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      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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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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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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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 when committed by a prisoner. Clause (12) makes  

receiving, possessing or transferring any prohibited article a prison offence.

9. The appellant was not a prisoner at the date of the commission of the offence.  

He could thus, not have committed a ‘prison offence’ as defined under Section 45 of  

the Act.  Hence, no offence is made out under Section 45 of the Act.  Insofar as  

Section 42 of the Act is concerned, it provides that only that communication, which  

is contrary to the rules made under Section 59 of the Act is prohibited.  Section 42  

of the Act reads as under :  

“42.  Penalty  for  introduction  or  removal  of  prohibited  articles  into  or  from  prison  and  communication with prisoners.— Whoever,  contrary  to any rule under section [59] 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 rules, communicates  or attempts to communicate with any prisoner,  

and whoever abets any offence made punishable by this  section,

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shall,  on conviction before  a  Magistrate,  be  liable  to  imprisonment for a term not exceeding six months, or to  fine not exceeding two hundred rupees, or to both.”

10. The Punjab Jail Manual lists the prohibited articles in Punjab prisons. Para  

606 of the Manual lists the following Prohibited Articles:

     “…..

1) Spirituous liquors of every description

2) Tobacco  and  all  other  substances  whatsoever  which  are  or  may be  

intended to be used for the purpose of smoking, chewing or snuffing, and  

all instruments and appliances whatsoever, which may be used for or in  

connection with smoking, chewing or snuffing,

3) All  explosive,  intoxicating  or  poisonous  substances,  and  chemicals  

whether fluid or solid of whatever description.

4) All arms and weapons, and articles which are capable of being used as  

weapons of whatever description.

5) All bullion, metal, coin, jewellery, ornaments, currency notes, securities  

and articles of value of every description.

6) All  books,  paper  and  printed  or  written  matter  and  materials  and  

appliances for printing or writing of whatever description.

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7) String,  rope,  chains  and  all  materials,  which  are  capable  of  being  

converted into string or rope or chains, of whatever description.

8) Wood, bricks, stones and earth of every description.”

This list does not mention Mobile phone or charger as one of the prohibited articles.  

Thus, the communication, even if it was attempted to being done, was not contrary  

to the prison rules, and thus, is not an offence under Section 42 of the Act.

11. The Prisons (Punjab Amendment) Bill,  2011  provides  for the addition of  

section 52-A to the Act. This Section reads thus :

“52-A.  (1)-Notwithstanding anything contained in  this  Act,  if  any  prisoner  is  found  guilty  of  possessing, operating or using a  mobile phone or  their component parts  as  like SIM card,  memory  card,  battery or charger or if the prisoner or  any  other  person assists  or  abets  or  instigates  in the  supply  thereof,  he  shall  be  punished  with  imprisonment for a term, not exceeding one year or  with  fine  not  exceeding  Rs  25,000  or  with  both……”

This Section, thus, makes the possession of the mobile phone by the prisoner and  

supplying the  phone by any person an  offence.  The notification by the  Punjab  

Government that  this  section is  in force  is  dated  08.03.2011.  The FIR for  the  

offence was dated 24.09.2009. This notification will obviously not apply to the case  

in hand as the alleged offence was committed in 2009, and retrospective effect will  

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not apply in the case of criminal laws.  Hence, there is no offence made out against  

the appellant and we cannot accept the reasoning of the High Court in the impugned  

judgment. We hereby hold that this section cannot be made applicable to the facts of  

the present case.

Answer to point no.2

12. It is our view that in light of the settled legal principles, the High Court has  

erred in dismissing the petition to quash the FIR.

13. Section  482 of the Code of Criminal Procedure reads as under :-

“482.  Saving of inherent powers of High Court:  Nothing in this  Code  shall  be  deemed to  limit or  affect the inherent powers of the High Court to make  such orders as may be necessary to give effect to any  order  under  this Code,  or  to  prevent abuse  of the  process of any Court or otherwise to secure the ends  of justice.”

Under this Section, the High Court has the power to quash an FIR. This court in the  

case of State of Haryana v. Bhajan Lal 1 has laid down the following categories of  

cases in which the High Court can exercise its power under Section 482 and quash  

the FIR:-

“1. Where the allegations made in the First Information  Report or the complaint, even if they are taken at their  face value and accepted in their entirety do not prima- facie constitute any offence or make out a case against  the accused.

1 1992 Supp (1) SCC 335.

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2. Where the allegations in the First Information Report  and other materials, if any, accompanying the F.I.R. do  not  disclose  a  cognizable  offence,  justifying  an  investigation by police officers Under Section 156(1) of  the Code except under an order of a Magistrate within  the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the FIR  or complaint and the evidence collected in support of the  same do not disclose the commission of any offence and  make out a case against the accused.

4. Where, the allegations in the F.I.R. do not constitute a  cognizable offence but constitute only a non-cognizable  offence, no investigation is permitted by a police officer  without an order of a Magistrate as contemplated Under  Section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint  are so absurd and inherently improbable on the basis of  which  no  prudent  person  can  ever  reach  a  just  conclusion that there is sufficient ground for proceeding  against the accused.

6. Where there is an express legal bar engrafted in any  of  the  provisions  of  the  Code  or  the  concerned  Act  (under which a criminal proceeding is instituted) to the  institution and  continuance  of  the  proceedings  and/or  where there is a specific provision in the Code or the  concerned  Act,  providing  efficacious  redress  for  the  grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended  with  mala  fide  and/or  where  the  proceeding  is  maliciously  instituted  with  an  ulterior  motive  for  wreaking vengeance on the accused and with a view to  spite him due to private and personal grudge.”2

2 Ibid /Para 102.

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14. These principles were further reiterated by a three judge bench of this Court  

in the case of Sunder Babu v. State of Tamil Nadu3.

15. The case of the appellant clearly falls under category (1) of the grounds of  

quashing of FIR mentioned in the case of Bhajan Lal (supra). On the date of the  

offence, mobile phone was not listed as one of the prohibited articles under the  

Punjab Prison Manual. Thus, no offence is made out under Section 42 of the Act, as  

there  was  no communication which was  done or  was  attempted to  being done  

contrary to the rules. Further, the appellant was not a prisoner on the date of the  

offence. Hence,  he could not have committed a prison offence as defined under  

Section 45 of the Act.

16. In view of the foregoing reasons, the appeal is allowed and  the impugned  

judgment  of  the  High Court  is  set  aside.  The  FIR  dated  24.09.2009  and  the  

proceedings against the appellant are quashed. There will be no order as to costs.

       ………………………………………………………………………J.                          [SUDHANSU JYOTI MUKHOPADHAYA]   

   ………………………………………………………………………J.                          [V. GOPALA GOWDA]

New Delhi, January 16,  2014.  

3 (2009) 14 SCC 244 at para 7.

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