Section 231 of Cr.P.C- Evidence for prosecution

Code of Criminal Procedure

Cr.P.C

231. Evidence for prosecution

(1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution.

(2) The Judge may, in his discretion, permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.


COMMENT

Before commencing a trial, a Sessions Judge must satisfy himself that all necessary evidence is available. If it is not, he may postpone the case, but only on the strongest possible ground and for the shortest possible period. Once the trial commences, he should, except for a very pressing reason which makes an adjournment inevitable, proceed de die in them until the trial is concluded [AIR 1984 SC 618]

In trials before a Court of Session the prosecution “shall be conduced by a Public Prosecutor.” Section 226 of the Code enjoins on him to open up his case by describing the charge brought against the accused. He has to state what evidence he proposes to adduce for proving the guilt of the accused. If he knew at that stage itself that certain persons cited by the investigating agency as witnesses might not support the prosecution case he is at liberty to state before the Court that fact. Alternatively, he can wait further and obtain direct information about the version which any particular witness might speak in Court. If that version is not in support of the prosecution case it would be unreasonable to insist on the Public Prosecutor to examine those persons as witnesses for prosecution.

When the case reaches the stage envisaged in S. 231 of the Code the Sessions Judge is obliged “to take all such evidence as may be produced in support of the prosecution.” It is clear from the said Section that the Public Prosecutor is expected to produce evidence “in support of the prosecution” and not in derogation of the prosecution case. At the said stage the Public Prosecutor would be in a position to take a decision as to which among the persons cited are to be examined. If there are too many witnesses on the same point the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the Court can be saved from repetitious depositions on the same factual aspects. That principle applies when there are too many witnesses cited if they all had sustained injuries at the occurrence. The Public Prosecutor in such cases is not obliged to examine all the injured witnesses. If he is satisfied by examining any two or three of them, it is open to him to inform the Court that he does not propose to examine the remaining persons in that category. This will help not only the prosecution for relieving itself of the strain of adducing repetitive evidence on the same point but also helps the Court considerably in lessening the workload. Time has come to make every effort possible to lessen the workload, particularly those courts crammed with cases, but without impairing the cause of justice[(2000) 7 SCC 490 ]

In Masalti vs. State of Uttar Pradesh, AIR 1965 SC 202. It is contextually apposite to extract the following observation of the Bench: “It is not unknown that where serious offences like the present are committed and a large number of accused persons are tried, attempts are made either to terrorise or win over prosecution witnesses, and if the prosecutor honestly and bona fide believes that some of his witnesses have been won over, it would be unreasonable to insist that he must tender such witnesses before the Court.”

In Shivaji Sahabrao Bobade vs. State of Maharashtra (1973) 2 SCC 793, Krishna Iyer J., speaking for a three Judge Bench had struck a note of caution that while a Public Prosecutor has the freedom to pick and choose witnesses he should be fair to the Court and to the truth.

Further Investigation

It is settled law that carrying out further investigation even after filing of the charge-sheet is a statutory right of the Police, (vide K. Chandrasekhar vs. State of Kerala and Others, (1998) 5 SCC 223.) The material collected in further investigation cannot be rejected only because it has been filed at the stage of trial. The facts and circumstances show that the trial Court is fully justified to summon witnesses examined in the course of further investigation. It is also clear from Section 231 of the Cr.P.C. that the prosecution is entitled, to produce any person as witness even though such person is not named in the earlier charge-sheet.

Section 408 of Cr.P.C: Power of Sessions Judge to transfer cases and appeals

408. Power of Sessions Judge to transfer cases and appeals

(1) Whenever it is made to appear to a Sessions Judge that an order under this sub-section is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court in his sessions division.

(2) The Sessions Judge may act either on the report of the lower Court, or on the application of a party interested or on his own initiative.

(3) The provisions of sub-sections (3), (4), (5), (6), (7) ,and (9) of section 407 shall apply in relation to an application to the Sessions Judge for an order under sub-section (1) as they apply in relation to an application to the High Court for an order under sub­section (1) of section 407, except that sub-section (7) of that section shall so apply as if for the words “one thousand” rupees occurring therein, the words “two hundred and fifty rupees” were substituted.

General Rules applicable to Criminal Trials

36. Defence at State expense: – (1) Sessions Judges and Magistrates shall inform every accused person who appears before them and who is not represented by an Advocate on account of his poverty and indigence, that he is entitled of free legal service at the cost of the State, unless he is not willing to take advantage of it. It is not necessary that the accused should apply for legal aid. If the Court is satisfied that the accused has no sufficient means to engage an Advocate, it shall assign an Advocate for his defence at the expense of the State.

(2)(a) The Sessions Judge shall prepare a panel of Advocates to defend the accused, who has no sufficient means to engage an Advocate in a trial before the Court of Session from among the Advocates practising in the Court of Session.

(b) The panel of Advocates shall be known as “State Brief Panel” and consists of the following two categories, viz.,

Category No. 1: – Advocates of not less than 5 years standing in the Bar to defend an accused, who is charged with an offence punishable with death or life imprisonment or any complicated or sensational case.
Category No. 2: – Advocates with not less than 2 years standing in the Bar to defend the accused person, who has been charged with an offence punishable with a sentence other than death or imprisonment for life.
(c) In the Court of Additional Sessions Judges or Assistant Judges working at outlying stations or Magistrates, a State Brief Panel shall be prepared by such Judge or Magistrate, subject to the approval of the Sessions Judge.

(d) The “State Brief Panel” shall be prepared once in a year in the order of seniority of Advocates.

(3) Court to decide as to the number of Advocates to be engaged: – Where in a trial there are several accused not represented by an Advocate or Advocates, only one Advocate shall be assigned for the defence of all such accused:

Provided that, if the Court having regard to the nature of the defence of the different accused persons considers that it would not be desirable in the interests of justice to entrust the defence of all the accused persons to a single Advocate, as many Advocates as the Court considers necessary may be assigned.

(4) Facilities to be allowed to Advocates:- Advocates assigned by the Court to defend an accused shall be furnished with all the necessary papers and records and allowed sufficient time to prepare the case for the defence of the accused.

(5) (1) Fees Payable to the Advocates: – The Sessions Judge may sanction payment of fee to each Advocate so assigned at the following rates:-
(i) not exceeding Rs. 50/- for each day of the trial, where an accused is charged with an offence punishable with death or imprisonment for life. Provided that the fee payable to an advocate for the whole case shall not in the aggregate exceed Rs. 500/-.

(ii) not exceeding Rs. 25/- for each day of the trial, where an accused is charged with an offence other than an offence punishable with death or imprisonment for life. Provided that the fee payable to an Advocate for the whole case shall not in the aggregate exceed Rs. 250/-.

(5) (2) The Additional Sessions Judge or the Assistant Sessions Judge or the Magistrates working in the outlaying stations shall exercise the powers mentioned in sub-rule (1) in respect of Advocates before them.

37. One of the accused may be permitted to represent the other: – Criminal Courts may in cases where there are more accused than one, permit anyone of them to be authorised by any other to represent that other in any Criminal Proceeding ; but the authorisation shall be in writing and shall contain the signature of the person giving it and shall be filed in Court.

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CHARGE SHEET OF MUMBAI TERROR ATTACK CASES 26TH NOVEMBER 2008

FINAL FORM / REPORT

(Under Section 173 Cr.P.C.)

IN THE COURT OFADDL. CH. M.M., 37TH COURT, ESPLANADE, MUMBAI

The Chief Investigating Officer of the sensational and diabolic attacks by the terrorists at different iconic locations in Mumbai on 26th November 2008, hereby submits a report under Section 173 of Criminal Procedure Code, 1973 as under.A heinous criminal conspiracy has beenplanned and hatched in Pakistan by the internationally banned Lashkar-e-Taiba to execute a series of attacks at prominent places in Mumbai, the financial capital of the country on 26thNovember 2008. This was with the express intention to destabilize India, wage war against this country, terrorize its citizens, create financial loss and issue a warning to other countries whose citizens were also targetted , humiliated and cold-bloodedly killed. This Fidayeen Mission was part of a larger criminal conspiracy planned in Pakistan for attacking the commercial capital of India with intent to wage war, to weaken India economically and to create terror and dread amongst the citizens of the Mumbai metropolis in particular and India in general and, thereby, through the said unlawful activities its perpetrators committed terrorist acts.

