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TMI Blog1974 (9) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... the Parvatipuram Case. The three petitioners are undergoing the sentences in the Central Jail at Visakhapatnam. 3. We are not concerned with any evaluation of the political beliefs of the petitioners who claim to be Naxalities nor with the legality of the sentences imposed on them nor indeed with the charges on which two of them are being tried. The only reliefs which they ask for are : (1) that the armed police guards posted around the jail should be removed and (2) that the livewire electrical mechanism fixed on top of the jail wall should be dismantled. 4. Mr. Garg who appears on behalf of the petitioners contends that even the discipline of the prison must have the authority of law and that there should be a sort of "Iron curtain" between the prisoners and the police so that convicts and under-trial prisoners may be truly free from the influence and tyranny of the police. 5. Section 3(1) of the, Prisons Act, 9 of 1894, defines 'prison' to mean any jail or place used permanently or temporarily for the detention of prisoners, including "all lands and buildings appurtenant thereto". The Superintendent of the Central Jail, Visakhapatnam, who is the 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State Government it was held that though the conditions of detention under Rule 30(4) of the Defence of India Rules, 1962 were the same as under the Bombay Conditions of Detention Order, 1951 which laid down conditions regulating the restrictions on the liberty of a detenu, it could not be said that the order of 1951 conferred only certain privileges on the detenu. The Court observed : "If this argument were to be accepted, it would mean that the detenu could be starved to death, if there was no condition providing for giving food to the detenu". The refusal of the State Government to release the manuscript of publication was held to constitute an infringement of the personal liberty of the detenu in derogation of the law under which he was detained. 8. Though, therefore, under our Constitution, the right of personal liberty and some of the other fundamental freedoms are not to be totally denied to a convict during the period of incarceration, we are unable to appreciate that the petitioners have been deprived of any of their fundamental rights by the posting of police guards immediately outside the jail. The affidavit of the third respondent shows that as many as 146 Na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its opponents. No person, not even a prisoner, can be deprived of his 'life' or 'personal liberty' except according to procedure established by law. The American Constitution by the 5th and 14th Amendments provides, inter alia, that no person shall be deprived of "life, liberty, or property, without the due process of law". Explaining the scope of this provision, Field J. observed in Munn v. Illinois [1877] 94 U.S. 113 and that the term "life" means something more than mere animal existence and the inhibition against its deprivation extends to all those limits and faculties by which life is enjoyed. This statement of the law was approved by a Constitution Bench of this Court in Kharak Singh v. The State of U.P. and Ors. 1963CriLJ329 . 11. But, on a perusal of the affidavit of the 3rd respondent, we are not satisfied that the allegations made by the petitioners are true, though we do not think that the rosy picture drawn by the 3rd Respondent of life in the Visakhapatnam Central Jail can too readily be accepted. "Airy rooms with cross-ventilation", a "break-fast and two regular meals a day... the total caloric value of which is abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escape is, by the use of the device, virtually subjected to a death penalty. The policy of law as reflected in Section 224 of the Penal Code, says the counsel, is to visit a prisoner attempting to escape or successfully escaping, to a maximum sentence of two years and a fine. The live wire gadget lacks the authority of law and since it is a flagrant violation of the personal liberty guaranteed by Article 21 of the Constitution, it must be declared unconstitutional. Counsel fears that if the court puts its seal of approval on the use of the inhuman mechanism, prisons shall have been converted into cremation grounds. 13. This argument has a strong emotional appeal but not to reason. And the appeal to reason is what the court is primarily concerned with in deciding upon the Constitutionality of any measure. 14. But before examining the petitioners' contention, it is necessary to make a clarification. Learned counsel for the respondents harped on the reasonableness of the step taken by the jail authorities in installing the high-voltage live-wire on the jail walls. He contended that the mechanism was installed solely for the purpose of preventing the escape of prisoners and was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely to come into contact only if they attempt to escape from the prison. Carrying the petitioners' contention to its logical conclusion, they would also be entitled to demand that the height of the compound wall be reduced from 13 feet to say 4 or 5 feet as a fall from a height of 13 feet is likely to endanger their lives. In fact the petitioners could ask that all measures be taken to render safe their attempt to escape from the prison. 17. In holding that the live-wire mechanism does not interfere with any of the fundamental freedoms of the petitioners, we are not influenced by the consideration so prominently mentioned by the 3rd Respondent in his further affidavit that a similar system is in vogue in Hyderabad, Warangal and Nellore. If the system is unconstitutional, its widespread use will not make it Constitutional. 18. Section 46, Criminal Procedure Code, 1898, furnishes no analogy to the present case because it lays down how arrests are to be made and the extent of force which may be used if the person to be arrested forcibly resists the endeavour to arrest him. Sub-section (2) of Section 46 authorises the person making the arrest to "use all means necessary to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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