The main legal point established in the judgment is that until a death sentence is confirmed by the High Court, the convicted prisoners cannot be treated as condemned prisoners and should be entitled to similar privileges as other convicted prisoners.

Koshy, J.

Five accused in Sessions Case No.146/2001 on the file of the Court of Session, Thalassery, who were convicted for offence under section 302 of IPC 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 Sec. 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 Court 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 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—(1) Every prisoner under sentence of death shall immediately on his arrival in the prison after sentence, be searched 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 of guard.

Chapter XLVII 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 781 of the Rules are as follows: -

“780. Search of prisoner.—When a prisoner sentenced to death is searched under Section 30 of the TC 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 an 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 Section 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. Until 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 Sec.30(1) of the prisons Act and Chapter XLVIII of the Rules.

4. The petitioner mainly relied on a decision of the Supreme Court in Sunil Batra v. Delhi Administration and others, AIR 1978 SC 1675. In the above decision the Supreme Court held that a perso