Lashkar-e-Taiba (Lashkar-e Tayyiba; literally means Army of the Good, translated as Army of the Righteous, or Army of the Pure) — also pronounced and spelt as Lashkar-i-Tayyaba, Lashkar-e-Tayyaba, Lashkar-e-Tayyiba, Lashkar-i-Taiba, or LeT — is one of the largest, most active and lethal militant organizations in South Asia.Lashkar-e-Taiba – “The Army of the Pure” is a militant offshoot of Markaz-ud-Dawa-wal- Irshad (MDI), an Islamic fundamentalist organization. Markaz-ud-Dawatul-wal- Irshad has since been renamed as Jamaat-ud-Dawa.It was founded by Hafiz Muhammad Saeed and Zafar Iqbal in the Kunar province of Afghanistan in 1989. It has its headquarter at Muridke near Lahore, Pakistan. It operates numerous training camps in Pakistan occupied Kashmir as well as in other parts of Pakistan. Lashkar has forged cooperative and operational ties with religious militant groups throughout the Middle East, South East Asia and also in other parts of the world.The Militant group’s defining objective is to Islamicise South Asia with its main aim being freedom for Muslims in India-administered Kashmir.The Lashkar-e-Taiba is banned as a terrorist organization by India, Pakistan, the United States, the United Kingdom, the European Union, Russia, Australia besides a host of other countries. Hafiz Saeed has been listed as the leader of the Lashkar-e-Taiba. The United Nations Security Council has also listed Zaki-ur-Rehman Lakhvi, Haji Mohammad Ashraf, and Mahmoud Mohammad Ahmed Bahaziq as senior members of the Lashkar-e-Taiba.Zaki-Ur-Rehman Lakhvi is listed as the terror group’s chief of Anti-India operations. Haji Mohammed Ashraf is the group’s chief of finance whereas Mahmoud Mohammed Bahaziq, a Saudi national who served as the leader of Lashkar-e-Taiba in Saudi Arabia, is a senior financier. Jamaat – Ud – Dawa has been recently declared as a terrorist front group by the United Nations (UN) as per its Resolution 1267. UN believes that this organization also supports Al-Qaeda and the Taliban.

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USA FEDERAL PROSECUTIONS IN WHICH THE DEATH PENALTY MAY BE SOUGHT

This Chapter sets forth the policies and procedures for all Federal cases in which a defendant is charged, or could be charged, with an offense subject to the death penalty. The provisions in this Chapter apply regardless of whether the United States Attorney or Assistant Attorney General intends to charge the offense subject to the death penalty or to request authorization to seek the death penalty for such an offense. The provisions in this Chapter are effective April 7, 2014, and they apply to any current or future investigations and indicted cases.


9-10.020 – RELEVANT STATUTORY PROVISIONS

Federal death penalty procedure is based on the Federal Death Penalty Act of 1994, codified at 18 U.S.C. §§ 3591 to 3599.

The death penalty procedures introduced by the Anti-Drug Abuse Act of 1988, codified in Title 21, were repealed on March 6, 2006, when President Bush signed the USA PATRIOT Improvement and Reauthorization Act of 2005. A district indicting a Title 21 capital offense, see 21 U.S.C. § 848, that occurred before March 6, 2006, should consult with the Capital Case Section of the Criminal Division (hereinafter the “Capital Case Section”) regarding indictment and procedure.

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Tihar Jail Hanging Rules and Procedures

PRISONERS SENTENCED TO DEATH

Intimation to Delhi Administration on admission and Execution of a death sentenced Prisoner in jail— (i) On admission of a convict sentenced to death in a prison, the Superintendent shall report the admission to the Administration. The Superintendent shall also report to the to the Administration the date fixed for his execution by the court of sessions on confirmation of the sentence of death by the High Court or in case of any stay of his execution.

On admission, a convict shall be thoroughly- searched as provided in section 30 of the Prisons Act. A women officer or under her orders, by a Matron.

(iii)Subject to the provisions of section 30 of the Act, all private property shall be removed from the convict.

Issue of Articles on admission- (i) The Deputy Superintendent shall ensure that the following articles are issued to a convict, on his admission to a prison:-
a. A pyjama without cord and a Kurta Two all wool blankets or two cotton wool blankets, A pot, plate and mug made of plastic PVC, two cotton sarees and blouses may be issued to female convicts. However, if it is considered unsafe to issue sarees to any such convicts, pyjama without cord and kurta may be issued to her.

b. A sheet stating that the convict has been sentenced to death, with state of health, description and date of submission of mercy petition.

Confinement in cell in Special ward– (i) Every convicts shall whether or not the sentenced of death has been confirmed by the High Court, from the date of his admission to a prison, be confined in a cell in a special ward, apart from all other prisoners as required by section 30 of the act. The cell or room in which a convict is confined shall before he is placed in it, be always examined by the Deputy Superintendent who shall satisfy himself about its fitness and safety. No prisoners expect convicts shall be kept in the special ward.

where there is more than one such cell in a prison, the convict shall be changed daily from one cell to another.

Guarding—(i) the convict shall be under observation of the guard on a Twenty-four hours basis. Convict officers shall not be employed on guard duty.

A guard shall in no case be given more than three hours duty at a stretch;

Every guard shall be equipped with a regulation baton and shall be so posted that the convict shall be under continuous watch. A convict shall not be taken out of his cell, unless at least two guards are present.

If an attempt to commit suicide by a convict is noticed, the guard on duty or the matron shall raise alarm for help, and enter the cell.

The guard in whose charge a convict is put shall allow no one to approach the cell, or communicate with him in any manner expect the superintendent and any officer authorized by the Superintendent in his behalf.

Every convict shall be thoroughly searched daily in the presence of the Deputy Superintendent immediately on opening of the cell in the morning when guards on duty are changed, and before lock-up.

Restriction on removal– Convicts shall not be removed to prison hospital for treatment without the previous sanction of the Inspector General; provided that the Superintendent may, if the Medical officer of the prison certifies that the convict is in danger no death, and requires immediate treatment in a prison hospital, order the removal of the convict from the prison to the prison hospital in anticipation of such sanction. If a convict is removed to a prison hospital, a special guard shall be posted according to the requirements of each case of a convict.

Interviews– (I) The Superintendent may permit a convict to have interview with the relative, friends or legal advisors, once a week, or more often, if the Superintendent is of the option that such interviews may be granted in the case of any convict.

(II) The convict shall be brought from the cell to the interview room if interview takes place outside the cell under proper escort at the time of interviewing and the interviewers and the convict shall be separated by expended metal barriers, “The
Superintendent shall before granting interviews, ensure that all precautionary and
Security measures are taken before hand”

Subject to the security requirement – (i) A convict may be allowed the following facilities at the discretion of the Superintendent, namely:

(a) religious books ;(b) religious pictures; (c) rosary and essential religious emblems subject to security requirements; (d) newspapers, books etc.

(ii) A convict may on the recommendation of the Medical Officer, be allowed exercise in open air and within the prison walls in the morning and evening, under the care of the guard.

Appeals-(i) Immediately on receipt of a warrant of execution consequent of the confirmation by the High Court of the sentence of death, the Superintendent shall inform the convict that if he wishes to appeal to the Supreme Court under any of the relevant provisions of the constitution of India, he may do so within the period prescribed.

(ii) Whenever a sentence of death has been passed by any Court or Tribunal, the sentence shall not be executed until after the dismissal of the appeal or of the application or, in case no such appeal has been preferred, or no such application has been made, until after the expiry of the period allowed for an appeal or for making of such application:

provided that, if a petition for mercy has been submitted by or on behalf of a convict, the execution of the sentence shall further be postponed, pending orders of the President thereon:

Provided further that, if the sentence of death has been passed on more than one person in the same case, and if an appeal or an application is made by or on behalf of only one or more but not all of them, the execution of the sentence shall be postponed in the case of all such convicts and not only in the case of the convict or convicts by whom, or on whose behalf, the appeal or the application is made.

Petition for mercy—(1) Except in cases where a convict has already submitted a petition for mercy, every convict shall be allowed for the preparation and submission of a petition for mercy, seven days after and exclusive of, the date on which the Superintendent of the jail informs him to the dismissal by the Supreme Court of his appeal, or as the case may be, of his application:

Provided that, in cases where no appeal has been preferred or no application has been made, the said period of seven days shall be computed from the date next after the date on which the period allowed for an appeal or for making an application expires.

If a convict submits a petition within the period of seven days prescribed if shall be addressed to the President of India. The Superintendent shall forthwith forward it by register post to the Secretary to the Home Department of Delhi Administration together with a covering letter stating that the date fixed for the execution has been stayed, pending receipt of the orders of the President of India of the petition.

If any person has been sentenced to death by court Martial then any such petition shall be addressed to the president of India and forwarded to the Government of India, Ministry of Defense for consideration.

Petition submitted after period prescribed—(1) Where a convict submits a petition after the expiry of the period prescribed, the Superintendent shall at once forward it to the Administrator and at the same time telegraph the substance of it, requesting orders whether the execution may be postponed, and stating that pending reply, the sentence shall not be carried out.

