MANU/GH/0108/1984

Equivalent Citation: (1985)1GLR154, (1985)1GLR154

IN THE HIGH COURT OF GAUHATI (IMPHAL BENCH)

Civil Rule (HC) No. 9 of 1984
Decided On: 31.08.1984
Appellants: Arambam Ningol Yumlembam Ongbi Pakpi Devi and Ors.
Vs.
Respondent: The State of Manipur and Ors.
Hon'ble Judges/Coram:
T. Nandakumar Singh and S. Haque, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: A. Nilamani Singh, Adv.
For Respondents/Defendant: Th. Munindrakumar Singh, Sr. Government Adv.
Case Note:
Criminal - Jurisdiction - Transfer of prisons - Section 3 of Transfer of
Prisoners Act, 1894 - Petitioner/Convict lodged first in Imphal Central Jail,
from where Petitioner was transferred to Jiribam Jail within State of
Manipur, and then he was transferred to Bombay Central Jail, and thence
lodged in Nagpur Central Jail, where he was now under going sentences -
Hence, this Petition - Whether, transfer of Petitioner was without
jurisdiction of second Respondent - Held, no material had been placed
before Court even to satisfy that 'lifer' was connected with escape or that
be was an "extremist", which could be or was relevant to "security reasons
sole and solid fact that the 31 convicts, who were "removed" from Imphal
Central Jail to be imprisoned in State of Maharastra - Section 3 of Transfer
of Prisoners Act, which authorised "removal" of a person in any other State,
did not lay down any guideline for exercise of power - Therefore,
"reasonable man's test" had to applied to exercise of above power - Thus, if
appropriate authority had not applied its mind to relevant considerations
conforming to reasonable man's test, action would be violative - Second
Respondent was not authorized to take "decision" for removal of said
convicts including 'lifer' - Therefore, his action was ultra vires Section 3 of
the Transfer of Prisoners Act, 1950 and also of provisions of Rule 496(II) of
Assam Jail Manual - Therefore, action taken by second Respondent was
without jurisdiction an it was not supported by any authority of law - Thus,
impugned action held to be patently without jurisdiction - Petition disposed
of.
Ratio Decidendi
"Jail authority shall not transfer prison without reasonable cause."
JUDGMENT
T. Nandakumar Singh, J.

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 1. Habeas power of this Court in invoked in this petition by the wife and a brother of
a 'lifer' with an impassioned plea for 'prison justice'. Not long ago, we are told, his
tribesmen approached the highest seat of justice in the land when Magna Carta of the
prisoner was inscribed in a series of judgments rendered by the Apex Court. State's
obdurance of feigned ignorance of the law of the land must not rob him of his
fundamental rights judicially inscribed. This is the crux of the grievance orchestrated
in this petition. We proceed, therefore, to explore the foundation of fact and law to
examine the grievance.
2. Foundations of facts:
2.1. This petition was filed on 17.2.1984. When the matter came up before us on
22.2.1934, we heard the learned Counsel for the Petitioner Mr. A. Nilamani Singh and
also learned Senior Government Advocate, Manipur, Mr. Th. Munindrakumar Singh. In
the course of bearing, Petitioner's counsel placed reliance on the decision in Sunil
Batra (II), MANU/SC/0184/1978 : AIR 1980 SC 1579. He also pressed for our
consideration certain provisions of Prisons Act, 1894 and Prisoners Act, 1900 to
buttress his submission directed against the transfer of the 'lifer' undergoing sentence
passed on 29.7.1975 by the Court of Sessions in Manipur, which had found the
Petitioner guilty under Section 302 I.P.C. The convict found himself lodged first in
Imphal Central Jail, from where he was transferred on 30.9.1978 to Jiribam Jail
within the State of Manipur, On 21.1.1982 he was transferred to Bombay Central Jail,
and thence lodged in Nagpur Central Jail, where he is now under going the
sentences. We took the view that it would be necessary for us to make a close
investigation of the legal position bearing on the currency of prison regulations in
Manipur and also on powers of the prison authorities of this State and accordingly
directed the Respondents, State of Manipur (Respondent No. 1) and Inspector
General of Prisons (Respondent No. 2) to file their counter as respects the factual as
well as the legal position concerning the list. Accordingly, on 1.3.1984, the second
Respondent filed a common affidavit-in-opposition to state the case of the
Respondents. A re-joinder on behalf of the Respondents was filed on 22.5,1984. As
there was no sitting of the Division Court at this Bench, the matter come before us
for beating on 22.8.1984 when further bearing was assumed. In the course of
bearing, it appeared that the affidavit-in-opposition, was inconclusive. Learned
Senior Government Advocate, therefore, placed further materials before us. He relied
on the materials disclosed in the relevant Government File No. 12/6 (I)80-H (J),
which be placed for our consideration. He also filed three printed "Enquiry Reports"
relating to "Jail Escape Incidents" of 11.8.1980, 9.8.1981 and 11.1.1982. We also
requested the learned Advocate-General Manipur, to assist the Court in view of the
public importance of the question agitated by the writ-Petitioner, to which be readily
agreed. We record our appreciation of the assistance rendered by him.
2.2. The foundational facts are mostly admitted. It Is not disputed that the convict is
a native of Manipur, who has his home and hearth in the State. He is married. He is
now aged 30 years. He has a sister and three brothers. He has other relations too.
The family resides in the suburb of Imphal town at a distance of about 6 Km. from
Imphal Central Jail, where the convict was first lodged. While he was lodged in the
Jails within the State, the petitions and also his friends and other relatives used to
visit and converse with him. Some allegations are in the petition not only about
disagreeable diet which the convict is now being given in Nagpur Central Jail but also
about his ill-treatment there. But, we are not concerned in this petition with those
because Petitioner's counsel does not press those and with the permission of the
Court, the name of 3rd Respondent, Superintendent, Nagpur Central Jail has been

