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sec. 42 and sec.45 of Prisons Act – Jail Manual – Carrying a cell phone and charger by a visitor in Jail – F.I.R. registered under sec. 42 and 45(12) of Prisons Act – writ to quash under sec.482 of Cr.P.C. – High court dismissed – Apex court set aside the High court order – held that by the date of offence Cell Phone not included as prohibitory Article and By the date of offence no communication was done – the accused is only a visitor not a prisoner , so the above sections not applicable to the accused – quashed the F.I.R and charges by allowing the criminal appeal = Varinder Singh …Appellant Versus State of Punjab & Anr. …Respondents = 2014 ( January – Vol – 1-D.B.) Judis.nic.in/ S.C./ file name =41154

sec. 42 and sec.45 of Prisons Act – Jail Manual – Carrying a cell phone and charger by a visitor in Jail – F.I.R. registered under sec. 42 and 45(12) of Prisons Act – writ to quash under sec.482 of Cr.P.C. – High court dismissed – Apex court set aside the High court order  – held that by the date of offence Cell Phone not included as prohibitory Article and By the date of offence no communication was done – the accused is only a visitor not a prisoner , so the above sections not applicable to the accused – quashed the F.I.R  and charges by allowing the criminal appeal = 

The appellant had gone as a visitor to the Central Jail, Ferozepur  on

17.09.2009. There, on being searched, a mobile phone was recovered from  his

turban and a charger was recovered from his shoes. An FIR  dated  24.09.2009

was filed at the Police Station Ferozepur, under Sections 42   and  45  (12)

of the  Prisons  Act,  1894  (in  short  “the  Act”).   The  Chief  Judicial

Magistrate of Ferozepur charged him on 01.05.2010 under Sections 42  and  45

of the Act.  The appellant approached the High Court of Punjab  and  Haryana

by way of a petition under  Section 482 of the Code of  Criminal  Procedure,

1973, praying that the FIR be quashed. The High Court of Punjab and  Haryana

by way of impugned judgment and final order dated 19.07.2013  dismissed  the

petition, and inter alia held that “….the accused is at liberty to take  all

pleas available to him during the trial”.

 

4.    The High Court in its impugned order has  interpreted  Section  42  of

the Act, and held that whoever communicates or attempts to communicate  with

any prisoner is liable for punishment. It said  that  the  appellant  herein

was entering the jail with a mobile phone and  its  charger,  apparently  to

enable communication with a prisoner. It was held that “ After  presentation

of challan, charges have already been  framed  against  the  petitioner.  In

these circumstances, at this stage, no ground for quashing  of  the  FIR  in

question is made out.” =          

Section  482 of the Code of Criminal Procedure reads as under :-

 

           “482. Saving of inherent powers of High Court: 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.”

 

Under this Section, the High Court has the  power  to  quash  an  FIR.  

This

court in the case of State of Haryana v. Bhajan Lal [1] has  laid  down  the

following categories of cases in which  the  High  Court  can  exercise  its

power under Section 482 and quash the FIR:-

 

           “1. Where the allegations made in the First  Information  Report

           or the complaint, even if they are taken at their face value and

           accepted in their entirety do  not  prima-facie  constitute  any

           offence or make out a case against the accused.

 

           2. Where the allegations in the  First  Information  Report  and

           other materials, if any, accompanying the F.I.R. do not disclose

           a cognizable offence,  justifying  an  investigation  by  police

           officers Under Section 156(1) of the Code except under an  order

           of a Magistrate within the purview  of  Section  155(2)  of  the

           Code.

 

           3. Where the uncontroverted  allegations  made  in  the  FIR  or

           complaint and the evidence collected in support of the  same  do

           not disclose the commission of any offence and make out  a  case

           against the accused.

 

           4. Where, the allegations in the  F.I.R.  do  not  constitute  a

           cognizable offence but constitute only a non-cognizable offence,

           no investigation is permitted by a  police  officer  without  an

           order of a Magistrate as contemplated Under  Section  155(2)  of

           the Code.

 

           5. Where the allegations made in the FIR  or  complaint  are  so

           absurd and inherently  improbable  on  the  basis  of  which  no

           prudent person can ever reach a just conclusion  that  there  is

           sufficient ground for proceeding against the accused.

 

           6. Where there is an express legal bar engrafted in any  of  the

           provisions of the Code or  the  concerned  Act  (under  which  a

           criminal  proceeding  is  instituted)  to  the  institution  and

           continuance of the proceedings and/or where there is a  specific

           provision  in  the  Code  or  the   concerned   Act,   providing

           efficacious redress for the grievance of the aggrieved party.

 

           7. Where a criminal proceeding is manifestly attended with  mala

           fide and/or where the proceeding is maliciously instituted  with

           an ulterior motive for wreaking vengeance  on  the  accused  and

           with a view to spite him due to private and personal grudge.”[2]

 

 

 

 

14.   These principles were further reiterated by a  three  judge  bench  of

this Court in the case of Sunder Babu v. State of Tamil Nadu[3].