If such petition is received by the Superintendent later than noon on the day preceding that fixed for the execution, he shall at once forward it to the Administration and at the same time communicate the substance of it, giving the date of execution and stating that the sentence will be carried out, unless orders to the contrary are received, through the wireless facilities available in the jail.


Note: A copy of the judgment should also be sent as soon as possible.


Action on final confirmation of sentence—(1) The Administration shall fix date of execution of a convict of his/her Mercy Petition is rejected.

On receipt from the Administration of the final confirmation and the date of execution of a convict,

The convict and his relatives shall be informed about the date of execution by the Superintendent;

The convict, if he so desires, be permitted to prepare his will in accordance with his wishes. If the convict does not desire to prepare his will, his statement to that effect shall be recorded by the Superintendent.

Execution of death Sentence—(1) The execution shall usually be carried out in a special enclosure attached to or within the walls of the prison.

Management of Keys, Conditions under which the door may be opened

(a)The keys of the cell in which prisoner sentenced to death is confirmed shall be kept by the head warder on duty who, on hearing the alarm, shall proceed to such cell which in case of emergency, such as attempt by the prisoner to commit suicide, he shall enter and with the help of the sentry frustrate if.

(b)At no other time shall the door of the cell, in which prisoner sentence to death is confined, be opened without first handcuffing the prisoner and so securing him against the possibility of using violence or , if he declines to be handcuffed, unless at least three members of the establishment are present.

The locks in use in a condemned cell shall be such as cannot be opened by any keys in use in the jail, other than those properly belonging to them.

Occupation of cell –yards—Precautions to be taken

A prisoner sentenced to death should, unless there are any special reasons against it, which reasons be recorded by the Superintendent in his journal, be permitted to occupy the court-yard of his cell half an hour each morning and evening, but only one such prisoner at a time should be allowed to do so.

During the timer prisoner sentenced to death occupies his cell-yard, both the cell and yard doors should be kept locked and on each occasion before opening the cell-door to admit the Prisoner to the yard, hand-cuffs should be applied and retained on him till he is again locked into the cell.

A prisoner sentenced to death shall not be removed from his cell to the cell/yard or vice versa for any purpose except in the presence of the head warder.

A convict sweeper or other prisoner allowed to enter the cell of a prisoner sentenced to death, to perform any duty shall first be carefully searched and while carrying out his duty shall be kept under close observations by the warders on duty. Before the cell door is opened, handcuffs should be applied to the prisoner and not be removed till the cell door is locked upon him.


Note: To allow of hand-cuffs being applied before the cell door is opened, the prisoner should be asked to thrust his hands between two of the bars of the grated door and when he has been locked into the cell the handcuffs can be removed in a similar manner.


(4)Diet—Precautions to be taken-All food intended for consumption by a prisoner sentenced to death, shall be examined by the Deputy Superintendent, assistant Superintendent, Medical Subordinate, who may withhold any article he regards with suspicion and report the circumstance to the Superintendent. The food shall be delivered to the prisoner in the presence of one or other of these officers.

Exception in the case of females—In the case of a female under sentence of death:-

The prisoner shall be guarded by female warder who shall not be provided with batons.

The food shall be distributed by a female warder of the presence of the Deputy Superintendent.

(c)The prisoner shall not be handcuffed when she is allowed into the cell-yard.

Officer responsible for execution—Mishap to be reported—

The Superintendent is responsible that the arrangement for an execution are complete and made good in time and that the gallows, rope, cap and pinioning straps are in good order.

The occurrence of any mishap or departure from the orders laid down shall be reported to the Inspector General.

Description and testing of the rope

(a) A manila rope one inch in diameter shall be used for executions. At least two such ropes in serviceable condition shall be maintained at every jail where executions are liable to take place.


Note: The rope should be six meters in length, well twisted, and fully stretched. It should be of equal thickness, capable of passing readily through the noose-ring and sufficiently strong to bear a stain of 150Kgs. With a200 centimeters drop.


(b)The ropes shall be tested in the presence of Superintendent, atleast a week before the date fixed for the execution and if they fail to pass the test other shall be obtained at once and tested when received.

Ropes that have been tested shall be locked up in a place of safety.

On the evening before the execution is to take place, the gallows and ropes should be examined to ascertain that they have received no injury since being tested.


Note : The rope shall be tested by attaching to one end a sack of sand or clearly to equal to one and a half times the weight of the prisoner to be executed and dropping this weight to the distance of the drop to be given to the prisoner.


Officers to attend execution—The Superintendent and Medical Officer of the Jail and the Magistrate of the District, or a Magistrate deputed by him, are to be present when an execution is being carried out.

The Executioner

Executions shall be carried out by the Public Executioner whenever the services of the official are falling him, by his assistant or some trust-worthy individual locally entertained for the purpose.

On the first occasion of the employment of any person to perform the work of an Executioner, the Superintendent shall satisfy himself that he understands how to perform the duty. Such person shall reside at the jail for two days prior to the day fixed for execution.


Note: The services of the Executioner should be obtained through the Superintendent of the Jail from some other state, Inspector General of Prisons of that state, to whom at the same time, intimation should be sent about the date fixed for execution.


All other prisoners to be locked—Whenever an Execution is being carried out , all the other prisoners lodged in the jail shall be locked up in their barrack till the body is removed.

Regulation of the “drop”—The following scale of “drop” proportioned to the weight of the prisoner is given for general guidance. The Superintendent must use his discretion and be the advice of the Medical Officer and the physical condition of the prisoner—

For a prisoner under 50 Kgs. Weight 200cm. For a prisoner under 60 Kgs. Weight 180cm. For a prisoner under 70 Kgs. Weight 165cm.

For a prisoner under 80 Kgs. Weight 150cm.


Note: The “drop” is the length of the rope a point on the rope opposite the angle of the lower of the criminal as he stands on the scaffold, to the point where the rope is embraced in the noose after allowing for the construction of the neck place in hanging.


Time of executions—Procedure to be adopted—

(a)Executions shall take place at the following hours—

November to February…………………… at 8 a.m.
March, April, September to October……………………7 a.m.

May to August………………………………..6 a.m.

The Superintendent and Deputy Superintendent will visit the prisoner sentenced to death in his cell a few minutes before the hour fixed for execution. The Superintendent shall then first identity the prisoner, as the prisoner named in the warrant and read over a translation of the warrant in vernacular to the prisoner. Any other documents requiring attestation by the prisoner, such as his will, shall thereafter be signed and attested in the presence of the Superintendent. The Superintendent will then proceed to the scaffold, the prisoner regaining in his cell. In the presence of the Deputy Superintendent, the hands of convict will next-be pinioned behind his back and his leg irons ( if any) struck off.

The prisoner shall now be marched to the scaffold under the charge of the Deputy Superintendent and guarded by a Head Warder and six warders, two proceeding in front, two behind and each one holding either arm.

On the arrival of the prisoner at the scaffold, where the Superintendent, Magistrate and Medical Officer have already taken their place, the Superintendent shall inform the Magistrate that he has identified the prisoner and read the warrant over to him in vernacular.

The prisoner shall then be made over to the Executioner.

The criminal shall now mount the scaffold and shall be placed directly under the beam to which the rope is attached, the warders still holding him by the arms.

The Executioner shall next strap his legs tightly together, place the cap over his head and face and adjust the rope lighting round his neck, the noose being 11/2 inches to the right or left of the middle line and free from the fillip of the cap.

The warders holding the prisoner’s arms shall now withdraw and at a single from the Superintendent, the Executioner shall draw the bolt.

Body to remain suspended half an hour—return of warrant—

The body shall remain suspended half an hour and shall not be taken down till the Medical Officer declares life the extinct.

The Superintendent shall return the warrant of execution with an endorsement to (the effect that the sentence has been carried out).

22. No execution on public holiday—No convict shall be executed on a day which has been notified as a public holiday.

23. Postponement of execution on sentence on medical ground—(1) The execution of a convict shall not be carried out on the date fixed if he is physically unfit to receive the punishment, but in determining the degree of physical disability sufficient to justify postponement of the execution, the illness shall be both serious and acute) not chronic0 before postponement is considered.

(2) The Superintendent shall at once submit to the inspector general a detailed report of such cases together with the medical opinion regarding the degree of physical disability to the prisoner and the probable date, if any, on which the prisoner is likely to become physically fit for execution.

24. delay in capital sentence—Should any extra-ordinary or unavoidable delay occur in carrying out a capital sentence into execution from any cause other than the submission of an appeal or application, the Superintendent shall immediately report the circumstances to the Session judge and return the original warrant either for the issue of a fresh warrant, or for an endorsement upon the same warrant, of an order containing a definite date for carrying the postponed sentence into effect.

Report of execution of death sentence—The Superintendent shall, immediately after each execution, send a report thereof to the Inspector General and he shall return the warrant duly endorsed to the Court which issued it.


