ORDER :

“Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison house entails by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to “practise” a profession. A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment, likewise, even a convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law.”

1. The abovestated statement of law rendered by their Lordships of the Supreme Court in the matter of D. Bhuwan Mohan Patnaik v. State of Andhra Pradesh, (1975) 3 SCC 185 aptly applies to the facts of the present case as petitioner/prisoner complains about violation of his fundamental right guaranteed under Article 21 of the Constitution of India while forfeiting his earned remission.

2. Petitioner herein is a convicted prisoner undergoing sentence in Central Jail, Bilaspur for commission of offences under Sections 302, 307 and 149 of IPC. By way of this writ petition, he has called in question forfeiture of 10 days of his earned remission by order dated 22/04/2020 passed by the Jail Superintendent finding him guilty of committing prison offence under Section 45 of the Prisons Act, 1894. It has been questioned on the ground that such a forfeiture of his earned remission, without affording him an opportunity of hearing, is in violation of his fundamental right guaranteed under Article 21 of the Constitution of India.

3. Mr. R.R. Soni, learned counsel for the petitioner, would submit that remission forfeited by the Jail Superintendent on account of prohibited article found in possession of the petitioner, which is a prison offence under Section 45(12) of the Prisons Act, 1894, is absolutely unjust and improper and is in violation of petitioner's fundamental right under Article 21 of the Constitution of India as no enquiry was conducted by the Jail Superintendent as contemplated in Rule 734 of Chhattisgarh Prisons Rules, 1968 nor the petitioner was afforded an opportunity of hearing in that enquiry, as such, the impugned order passed by the Jail Superintendent deserves to be set aside.

4. Mr. Sunil Otwani, learned Additional Advocate General, would however support the impugned order and submit that the instant petition deserves to be dismissed.

5. Mr. Ratan Pusty, learned counsel appearing as Amicus Curiae, would submit that a careful perusal of the record would show that petitioner's 10 days earned remission has been forfeited by the Jail Superintendent without affording him an opportunity of hearing as an adverse report has been submitted by the Octagon Officer to the Jailor who has then submitted his report to the Jail Superintendent and that has been simply agreed upon and petitioner's 10 days of earned remission has been forfeited. He would rely upon the decision rendered by the Madhya Pradesh High Court in the matter of Anand Rao v. Inspector General of Prisons, Bhopal, 1982 MPLJ 73 (DB) to support his submission that without following the due procedure as prescribed in Rule 734 of Chhattisgarh Prisons Rules, 1968, petitioner's earned remission could not have been forfeited.

6. I have heard learned counsel for the parties, considered their submissions and went through the records with utmost circumspection.

7. Section 45 of the Prisons Act, 1894 enumerates the acts which are prison offences. Receiving, possessing or transferring any prohibited article is also a prison offence (Item No. 12 of Section 45 of the Act). Under Section 46 of the Act, the Superintend