Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 1058 (PAT)

Rais Khan, Rais Khan v. State Of Bihar

2007-07-03

GHANSHYAM PRASAD

body2007
Judgment 1. This application has been filed for issuance of appropriate writ or direction to respondents to send back the petitioner to District Jail, Siwan from Central Jail Bhagalpur. 2. Heard learned counsel for the petitioner as well as G.P. No. XIII, Dr. Ramesh Kumar Singh. Counter affidavit has also been filed. 3. The admitted fact is that large number of criminal cases are pending against the petitioner in court at Siwan. The petitioner was originally lodged in Siwan Jail in connection with criminal cases pending against him. However, on the recommendation of District Magistrate, Siwan, the I.G. (Prison), Government of Bihar vide its order dated 30.12.2006 (Annexure-1) ordered for transfer of the petitioner u/s 29(3) of the Prisoners (Bihar Amendment) Act, 2003. Petitioner was transferred from Siwan jail on the ground of threat to security of jail authority as well as in the interest of public. 4. The petitioner has sought above relief mainly on two grounds; the first is that Annexure-1 has been passed in contravention of Sec. 29 of the Prisoners Act. Actually, the impugned order for transfer was not passed by the Government or I.G. (Prison) as required in the above provisions. The I.G. (Prison) has just approved the recommendation of the District Magistrate, Siwan which is not legal. The further ground is that the transfer of the petitioner from Siwan jail to Bhagalpur Central jail has withheld the trial of the cases pending in the Siwan court and thereby infringed the fundamental right of petitioner for speedy trial as incorporated in Article 21 of the Constitution. It is, further, submitted that at least 8 Sessions cases are ripe for disposal at Siwan but due to transfer and non-production of the petitioner, those cases are still awaiting for its final disposal. The details of such cases aiongwith their stage have been given in paragraph 8 of the writ application. Learned counsel for the petitioner in support of the above submissions has relied upon a decision of this court reported in 2002 (2) BLJ 34 (Rajeev Kumar Singh @ Pintoo Singh Vs. the State of Bihar & ors.) 5. On the otherhand, the learned G.P. justified the order in question on the ground thaflhe petitioner is a hardened local criminal and is serious threat to the Siwan Jail Administration. Even in Siwan jail, his activity was not satisfactory. He used to give threat to the jail personnels. the State of Bihar & ors.) 5. On the otherhand, the learned G.P. justified the order in question on the ground thaflhe petitioner is a hardened local criminal and is serious threat to the Siwan Jail Administration. Even in Siwan jail, his activity was not satisfactory. He used to give threat to the jail personnels. His presence in Siwan Jail was serious. Therefore, on complaint received from the Superintendent of Jial, Siwan and on recommendation of District Magistrate, Siwan the I.G. (Prison), Government of Bihar u/s 29(3) of the Prison (sic-Prisoners ?) Act, transferred the petitioner from Siwan jail to Bhagalpur Central Jail. In support of his contention, he has annexed the report of Superintendent of Siwan Jail alongwith the list of cases pending against the petitioner as well as recommendation letter of District Magistrate, Siwan in the counter affidavit. 6. It is needless to say that right of speedy trial is the fundamental right of accused as enshrined under Article 21 of the Constitution. Paragraph 8 of the writ application goes to show that at least 8 cases are pending in Sessions Court at Siwan which are at different stages of trial. In some cases, most of the witnesses have already been examined. The disposal of those cases has been withheld due to transfer of the petitioner from Siwan jail. It leaves much scope for the petitioner to argue that transfer of the petitioner has resulted into infringement of his fundamental (sic-right ?) of speedy trial of the cases. 7. The ground for transfer also does not appear to be real. Transferring the accused from one place to another is not remedy against the petitioners illegal activities. The authority can resort to other means at Siwan itself to curb his activities. In the above cited decision also, similar was the position. In paragraph 9 of the judgment, it has been held that: "Having considered the matter think that the Writ application must succeed. Once a person is detained in judicial custody pending trial the authorities cannot take any step which would delay his trial. In the present case transferring him to Bhagalpur Central Jail where there is no case against him, would delay the trial pending at Patna as a consequence of his non production in the court. Once a person is detained in judicial custody pending trial the authorities cannot take any step which would delay his trial. In the present case transferring him to Bhagalpur Central Jail where there is no case against him, would delay the trial pending at Patna as a consequence of his non production in the court. Further if the authorities have any apprehension of the petitioner being involved in extortion or other illegal activity notwithstanding his detention in jail then it is for the authorities to device ways and means to control the same within Patna itself. Once a person is in judicial custody then the authorities have various means available to control the active movement of the person imprisoned which can be resorted to but certainly if his shifting to any other place causes him prejudice by his trial being delayed he cannot be shifted. If there was a case pending at Bhagalpur in which he was required he could have been transferred there but not otherwise. The administrative ground cannot over ride the right of speedy trial. By his transfer to Bhagalpur his trial remained pending and was being delayed. In such a situation, his right of speedy trial is defeated which is an integral part of Article 21 of the Constitution." 8. In this also, there is no case that any criminal case is pending in Bhagalpur. Thus, having regard to the above facts and circumstances as well as the law laid down by this court, this court has no option but to allow ths application. 9. Accordingly, this application is allowed. The impugned order dated 30.12.06 contained in Memo No. 6960 (A-1) passed by Inspector General of Prison, Patna is hereby set aside. The respondents are directed to send the petitioner at Siwan jail whereas the trial of several cases is going on. However, in future if the petitioner is found involved in any criminal activities inside the jail, the authority shall be at liberty to take appropriate steps in accordance with law to curb his activities.