SOURCE: DELHI PRISONS (TREATMENT OF CONVICTS SENTENCED TO SIMPLE IMPRISONMENT, DEATH, FEMALE PRISONERS, YOUTHFUL PRISONERS, LEPER PRISONERS AND LUNATIC PRISONERS) RULES, 1988

DELHI PRISONS (TREATMENT OF CONVICTS SENTENCED TO SIMPLE IMPRISONMENT, DEATH, FEMALE PRISONERS, YOUTHFUL PRISONERS, LEPER PRISONERS AND LUNATIC PRISONERS) RULES, 1988

Short title and commencement- (1) these rules may be called the delhi prisons (treatment of convicts sentenced to simple imprisonment, death, female prisoners, youthful prisoners, leper prisoners and lunatic prisoners) rules, 1981.

They shall come into force at once.

I.CONVICTS, SENTENCED TO SIMPLE IMPRISONMENT

TREATMENT OF SIMPLE IMPRISONMENT CONVICTS – (I) convicts sentenced to simple imprisonment shall be subject to as little restriction as is consistent with the maintenance of order or discipline in the jail.

They shall, with the exception of such as are class habitual (who shall be required to wear the Prescribed prison outfit), be permitted to retain their private thinking, but should not be allowed to wear such symbols as are prohibited by Delhi administration from time to time.

The Superintendent may for any sufficient reason, which he shall record in his normal deprive any convict of this class of the privilege of being allowed to wear his private clothing or any portion of it.

Note: Ex-military convicts sentenced to simple imprisonment are not entitled to wear military uniform while in jail.

Article to be issued, such articles to be kept clean- A convict sentenced to simple imprisonment shall—

If his private clothing is insufficient for warrant or for purpose of decency, be supplied with such prison clothing as may be necessary.

Be supplied with such prison utensils and beddings as issued to convicts under sentence to labour; and

Be required to keep such clothing, bedding and other necessities as may be issued to him in a clean and orderly conditions.

Published in Delhi Gazette, Extra ordinary Part IV, No. 76, dated 18th April 1988 vides Notification No. F-9/75/87-Home (General)/ (IX), in exercise of the powers conferred under clause (23), (27) & (28) of section 59 of the prisons Act, 1894 (IX) of 1894) by the Administration of the Union Territory of Delhi.

Simple Imprisonment convicts to keep the wards and yards clean- convicts sentenced to simple imprisonment shall keep their wards and yards clean.

Convicts allowed to converse- Convicts sentenced to simple imprisonment shall, except during parades, at exercise time and when ordered not to do so, be allowed to converse together in a quiet and orderly manner.

Conditions subject to which convicts may labour- (i) A prisoner sentenced to simple imprisonment volunteering to work, shall be allowed to choose such work as is available.

If in the opinion of the Superintendent, he performs a reasonable amount of work, he shall be entitled to laboring diet and wages.

He shall not be punished for neglect of work otherwise than reversion to the non- laboring scale diet.

If the expresses a desire at any time to cease work, he shall be permitted to do
so.
If he elects to labour, he shall be required to wear the prison uniform.

PRISONERS SENTENCED TO DEATH

Intimation to Delhi Administration on admission and Execution of a death sentenced Prisoner in jail— (i) On admission of a convict sentenced to death in a prison, the Superintendent shall report the admission to the Administration. The Superintendent shall also report to the to the Administration the date fixed for his execution by the court of sessions on confirmation of the sentence of death by the High Court or in case of any stay of his execution.

On admission, a convict shall be thoroughly- searched as provided in section 30 of the Prisons Act. A women officer or under her orders, by a Matron.

(iii)Subject to the provisions of section 30 of the Act, all private property shall be removed from the convict.

Issue of Articles on admission- (i) The Deputy Superintendent shall ensure that the following articles are issued to a convict, on his admission to a prison:-
a. A pyjama without cord and a Kurta Two all wool blankets or two cotton wool blankets, A pot, plate and mug made of plastic PVC, Two cotton sarees and blouses may be issued to female convicts. However, if it is considered unsafe to issue sarees to any such convicts, pyjama without cord and kurta may be issued to her.

A sheet stating that the convict has been sentenced to death, with state of health, description and date of submission of mercy petition.

Confinement in cell in Special ward– (i) Every convicts shall whether or not the sentenced of death has been confirmed by the High Court, from the date of his admission to a prison, be confined in a cell in a special ward, apart from all other prisoners as required by section 30 of the act. The cell or room in which a convict is confined shall before he is placed in it, be always examined by the Deputy Superintendent who shall satisfy himself about its fitness and safety. No prisoners expect convicts shall be kept in the special ward.

where there is more than one such cell in a prison, the convict shall be changed daily from one cell to another.

Guarding—(i) the convict shall be under observation of the guard on a Twenty-four hours basis. Convict officers shall not be employed on guard duty.

A guard shall in no case be given more than three hours duty at a stretch;

Every guard shall be equipped with a regulation baton and shall be so posted that the convict shall be under continuous watch. A convict shall not be taken out of his cell, unless at least two guards are present.

If an attempt to commit suicide by a convict is noticed, the guard on duty or the matron shall raise alarm for help, and enter the cell.

The guard in whose charge a convict is put shall allow no one to approach the cell, or communicate with him in any manner expect the superintendent and any officer authorized by the Superintendent in his behalf.

Every convict shall be thoroughly searched daily in the presence of the Deputy Superintendent immediately on opening of the cell in the morning when guards on duty are changed, and before lock-up.

Restriction on removal– Convicts shall not be removed to prison hospital for treatment without the previous sanction of the Inspector General; provided that the Superintendent may, if the Medical officer of the prison certifies that the convict is in danger no death, and requires immediate treatment in a prison hospital, order the removal of the convict from the prison to the prison hospital in anticipation of such sanction. If a convict is removed to a prison hospital, a special guard shall be posted according to the requirements of each case of a convict.

Interviews– (I) The Superintendent may permit a convict to have interview with the relative, friends or legal advisors, once a week, or more often, if the Superintendent is of the option that such interviews may be granted in the case of any convict.

(II) The convict shall be brought from the cell to the interview room if interview takes place outside the cell under proper escort at the time of interviewing and the interviewers and the convict shall be separated by expended metal barriers, “The
Superintendent shall before granting interviews, ensure that all precautionary and
Security measures are taken before hand”

Subject to the security requirement – (i) A convict may be allowed the following facilities at the discretion of the Superintendent, namely: (a) religious books ;(b) religious pictures; (c) rosary and essential religious emblems subject to security requirements; (d) newspapers, books etc.

(ii) A convict may on the recommendation of the Medical Officer, be allowed exercise in open air and within the prison walls in the morning and evening, under the care of the guard.

Appeals-(i) Immediately on receipt of a warrant of execution consequent of the confirmation by the High Court of the sentence of death, the Superintendent shall inform the convict that if he wishes to appeal to the Supreme Court under any of the relevant provisions of the constitution of India, he may do so within the period prescribed.

(ii) Whenever a sentence of death has been passed by any Court or Tribunal, the sentence shall not be executed until after the dismissal of the appeal or of the application or, in case no such appeal has been preferred, or no such application has been made, until after the expiry of the period allowed for an appeal or for making of such application: provided that, if a petition for mercy has been submitted by or on behalf of a convict, the execution of the sentence shall further be postponed, pending orders of the President thereon:

Provided further that, if the sentence of death has been passed on more than one person in the same case, and if an appeal or an application is made by or on behalf of only one or more but not all of them, the execution of the sentence shall be postponed in the case of all such convicts and not only in the case of the convict or convicts by whom, or on whose behalf, the appeal or the application is made.

15. Petition for mercy—Stay of execution—(1) On receipt of an intimation of the dismissal by the Supreme Court of the appeal, or as the case may be, the application lodged by or on behalf of the convict, the Superintendent shall unless he has already made an application for mercy, forthwith inform him that if he desire to submit such petition, it should be submitted, in writing within seven days from the date of such intimation.

In cases where no appeal or no application has been made by or on behalf of a convict, the said period of seven days shall be counted from the date next after the date on which the time allowed for making appeal or an application, expire.

Petition for mercy—(1) Except in cases where a convict has already submitted a petition for mercy, every convict shall be allowed for the preparation and submission of a petition for mercy, seven days after and exclusive of, the date on which the Superintendent of the jail informs him to the dismissal by the Supreme Court of his appeal, or as the case may be, of his application:

Provided that, in cases where no appeal has been preferred or no application has been made, the said period of seven days shall be computed from the date next after the date on which the period allowed for an appeal or for making an application expires.

If a convict submits a petition within the period of seven days prescribed if shall be addressed to the President of India. The Superintendent shall forthwith forward it by register post to the Secretary to the Home Department of Delhi Administration together with a covering letter stating that the date fixed for the execution has been stayed, pending receipt of the orders of the President of India of the petition.