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 deleted from the petition. On that account, what survives for our anxious
consideration in this case is the serious grievance of infraction of the convict's
fundamental right under Articles 19(1)(e) and 21 of the Constitution. It is submitted
that without any cogent and just reason be has been removed to a place far away
from His kith and kin as a result of which for the last two years he has been deprived
of their company. The Petitioners are also aggrieved it is submitted, because they
have been deprived of the opportunity of visiting him not for his solace but also for
their own satisfaction as it was their duty to prepare the convict mentally for his
rehabilitation in the society as a reformed citizen after he had completed the term of
imprisonment. On 31.5.1982, a representation was made by the second Petitioner,
brother of the 'lifer', to the Chief Minister or Manipur, praying that be may be brought
back from Nagpur Central Jail. In the representation (Annexure A/1) it was stated that
being a Manipur he was not in the habit of taking Chapati which was not his staple
food and he was being deprived of his normal diet served to him, while he was
detained in Manipur jails. It was further stated that the convict was not a "bad
character" and he had no criminal history. Indeed, for want of proper legal aid he
could not prefer appeal against his conviction. That apart importantly, the fact that he
never participated in any "subversive activities" must also be paid due consideration,
it was urged, To this representation, there was no response. The Petitioners,
therefore, approached this Court for "safety and protection" of the convict. Because,
it was also urged, while many other life-convicts were imprisoned in Manipur jails,
yet without any reasonable cause and without considering his character, antecedent
and other conditions, the impugned order of his transfer was passed.
2.3. Respondents, in their counter, denied the fact that transfer of the convict was
made for the mere reason that there was no sufficient room to accommodate him in
the local jails of Manipur. The convict, Shri Y. Rabei Singh, it is admitted, was lodged
on 30.9.78 in Jiribam Sub-jail, within Manipur State, from where he was shifted on
21.1.82 to Bombay Central and thence on 13.2.1982 to Nagpur Central Jail. This was
done "purely on expedient and security reasons". Respondents further assert that
there occurred a serial of jail breaks in the Central Jails, Imphal in 1980, 1981 and
1982, in which a number of persons stealthily escaped. On 11.1.1982, 22 persons
escaped from Central Jail, Imphal by digging a 90' long tunnel. It is further asserted
that Rabei Singh once escaped from custody and he was "re-captured after vigorous
efforts" on 7.3.1978. This statement is contested by the Petitioners in their rejoinder
wherein it is stated on oath that on 26.1.1978, the prisoner, was allowed to witness
Republic Day celebration and for that purpose be was on "parole" on that day,
Another co-prisoner, Dorendra Singh, however, misguided him and both absconded
and did not return to Jail for more than a month. When the Petitioner learnt about the
incident, he traced his brother and the latter surrendered to the Jail authority on
7.3.1978.
2.4. We are, however, concerned in this petition with the source and scope of power
of the Respondents and to examine if the same was validly exercised. For this,
Respondents relied on Annexures B/1 and B/2. By Annexure B/1 "approval" of the
Government was conveyed to the second Respondent for the transfer of 31 convicts
from Imphal Central Jail and Jiribam sub-jail to Bombay Central Jail, This is
manifested by Annexure B/1 and in the "list" attached thereto the name of Y. Rabei
Singh is shown at serial No. 9, against which his date of conviction is shown as
17.1.1977, Annexure B/2, is a copy of Darbar Resolution No. 2 of 28.3.1945. By this
resolution, Assam Jail Manual Vol. I was introduced in Manipur with certain
modification. The introduced was approved by the then Maharajah of Manipur.
Respondents relied in their counter on the provisions of Section 32(2) of Prisoners

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 Act, 1900 and on Rule 496(II) of Assam Jail Manual. Vol. I, as source of their
authority to pass the impugned order and action taken pursuant thereto. However, in
the course of argument, this stand was modified. It was conceded that Section 32(2)
was not relevant and the source of power rested in Section 3 of the Transfer of
Prisoners Act, 1950.
2.5. By referring to the Departmental file, learned Senior, Government Advocate
contended that decision was taken on Government level on 9.6.1981 about the
transfer of some convicts from Jail in Manipur to prisons outside the State. It
appears, from a perusal of the relevant minutes of the "Security Meeting" that the
problem of over-crowding and congestion in the Central Jail was discussed in the
meeting. It does not appear clearly on the face of the document as to who were the
participants in the meeting. Learned Senior Government Advocate, however, relied on
an observation in the minute that "It has been noticed that there are some long-term
convicts whose names frequently come up for notice when attempts to make the
escape were made in the past. However, it was also recorded in the minutes that
"Other long-term convicts and not so hard core extremists be kept in Leimakhong
sub-jail within the State". From what is further recorded in that minutes, it can be
succinctly stated that transfer of "at least hundred convicts U.T.Ps. (connected with
extremists activities) could be made to prisons at Hazaribagh and Baranasi and the
ten seats available at Naini near Allahabad may be utilised for the "hard core
extremists". We are also referred to some other correspondence. On 10.6.1981
follow-up action on the "security meeting" was taken when a letter was addressed to
the second Respondent in terms of the minutes recorded. He was requested to make
a comprehensive proposal for transfer of prisoners from Imphal Central Jail to the
Sub-Jails in the State as well as to the Jails outside the State. It appears that on
19.6.1981, two separate lists of prisoners for transfer to sub-jail Leimakhong and to
jails outside Manipur, were prepared and submitted for the consideration of the
Government by the second Respondent. However, on records, we could find only one
list concerning the prisoners proposed to be sent to sub-jail Leimakhong. Our
attention was also drawn to wireless message addressed to Chief Secretary, Manipur
by Home Secretary, Bombay, wherein a reference was made to Chief Secretary's
request made an 6.11.1981 for accommodating 50 prisoners in different Central
prisoners in the State of Maharaja. In this message "difficulties" were pointed out and
confirmation was sought if inspite thereof Government of Munipur was agreeable to
send prisoners to that State. Our attention was also drawn to a letter dated 13.1.1982
addressed by the second Respondent to the Secretary, Home, Government of
Manipur, with which he submitted two lists of 36 convicts altogether lodged in
Imphal Central Jail and sub-Jail, Jiribam. In one of the lists, figures the 'lifer' in this
case. His date of conviction was shown here also as 17.1.1977. The other life
convicts who figured in the list were convicted between 1974 and 1981. We find from
other correspondence in the file that a query was made by Maharashtra's Inspector-
General of Prisons on 11.2.1982 in respect of 31 prisoners transferred to Bombay
Central Prison, from Imphal Central Jail and Jiribam sub-jail. This query appears to
have been made in connection with Annexure B/1 filed by the Respondents with the
counter. One of the points queried was the "ground" of transfer of the prisoners and
another was about their "escape risk". The communication being addressed to the
Home Secretary, the latter called for relevant information from the second
Respondent, who furnished the same on 1.3.1982. In his letter the second
Respondent stated that 31 prisoners were transferred to Maharashtra for "security
reasons only" and in respect of the other query, it was stated that one of the convicts
Shri Thokchhom Khamba Singh was an escapee of "Great escape from Central Jail,
Manipur".

