Act No. 16 of 2007
19th day September, 2007
An Act to provide for a law regulating the prisons in Sikkim. Be it enacted by the Legislature of Sikkim in the Fifty-eighth Year of the Republic of India as follows:-
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(1) This Act may be called the Sikkim Prisons Act, 2007
(2) It extends to the whole of Sikkim;
(3) It shall come into force on such date as the State Government may, by notification, in the official gazette appoint.
In this Act, unless the context otherwise requires:-
The State Government shall provide, for the prisoners in its territory, accommodation in prisons constructed and regulated in such manner as to comply with the requisitions of this Act in respect of the separation of prisoners or may set up such other prisons at such place as it may consider expedient and may in cases set up temporary or special prison.
The State Government shall appoint Deputy Inspector General or Sr. Superintendent of Prisons as a head of the Prison to exercise, subject to the orders of the State Government, the general control and superintendence of all prisons in the State.
For every prison there shall be a Superintendent, a Medical Officer, a Jailer and such other officers as may be appointed by the Government from time to time
The State Government shall make provision for the shelter and safe custody in temporary prisons of as many prisoners as it deems fit, who cannot be conveniently or safely kept in the existing Prisons.
(1) The Deputy Inspector General or Sr. Superintendent of Prisons shall carry out all the instruction and direction of the State Government as may be issued from time to time and all officers subordinate to him shall perform all such duties as may be imposed on them. No officer or staff of prison shall do or commit any acts of omission or commission that will give undue and illegal benefit to a prisoner and also to the officer or staff.
(2) All officers of a prison shall obey the directions of the Deputy Inspector General or Sr. Superintendent of Prisons; all officers subordinate to the Jailer shall perform such duties as may be imposed on them by the Jailer with the sanction of the Superintendent.
No officers of a prison shall sell or let any person employed by him sell or derive any benefit from selling or letting, any article to any prisoner or have any money or other business dealings, directly or indirectly, with any prisoner.
No officers of a prison shall, nor any person employed by him, have any interest, direct or indirect, in any contract, for the supply of the prison; nor shall he derive any benefit, directly or indirectly, from the sale or purchase of any article on behalf of the prison or belonging to a prisoner.
SUPERINTENDENT
(1) Subject to the orders of the Deputy Inspector General/Sr. Superintendent of Prisons, the Superintendent shall manage the prison in all matters relating to discipline, labour, expenditure, punishment and control.
(2) Subject to such general or special directions as may be given by the State Government, the Superintendent of a prison shall obey all orders not inconsistent with this Act or any rule and shall report to the Deputy Inspector General/Sr. Superintendent of Prisons all such orders and the action taken there on.
The Superintendent shall keep, or cause to be kept, the following records:
MEDICAL OFFICER
Subject to the control of the Superintendent, the Medical Officer shall have charge of the sanitary administration of the prison and shall perform such duties as may be directed by the Superintendent or as may be prescribed by rules.
Whenever the Medical Officer has reason to believe that the mind of a prisoner is, or is likely to be, injuriously affected by the discipline or treatment to which he is subjected, the Medical Officer shall report the case in writing to the Superintendent, together with such observations as he may think proper. This report, with the orders of the Superintendent thereon, shall forthwith be sent to the Deputy Inspector General or Sr. Superintendent of Prisons for information.
On the death of any prisoner, the Medical Officer shall forthwith record in a register the following particulars, so far as they can be ascertained, namely:-
JAILERS & SUBORDINATE OFFICERS
The Jailer shall reside in the prison unless the Superintendent permits him in writing to reside elsewhere. The Jailer shall not leave the prison for a night without the permission in writing from the Superintendent, but if he has unavoidable circumstances to leave the prison for a night, he shall take permission from the Superintendent. The Jailer shall directly be responsible for the safe custody of the records, commitment warrants and all other documents entrusted to him including money and other articles taken from prisoners.