 

15.   The case of the appellant clearly falls  under  category  (1)  of  the

grounds of quashing of FIR mentioned in the case of Bhajan Lal  (supra).  

On

the date of the  offence,  mobile  phone  was  not  listed  as  one  of  the

prohibited articles under the Punjab Prison  Manual.  

Thus,  no  offence  is

made out under Section 42 of the Act, as there was  no  communication  which

was done or was attempted to being done contrary to the rules. 

Further,  the

appellant was not a prisoner on the date of the  offence.  

Hence,  he  could

not have committed a prison offence as defined under Section 45 of the Act.

 

16.   In view of the foregoing reasons,  the  appeal  is  allowed  and   the

impugned judgment of the High Court is set aside. The FIR  dated  24.09.2009

and the proceedings against the appellant are  quashed.  There  will  be  no

order as to costs.

  2014 ( January – Vol – 1-D.B.) Judis.nic.in/ S.C./ file name  =41154

      

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 147 OF 2014
(Arising out of SLP (Crl.) No. 7107 of 2013)
Varinder Singh …Appellant

Versus

State of Punjab & Anr. …Respondents

J U D G M E N T

V.Gopala Gowda, J.

Leave granted.

2. This appeal is filed by the appellant questioning the correctness of
the judgment and final order passed by the High Court of Punjab and Haryana
at Chandigarh in petition Crl. Misc. No. M-13296 of 2011 (O & M) urging
various facts and legal contentions in support of his case.

3. Necessary relevant facts are stated hereunder to appreciate the case
of the appellant and also to find out whether the appellant is entitled to
the relief prayed for in this appeal.

The appellant had gone as a visitor to the Central Jail, Ferozepur on
17.09.2009. There, on being searched, a mobile phone was recovered from his
turban and a charger was recovered from his shoes. An FIR dated 24.09.2009
was filed at the Police Station Ferozepur, under Sections 42 and 45 (12)
of the Prisons Act, 1894 (in short “the Act”). The Chief Judicial
Magistrate of Ferozepur charged him on 01.05.2010 under Sections 42 and 45
of the Act. The appellant approached the High Court of Punjab and Haryana
by way of a petition under Section 482 of the Code of Criminal Procedure,
1973, praying that the FIR be quashed. The High Court of Punjab and Haryana
by way of impugned judgment and final order dated 19.07.2013 dismissed the
petition, and inter alia held that “….the accused is at liberty to take all
pleas available to him during the trial”.

4. The High Court in its impugned order has interpreted Section 42 of
the Act, and held that whoever communicates or attempts to communicate with
any prisoner is liable for punishment. It said that the appellant herein
was entering the jail with a mobile phone and its charger, apparently to
enable communication with a prisoner. It was held that “ After presentation
of challan, charges have already been framed against the petitioner. In
these circumstances, at this stage, no ground for quashing of the FIR in
question is made out.”

5. The learned counsel for the appellant contended that the High Court
had not appreciated the contention that the offence under Sections 42 and
45 of the Act is not made out, and that mobile phone and charger are not
included in the list of the prohibited articles. It was also contended that
section 52-A, which prohibited the carrying of a mobile phone, has not been
notified yet, and that it is still a Bill. It was further contended that
even if the notification were to be taken as implementable, it was dated
08.03.2011. The offence is admittedly of 2009, and thus, this notification
will not apply to the case as the same is prospective in nature.

6. The learned counsel for the respondents contended that the appellant
was hiding a mobile phone in his turban and a charger in his shoe, thus,
prima facie, the case under Section 42 of the Act has been made out
against him. The counsel also contended that the sections mentioned in the
charge sheet are attracted, and that there is no reason for the courts to
interfere at this stage.

7. We have heard the rival legal contentions and perused the documents
produced on record. Two issues arise for our consideration:

1) Whether an offence is made out under Sections 42 and 45 (12) of the
Prisons Act?

2) Whether the High Court was justified in rejecting the petition to
quash the FIR?

Answer to Point no.1

8. We have to examine Sections 42 and 45 of the Act in detail in order
to understand the issue at hand. Section 45 of the Act provides for acts
which are declared to be prison offences when committed by a prisoner.
Clause (12) makes receiving, possessing or transferring any prohibited
article a prison offence.

9. The appellant was not a prisoner at the date of the commission of the
offence. He could thus, not have committed a ‘prison offence’ as defined
under Section 45 of the Act. Hence, no offence is made out under Section 45
of the Act. Insofar as Section 42 of the Act is concerned, it provides that
only that communication, which is contrary to the rules made under Section
59 of the Act is prohibited. Section 42 of the Act reads as under :

“42. Penalty for introduction or removal of prohibited articles
into or from prison and communication with prisoners.—
Whoever, contrary to any rule under section [59] introduces or
removes, or attempts by any means whatever to introduce or
remove, into or from any prison, or supplies or attempts to
supply to any prisoner outside the limits of a prison, any
prohibited article,

and every officer of a prison who, contrary to any such rule,
knowingly suffers any such article to be introduced into or
removed from any prison, to be possessed by any prisoner, or to
be supplied to any prisoner outside the limits of a prison,

and whoever, contrary to any such rules, communicates or
attempts to communicate with any prisoner,

and whoever abets any offence made punishable by this section,

shall, on conviction before a Magistrate, be liable to
imprisonment for a term not exceeding six months, or to fine
not exceeding two hundred rupees, or to both.”