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 2.6. Learned Senior Government Advocate also took us through the "Enquiry Report"
above referred. All these related, as alluded, to escape from Manipur Central Jail at
Imphal on different dates, namely, 11.8.1980, 9.8.1981 and 11.1.1982. We may note
in this connection that long before the incident 'lifer' Rabel Singh was removed from
that Jail and was lodged in Jiribam sub-jail since 30.9.1978. Indeed his name
naturally does not, therefore, appear as an "escapee" in any of these reports. What is,
however, note-worthy and relevant about the reports are the findings recorded and
also the measures both short term and long term suggested therein to avert such
incidents. Shortly put, dereliction of duties on the part of the prison staff and their
non-adherence to the Prisons Rules, Orders and instructions besides other
circumstances are noted. The first two enquires were instituted under the Commission
of Inquiry Act, 1952 and the one-man Commission holding the enquiry in these cases
consisted of a retired Judge of this Court. In the first report, it was noted that there
was only one copy of the Jail Manual in the State besides the copy available in the
office of the District Judge as a result of which it was not possible, perhaps, for the
prison staff to conduct themselves appropriately. Suggestions were made for
amending and updating the Jail Manual to meet the local conditions and to remodel
the Jail to enable separation of one class of prisoners from another to meet the
statutory requirement. From a reading of the subsequent reports, it appears that
scant regard was paid to the recommendation made in the first report. Indeed, in the
last report, stress is again laid on segregation of different categories of prisoners, in
compliance with the provisions of the Jail Manual and shifting the jail to a new jail
premises constructed as per specifications laid down in the model manual.
Foundations of Law:
3. Statutory powers and provisions:
3.1. Prior to 12.4.1950 when Transfer of Prisoners Act, 1950, was enacted, State
Government could by a 'general or special "order" provide for the "removal" of any
person confined in a prison to any other prison in the State or "with the consent of
the State Government concerned to any prison in any other State", in virtue of the
provisions of Section 29(1) of the Prisoners Act, 1900. The last mentioned provision
was omitted by Section 4 of 1950 Act wherein provision was made in Section 3 for
both inter-State as well as intra State removal of prisoners, which is extracted below:
3. Removal of prisoners from one State to another. - (1) Where any person
is confined in a prison in a State-
(a) under sentence of death, or
(b) under or in lieu of, a sentence of imprisonment or transportation,
or
(c) in default of payment of a fine, or
(d) in default of giving security for keeping the peace or for
maintaining good behaviour;
The Government of the State, may with the consent of the Government of
any other State, by order, provide for the removal of the prisoner from that
prison to any prison in the other State.
Now law, it must be noticed, took away the power of removal by a "general

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 order".
3.2. We may also read the relevant parts of Rule (or para) 496 of the Assam Jail
Manual Vol. I as reliance is also placed on the provisions thereof:
496. The following rule made by the Provincial Government under Section
29(1) of the Prisoners Act, 1900 (III of 1900), as amended by the Repealing
and Amending Act, 1908 (1 of 1908), regulates the transfer for release of
convicts confined in one Province and resident in another-
I. Any prisoner belonging to any of the following classes:
(a) Members of criminal tribes and police registered
criminals, not being natives of the province in which they
are undergoing sentence;
(b) Ex-military policemen of the Burma Military Police of
India, and prisoners being natives of India, undergoing
sentence in Burma, who are or at the time of their trial were
subject to the Indian Article of War (Act V of 1869);
(c) Followers of the Burma Military Police, who have been
recruited in India and are undergoing sentence in Burmas
may be removed by order of Inspector-General of Prisons of
the province in which he has been undergoing sentence at
any time not exceeding two months prior to his release
either to the prison of the district to which be belongs or to
the prison nearest to his native place.
(Emphasis added)
II. Any prisoner whose detention in prison of the province in which
he is undergoing sentence is deemed inexpedient may be removed
with the previous consent of the Inspector General of prisons of the
province to which it is proposed to remove him.
This provision is found in Chapter XXVIII of the Manual captioned
"Transfers". Indicating the provisions of the Chapter were referable, inter
alia, to Section 29 of the Prisoners Act, 1900 but its limited scope - "transfer
for release" - is also referable to Section 59(22) of Prisons Act 1894. Apart
from Darbar Resolution referred in Annexure B/2 to the counter, there is
other evidence also which supports the fact of introduction or applicability of
Assam Jail Manual in Manipur. Our attention in this connection was drawn to
a decision reported in AIR 1956 Manipur 43, Sarangthem Nodiachand Singh
v. State of Manipur, wherein this position is manifested. What is important
about Darbar Resolution is the fact that in Manipur Jail Manual acquired the
character of enacted law, whatever might have been the position in the
parent State of Assam. This position cannot be and has not been disputed
because legislative authority vested in the Maharajah and the Darbar. It is
true that Prisoners Act, 1900, as well as Prisons Act, 1894 were extended to
Manipur by the Merged States (Laws) Act, 1949, But, the fact remains that no
rules have been framed under these enactments since their extension to the
State of Manipur. Still, however, in virtue of Sub-section (2) of Section 6 of
the 1949 Act, Rules, Regulations, bye laws or directions issued under