If any person has been sentenced to death by court Martial then any such petition shall be addressed to the president of India and forwarded to the Government of India, Ministry of Defense for consideration.

Petition submitted after period prescribed—(1) Where a convict submits a petition after the expiry of the period prescribed, the Superintendent shall at once forward it to the Administrator and at the same time telegraph the substance of it, requesting orders whether the execution may be postponed, and stating that pending reply, the sentence shall not be carried out.

If such petition is received by the Superintendent later than noon on the day preceding that fixed for the execution, he shall at once forward it to the Administration and at the same time communicate the substance of it, giving the date of execution and stating that the sentence will be carried out, unless orders to the contrary are received, through the wireless facilities available in the jail.

Insanity—(1) If any prisoner awaiting sentence of death shows signs of insanity which in opinion of the Medical Officer, are not feigned, or require observation to determine whether or not they are feigned, the circumstances shall at once be reported to the Administration by the Superintendent under intimation to the Deputy Inspector General, for orders along with the following documents, i.e.

The nominal roll of the prisoner;
A copy of the warrant under which he is confined9in duplicate);

The Medical Officer’s certificate; and
The Medical history sheet.


Note: A copy of the judgment should also be sent as soon as possible.


If the Administration orders the appointment of a special Medical Board for the purpose of examining the mental condition of a convict, he shall be kept under observation in the prison by the Mental Specialist in charge of the nearest Mental Hospital or the Civil Surgeon for a period of ten days or longer if considered necessary prior to his examination by the Medical Board.

The Superintendent and the Medical Officer of the prison in which the convict is confined shall give all facilities to the Mental Specialist or the Civil Surgeon for the physical examination of the convict including serological tests and for the observation of the convict without his knowledge.

As soon as possible after the Medical Board is appointed and the convict is placed under observation, the Superintendent shall collect information about the convict through the police or other sources and place it at the disposal of the Mental Specialist or the Civil Surgeon.

As soon as the Mental Specialist or the Civil Surgeon is ready with his report, he shall request the Director of Health Services to fix a date for the meeting of the Special Medical Board.

The Medical Specialist or the civil surgeon shall place all the record before the Special Medical Board. The Chairman of the Board shall forward all its proceedings together with their own opinion to the Secretary, Home Department through the inspector General and the Director of Health Services for obtaining to further orders of the Administrator thereon.

Pregnancy—(1) Where a woman convict is certified by medical Officer to be pregnant, the Medical Officer shall inform the Superintendent of the same, and the Superintendent shall make a note to that effect on the warrant, and return the warrant to the Session Judge for endorsing an order for the suspension of the execution of the sentence, until the orders of the High Court have been taken under section 416 of the Code of Criminal Procedure 1973.

Where a woman convict declares herself be pregnant, and the Medical Officer is unable to certify the truth or otherwise of the statement, he shall state the interview of time necessary to enable him to satisfy himself on the point. The superintendent shall report the case to the administration for further orders through the inspector General of Prisons for postponing the date of the Execution. If the Medical Officers confirms the fact of pregnancy, the provisions of sub-rule (1) of this rule shall apply.

Where execution of the capital sentence on a woman convict has been suspended under either of the preceding sub-rules, the sentence shall not afterwards be executed without the express orders orders of the Administration foe which the Superintendent shall apply immediately through the Inspector General of prisons.

Action on final confirmation of sentence—(1) The Administration shall fix date of execution of a convict of his/her Mercy Petition is rejected.

On receipt from the Administration of the final confirmation and the date of execution of a convict,

The convict and his relatives shall be informed about the date of execution by the Superintendent;

The convict, if he so desires, be permitted to prepare his will in accordance with his wishes. If the convict does not desire to prepare his will, his statement to that effect shall be recorded by the Superintendent.

Execution of death Sentence—(1) The execution shall usually be carried out in a special enclosure attached to or within the walls of the prison.

Management of Keys, Conditions under which the door may be opened

(a)The keys of the cell in which prisoner sentenced to death is confirmed shall be kept by the head warder on duty who, on hearing the alarm, shall proceed to such cell which in case of emergency, such as attempt by the prisoner to commit suicide, he shall enter and with the help of the sentry frustrate if.

(b)At no other time shall the door of the cell, in which prisoner sentence to death is confined, be opened without first handcuffing the prisoner and so securing him against the possibility of using violence or , if he declines to be handcuffed, unless at least three members of the establishment are present.

The locks in use in a condemned cell shall be such as cannot be opened by any keys in use in the jail, other than those properly belonging to them.

Occupation of cell –yards—Precautions to be taken

A prisoner sentenced to death should, unless there are any special reasons against it, which reasons be recorded by the Superintendent in his journal, be permitted to occupy the court-yard of his cell half an hour each morning and evening, but only one such prisoner at a time should be allowed to do so.

During the timer prisoner sentenced to death occupies his cell-yard, both the cell and yard doors should be kept locked and on each occasion before opening the cell-door to admit the Prisoner to the yard, hand-cuffs should be applied and retained on him till he is again locked into the cell.

A prisoner sentenced to death shall not be removed from his cell to the cell/yard or vice versa for any purpose except in the presence of the head warder.

A convict sweeper or other prisoner allowed to enter the cell of a prisoner sentenced to death, to perform any duty shall first be carefully searched and while carrying out his duty shall be kept under close observations by the warders on duty. Before the cell door is opened, handcuffs should be applied to the prisoner and not be removed till the cell door is locked upon him.


Note: To allow of hand-cuffs being applied before the cell door is opened, the prisoner should be asked to thrust his hands between two of the bars of the grated door and when he has been locked into the cell the handcuffs can be removed in a similar manner.


(4)Diet—Precautions to be taken-All food intended for consumption by a prisoner sentenced to death, shall be examined by the Deputy Superintendent, assistant Superintendent, Medical Subordinate, who may withhold any article he regards with suspicion and report the circumstance to the Superintendent. The food shall be delivered to the prisoner in the presence of one or other of these officers.

Exception in the case of females—In the case of a female under sentence of death:-

The prisoner shall be guarded by female warder who shall not be provided with batons.

The food shall be distributed by a female warder of the presence of the Deputy Superintendent.

(c)The prisoner shall not be handcuffed when she is allowed into the cell-yard.

Prohibition against removal of convict under sentence of death to give evidence—When the evidence of convict under sentence of death is required, the court shall proceed to the jail for the purpose and shall not require the convict’s attendance under sec. 3(2) of the prisoners(Attendance in court) Act,1955 (act 32 of 1955) and of death is required by a Session or high Court for the presence of a convict under sentence evidence, the convict’s attendance may be required under section 3 92) of the prisoners attendance in courts) Act, 1955 and section 267,Cr.P.C.,1973.

Officer responsible for execution—Mishap to be reported—

The Superintendent is responsible that the arrangement for an execution are complete and made good in time and that the gallows, rope, cap and pinioning straps are in good order.

The occurrence of any mishap or departure from the orders laid down shall be reported to the Inspector General.

(8)Description and testing of the rope

(a) A manila rope one inch in diameter shall be used for executions. At least two such ropes in serviceable condition shall be maintained at every jail where executions are liable to take place.


Note: The rope should be six meters in length, well twisted, and fully stretched. It should be of equal thickness, capable of passing readily through the noose-ring and sufficiently strong to bear a stain of 150Kgs. With a200 centimeters drop.


(b)The ropes shall be tested in the presence of Superintendent, atleast a week before the date fixed for the execution and if they fail to pass the test other shall be obtained at once and tested when received.

Ropes that have been tested shall be locked up in a place of safety.

On the evening before the execution is to take place, the gallows and ropes should be examined to ascertain that they have received no injury since being tested.


Note : The rope shall be tested by attaching to one end a sack of sand or clearly to equal to one and a half times the weight of the prisoner to be executed and dropping this weight to the distance of the drop to be given to the prisoner.


Officers to attend execution—The Superintendent and Medical Officer of the Jail and the Magistrate of the District, or a Magistrate deputed by him, are to be present when an execution is being carried out.

The Executioner

Executions shall be carried out by the Public Executioner whenever the services of the official are falling him, by his assistant or some trust-worthy individual locally entertained for the purpose.

On the first occasion of the employment of any person to perform the work of an Executioner, the Superintendent shall satisfy himself that he understands how to perform the duty. Such person shall reside at the jail for two days prior to the day fixed for execution.


Note: The services of the Executioner should be obtained through the Superintendent of the Jail from some other state, Inspector General of Prisons of that state, to whom at the same time, intimation should be sent about the date fixed for execution.


All other prisoners to be locked—Whenever an Execution is being carried out , all the other prisoners lodged in the jail shall be locked up in their barrack till the body is removed.