Upon the death of a prisoner, the Jailer shall give immediate information thereof to the Superintendent and Medical Officer and to the District Magistrate. The District Magistrate on receipt of such information shall hold inquest or cause to hold inquest and if on preliminary inquest has raised suspicion of some foul play, a video graphed post mortem examination shall be conducted. The information of such death shall be communicated to the National Human Rights Commission within twenty-four hours. The Jailer shall collect the relevant documents from the District Magistrate and shall submit to the prison authority without delay.
Subject to the orders of the Superintendent, the Sub-Jailer/Assistant Sub-Jailer shall be competent to perform any duties of a Jailer under this Act or rules made there under.
The officer acting as gate-keeper, or any other officer of the prison, may examine anything carried in or out of the prison, and may stop and search or cause to be searched any person suspected of bringing any prohibited article into or out of the prison, or carrying out any property belonging to the prison, and, if any such article or property is found, shall immediately bring it to the notice of the Jailer or any superior Officer present in the Prison.
Officers subordinate to the Jailer shall not be absent from the prison without leave from the Superintendent or from the Jailer.
Prisoners who have been appointed as In-charge of the Barracks or cells shall be deemed to be public servant within the meaning of section 21 of the Indian Penal Code, 1860 (45 of 1860).
(1) Whenever a prisoner is admitted into prison, he shall be searched, and all weapons and prohibited articles shall be taken from him.
(2) Every criminal prisoner shall also, as soon as possible after admission, be examined under the general or special orders of the Medical Officer, who shall enter or cause to be entered in a book, to be kept by the Jailer, a record of the state of prisoner's health, and of any wounds or marks on his person, the class of labour he is fit for if sentenced to rigorous imprisonment, and any observation which the Medical Officer thinks fit to add.
(3) In the case of female prisoners the search and examination shall be carried out by the Female Jail Warder and in absence of Female Jail Warder any female on the special orders of the Officer on Duty.
(4) No prisoners shall be admitted or released between sunset and sunrise except those prisoners who have been taken to courts.
All money or other articles in respect whereof no order of a competent court has been made, and which may with proper authority be brought into the prison by any criminal prisoner or sent to the prison for his use, shall be placed in the custody of the Jailer.
(1) All prisoners, prior to removal to any other prison, shall be examined by the Medical Officer. (2) No prisoner shall be removed from one prison to another unless the Medical Officer certifies that the prisoner is free from any illness rendering him unfit for removal.
The requisition of this Act with respect to the separation of prisoners are as follows:-
Subject to the requirement of the foregoing section, convicted criminal prisoners may be confined either in the association or individually in cells or partly in one way and partly in the other.
No cell shall be used for solitary confinement unless it is furnished with the means of enabling the prisoner to communicate at any time with an officer of the prison, and every prisoner so confined in a cell for more than twenty four hours, whether as a punishment or otherwise, shall be visited at least once a day by a Medical Officer.
(1) Every prisoner under sentence of death shall immediately on his arrival in the prison 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 away from all other prisoners, and shall be placed under the charge of a guard by day and by night.
A civil prisoner or an un-convicted criminal prisoner shall be permitted to maintain himself, and to purchase, or receive from private sources at proper hours, food, clothing, bedding or other necessaries, but subject to examination and such other rules as may be prescribed by the Deputy Inspector General/Sr. Superintendent of Prisons. However in case of convicted criminal prisoners the prison authorities shall provide adequate clothing including uniforms and beddings prescribed under this act or rule framed thereunder.
No part of any food, clothing, bedding or other necessaries belonging to any civil or unconvicted criminal prisoner shall be hired, or sold to any other prisoner; and any prisoner transgressing the provisions of this section shall lose the privilege of purchasing food or receiving it from private sources, for such time as the Superintendent consider appropriate.
(1) Every civil prisoner and un-convicted criminal prisoner unable to provide himself with sufficient clothing and bedding shall be supplied by the Superintendent with such clothing and bedding as may be necessary.