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 corresponding laws were continued. In accordance with the provisions of
paragraphs of the Manipur (Administration) Order, 1949 made under the
Extra-Provincial Jurisdiction Act, 1947, all laws in force in Manipur
immediately before commencement of the Order were continued until
repealed or amended by a competent legislature or authority and all powers
exercisable under the said laws by His Highness the Maharajah or the
Government of State, were made exercisable by the Chief Commissioner.
That apart, notice also may be taken of the provision of Section 24 of the
General Clauses Act, which was also extended to Manipur under the 1949
Act. We, therefore, entertain, no doubt that the aforesaid "Rule 496" of the
Assam Jail Manual is a law in force in the State of Manipur.
3.3. We may now refer to other relevant provisions of Assam Jail Manual Vol. I and
also of Prisons Act, 1894. Although in Manipur, the provisions of the said Manual, for
reasons alluded, have acquired statutory character, we have our doubts if those have
or had the same character or status in the parent State of Assam, which position is
manifested by the scheme of its different provisions, because, though they are
captioned "Rules for superintendence and management of jail in the Province of
Assam", no authority is quoted for the making of the said "Rules". Because of the
hybrid nature of the provisions, we have doubt if these could be Rules framed under
Section 59 of the Prisons Act, 1894. Indeed, in the Prisoners Act, 1900, there is no
provision delegating to any authority the rule making power. Still, as alluded, some
of the provisions, including the aforesaid Rule 496 is expressly made referable to the
provisions of 1900 Act. Be that as it may, we may profitably refer to the provisions of
Rules 458 and 459 of the Manual, wherein provision is made for allowing visits to the
Jail by "friends" once every three months to have an interview with Class, "C"
convicts. At his discretion the Superintendent is enabled to grant interview at shorter
intervals also. Rule 926 finds place in chapter 53, which is captioned "Advisory
Boards". Learned Senior Government Advocate, Manipur, placed before us
Notification No. 54/1/62-L (J), dated 2nd August, 1967, issued by the Chief
Commissioner, Manipur, making following amendment in "para 926 of the Assama
Jail Manual, Vol. I" which we extract below:
(a) Permanent Advisory Board shall consist of four members viz., Chief
Secretary, Government of Manipur, as Chairman and the District Judge, the
Deputy Commissioner (who is the ex-officio Inspector General of Prison) and
one M.L.A. to be nominated by the Government as members. The
Superintendent of the Jail concerned shall be the non-member Secretary.
(b) The term of the office of the non-official memos shall be one year.
The function of the Advisory Board contemplated in Chapter 53 of the Manual
indicated in Rule 933 enabled the Board to make recommendation to the Government
for remission of any part of sentence of a prisoner end for his release with or without
condition. Rule 931 requires the Secretary of the Board to obtain, inter alia, from the
District Superintendent of Police, through the District Magistrate in which the prisoner
was residing before his conviction, a report containing such information as may be
available regarding the prisoner's conduct and character before conviction, his mode
of life and the local conditions under which be would live in the event of release. At a
meeting of the Board, the Secretary is required to place under Rule 932, the said
report as also the "history ticket" and the copy of the judgment in respect of his
conviction. Rule 927, contemplates that the Board shall meet at least once a year and
Rule 936 indicates the "conditions of release" which the Board may consider in

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 making its recommendation. According to Rule 936, the Board is required to state
''reasons" for the recommendation and also state proposed conditions if any.
3.4. The Prisons Act, 1894, is a comprehensive enactment which deals, inter alia,
with maintenance of prisons, appointment and duties of prison Officer and all matters
relating to lodgment of prisoners, including discipline of prisoners and "prison-
offences". In Chapter V which deals with the discipline of prisoners provision is made
for association and segregation of prisoner and also for solitary confinement. Section
40 of the Act contemplates that due provision shall be made for the admission at
proper times and under proper restrictions, into every prison of person with whom
prisoners may desire to communicate. Chapter II contains provision for punishment
of "Prison-offences" which are defined in Section 45. Sections 46-48 deal with
procedure for award of such punishment while Section 49 prohibits any such
punishment being awarded as are not specified in the Act. Section 51(2)
contemplates that in the case of every serious prison-offence, the names of the
witnesses proving the offence shall be recorded in the punishment book prescribed in
Section 12. Section 56 empowers the Superintendent to "confine in irons" any
prisoner when considered necessary to do no with reference either to the state of the
prison or the character of the prisoners. But, this power may be exercised subject to
only Rules and Instructions prescribed in this behalf. Section 58 prohibits Jailor to
put prisoners in "irons or under mechanical restraint" except in case of urgent
necessity, Power to make Rules under the Act are prescribed in Section 59 of which
Clauses (6), (8), (9), (16) to (19), (22), (27) and (28) are note worthy. Among
other, it is contemplated, rules may provide for classification of prisons and
description and construction of wards, cells and other places of detention and for
regulation by Bumbers, length and character of sentence or otherwise of the
prisoners to be confined in each class of prisons. Rules may also provide for
regulating the confinement in fetters of prisoners and also for their classification and
the separation, besides preparation and maintenance of history-tickets. General
provision may be made by Rules in regard, among others, to admission and custody
of prisoners. There can be no doubt, therefore, that some scope exists under current
law for making suitable provisions for humanitarian conduct of affairs in prison and
humanising the living conditions of prisoners in accordance with constitutional
mandates and ethos of emerging norms of humanitarian laws of International Human
Rights Jurisprudence.
4. Limitations-Constitutional and Institutional:
4.1. A reappraisal of developing norms of prison justice, must obviously begin with
the conceptual appreciation of attributes of "life", deprivation of which by State
except according to procedure established by law is prohibited by Article 21 of the
Constitutional Bill of Rights. The term "life' has received judicial exposition in several
decisions of the Apex Court which has adopted and approved definition of the term
enunciated by Field, J. in Munn v. Illinois (1876) 94 US 113, which, we extract
below:
Something more than mere animal existence. The inhibition against its
deprivation extends to all those limbs and faculties by which life is enjoyed.
The above dictum received further exposition in Kharak Singh's case
MANU/SC/0085/1962 : AIR 1963 SC 1295) from a Bench of 6 Judge of the Apex
Court. It was observed in that case that the word "life" in Article 21 bears the same
significance us the same word is used in the 5th and 14th Amendments of the U.S.

