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2015 DIGILAW 3933 (ALL)

YOGESH v. STATE OF U. P.

2015-12-11

B.K.NARAYANA, VIJAY LAKSHMI

body2015
JUDGMENT Hon’ble Mrs. Vijay Lakshmi, J.—Counter affidavit has been filed on behalf of the respondent No. 4. Learned counsel for the petitioners has stated that he does not propose to file any rejoinder affidavit to the counter-affidavit of the respondent No. 4. 2. Hence, with the consent of learned counsel for the parties, this writ petition is being heard and disposed of finally at the stage of admission. 3. This writ petition has been filed by the petitioners with a prayer to issue a writ, order or direction in the nature of certiorari to call for the record and quash the impugned orders dated 2.8.2014 passed by the learned Special Judge (Gangster Act), Gautam Budh Nagar and learned Third A.C.J.M., Gautam Budh Nagar as well as the order dated 27.8.2014 passed by the respondent No. 1, Government of Uttar Pradesh (annexure Nos. 3, 4 & 1) to the writ petition. 4. The facts of the case in brief are that both the petitioners are residents of Gautam Budh Nagar and pursuant to remand orders passed by different Court’s of Sessions, district-Gautam Budh Nagar, the petitioners are being detained and kept in District Jail, Gautam Budh Nagar. Against the petitioner No. 1 six criminal cases while against the petitioner No. 2 six-seven criminal cases are pending before different Sessions Court in Ghaziabad. By the impugned order dated 27.8.2014 passed by the respondent No. 1, Government of Uttar Pradesh on the basis of the alleged recommendation made by respondent No. 2, Inspector General of Prisons, U.P. On 22.8.2014 the under trial petitioners have been transferred from District Jail Gautam Budh Nagar to District Jail Banda and Central Jail Bareilly respectively (annexure-1), after the Special Judge (Gangster Act), Gautam Budh Nagar and learned Third A.C.J.M., Gautam Budh Nagar by impugned orders dated 2.8.2014 granted the request made before them by the respondent No. 4 for transfer of the petitioners from District Jail, Gautam Budh Nagar to District Jail, Banda and Central Jail, Bareilly respectively. 5. 5. Learned counsel for the petitioners submitted that an order that the Court may make on a request for transfer of a prisoner is bound to affect him prejudicially and hence, it is obligatory for the Court to apply its mind fairly and objectively to the circumstances in which the transfer is being prayed for and take a considered view having regard to the objections which the prisoners may have to offer. 6. Learned counsel for the petitioners next submitted that since the orders dated 2.8.2014 (annexure Nos. 3 & 4) to the writ petition, by which the request made before learned Special Judge (Gangster Act), Gautam Budh Nagar and learned Third A.C.J.M., Gautam Budh Nagar by the respondent No. 4 for the petitioners’ transfer from District Jail, Gautam Budh Nagar to District Jail, Banda and Central Jail, Bareilly respectively was allowed by them without issuing any notice to the petitioners and without affording them any opportunity to file their objections against the proposed transfer, are per se illegal and violative of principles of natural justice and hence cannot be sustained. In view of the above, the impugned order dated 27.8.2014 passed by the respondent No. 1 pursuant to the absolutely illegal and arbitrary orders dated 2.8.2014 passed by the learned Special Judge (Gangster Act), Gautam Budh Nagar and learned Third A.C.J.M., Gautam Budh Nagar is also liable to be set aside. In support of his submissions learned counsel for the petitioners has placed reliance on State of Maharashtra and others v. Saeed Sohail Sheikh and others, AIR 2013 (SC) 168 . 7. Per contra, learned A.G.A. made his submissions in support of the impugned orders and submitted that the orders impugned by the petitioners are purely administrative in nature and since no prejudice has been caused to the petitioners by the aforesaid orders, no opportunity of hearing was required to be given to them before passing the same and the present writ petition which is devoid of any merit is liable to be dismissed. 8. After having heard the learned counsel for the parties, perused the impugned orders as well as the other material brought on record and the law report cited by learned counsel for the petitioners, we are of the view that the submissions made by learned counsel for the petitioners have force. Facts of this case are not in dispute. 8. After having heard the learned counsel for the parties, perused the impugned orders as well as the other material brought on record and the law report cited by learned counsel for the petitioners, we are of the view that the submissions made by learned counsel for the petitioners have force. Facts of this case are not in dispute. The petitioners who were detained and kept in District Jail, Gautam Budh Nagar have been transferred to District Jail, Banda and Central Jail, Bareilly respectively by the order dated 27.8.2014 passed by the respondent No. 1 (annexure-1) in pursuance of the recommendation made by respondent No. 2 on 22.8.2014 after the request made by the respondent No. 1 before the Special Judge (Gangster Act), Gautam Budh Nagar and learned Third A.C.J.M., Gautam Budh Nagar for their transfer was allowed by them by their orders dated 2.8.2014 (annexure Nos. 3 & 4) to the writ petition. 