Regulation of the “drop”—The following scale of “drop” proportioned to the weight of the prisoner is given for general guidance. The Superintendent must use his discretion and be the advice of the Medical Officer and the physical condition of the prisoner—

For a prisoner under 50 Kgs. Weight 200cm. For a prisoner under 60 Kgs. Weight 180cm. For a prisoner under 70 Kgs. Weight 165cm.

For a prisoner under 80 Kgs. Weight 150cm.


Note: The “drop” is the length of the rope a point on the rope opposite the angle of the lower of the criminal as he stands on the scaffold, to the point where the rope is embraced in the noose after allowing for the construction of the neck place in hanging.


Time of executions—Pro cedure to be adopted—

(a)Executions shall take place at the following hours—

November to February…………………… at 8 a.m.
March, April, September to October……………………7 a.m.

May to August………………………………..6 a.m.

The Superintendent and Deputy Superintendent will visit the prisoner sentenced to death in his cell a few minutes before the hour fixed for execution. The Superintendent shall then first identity the prisoner, as the prisoner named in the warrant and read over a translation of the warrant in vernacular to the prisoner. Any other documents requiring attestation by the prisoner, such as his will, shall thereafter be signed and attested in the presence of the Superintendent. The Superintendent will then proceed to the scaffold, the prisoner regaining in his cell. In the presence of the Deputy Superintendent, the hands of convict will next-be pinioned behind his back and his leg irons ( if any) struck off.

The prisoner shall now be marched to the scaffold under the charge of the Deputy Superintendent and guarded by a Head Warder and six warders, two proceeding in front, two behind and each one holding either arm.

On the arrival of the prisoner at the scaffold, where the Superintendent, Magistrate and Medical Officer have already taken their place, the Superintendent shall inform the Magistrate that he has identified the prisoner and read the warrant over to him in vernacular.

The prisoner shall then be made over to the Executioner.

The criminal shall now mount the scaffold and shall be placed directly under the beam to which the rope is attached, the warders still holding him by the arms.

The Executioner shall next strap his legs tightly together, place the cap over his head and face and adjust the rope lighting round his neck, the noose being11/2 inches to the right or left of the middle line and free from the fillip of the cap.

The warders holding the prisoner’s arms shall now withdraw and at a single from the Superintendent, the Executioner shall draw the bolt.
Body to remain suspended half an hour—return of warrant—

The body shall remain suspended half an hour and shall not be taken down till the Medical Officer declares life the extinct.

The Superintendent shall return the warrant of execution with an endorsement to (the effect that the sentence has been carried out).

22. No execution on public holiday—No convict shall be executed on a day which has been notified as a public holiday.

23. Postponement of execution on sentence on medical ground—(1) The execution of a convict shall not be carried out on the date fixed if he is physically unfit to receive the punishment, but in determining the degree of physical disability sufficient to justify postponement of the execution, the illness shall be both serious and acute) not chronic0 before postponement is considered.

(2) The Superintendent shall at once submit to the inspector general a detailed report of such cases together with the medical opinion regarding the degree of physical disability to the prisoner and the probable date, if any, on which the prisoner is likely to become physically fit for execution.

24. delay in capital sentence—Should any extra-ordinary or unavoidable delay occur in carrying out a capital sentence into execution from any cause other than the submission of an appeal or application, the Superintendent shall immediately report the circumstances to the Session judge and return the original warrant either for the issue of a fresh warrant, or for an endorsement upon the same warrant, of an order containing a definite date for carrying the postponed sentence into effect.

Report of execution of death sentence—The Superintendent shall, immediately after each execution, send a report thereof to the Inspector General and he shall return the warrant duly endorsed to the Court which issued it.

FEMALE PRISONER AND CHILDREN

Disposal of female convicts—Every female convicts shall be detained in the female ward of the Central Jail.

A female under trial allowed occupying a cell—A female under trial prisoner shall with the permission of the Superintendent have the choice of occupying a cell instead of the under trial prisoners wards:

Provided that a cell is available and that arrangements can be made to place on duty a female warder or a female convict officer at all times, within hearing of the prisoner and that the keys of the cell are always ready to hand.

When a female prisoner is the only occupant of a ward—If there be even one female prisoner in the jail, arrangements shall be made for a female warder to remain with her both by day and night.

Children of female prisoners—(1) A child under the age of four years, the offspring of a female prisoner, shall, if has not been weaned or it has been weaned and no friend or relative can be found to take charge of it be admitted in jail with the mother.

A child born in jail may be permitted to remain with the mother.

As soon as any child admitted or born in jail attains the age of 4 years or female prisoner dies leaving a child under that age, the Superintendent shall communicate with the Magistrate of the District of which the mother is or was a resident, with a view of the child being made over to the charge of a relative or friends or being placed in an orphanage or being entrusted to some respectable person to be brought up at the expense of Government, if necessary until it attains an age of earning a livelihood.

Any female prisoner may be allowed to retain her child with her until it is four or with the approval of the superintendent even upto six year of age, if she so desires.

Any special circumstances, if the child is sick/ mental/ retarded/ handicapped may also be allowed to stay with his/her mother if she desires when after attaining the age of six.

30.Female remain in the female enclosure—No female prisoner shall otherwise than under lawful authority, on any pretext leave or be removed from the female enclosure of the jail.

Supply of food and concertants of the female enclosure—(1) Cooked food shall be brought to the female enclosure by a convict-cook accompanied by a warder and place outside the enclosure gate from which it shall be taken in side by the female warder or a female prisoner.

The Manual duties shall be performed by the female prisoner inside the female
ward.

Keys of the female enclosure lock of main entrance—(1) The Keys of the various locks in use in the female enclosure shall (other than the outer lock of the main entrance), be kept in possession of the Matron when she is present.

Before leaving the female enclosure, the Matron shall lock the prisoner into their sleeping wards or work-shops and having done so shall lock down of the main entrance and make the keys over to the Deputy Superintendent.

Note 1 : When the matron leaves the ward, the main entrance door shall be locked on the outside by double locks. The keys of one of these will be handed over, with her other keys by the matron to the Deputy Superintendent. The other keys will remain by day in the custody of the Head Warder on duty and by night at the main gate.

IV. YOUTHFULL PRISONERS

Definition—prisoners between the ages of sixteen and twenty one shall be called youthful prisoners. They will be divided into two groups:-

Those who are of the ages sixteen, seventeen and eighteen are to be called adolescent prisoners: and

Those who are of the ages nineteen, twenty and twenty one are to be called youth prisoners.

Adolescents to be kept separate at night and associated by day—(1) Every jail shall be provided with a separate adolescent ward for the separation of the adolescent prisoner at night. If a suitable ward does not exist adolescent prisoners should be kept separate by night in the best possible manner.

Adolescent prisoners may be allowed to associate during the day in the same enclosure or building under the charge of an elderly warder whose ingredient are beyond doubt, but the different classes should be made to sit some distance apart and all communication between them prevented.

Youth to be kept separate at night and associated by day—(1) Every jail shall be provided with a separate youth ward for separation of youth prisoners at night. If suitable ward does not exist youth prisoners should be separated at night in the best possible manner from all other prisoners.

Youth prisoners may be allowed to associate during the day in the same enclosure or building under the charge of an elderly warder whose integrity is beyond doubt but the different classes should be made to sit some distance apart and all communication between them prevented.

Deputy Superintendent to be incharge—Deputy Superintendent shall be incharge of the adolescent ward and youth ward and responsible for their welfare in general.
Adolescent and youth to be taught a handicraft, exercised daily and instructed-
Every adolescent or youth convict shall be:-
employed on or taught some simple and suitable handicraft;

exercise one hour each day either by marching by drill or by gymnastic exercise or sports or athletics activity, and a male, sentenced to imprisonment for a year or more, be brought under a course of instruction in basic education for an hour in the morning and an hour in the afternoon daily.

The inspector General may from time to time prescribe the course of instructions.

Employment of a convict as instructor—Should it be necessary at any time to employ a convict for the instruction of adolescent and youth prisoners under the provisions of the preceding rules, an elderly, well behaved and causal prisoner should be selected. He shall on no pretext be left be left alone with adolescent and youth.

Instruction to be given to adolescent and youth prisoners—(1) As far as practicable the course contents of the educational programmes in force in the schools of the MCD/NDMC,

Delhi Administration and approved by Central Board of Secondary Education shall be taken into consideration while imparting general education to the adolescent and youth prisoners in jail.

The Adolescent and youth prisoners shall be educated on moral values and social responsibility.

Every adolescent and youth prisoners shall be given some vocational training and taught the values of dignity of labour.

Except under the direction of the Deputy Superintendent the adult prisoner shall not be permitted to enter the wards of adolescent or youth prisoners under any circumstances

Television, books and sports facilities—Television, books and sports facilities shall be provided inside the adolescent ward and the youth ward. Similar facilities shall also be provided to lifers and long term convicts.