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 Constitution. What their Lordships further said, however, bears extraction:
Is then the word 'personal liberty' to be construed as excluding from its
purview an invasion on the part of the police of the sanctity of a man's home
and an induction into his personal security and his right to sleep which is the
normal comfort and a dire necessity for human existence even as an animal?
Their Lordships also referred to the Preamble and stressed importance of the
expression "assuming the dignity of the individual" for underscoring the
constitutional effort which cherishes human value as the means of ensuring full
development and evolution of man. It in true that no reference is made to the United
Nations Charter. But, it is not difficult to see that in enacting the Charter in 1945, all
nations of the world including India (though not sovereign then) focussed their
attention on the "worth of the Human Person" as a cardinal principal on the basis of
which they set out to found the new International Order.
4.2. The seminal concept evolved in in Kharak Singh's case (supra) found further
development in the successive decisions of the Apex Court. We do pot, however,
propose to burden this judgment by tracing minutely successive development of the
concept and would like to be content by referring to few decisions of their Lordship,
wherein the earlier decision were considered, approved and augmented. In Sunil
Batra (I) MANU/SC/0184/1978 : AIR 1978 SC 1675, and also in Charles Sobraj
MANU/SC/0070/1978 : AIR 1978 SC 1514), we read lucid exposition of some of the
norms of prison justice. Their Lordsbips in Sunil Batra observed as follows:
...It is all the more so because a convict is in prison under the order and
direction of the Court. The Court has, therefore, to strike a just balance
between the dehumanising prison atmosphere and the preservation of
internal order and discipline, the maintenance of institutional security against
escape, and the rehabilitation of the prisoners.
(Per majority)
Krishna Iyar, J. in his concurring separate judgment observed:
...For what is punitively outrageous, scandalizingly unusual or cruel and
rehabilitatively counter-productive, is unarguably unreasonable, and arbitrary
and is shot down by Articles 14 and 19 and if inflicted with procedural
unfairness, falls foul of Article 21...judges, even within a prison setting, are
the real, though restricted, ombudsmen empowered to prescribe and
prescribe, humanize and civilize the life-style within the careers. The
operation of Articles 14, 19 and 21 may be pared down for a prisoner but not
puffed out altogether....
His Lordships, in Charles Sobraj (Supra) speaking for the Court observed:
The Court is reluctant to interfere in the day-to-day operation of the State
penal system; but undue harshness and avoidable tantrums, under the guise
of discipline and security, gain no immunity from court writs.
His Lordships went on to stress the "well-settled" judicial consensus:
Compassion wherever possible and cruelty only where inevitable, is the art of
correctional confinement.

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 and added:
When prison policy advances such a valid goal, the Court will not intervene
officiously.
In M.H. Hoskot MANU/SC/0119/1978 : AIR 1978 SC 1548) his Lordship, again
speaking for the Court, focused on the imperative of the then rapeutic treatment to be
imparted in prisons to achieve correctional goals by insisting on "parole,
opportunities for welfare work, meditational normalisation and healthy self
expression so that the convict may be humanised and on release, rehabilitated as a
safe citizen."
4.3. As Sunil Batra II (supra) was cited at the first instance and was relied on as of
immediate relevance to the present list, the decision deserves a careful consideration.
We may first extract the Kernel of the Core concept enunciated by their Lordships on
which the 'lifer' in the instant case has pinned implicit hops for his deliverance:
Thus although there may be current limitations on the possible use of the
Constitution on visitations by family and friends, public policy should dictate
substantial improvements in this area, in any event. We see no reason why
the right to be visited under reasonable restrictions should not claim current
constitutional status. We hold, subject to consideration of security and
discipline, that liberal visits by family members, close friends and legitimate
callers, are part of the prisoners' kit of rights and shall be respected.
(Emphasis supplied)
Reference was made in the judgment by their Lordships to the Declaration of the
promotion of All Persons from Torture and other cruel, inhuman or Degrading
Treatment or Punishment adopted by the U.N. General Assembly. At para 82 of the
judgment, their Lordships, referring to "package" of being changes suggested by
them also observed that measures were necessary to reduce tension and to raise the
pace of rehabilitation which were to be adopted also for elimination of sex vice vis-a-
vis prisoners. They quoted with approval a passage from a book Rape in prison,
wherein the author observed that "men with record showing good behaviour should
be released for weekends at home with their families and relatives."
4.4. The unstated premises of the aforesaid dicta in Sunil Batra (II) needs expansion
elucidation in the context of the present list. Because, the Court recognised as a
constitutional right of a prisoner to have visits for family and friends and it had also
spoken of sex vices and need of elimination there of from prisons while it appreciated
the suggestion to allow prisoners with good record to spend weekend with their
families. What was unfortunately not brought to their Lordships' notice was the
statutory provision of Article 16 of the Universal Declaration of Human Rights which
recognises right of a man to marry and set up a family with a further mandate that a
"family" required protection of the State as "fundamental group unit of the society". A
'lifer' may, in some cases, be conceivably deprived of his right to found a family due
to his prolonged incarceration if he or she is denied access to his or her spouse. That
apart, for the same reason, there may arise risk in some cases of a 'lifer' becoming
either a victim or the culprit in the drama of prison-sex. Indeed, a healthy and normal
sex life of which a 'lifer', more than any other prisoner, stands deprived is bound to
react unfavourably, if not violently, on his psycho. This consequence would not
conduct to his rehabilitation process. Indeed, he may consider it as a challenge to
human dignity as he may see himself as an animal muted by captivity or reduced to

