Decided on October 22,2003



J.B.KOSHY, J. - (1.) Five accused in Sessions Case No. 146/2001 on the file of the Court of Session, Thalassery, who were convicted for offence under S. 302 Of I.P.C. along with other offences, are the petitioners/appellants. The Sessions Court found that the murder committed by them will come in the category of rarest in rare cases and capital punishment was imposed on them subject to confirmation by the High Court and they were sent to jail under a warrant. They were confined in condemned cell as provided under S. 30(2) of the Prisons Act, 1894 read with Kerala Prisons Rules, 1958. It is the contention of the petitioners that the sentence of death passed by the Sessions Judge is not final, till it Is confirmed by the High Court and, therefore, they should be allowed all privileges which are granted to other prisoners. Learned Director General of Prosecution submitted that age old practice in the State is to put such prisoners in the condemned cell. It is further submitted that the petitioners are provided all other facilities which are given to the prisoners, even though they are kept in a separate ward in separate rooms. This is done for the safety of the prisoners as well as for enabling the State to make them available for execution of the sentence after confirmation of the same. Before going into the merits of the case, we refer to the statutory provisions in this regard.
(2.) Section 366 of the Code of Criminal Procedure provides as follows : "366. Sentence of death to be submitted by Court of Session for confirmation 1) When the Court of Session passes a sentence of death the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court , 2) The Court passing the sentence shall commit the convicted person to jail custody under a warrant." Section 30 of the Prisons Act, 1894 reads as follows : "30. Prisoners under sentence of death (l) Every prisoner under sentence of death shall, immediately on his arrival in the prison after sentence, be searched by, or by order of, the Jailer and all articles shall be taken from him which the Jailer deems it dangerous or inexpedient to leave in his possession. (2) Every such prisoner shall be confined in a cell apart from all other prisoners, and shall be placed by day and by night under the charge ofguard." Chapter XLYII of the Kerala Prisons Rules, 1958 (in short Rules) deals with prisoners sentenced to solitary confinement. Chapter XLVIII deals with prisoners sentenced to death. Rules 780 and 78 l of the Rules are as follows : " 780. Search of prisoner. When a prisoner sentenced to death is searched under S. 30 of the T.C. Prisons Act or Central Act every article of private clothing shall be taken away from him as well as all other articles of every description whether money, jewellery, or otherwise, and he shall be supplied with a suit of convicts clothing. 781. Confinement in a condemned cell The petitioner shall then be removed to one of the condemned cells. The Jailer shall inspect the cell before the prisoner is placed in it and shall satisfy himself of its .fitness and security No prisoner under sentence of death shall be placed in a cell having only a wooden door, and if there is ah external wooden door in addition to the granted door, it shall be kept open." Similar provision is contained in Chapter LIX of the Kerala Prison Manual.
(3.) It is the submission of the petitioners that even though S. 30(2) of the Prisons Act, 1894 is held to be valid, that is applicable only to prisoners sentenced to death. Chapter XLVIII of the Rules are also applicable only to prisoners sentenced to death. Petitioners are not prisoners under sentence of death. Unti} the sentence of death passed by the Court of Session is confirmed by the High Court, they cannot be termed as prisoners sentenced to death as contemplated under S. 30(1) of the Prisons Act and Chapter XLVIII of the Rules.;

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