail authorities to  make a  more detailed  note in the register  with   respect  to   the  various   acts committed or  words spoken by the appellant on the occasion.      Section 51  of the  Prisons Act provides what is to  be recorded  in this  punishment  book  and requires to  be recorded, among other matters, the prison-offence of which the prisoner is guilty. It does not require a detailed account of the actions of the  prisoner  which  constituted  the  prison- offences.  The   description   of   the   offences committed,  suffices   for  the  purpose  of  this register. The entry is not made for the purpose of adjudication of  the offences  or for the purposes of the  appellate authority,  if any. It is just a record of  the conduct  of  the  accused  and  the action taken.  The Superintendent,  in this  case, did  not   inflict  any   punishment  of  solitary confinement  or   separate  confinement   on   the appellant for  his conduct. He simply ordered that the appellant  be kept  in a  cell under paragraph 469-A of the Jail Manual.      There had  been eleven  other occasions  when the appellant committed prison offences. Those 311 offences and  the  action  taken  there  are  also mentioned in the punishment register and a copy of those entries has been filed in Court. What I have said in connection with the nature of the entry in connection  with   the  incident  on  the  day  of admission, applies  equally to  the other  entries mentioned above.      The Superintendent has denied the allegations made by  the appellant  that  he  was  kept  in  a separate cell,  not in  the interests  of the jail discipline, but  for  ulterior  motives  or  under orders of  a vindictive  Government. There  is  no material  on   the  record  to  suggest  that  the Superintendent  of   the  jail  was  actuated,  in

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passing the  order for  keeping the appellant in a separate cell,  by any  consideration  other  than that  of   the  interests   of  jail   discipline. Therefore, the  mere fact  that the  appellant was kept in  a separate  cell from  the moment  of his admission in  jail does  not indicate malafides on the part of the jail Superintendent.      The  appellant   was  kept  segregated  in  a separate cell  after his  conviction as  well,  in view of  paragraph 575  of the Jail Manual. He was allowed an  hour in the morning and an hour in the evening for  exercise. He  was allowed  to have  a bath in  the court-yard outside the cell. The fact that the  Superintendent  did  not  state  in  his affidavit  that   he  allowed  the  petitioner  to communicate  with  others  or  to  talk  to  other prisoners or that the appellant was allowed to mix up with  other prisoners or to converse with them, does not  necessarily mean  that he disallowed any such  thing   or  that,   if  he   did   so,   the Superintendent acted  against rules  of  law.  The Superintendent denied that the appellant’s request to meet  Hari Das  was  disallowed.  There  is  no allegation that  he  had  not  been  afforded  the facilities which  are to be provided to a prisoner or to  a B-class  prisoner  kept  in  a  cell  and therefore  there   was   no   occasion   for   the Superintendent  to   state   about   matters   not complained of. 312      The mere  fact that  a person  is kept  in  a separate  cell   will  not  make  his  confinement solitary,  cellular   or  separate,   though   the difference between  it and  any  of  them  be  not appreciable.      Section 27  of the  prisons Act  provides for separation of  prisoners. If  there happens  to be only one  prisoner of a particular category, he is necessarily to  be kept  separate from others. His being kept  alone from other prisoners and his not being allowed to mix with other prisoners will not be  called   solitary  or   cellular  or  separate confinement.  It  is  just  an  incident  that  he happens to  be the  only prisoner  of a particular category and  had therefore  to be  kept separated from all other prisoners in the jail.      Section   28    allows   convicted   criminal prisoners to  be confined either in association or individually in  cells or  partly in  one way  and partly in  the other.  The discretion  is with the Superintendent of  the Jail.  The Act contemplates an individual prisoner to be kept in a cell.      It is clear from the provisions of paragraphs 571 to  575 of  the Jail  Manual  that  the  rules contemplate  convicted   prisoner   to   be   kept separate.  Paragraph   571  of   the  Jail  Manual provides  that   all  convicts,  subject  to  cell accommodation and  requirements of labour, be kept separate both  by day  and by night, and justifies the segregation  of the  appellant as  a convicted criminal in  a separate  cell. Paragraphs 572, 573 and 574  lay down  the order  in  which  convicted prisoners  are  to  be  selected  for  being  kept separate in  cells when  each of them cannot be so kept. All  these provisions  are  consistent  with