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 an inanimate object. Can a human person, merely because he is incarcerated, become
a piece of deadwood or a block of unchiseled rock? Does he cease to have flesh,
bones and blood? So long life pulsates in his mortal frame how can emotion,
feelings, basic human instincts of a living person and human faculties, which make
him a human person, depart him? If he is unjustly deprived of the use of limbs and
faculties by which life is enjoyed, he may have, as a human person, a just grievance
against the State and also society, to which he has to come back eventually. A prison
must not only have something more than mere animal existence but he must not also
be denied a compassionate treatment which will take care of his feeling and emotions
to ensure him a civilised life-style attuned to correctional confinement. He must not
be denied the right of his being relieved of mental stress to promote the "restorative"
or "rehabilitative" object of imprisonment. In Sunil Batra(II) their Lordships quoted
with approval from Pr. Halleck's Freedom From Crime, wherein the author observed
that stress that lead to mental illness are often the same that lead to crime. In a later
decision, in Francis Caralie AIR 1981 SC 746, their Lordships, under-lining the right
to live with human dignity, observed that it includes "the right to carry on such
functions and activities as constitute the bare minimum expression of the human self.
In this case, the Court relied on the provisions of Article 5 of the Universal
Declaration of Human Rights and Article 7 of the International Covenant on Civil and
Political Rights to prescribe procedure tending to permit inhuman and degrading
treatment to prisoner.
4.5. We feel, therefore, inclined to bold for the forgoing reasons that prison
restrictions must be so modulated as not to completely negate the opportunity
allowing a 'lifer; access to his or her spouse. Needless to stress the obvious that
removing a prisoner without a valid awe to a distant place and confining him there
for an indefinite or a long period where even a visit by the spouse is impossible,
would per se fall foul of the constitutional injunctions of Articles 14, 19 and 21 for
more valid and strong reasons. (sic) be so in the case of "family or friend" as held in
Sunil Batra (II) and Francis Coralie. Because, such action would tantamount to
complete negation of the right and under no circumstances justify any claim to be
called "reasonable restrictional". Reference may be made in this context to the dictum
of their Lordships in A.K. Roy (AIR 1982 SC 741) where the "normal rule" for
detention was stated to be "a place which is within the environs of his or her ordinary
place of residence" of a detenu. Onus will, therefore, lie on those who have breached
the normal rule to satisfy the court the validity of their action. Such action must
answer to the test of "reasonable procedure" even if statutorily prescribed in this
behalf and if none is prescribed "reasonable man's test" will be applied to adjudge
the validity of the action (see Francis Coralie Supra). In both cases of Sunil Barta and
Francies Coralie the Court impressed on the necessity of a correct appraisal of the
true goal of imprisonment stressing that it was "not only punitive but restorative" and
rehabilitation was a "prized purpose of prison hospitalisation". If ultimate jurisdiction
of sentence of imprisonment was "social defence" or protection of society against
crime, the purpose can only be achieved by rendering to the prisoner all remedial
forma of assistance "according to individual treatment-needs of the prisoners." We
have no doubt, therefore, that "reasonable man's test", in such cases, must conform
to the standard so stated by their Lordships. Applying, therefore, this standard, it to
difficult to dispute that long-term of imprisonment, as in the case of a 'lifer' would
obviously require such measures to be adopted in course of his confinement as may
make his long tenure in incarceration bearable both physically and mentally. It
would, therefore, be a perverse idea and futile jurisdiction if the authorities consider
that because of his life-long tenancy in Jail, they will have the justification of
depriving him of "prison hospitalisation" through remedial forms of assistance.

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 4.6. We may now adjudge the validity of the action in the instant case in the light of
the above tests. To do so, we first examine if the statutory provision relied on by the
authorities in the instant case was duly complied with Rule 496(II) of the Assam Jail
Manual is the specific provision on which reliance is placed. It empowers the State
Government to remove prisoner to any prison in another State albeit for the purpose
of his "return" therein if his detention in a prison within the State is deemed
"inexpedient". We have no doubt that there requirement of expediency must, also
answer to the tests enumerated in Sunil Batra II or in Fransis Coralie or in Charles
SobraJ. Consideration of prison justice may, of course, compound and act negate
considerations of prison discipline. However the letter must not prevail over the
former to reign supreme. Must it also be stated that the concept of prison discipline
cannot be arbitrarily re-stated by the authorities as those are enumerated and stated
statutorily in the Prisons Act itself, wherein measures to combate indiscipline in
prison are also provided. Thus, expediency of removal in any particular case must be
so manifest that necessity of resort to "removal" of prisoner can only be justified on
the ground of inadequacy of correctional or punitive measures indicated in the
Prisons Act. If the only reason for removal of a prison be "security reasons" as stated
in the instant case, authorities must satisfy the Court that neither by way of
"segregation" nor by confinement of prisoner in "iron" in a regulated manner as
prescribed in the Prisons Act, they could achieve the object. If the prisoner was guilty
of any prison offence, provisions exist in the prisons Act itself for his punishment and
the mandate of Section 49 must be complied by not subjecting him to an
unprescribed punishment like "removal" from the prison. Such act as would be
violative of the expressed statutory provisions could not be justified as "expedient".
4.7. It is true that Section 3 of Transfer of Prisoners Act, which authorised "removal"
of a person in any other State, does not lay down any guideline for the exercise of
the power. The Court must, therefore, read into its provision "reasonable procedure"
conforming to "reasonable man's test" adopted appropriately to the facts and
circumstances of the case. Rule 496(II), which is said to be applicable in the instant
case does to deed, prescribe the procedure for "removal" but a reasonable
construction must be placed thereon. Thus, in taking action thereunder if the
appropriate authority had not applied its mind to relevant considerations conforming
to reasonable man's test, the action would be violative of Articles 14, 19 and 21 of
the Constitution, because of that all that is stated in the Sunil Batra's case and in
Francis Coralie.
4.8. We do not feel disposed to read in Section 3 of 50 Act conferment of arbitrary
power on State Government, merely because no guide-lines are prescribed therein.
We say so, because of the use of the word "Provide", which contemplates, in out
opinion, prior guide-lines for the exercise of the power being laid down even
administratively or in the absence thereof to be exercised in accordance with
recognised norms of administrative law and constitutional mandates. It is true that
the power is vested in the State Government itself and not in any of it subordinate
functionary. Even so, the exercise of power under Section 3, in the arbitrary exercise
of discretion is to be ruled out. It was so held in Pad Field case, 1968 (1) ALL E.R.
694. It was held by H.L. in that case that where the statute conferring a discretion on
a Minister to exercise or not to exercise a power did not expressly limit or define the
extent of his discretion and did not require him to give reasons for declining to
exercise the power, his discretion might nevertheless be limited to the extent that it
must not be soused, whether by reason of misconstruction of the statute or other
reasons, as to frustrate the objects of the statute which conferred it. It was also held
that the Minister was bound not to misdirect himself and not to take account of