(2) When any civil prisoner has been committed to prison in execution of a decree in favour of a private person, such person, or his representatives, shall, within forty-eight hours after the receipt by him of demand in writing, pay to the Superintendent the cost of the clothing and bedding so supplied to the prisoner; and in default of such payment the prisoner may be released.
No civil and under-trial prisoners shall be employed on labour but those desiring to work may be employed with the permission of the Superintendent.
(1) No criminal prisoners sentenced to rigorous imprisonment at his own desire shall, except on an emergency with the sanction in writing of the Superintendent, be kept to labour for more than nine hours in a day.
(2) The Medical Officer from time to time examine the laboring prisoners while they are employed, and shall at least once in every fortnight cause to be recorded in the history-tickets the weight of such prisoner employed on labour.
(3) When the Medical Officer is of the opinion that the health of the prisoner does not allow him/her for employment of any kind or class of labour, such prisoner shall not be employed on that labour but shall be placed on such other kind or class of labour as the Medical Officer may consider suitable for him.
The Superintendent may employ all criminal prisoners sentenced to simple imprisonment on labour work but not as punishment for negligent work.
In every prison there shall be a Medical Care Unit or a proper place for reception of sick prisoners.
(1) The names of prisoners desiring to see Medical Officer or appearing out of health in mind or body shall, without delay, be reported by the officer in immediate charge of such prisoners to the Jailer.
(2) The Jailer shall, without delay, call the attention of the Medical Officer to any prisoners desiring to see him, or who is ill or whose state of mind or body appears to require attention and shall carry into effect all written directions given by the Medical Officer respecting alteration of the discipline or treatment of any such prisoner.
All directions given by the Medical Officer in relation to any prisoner, with the exception of orders for the supply of medicines or directions relating to such matters as are carried into effect by the Medical Officer himself or under his superintendence, shall be entered day by day into the prisoner's history-ticket or in such other records as the Government may, by rule direct, and the Jailer shall make an entry in its proper place stating in respect of each direction the fact of its having been or not having complied with, accompanied by such observations, as the Jailer thinks fit to make with the date & time of the entry.
Due provision shall be made for the admission, at proper times and under proper restrictions, into every prison of persons with whom civil or un-convicted criminal/convicted prisoners may desire to communicate, care being taken that so far as may be consistent with the interests of justice, prisoners under trial may see their duly qualified legal advisers without the presence of any other person.
(1) The Jailer may demand the name and address of any visitor to a prisoner, and, when the Jailer has any ground for suspicion, may search any visitor, or cause to be searched, but the search shall not be made in the presence of any prisoner or of another visitor.
(2) In case of any such visitor refusing to permit himself to be searched, the Jailer may deny admission; and the ground of such proceedings, with the particulars thereof, shall be entered in such record as the Government may direct.
Prisoners may be transferred from one prison to another for the following reasons:-
Where any person is confined in a prison in a State:-
The Government of the State, with the consent of the Government of any other state, by order, provide for the removal of the prisoner from that prison to any prison in the other States under this Act or rule made thereunder.
(1) The following situation shall be handled as emergencies namely:-
It shall be the responsibility of the Superintendent or any officer present to take sufficient measures for preventing and controlling emergency situations. These measures shall include all such necessary and immediate actions as per the need of the situation under this Act or rule made thereunder.
(1) Education is vital for the overall development of prisoners. Through education their outlook, habits and total perspective of life can be changed. Education of prisoners benefits the society as well as it leads to their rehabilitation and self-sufficiency. Education reduces the tendency to crime. This would mean less crime, fewer victims, fewer prisoners, more socially productive people, and less expenditure on criminal justice and law enforcement.
(2) Life in prison is extremely monotonous, routinised and regimented. The education activities offer opportunity to a prisoner to remove from his mind depressing thoughts leading to relaxation and joy. Reality must be accepted that to confine offenders behind walls, without trying to change them through education and other activities, is an expensive folly.