Supply of adequate clothing—The adolescent and the youth who are not properly clothed shall be provided with proper clothes as far as practicable from the welfare fund of the prison falling which at Govt. Expenses.

V. LEPER PRISONERS

Record of leprosy on history tickets—when any prisoner convicted, unconverted or civil is found to be suffering from leprosy, the Medical Officer shall record the fact on his history ticket.

Procedure when it is desired to transfer a leper—Whenever the Medical officer record that a prisoner is suffering from leprosy and, that his separation from other prisoner is

necessary, the Superintendent shall submit his descriptive role to the inspector General, who shall order the transfer of the prisoner to a place where there is accommodation for leper convicts.

Segregation and disinfection—any under trial or convicted prisoner who is suffering from leprosy, shall pending transfer or release be confined in a cell but care shall be taken that such confinement is not solitary. A cell or other, compartment occupied by a leper shall be thoroughly disinfected, the floors renewed and the wails replastered before any other prisoner is confined in it.

Note: clothing and bedding used by a leper prisoner should be destroyed and not reissued.

VI. LUNATIC PRISONERS

Classification of criminal lunatics—The expression “criminal lunatics” shall be deemed to include persons of the following classes namely;

(1) A person who is charged with an offence, in respect of whose soundless of mind the Magistrate trying the case entertains doubts, and who is sent to a jail for medical observation, under section 328 of the code of Criminal Procedure, 1973.

(2) A person who is charged with an offence, but who, by reason of unsoundless of mind is incapable of making a defence and who is, in consequences, detained under section 330 of the Code of Criminal procedures, 1973 pending the orders of the Local Government.

(3) A person who has been held to have committed an act which-would but for the unsoundless

Of mind of the doer, have constituted an offence, but who has been acquitted on the ground that he was of unsound mind when this act was committed, and is detained under sections 335 and 336 of the Code of Criminal Procedure, 1973 pending the orders and daring the pleasure of the Government; and
A convict who becomes insane.

Non- Criminal Lunatics—(1) Non–criminal lunatic shall be ordinarily detained in the mental hospital.

(2) When a lunatic is detained in a jail, the Superintendent should make the best arrangements in his power for the comfort of the lunatics, having regard to his class and condition in life, and should keep him as far as possible apart from other prisoners.

Detention of criminal lunatic – Procedure when period expires – The maximum period during which a non-criminal lunatic can be detained for observation is 14 days. Upon the expiry of this period the Superintendent shall address the Magistrate or Officer under whose warrant the person is detained, pointing out that the authorized period of detention had expired and requesting that an order for the release of the person detained or his transfer to as may be furnished, by the end of seven days or more, if the Superintendent has not received the Courts order, he shall report the matter to the Inspector General.


Note: Non-criminal lunatics shall be entirely excluded from all statistics returns relating to jails. Their maintenance charges for the period of observation shall be borne by the jail department.


Procedure when certain lunatics are committed to jail – (1) whenever a person belonging to class 2 (Rule 46) is detained in a jail under section 330 of the Code of Criminal procedure 1973, the Superintendent shall apply to the District Magistrate for an order for his transfer to a mental hospital in anticipation of the receipts of orders from Government.

Whenever a person belonging to class1 or class 2 of Rule 46 is detained in a jail for more than a month the fact shall be reported to the Inspector General.

Criminal lunatics how to be confined – (1) Whenever a criminal lunatics is found to be dangerous, noisy or filthy in his habits, he shall be confined in a cell, and kept under strict and continuous supervision.

Save as provided in clause (1), criminal lunatics, other than convicts who have become insane, may, in the discretion of the Medical Officer, be detained in the jail hospital or in a ward not a part for unconvicted criminal prisoners.

Report on a convict who becomes insane – If any convict becomes insane, a report regarding his case shall be submitted to the Inspector General without view to obtaining the orders of Government for his removal to a mental hospital,

Transfer of lunatic prisoner to a mental hospital – (1) On the receipt of an order from the government for the removal of a lunatic to a mental hospital, the Superintendent shall forward him to the hospital specified with all documents namely:-

The Government order directing his transfer;

His descriptive roll;

A medical certificate;

His history ticket and private property, if any;

Warrant of imprisonment;

Remission sheet;

If a convict a copy of the Court’s Judgment in his case.

The superintendent of a Jail while sending a condemned prisoner to Mental Hospital in the state for treatment or observation shall requisition special police guard to escort the condemned prisoner to the Mental Hospital.


Note 1: if the Court’s judgment does not contain full particulars of the offence committed, a copy of the Police report on the arrest or that of the Police roznamcha, should accompany the lunatic.

Note 2: All Government property accompanying a lunatic on transfer to a Mental Hospital should be returned to the dispatching jail.


Condition before a transfer can be made – No criminal lunatic shall be transferred from a jail to a lunatic asylum until it has been ascertained form the Superintendent of the Mental hospital to which he/she is proposed to be transferred is prepared to receive him.

Transfer in anticipation in urgent cases – In urgent cases (i.e., if the lunatic is dangerous, noisy or filthy in his habits) the Superintendent may, with the pervious consent of the Superintendent of the Mental Hospital, transfer the prisoner to the Mental hospital, in anticipation of the necessary sanction. In such cases, with the lunatic shall be forwarded the documents required by rule 51 with the exception of the Government order which should follow immediately after it has been received.

Time spent in asylum to count as sentence – When any convicted criminal lunatic has become of sound mind, and an order has been issued by Government for his return to jail, the time during which he was detained in the mental hospital shall be reckoned as sentence undergone.

Procedure when a recovered lunatic has a relapse – (1) When a recovered convicted criminal lunatic undergoing imprisonment in a jail has a relapse of insanity, he should be immediately returned to the mental hospital from which he came, in anticipation of the orders of Government. In such a case the documents, etc. required by rule 51 should be forwarded with him; the order should follow immediately after it has been received.

The Superintendent shall forthwith apply through the Inspector General for the confirmation of his action by the Government, submitting at the same time, the documents required by rule 51.

Transfer of lunatic returned to jail – When a recovered criminal lunatic is returned to a jail, he shall be given some employment with or without pay and with such an amount of liberty as the Medical Officer may consider safe.

Half yearly return of criminal lunatics – In accordance with the instruction in the preceding rule, Superintendents shall, on the 1st of January and 1st of July of each year forward to the Inspector General a report on the prisoners confined in their jails under sections 330, 335 and 336 of the Criminal Procedure Code, 1973.


Note: When no such prisoners are confined in the jail, a blank return should be submitted.


Discipline and punishment of lunatics – (1) A lunatic cannot be punished for any act committed by him, but such restrains can be imposed as are necessary to prevent him injuring himself or others, or causing inconvenience.

A person confined during the pleasure of Government when not actually insane, is subject to the same discipline as a convict sentenced to rigorous imprisonment, except that he cannot be made to labour.

A person who is confined under observation is, of same, liable to jail discipline.

Lunatics to be visited by Inspector General Etc. – Inspector General or the visitors of the jail or any two of them may visit a lunatic confined in a jail in order to ascertain the state of his mind. If a prisoner is confined in the mental hospital Inspector General or visitor or any two of them shall visit him once in six months and shall make a special report to the Administrator as to the state of mind of such a person.


Note: For statutory provisions concerning authority of these rules, see Appendix-3, prisons ACT, 1894- SECTION 30, 35, 36 AND 59; APPENDIX- 16, CRIMINAL PROCEDURE CODE, 1973-SECTIONS 267, 328, 330, 335, 416 AND APPENDIX-10, THE PRISONERS (ATTENDENCE IN COURTS) ACT, 1955.

Hariom Vijay Pande, Convict No. C-92 vs State of Maharashtra, Through Divisional Commissioner, Nagpur- 3/12/2019

Parole leave is recognized as a statutory right as per Rule 19 of the Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959 (hereinafter referred to as ‘Rules of 1959’ for short) and the convicts are entitled for parole leave, if the circumstances as referred in Rule 19 exist. Of course, it is not the absolute right of the convict to seek parole leave and the right is circumscribed by various other considerations including the objective satisfaction of the jail authorities and the authority competent to consider the application made by the convict for grant of parole leave.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

CRIMINAL WRIT PETITION NO. 769 OF 2019

Hariom Vijay Pande, Convict No. C-92, Aged Major, Occ. Business- Nil, Confined at Open Prison, Gadchiroli. ….. PETITIONER

… Versus …

1. State of Maharashtra,

Through Divisional Commissioner, Nagpur.

2. The Superintendent, Open Prison, Gadchiroli.

                                            ….. RESPONDENTS

Act: Rule 19 of the Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959

Advocates: 

Ms. Laxmi Y. Malewar, Advocate for the Petitioner.

Ms. N.R. Tripathi, A.P.P for the Respondents/State.