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 irrelevant matters but to take only relevant matters into consideration. This
proposition is also accepted and exposited in several decisions of their Lordships of
the Supreme Court. In a very recent decision in Liberty Oil Mills MANU/SC/0029/1984
: AIR 1984 SC 1271), the Court referred to its earlier decision in Barium Chemicals
(MANU/SC/0037/1966 : AIR 1967 SC 295), Rohtas Industries (MANU/SC/0020/1968
: AIR 1969 SC 707), M.A. Rasheed (MANU/SC/0051/1974 : AIR 1974 SC 2249), Smt.
Shalini Soni (MANU/SC/0227/1980 : AIR 1981 SC 431) and Commissioner of Income
Tax MANU/SC/0181/1983 : (1983) 4 SCC 392, etc, and observed as follows:
...The action will be patently without jurisdiction if it is not based on any
relevant material whatsoever. If the authority declines to consider the
representation, or if the authority after consideration of the representation
eschews relevant considerations and prefer to act on irrelevant
considerations or from oblique motive, or the decision is such as no
reasonable man property directed in the law would arrive at the material
facts, it will be open to the party to seek the intervention of the Court....
4.9. It is beyond dispute, according to us, that in taking action under Section 3 of
the 1950 Act, the State Government must direct its attention to relevant
considerations based on the provisions of the Prisons Act as well as of the law laid
down by the Apex Court in Sunil Batra it at (sic). Because also, 1950 Act, is not a
self-contained Code and taking action under Section 3 thereof, relevant provisions of
Prisons Act must be borne in mind, namely provisions as to visits (Section 40),
segregation in iron (Sections 27 and 28) and confinement in iron (Section 56). It
may also be necessary in some cans to direct attraction, to the provisions relating to
prison-discipline contained in Sections 45, 46 and 49 of the Prisons Act. For the same
reason, we bold that the requirement of expediency inscribed in Rule 496(II) of the
Assam Jail Manual must be read likewise. Attention must be directed to other relevant
provisions of the Jail Manual. In Chapter 15 of the Manual, provisions exist for
classification and separation of prisoners. We have already referred above to the
provisions made in Rules 458 and 459 about the right or the "privilege" inscribed
therein as to interview with prisoners. Then, there is the salutary provision of Rule
1931 to be taken note of though the function of the Advisory Board contemplated
under Rule 926 ostensibly has a different purpose. Indeed there may be occasions, in
some circumstance, to refer to the provisions relating to escapees contained in
Chapter 33 of the Manual of which Rule 68 refers to consequences entailing in the
cases of an escapee.
5. Conclusions:
5.1. The basic infirmity from which the impugned action suffers lies in the fact that it
is ultra vires Section 3 of the Transfer of Prisoners Act, 1950 and also of the
provisions of Rule 496(II) of the Assam Jail Manual. Because, the Act does not
contemplate a "general" order of removal and Rule 496(II) contemplates cases
merely of "transfer for release". As indicated above, in the instant case, there is
admittedly no specific order of "removal" to deal with the case of Y. Rabei Singh in
particular. Annexure B/1 ex-facie purports to be a general" order in respect of 31
convicts. It is also not disputed that he is not being "transferred" to any prison in
Maharashtra "for release." The action in, therefore, patently without jurisdiction an it
is not supported by any authority of law.
5.2. Foundation of facts are also too hollow to support the action. First, because,
materials placed before us do not disclose that action of "removal" of the 'lifer' in the

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 instant case from Jiribam sub-jail to the prison in Maharastra was taken by the
appropriate authority. There must be a prior "decision" by the appropriate authority
before such action can be taken which is postulated by the report of passing an
"order" albeit considering facts and circumstances of the case as no general order it
now contemplated. This requirement is writ large on Section 3 of 1950 Act as well as
on Rule 496(II) of the Assam Jail Manual although the Rule, in terms, does not apply.
We have already discussed in great detail the foundational facts. In the instant case,
we have no doubt that the "security meeting" held on 9.6.81 to the minutes of which
Chief Secretary bad appended his signature is not relatable to the action taken in the
instant case on 20.1.82. Indeed, Annexure B/1 of the Respondents counter conveying
a general "approval" to the proposal of transfer made by the Inspector-General of
Prisons, does not manifest the "decision". On the face of it non-consideration of
relevant facts and circumstances on each prisoner's case is vocally manifested. The
records placed before us also do not disclose when, how and in what manner and by
which authority the "decision" was taken for the impugned action manifested by
Annexure B/1. Thus, as the impugned action which lacks the fundamental
requirement of a "decision" by the appropriate authority being missing, in the
instance case, the action roust be held to be patently without jurisdiction. As alluded,
the requirement is mandatory in respects further of competent authority only taking
the "decision". From the correspondence displayed to us from the Government file,
we find it difficult to hold that there was in fact, any "decision" by the competent
authority, namely, the State Government. The very fact that the Home Secretary,
Government of Manipur, had to enquire from the Inspector-General of prisons, about
the "ground" of removal. subsequent to the removal of the 31 convicts eloquently
establishes that there was no prior "decision'' by the State Government about the
"removal of the 'lifer'.
5.3. The other equally serious infirmity which vitiates the action, in non-
consideration of the relevant facts having bearing on the question of "removal" of the
'lifer'. Annexure A, which is the enclosure of Respondents' Annexure B/1, filed in this
Court, indicates that the only facts considered for taking the decision are the place or
the Jail from where the prisoner was to be removed, his date of conviction and the
sentence or term of imprisonment. Indeed, in the instant case, even the date of
conviction of the 'lifer' which was given in Annexure A, appears to be doubtful. In the
Court, Respondents, in their return, admit, as alleged in the petition, that the 'lifer'
was convicted on 29.7.75. No further factor pertaining to the question of
"expediency" which is the requirement of Rule 496 appears to have been considered.
We need not repeat once again or reiterate the said requirement which we already
discussed above. Indeed, in this Court in their return a new ground is urged by
Respondents to sustain validity of the action, namely, "security reasons". It is also
stated in the counter filed in the case (sworn on information derived from record)
that once the 'lifer' escaped and he was "re-captured" after vigorous efforts on
7.7.1978. This fact is for the first time disclosed in the return field in this Court and
is not supported by any material on record. We do not think if these facts were at all
considered by any as hority as they do not appear to us to have been so considered
from the materials placed before us. That apart, counsel for the Petitioners rightly
submits, on the authority of Gill's case (MANU/SC/0209/1977 : AIR 1978 SC 851),
that by subsequent affidavit this requirement cannot be fulfilled. In Gill's case the
Constitution Bench of Apex Court held that when a statutory functionary makes an
order based on certain grounds, its validity must be judged by the reasons so
mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or
otherwise. That apart, the other reasons stated in the return on which the action is
sought to be supported, according to us, as discussed, is apparently irrelevant. There