The objectives behind educational programmes in prisons should be to channelise prisoners' energies into constructive and creative pursuits, instilling in them a sense of confidence, developing amongst them social responsibility and consciousness, fostering amongst them habits and attitudes necessary for adjusting in the community, creating amongst them an awareness of the futility of leading a criminal life and uplifting them morally, mentally and socially. A comprehensive educational programme shall be framed in accordance to the requirement as deemed necessary under this Act or rule made thereunder.
(1) Vocational training and work programmes should be treated as essential features of the correctional programmes for the purpose of:-
Leave and special leave to inmates are progressive measures of correctional services. The release of a prisoner on leave not only saves him from the evils of incarceration but also enables him to maintain social relations with his family and community. It also helps him maintain and develop a sense of self-confidence. Continued contacts with family and community sustain in him a hope for life.
The objectives of releasing a prisoner on leave are:-
(1) Special leave may be granted to a prisoner in special situations such as:-
(2) The period spent on leave will be counted as sentence served, while that spent on special leave will not count as such. The period spent on special leave will be treated as 'out days' or sentence suspended for all purpose.
(3) The manner and procedure, by which, leave or special leave are granted, the category of prisoners eligible for such leave or special leave and the stipulated conditions thereof shall be in a manner prescribed under this Act or rule made thereunder.
The primary objective underling premature release is reformation of offenders and their rehabilitation and integration into the society, while at the same time ensuring the protection of society from criminal activities. These two aspects are closely interlinked. Incidental to the same is the conduct, behaviour and performance of prisoners while in prison. These have a bearing on their rehabilitative potential and the possibility of their being released by virtue of remission earned by them, or by an order granting them premature release. The most important consideration for pre-mature release of prisoners is that they have become harmless and useful member of a civilized society. For the purpose of recommending the pre-mature release of prisoner a Sentence Review Board should be constituted to advise the Government for release of prisoner and the procedure thereof in a prescribed manner under this Act or rule made thereunder.
The prison administration shall keep the female offender in a strictly secluded female enclosure.
Women prisoners shall be classified and kept separately as under, namely:-
Notes:-
(1) No female prisoner shall, on any pretext, leave or be removed from the female enclosure except for release, transfer, or attendance at court, or under the order of the superintendent for other legitimate purpose.
(2) Every female prisoner authorized to leave her enclosure will ordinarily be accompanied by a female warder from the time she leaves till she returns.
(1) No male shall be permitted to enter the female ward of any prison, at any time, unless he has a legitimate duty to attend therein. No adult male shall enter it at all by night except in an emergency, and even then only along with the female warder. He shall thereafter record a clear report of his visit with the reasons for such visit, and the hour thereof, in his report book.
(2) Male warders and other male staff, acting as escort to lady visitor and officials, shall remain outside the enclosure.
(3) If at any time a male prison officer or warder enters, or of attempts to enter, any ward or portion of a prison reserved for female prisoners, without proper authority, it shall be reported to the Superintendent forthwith.
The locks of enclosure and barracks, where women are confined shall, be different from those in use in other parts of the prisons, so that there is no possibility of keys for locks of other enclosures being misused for opening enclosures for women prisoners.
There shall be round the clock duty of female warders in the female enclosures.
Women prisoner shall be searched by female warder with due regards to consideration of privacy and decency.
When a women prisoner is found, or suspected, to be pregnant at the time of admission or later, the Medical Officer shall report the fact to the Superintendent. Arrangements shall be made at the earliest to get her medically examined at the Government Hospital for ascertaining the state of her health, pregnancy, duration of pregnancy and the probable date of delivery. After ascertaining all necessary particulars, a detailed report shall be sent to the Deputy Inspector General/Sr. Superintendent of Prisons.
(1) As far as possible arrangements for temporary release will be made to enable a prisoner to deliver child outside the prison.
(2) Births in prison shall be registered at the local birth registration office.