CORAM: Z.A. HAQ & S.M. MODAK, JJ.

DATED: 03/12/2019

ORAL JUDGMENT

Per Z.A. Haq, J :

01] Rule. Rule made returnable forthwith.

02] The petitioner is convicted for the offence punishable under Section 302 read with Section 34 of Indian Penal Code and is undergoing life imprisonment since 2010. The petitioner had applied for grant of parole leave on 16th July, 2018 on the ground that his wife was suffering from serious illness. According to the respondents, the application of petitioner was sent to the Office of Superintendent of Police, Azamgarh (Uttar Pradesh), from where the petitioner hails. The Police Sub-Inspector of Police Station, Azamgarh submitted his report dated 19th February, 2019, which was received by the Office of respondent No.2 on 5th March, 2019. This report shows that the claim of the petitioner (convict) that his wife was suffering from illness was correct. However, release of petitioner on parole leave was objected on the ground that there was a possibility of petitioner absconding after his release on parole leave. Parole application filed by the petitioner came to be rejected by order dated 4th June, 2019.

03] From the reply filed by the respondent No.2, it is noticed that when the petitioner was earlier released on furlough leave in January 2015, August 2018 and September 2019, every time he had surrendered himself on due date and when he was released on parole leave in May 2017, that time also he surrendered himself on due date. The report submitted by the Police Sub-Inspector, Police Station, Azamgarh does not give any details as to on what basis Police Sub-Inspector, Police Station, Azamgarh came to the conclusion that there was every possibility that the petitioner may abscond if he is released on parole leave.

Parole leave is recognized as a statutory right as per Rule 19 of the Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959 (hereinafter referred to as ‘Rules of 1959’ for short) and the convicts are entitled for parole leave, if the circumstances as referred in Rule 19 exist. Of course, it is not the absolute right of the convict to seek parole leave and the right is circumscribed by various other considerations including the objective satisfaction of the jail authorities and the authority competent to consider the application made by the convict for grant of parole leave. Hence, if it is recommended that parole leave should not be granted, such recommendations should be supported by proper reasons and the necessary details on the basis of which the Officer recommending that parole leave should not be granted, forms his opinion. We have noticed that the applications submitted by the convicts for grant of parole leave are considered mechanically and a sentence is inserted that parole leave should not be granted as release of the convict may result in law and order problem or the convict may abscond. Of course, Police Officials are entitled to make such recommendations and in appropriate cases, they should make recommendation of such type. However, in such situation, they should support that conclusion by recording the reasons and giving details of the material on the basis of which they form the opinion. In the present case, Police Sub-Inspector, Azamgarh has not pointed out the basis for his negative recommendation, hence it cannot be considered.

04] In the present case, we further find that there has been laxity on the part of the respondents and the concerned Police Officials at every level, which resulted in inordinate delay in taking decision on the application submitted by the petitioner for grant of parole leave. As recorded earlier, the petitioner sought parole leave on the ground that his wife was suffering from serious illness and this claim made by the petitioner is found to be correct by the Police Sub-Inspector, Police Station, Azamgarh. The facts of the present case show the apathy towards the convicts and that they are deprived of their statutory right recognized by the State Government.

05] It is relevant to note that Rule 22 of the Rules of 1959 provides for the manner in which the application for parole should be dealt with. Rule 22(2) of the Rules of 1959 lays down that on receipt of the application for grant of parole leave, the Deputy Superintendent of Police or the Assistant Commissioner of Police concerned, as the case may be, shall immediately make enquiries to ascertain whether the ground/grounds on which parole is applied for, is/are genuine and submit report within fifteen days to the competent authority pointing out whether it recommends the grant of parole and whether there is likelihood of breach of peace, if the prisoner is released on parole.

Rule 23 of the Rules of 1959 lays down that on receipt of the application for grant of parole, the competent authority may make such enquiries, as it considers necessary, and pass such orders as it considers fit, and if the competent authority is of the view that the prisoner/convict should be released on parole, the competent authority shall make an order to that effect within 17 days from the date of receipt of enquiry report from the Deputy Superintendent of Police or the Assistant Commissioner of Police as contemplated by Rule 22 of the Rules of 1959.

06] Rule 19(2)(C)(ii) of the Rules of 1959 provides for the situations under which the prisoner/convict may be released on regular parole. It lays down that the prisoner/convict shall be eligible for next release on parole leave or regular parole leave after completion of one year of actual imprisonment and subsequent releases then onwards after completion of six months of actual imprisonment, to be counted from his last return every time either from furlough or regular parole.

07] Because of the gross laxity of the respondents and the concerned officers, the release of the petitioner on parole leave is delayed unnecessarily and the right of the petitioner/convict as per Rule 19(2)(C)(ii) for subsequent release on parole leave is frustrated.

08] Considering the earlier conduct of the petitioner, we are of the view that the petitioner should be released on regular parole for thirty days, of course, subject to the conditions as may be imposed by the concerned authority.

As we find that there has been gross negligence on the part of the respondents and other concerned officers, we are of the view that compensation of Rs. 10,000/- should be granted to the petitioner.

Hence the following order:-

ORDER

i. The impugned order is set aside.

ii. The respondents are directed to release the petitioner on parole leave for thirty days, on such conditions as shall be imposed by the competent authority.

iii. State of Maharashtra shall pay an amount of Rs.10,000/- (Rupees Ten Thousand Only) to the petitioner towards compensation. The State of Maharashtra will be at liberty to recover the amount of compensation from the erring Officer/Officers after conducting enquiry against such Officer/Officers.

iv. The amount of compensation shall be paid to the petitioner within two months and affidavit of compliance shall be filed by the respondent No.2 on record of this petition.

Rule is made absolute in the above terms.

v. Fees be paid as per the rules to Ms. Laximi Y. Malewar, Advocate appointed to represent the petitioner.

JUDGE                                                                                                                       JUDGE


 

F.I.R of Mahatma Gandhi Assassination case – 30/01/1948

English translation of original F.I.R.

Mahatma Gandhi Assassination case – 1948

First Information of a Cognizable Crime Reported under Section 154, Cr.P.C.

         
  Police Station : Tughlak Road District : Central    
         
  No. : 68 Date and hour of occurence :    
  30.1.1948 / 5:45 P.M.    
       
         

 

               
  1   Date and hour when reported        
               
      Name and residence of   Shri Nand Lal Mehta, son of Shri    
  2     Natha Lal Mehta, Indian, Building    
      informant /complainant   Lala Suraj Prasad M Block,    
          Connaught Circus    
               
  3   Brief description of offence   302 I.P.C.    
    (with section) and of property      
      carried off, if any        
               
  4   Place of occurence and   Birla House, distance 2 furlongs    
    distance/ direction from Police      
      Station        
               
  5   Name and address of the criminal        
               
               
  6   Steps taken regarding        
    investigation/ explanation of        
      delay in recording information        
               

Statement of Shri Nand Lal Mehta, son of Shri Natha Lal Mehta, Indian, resident of Connaught Circus Building Lala Sarju Prasad –

Today I was present at Birla House. Around ten minutes past five in the evening, Mahatma Gandhi left his room in Birla House for the Prayer Ground. Sister Abha Gandhi and sister Sanno Gandhi were accompanying him. Mahatma was walking with his hands on the shoulders of the two sisters. Two more girls were there in the group. I alongwith Lala Brij Kishan, a silver merchant, resident of No. 1, Narendra Place, Parliament Street and Sardar Gurbachan Singh, resident of Timar Pur, Delhi were also there. Apart from us, women from the Birla household and two-three members of the staff were also present. Having crossed the garden, Mahatma climbed the concrete steps towards the prayer place. People were standing on both the sides and approximately three feet of vacant space was left for the Mahatma to pass through. As per the custom the Mahatma greeted the people with folded hands. He had barely covered six or seven steps when a person whose name I learnt later as Narayan Vinayak Godse, resident of Poona, stepped closer and fired three shots from a pistol at the Mahatma from barely 2 / 3 feet distance which hit the Mahatma in his stomach and chest and blood started flowing. Mahatma ji fell backwards, uttering “Raam – Raam”. The assailant was apprehended on the spot with the weapon. The Mahatma was carried away in an unconscious state towards the residential unit of the Birla House where he passed away instantly and the police took away the assailant.

Sd/-

N.L. Mehta/30.1.1948.

Having received the information I rushed to the Birla House to find the dead body of the Mahatma at room No. 3. Met Shri Nand Lal Mehta, his statement recorded and got confirmed after reading it out to him. Copy of the statement handed over to him. Came to know that the assailant was whisked away by the Assistant Sub-Inspector. It was a case of Section 302 Indian Penal Code. All the case papers were sent to the Police Station Tughlak Road and I got engaged in conducting investigations. A special report may be forwarded through the police station.

 

Sd. in English

30 January