 

10. The Punjab Jail Manual lists the prohibited articles in Punjab
prisons. Para 606 of the Manual lists the following Prohibited Articles:

“…..

1) Spirituous liquors of every description

2) Tobacco and all other substances whatsoever which are or may be
intended to be used for the purpose of smoking, chewing or snuffing,
and all instruments and appliances whatsoever, which may be used for
or in connection with smoking, chewing or snuffing,

3) All explosive, intoxicating or poisonous substances, and chemicals
whether fluid or solid of whatever description.

4) All arms and weapons, and articles which are capable of being used as
weapons of whatever description.

5) All bullion, metal, coin, jewellery, ornaments, currency notes,
securities and articles of value of every description.

6) All books, paper and printed or written matter and materials and
appliances for printing or writing of whatever description.

7) String, rope, chains and all materials, which are capable of being
converted into string or rope or chains, of whatever description.

8) Wood, bricks, stones and earth of every description.”

This list does not mention Mobile phone or charger as one of the prohibited
articles. Thus, the communication, even if it was attempted to being done,
was not contrary to the prison rules, and thus, is not an offence under
Section 42 of the Act.

11. The Prisons (Punjab Amendment) Bill, 2011 provides for the addition
of section 52-A to the Act. This Section reads thus :

“52-A. (1)-Notwithstanding anything contained in this Act, if
any prisoner is found guilty of possessing, operating or using
a mobile phone or their component parts as like SIM card,
memory card, battery or charger or if the prisoner or any other
person assists or abets or instigates in the supply thereof, he
shall be punished with imprisonment for a term, not exceeding
one year or with fine not exceeding Rs 25,000 or with both……”

 
This Section, thus, makes the possession of the mobile phone by the
prisoner and supplying the phone by any person an offence. The notification
by the Punjab Government that this section is in force is dated 08.03.2011.
The FIR for the offence was dated 24.09.2009. This notification will
obviously not apply to the case in hand as the alleged offence was
committed in 2009, and retrospective effect will not apply in the case of
criminal laws. Hence, there is no offence made out against the appellant
and we cannot accept the reasoning of the High Court in the impugned
judgment. We hereby hold that this section cannot be made applicable to the
facts of the present case.

Answer to point no.2

12. It is our view that in light of the settled legal principles, the
High Court has erred in dismissing the petition to quash the FIR.

13. Section 482 of the Code of Criminal Procedure reads as under :-

“482. Saving of inherent powers of High Court: 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.”

Under this Section, the High Court has the power to quash an FIR. This
court in the case of State of Haryana v. Bhajan Lal [1] has laid down the
following categories of cases in which the High Court can exercise its
power under Section 482 and quash the FIR:-

“1. Where the allegations made in the First Information Report
or the complaint, even if they are taken at their face value and
accepted in their entirety do not prima-facie constitute any
offence or make out a case against the accused.

2. Where the allegations in the First Information Report and
other materials, if any, accompanying the F.I.R. do not disclose
a cognizable offence, justifying an investigation by police
officers Under Section 156(1) of the Code except under an order
of a Magistrate within the purview of Section 155(2) of the
Code.

3. Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same do
not disclose the commission of any offence and make out a case
against the accused.

4. Where, the allegations in the F.I.R. do not constitute a
cognizable offence but constitute only a non-cognizable offence,
no investigation is permitted by a police officer without an
order of a Magistrate as contemplated Under Section 155(2) of
the Code.

5. Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific
provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala
fide and/or where the proceeding is maliciously instituted with
an ulterior motive for wreaking vengeance on the accused and
with a view to spite him due to private and personal grudge.”[2]

 
14. These principles were further reiterated by a three judge bench of
this Court in the case of Sunder Babu v. State of Tamil Nadu[3].

15. The case of the appellant clearly falls under category (1) of the
grounds of quashing of FIR mentioned in the case of Bhajan Lal (supra). On
the date of the offence, mobile phone was not listed as one of the
prohibited articles under the Punjab Prison Manual. Thus, no offence is
made out under Section 42 of the Act, as there was no communication which
was done or was attempted to being done contrary to the rules. Further, the
appellant was not a prisoner on the date of the offence. Hence, he could
not have committed a prison offence as defined under Section 45 of the Act.

16. In view of the foregoing reasons, the appeal is allowed and the
impugned judgment of the High Court is set aside. The FIR dated 24.09.2009
and the proceedings against the appellant are quashed. There will be no
order as to costs.

 

………………………………………………………………………J.
[SUDHANSU JYOTI MUKHOPADHAYA]

 

………………………………………………………………………J.
[V. GOPALA GOWDA]
New Delhi,
January 16, 2014.
———————–
[1] 1992 Supp (1) SCC 335.
[2] Ibid /Para 102.
[3] (2009) 14 SCC 244 at para 7.
———————–
9

 

 

 

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