All money, jewellery, and articles of clothing, received with or found on the person of a woman prisoner on her admission to the prison, or sent subsequently by the police, or tendered by her relatives or friends on her behalf prior to her release, shall be received and taken over by the Jailer or other officer on duty. A list of all such articles shall be entered in the Admission Register and in the convict's warrant and read over to the convict in the presence of the Jailer who shall countersign the entries in the register and in the warrant. Method of storing the prisoner's money or valuables, shall be according to the general rules laid down in the Prison Manual.
(1) A child up to six years of age shall be admitted to prison with his mother if no other arrangements, for keeping him with relatives or otherwise, can be made. Children born in prison may remain with their mother upto six years of age, if they cannot otherwise be suitably placed. The Medical Officer shall determine the age of children not born in prison for the purpose of this provision.
(2) No child shall be admitted into or retained in prison if he has attained the age of six years. The Superintendent shall inform the Directorate of Social Welfare about all children of that age for placing them in a home run by the Social Welfare Department.
(3) Children kept under protective custody in a home of the Department of Social Welfare shall be allowed to meet their mother at least once a week.
This apart, any guideline required on the subject shall be framed under this Act or rule made there under.
(1) The State Government shall, by notification, constitute a Board of Visitors at District Level and also State Advisory Board comprising of Official and Non-Official members to monitor correctional work in prison, suggesting new avenues leading to the improvement in the correctional work, going into individual or collective grievances of prisoners and providing redressal in consultation with the prison authorities.
(2) For this purpose a rule shall be framed in a prescribed manner under this Act.
Whoever, contrary to any rule introduces or removes or attempts by any means whatever to introduce or remove, into or from any prison, or supplies or attempts to supply to any prisoner outside the limits of a prison, any prohibited article, and every officer of a prison who, contrary to any such rule, knowingly suffers any such article to be introduced into or removed from any prison, to be possessed by any prisoner, or to be supplied to any prisoner outside the limits of a prison, and whoever, contrary to any such rule, communicates or attempts to communicate with any prisoner, and whoever abets any offence made punishable by this section, shall on conviction before a Magistrate, be liable to imprisonment for a term not exceeding six months, or fine not exceeding five hundred rupees, or with both.
When any person, in the presence of any officer of a prison, commits any offence specified in the foregoing section, and refuses on demand of such officer to state his name and residence, or gives a name or residence which such officer knows, or has reason to believe, to be false, such officer may arrest him, and shall without unnecessary delay make him over to a Police Officer, and thereupon such Police Officer shall proceed as if the offence had been committed in his presence.
The Superintendent shall cause to be affixed in a conspicuous place outside the prison, a notice in English and the Vernacular setting forth the acts prohibited under section 65 and the penalties incurred by their commission.
(1) The discipline in Prisons has to be maintained with fairness and firmness. It has to cover every aspect of life in the prisons. A punishment for indiscipline has to be balanced in relation to the gravity of the violation. A positive approach towards prison discipline involves not only a strict adherence to rules and regulations but also a fair, just and equitable handling of prisoners on the part of the staff.
(2) After their admission, all prisoners should be informed of their rights, duties and disciplinary requirements in the prisons, in a language understandable to them. This aspect may be displayed on a board accessible to prisoners.
(3) The following acts are declared to be prison offences when committed by a prisoner, namely:-
(1) No officer other than the Superintendent may examine any person committing such offence, and determine thereupon, and punish such offence by:-
Explanation:- a formal warning shall mean a warning personally addressed to a prisoner by the Superintendent and recorded in the punishment book and on the prisoner's history-ticket;
(1) No punishment of penal diet, either singly or in combination, or hard labour under clause (v) of sub-section (1) of section 66 of this Act shall be awarded to any prisoner until the prisoner has been examined by the Medical Officer and has been found fit to undergo the punishment and certified accordingly by the Medical Officer in the appropriate column of the punishment-book prescribed for this purpose.