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what is enacted in s. 28 of the Prisons Act.      Paragraph 575 reads:           "A convict  who  would  ordinarily  come      under the operation of any of the preceding 313      rules   relating   to   the   separation   of      prisoners, but  cannot be  confined in a cell      by day,  by reason  that he  is required  for      some jail  service, shall  be confined  in  a      cell by night.           Note 1-Separation  under paragraphs  571      to   575    is   distinct   from   ’solitary’      confinement   and    ’separate’   confinement      inflicted as a punishment under section 46 of      the Prisons  Act, and is restricted merely to      the separation of individual prisoners either      by  day   or  night   for  purposes  of  jail      management; such  separation is  not to  have      any irksome conditions attached to it.           Note 2-Paragraphs  571  to  575  are  of      general application.  If, in  the opinion  of      the  Superintendent,   the  presence  of  any      convict  in   association  with   others,  is      detrimental to  good order  and discipline or      is  likely   to  encourage  or  lead  to  the      commission  of   any  offence,  such  convict      should be  kept separate,  in  preference  to      others of his class." These  provisions  provide  an  exception  to  the provisions of  paragraphs 571 to 574 and allow the convicted prisoner  to be  kept in  a cell  during night only instead of both by day and by night, in case he  cannot be confined in the cell by day for reasons that he be required for jail service. Note 1 makes  it clear  that keeping prisoners separate in view of the provisions of paragraphs 571 to 575 is not  ’solitary’ or ’separate’ confinement which can be  inflicted  as  punishment  and  is  merely separation of  the prisoner  for purposes  of jail management.      Further,  Note  1  enjoins  that  no  irksome conditions be  attached to such separation. We are not shown  that any  such conditions were attached to the order for keeping the appellant in a cell.      Note 2 further empowers the Superintendent of the Jail  to keep  a convict  separate if he be of opinion that  his association  with others  of his class 314 is detrimental to good order and discipline in the jail. The  Superintendent states  in his affidavit he that he was of such opinion.      The entire scheme of the Act and the rules is that  ordinarily   a  prisoner   should  be   kept separated from  others and that it is only in view of limitations  of providing  separate  cells  for each  prisoner  that  prisoners  of  a  particular category are  kept together  in a  large hall. The order  classifying  the  appellant  as  a  B-class prisoner  further   necessitated  his  being  kept separate from other prisoners.      There is no provision in the Act or the rules that a  prisoner  kept  in  a  cell  be  specially allowed to associate or mix with other prisoners.      The main  grievance of  the appellant is that

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he was  not allowed  to  associate  with  his  co- accused, even  for purpose  of  consultation  with respect to  the defence  to  be  put  up  and  the grounds to  be taken  in  the  appeal.  The  whole object of  keeping convicted  prisoners segregated in jail  is defeated  if they  are allowed to meet and  discus  matters  even  when  they  are  under special orders  for being kept separate on account of their  conduct being  considered detrimental to jail discipline.  If it  was really  necessary for the appellant  to have  consultations with his co- accused for  the purpose  of the case, it was open to  him   to  obtain   orders  of  the  Court  and facilities for  such consultations,  if considered necessary,  could   have  been   given   just   as facilities are  provided for  accused  to  consult their counsel.      I am  therefore  of  opinion  that  the  Jail authorities committed no discriminatory or illegal act against  the appellant  in keeping  him  in  a separate cell.  I would therefore dismiss both the writ petition and the appeal.      BY COURT.  In accordance  with the opinion of the majority, the Writ Petition and the Appeal are allowed to  the extent  indicated in  the majority judgment. 315