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 were incident of escape from Imphal Central Jail the year 1980, 1981 and 1982, while
the 'lifer' was not lodged there since 30.9.1978 as he had been lodged in Jiribam
sub-jail. No material has been placed before us even other wise to satisfy us that the
'lifer' was connected with the said escape or that be was an "extremist", which could
be or was relevant to "security reasons".
5.4. What appears to us to be established in this case beyond doubt is that the sole
and solid fact that the 31 convicts, who were "removed" from Imphal Central Jail and
Jiribam sub-jail of the State of Manipur to be imprisoned in the State of Maharastra
became casualty of an arbitrary action of the second Respondent, who is not
authorised to take "decision" for removal of the said convicts including the 'lifer'.
However, we have no material before us to consider the case of the other 30
prisoners who were removed along with the 'lifer' on whose behalf only the instant
petition has been filed. We know for certain some relevant facts in respect of the
'lifer' which have an important bearing on the question of his removal. We know that
he is a married man. He is now aged 30 years. He has no unfavourable pant record.
He could not prefer appeal against his conviction for want of legal aid and that a
representation was made to the Chief Minister, Manipur, for his transfer from Nagpur
Central Jail, Maharastra to any prison in Manipur. This application has not been
disposed of which, in our opinion, the Respondents were bound to consider and
dispose of. We say so on the authority of a Bench decision of this Court in Raghubir
Singh (MANU/GH/0014/1984 : AIR 1984 Gau 54). This Court held in that case that
any decision taken in purely administrative manner without bearing the parties could
be and ought to be reviewed. That apart, in the context of Article 21, which right the
'lifer' in the instant case does possess for reasons alluded, according to us, a post-
decisional hearing is evidently warranted on the authority of Maneka Gandhi
(MANU/SC/0133/1978 : AIR 1978 SC 597). On the facts discussed, in the instant
case, the action of the Respondents of "removing" the 'lifer' to a prison outside the
State, without valid cause, is ex-facie violative of Articles 14, 19 and 21 for the
additional reason that his confinement outside is not for a short or definite term and
request for consideration of his case is ignored.
6. Order and Directions.
6.1. For all the foregoing reasons, was hold the "removal" of Y. Rubei Singh from
Jiribam sub-jail to a prison outside the State to be without jurisdiction and void. As a
result, be shall be restored to the place of detention from where the said "removal"
took place. We allow the Respondents one month's time to comply with this order.
We also make it clear that it shall be open to the Respondents to place him in any
prison in the State of Manipur and to adopt all lawful measures that may be
necessary to ensure prison discipline and to obviate "security risk".
6.2. While we have disposed of the Petitioner's case in the manner just stated, we
also consider it necessary to reiterate Apex Court's "quasi mandate" stated in Sunil
Batra II. Their Lordships bad made a direction at para 86 of the judgment that all
State Governments shall be furnished copies of the judgment so that necessary
measures may he adopted in the prisons in the different State to make prison justice
meaningful and prison discipline humanitarian, We would also like to add a quasi
mandate of our own inasmuch it necessity therefore has reason in the context of what
we hive held above and the fact that the point agitated before us did not come up for
consideration of their Lordships. It is also necessary to do so for the additional
reason that Commissions of Enquiry referred to above had made certain
recommendations in connection with the improvement of prison accommodation and

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 other matters on which no notion appear to have been taken We would desire,
therefore, to bring boms to the State Government the imperative necessity of taking
early action in the following matters:
(a) The Jail Manual should be up-dated in accordance with what is stated in
Sunil Batra (II) and also in this judgment. Arrangement should also be made
to print and publish and make the same available to prison staff for their
knowledge and compliance with the provisions thereof. It shall also be
necessary to notify salutary provision thereof benefiting the Prisons Act,
1894, in the manner prescribed therein to that the prisoners are made aware
of their rights and also obligations to uphold the cause of prison justice and
also prison discipline;
(b) Commission of Enquiry, to which we have referred above, have already
recommended re-modelling of prison buildings and accommodation. In the
context of the present list, we proffer a pious wish. It would be upholding
the cause of the prison justice if family accommodation of some short (not
inconsistent with security requirement) is made so that 'lifer' get a frit
treatment in the nature of "prison hospitalisation". It shall be undoubtedly
open to the State Government to provide in the up-dated Prison Manual
measures to regulate use of the said accommodation according to the facts
and circumstances of each case. An alternative provision also in the proposed
up dated Jail Manual may be made for Periodic visits by 'lifers' and also other
prisoners, in suitable cases, to their families in such manner as may be
consistent with the requirement of prison discipline;
(c) Before us the vires of Section 3 of the Transfer of Prisoners Act, 1950,
has not been challenged. So the power of inter-State "removal" as such
stays. However it is necessary to make provision for judicious exercise of the
power consonant with the constitutional and statutory imperatives indicated
above. We suggest that provision be made for utilising the consultative
services of the Advisory Board constituted under Rule 926 of Chapter 53 of
the current Jail Manual or similar body for the purpose of taking decision
about any "removal" to any prison outside the State. This is necessary
because, power under Section 3 can be exercised only in specific cases with
respect to the facts and circumstances of each case as the new law, as
pointed out, has taken away the power to make "general" order in this
regard. For the guidance of such Advisory Board or consultative body, other
relevant provisions of the same Chapter of the said Manual may be profitably
adopted.
6.3. Let a copy of this judgment be sent to the Chief Secretary, Government of
Manipur, Imphal.

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