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Crl. A. @ S.L.P. (Crl.) No. 7107 of 2013

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 147 OF 2014

(Arising out of SLP (Crl.) No. 7107 of 2013)

Varinder Singh

…Appellant

Versus

State of Punjab & Anr.

...Respondents

J U D G M E N T

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.

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Crl. A. @ S.L.P. (Crl.) No. 7107 of 2013

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

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Crl. A. @ S.L.P. (Crl.) No. 7107 of 2013

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

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Crl. A. @ S.L.P. (Crl.) No. 7107 of 2013

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 w