(2) If he considers the prisoner unfit to undergo the punishment, he shall in the like manner record his opinion in writing and shall state whether the prisoner is absolutely unfit for punishment of the kind or whether he considers any modification.
(3) In the latter case he shall state what extent of punishment he thinks the prisoner can undergo without injury to his health.
(1) In the punishment book to be prescribed, every punishment inflicted shall be recorded with the name of the prisoners, register number and the class (whether habitual or not) to which he belongs, the prison offence of which he was guilty, the date on which such prison offence was committed, the number of previous prison offences recorded against the prisoner and the date of his last prison offence, the punishment awarded and the date of infliction.
(2) In the case of every serious prison offence, the names of the witnesses proving the offence shall be recorded and in case of offences for which serious punishment is awarded, the Superintendent shall record the substance of the evidence of the witnesses, the defence of the prisoner and the finding with the reasons therefore.
(3) Against the entries relating to each punishment the Jailer and the Superintendent shall affix their initials as evidence of the correctness of the entries.
If any prisoner is guilty of any offence against prison discipline which, by reason of having been frequently committed or otherwise, in the opinion of Superintendent, is not adequately punishable by the infliction of any punishment which he has power under this Act to award; the Superintendent may forward such prisoner to the court of any Magistrate of the first class having jurisdiction, together with a statement of the circumstances, and such Magistrate shall thereupon inquire into and try the charge so brought against the prisoner, and, upon conviction, may sentence him to imprisonment which may extent to one year, such term to be in addition to any term for which prisoner was undergoing imprisonment when he committed such offence, or may sentence him to any of the punishment enumerated under this Act;
Provided that any such case may be transferred for inquiry and trial by such Magistrate to any other Magistrate of first class and that no prisoner shall be punished twice
Every Jailer or officer of a prison subordinate to him who shall be guilty of any violation of duty or willful breach or neglect of any rule or regulations or lawful order made by competent authority or who shall withdraw from duties without permission or without having given previous notice in writing of his intention or who shall willfully overstay any leave granted to him or who shall engage without authority in any employment other than his prison duty or who shall be guilty of cowardice, shall be liable , on conviction before a Magistrate, to a fine not exceeding rupees five hundred or to imprisonment for a period not exceeding three months or both.
A prisoner when being taken to or from any prison in which he may be lawfully confined or whenever he is working outside or otherwise beyond the limits of any prison in or under the lawful custody or control of a prison officer belonging to such prison, shall be deemed to be in prison.
(1) The State Government may make rules consistent with tins Act.
(2) In particular and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely:-
Copies of rules shall be exhibited both in English and in the Vernacular in some place to which all the persons employed within a prison have access.
All or any of the powers and duties conferred and imposed by this Act on the Deputy Inspector General/Sr. Superintendent of Prisons, Superintendent or Medical Officer may in his absence be exercised and performed by such other officer as the State Government may appoint on his behalf either by name or by his official designation.
No suit, prosecution or other legal proceedings shall lie against any officer or staff of the prison for executing any order made by the competent authority or in respect of anything which is done in good faith or intended to be done by such officer or staff or person under this Act or any rules or order made there-under.
Notwithstanding anything contained in any other laws or rules or orders for the time being in force and any action taken in pursuant to such laws or rules or order in so far as they are not in consistent with the provisions of this Act, the same shall be deemed to have been validly made or done under this Act as if this Act was in force at all the material time when such actions or orders were taken or made.
During emergent situation involving security of prisons and natural calamity such as landslide, epidemic, etc. the Deputy Inspector General/Sr. Superintendent of Prisons and Superintendent shall have the powers to request any Department to provide facilities or services for the maintenance and upkeep of prisoners. On receipt of such a request, it shall be the duty of the Department concerned to make all possible efforts.
If any doubt arises as to the interpretation of the provisions of this Act the same shall be referred to the Government in the Department of Home, Government of Sikkim whose decision shall be final.
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