IMPORTANT POINT
High Court should exercise its jurisdiction u/s 482 CrPC if prima facie no case is made out.

Judgment :-

V. Gopala Gowda, J.

Leave granted.

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

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

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

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

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

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

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

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

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

Answer to Point no.1

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

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