9. Initially the relief claimed by the petitioners in this writ petition was confined to quashing of the order dated 27.8.2014 passed by the respondent No. 1 on the ground that the said order had been passed by the respondent No. 1 without obtaining necessary permission of the Courts under whose warrants the petitioners had been remanded to judicial custody. However, when the respondent No. 1 brought on record the copies of the orders dated 2.8.2014 passed by the learned Special Judge (Gangster Act), Gautam Budh Nagar and learned Third A.C.J.M., Gautam Budh Nagar under whose warrants the petitioners had been remanded to the judicial custody, granting permission to the petitioners’ transfer from District Jail, Gautam Budh Nagar to District Jail, Banda and Central Jail, Bareilly respectively, the petitioners got the writ petition amended and extended the challenge made in this writ petition also to the orders dated 2.8.2014 passed by the learned Special Judge (Gangster Act), Gautam Budh Nagar and learned Third A.C.J.M., Gautam Budh Nagar. The petitioners in paragraph 14(A) of the writ petition have categorically stated that the permission of the Court below had been obtained on an application dated 2.8.2014 without supplying a copy of application to the petitioners or their counsel and without giving any opportunity of filing objection/reply or hearing to the petitioners or their counsel in complete violation of the law laid down by the Hon’ble Supreme Court in the case of State of Maharashtra and others v. Saeed Sohail Sheikh. Averments made by the learned counsel for the petitioners in paragraph 14(A) of the writ petition have not been controverted by the respondents. Even otherwise learned A.G.A. has failed to draw our attention to any material on record which may indicate that the petitioners were either issued any notice or afforded any opportunity of filing objections against the application dated 2.8.2014 moved by the respondent 4 before the concerned Courts with the prayer to transfer the petitioners from District Jail, Gautam Budh Nagar to District Jail, Banda and Central Jail, Bareilly. 10. It is settled law that a communication received from the prison authorities cannot be dealt with and disposed of on an administrative level by sending a communication in reply without due and proper consideration and without passing a considered judicial order. Tested on the aforesaid principle, the impugned orders dated 2.8.2014 passed by the learned Special Judge (Gangster Act), Gautam Budh Nagar and learned Third A.C.J.M., Gautam Budh Nagar granting permission to the proposed transfer of petitioners from their present place of detention do not come within the parameter of a judicial order and hence cannot be sustained. 11. In paragraph 39 of its judgment rendered in the case of State of Maharashtra and others v. Saeed Sohail Sheikh (supra) under identical circumstances, the Apex Court has held as hereunder : “Applying the above principles to the case at hand and keeping in view the fact that any order that the Court may make on a request for transfer of a prisoner is bound to affect him prejudicially, we cannot but hold that it is obligatory for the Court to apply its mind fairly and objectively to the circumstances in which the transfer is being prayed for and take a considered view having regard to the objections which the prisoners may have to offer. There is in that process of determination and decision-making an implicit duty to act fairly, objectively or in other words to act judicially. It follows that any order of transfer passed in any such proceedings can be nothing but a judicial order or at least a quasi-judicial one. Inasmuch as the trial Court appears to have treated the matter to be administrative and accordingly permitted the transfer without issuing notice to the under-trials or passing an appropriate order in the matter, it committed a mistake. A communication received from the prison authorities was dealt with and disposed of at an administrative level by sending a communication in reply without due and proper consideration and without passing a considered judicial order which alone could justify a transfer in the case. Such being the position the High Court was right in declaring the transfer to be void and directing the re-transfer of the under trials to Bombay jail. It is common ground that the stay of the proceedings in three trials pending against the respondents have been vacated by this Court. Appearance of the under trials would, therefore, be required in connection with the proceedings pending against them for which purpose they have already been transferred back to the Arthur Road Jail in Bombay. Nothing further, in that view, needs to be done by this Court in that regard at this stage.” 12. Thus, in view of the admitted factual position that the Special Judge (Gangster Act), Gautam Budh Nagar and learned Third A.C.J.M., Gautam Budh Nagar upon receiving an application on 2.8.2014 from respondent No. 4 with a prayer for granting permission to the proposed transfer of the petitioners from their present place of detention to District Jail, Banda and Central Jail, Bareilly dealt with and disposed of the same at administrative level and granted permission to the proposed transfer without due and proper consideration, without affording any opportunity of hearing or filing objections to the petitioners against their proposed transfer although the request of petitioners’ transfer affected them prejudicially and the settled law on the issue, the impugned orders dated 2.8.2014 passed by the learned Special Judge (Gangster Act), Gautam Budh Nagar and learned Third A.C.J.M., Gautam Budh Nagar cannot be sustained and are liable to be quashed. Since the orders dated 2.8.2014 passed by the learned Special Judge (Gangster Act), Gautam Budh Nagar and learned Third A.C.J.M., Gautam Budh Nagar (annexure Nos. 3 & 4) granting permission to the respondent No. 4 to transfer the petitioners from District Jail, Gautam Budh Nagar to District Jail, Banda and Central Jail, Bareilly have been held to be illegal by us, the consequential order dated 27.8.2014 (annexure-1) passed by the respondent No. 1, Government of Uttar Pradesh on the recommendation of the respondent No. 2 dated 27.8.2014, by which the petitioners have been transferred from District Jail Gautam Budh Nagar to District Jail, Banda and Central Jail, Bareilly also cannot be sustained. 13. The writ petition accordingly succeeds and is allowed. 14. The impugned orders dated 2.8.2014 passed by the learned Special Judge (Gangster Act), Gautam Budh Nagar and learned third A.C.J.M., Gautam Budh Nagar (annexure Nos. 3 & 4), and the order dated 27.8.2014 passed by the respondent No. 1, Government of Uttar Pradesh (annexure-1) are hereby quashed. 15. It is further directed that the State Government shall re-transfer the petitioners from District-Jail, Banda and Central Jail, Bareilly to District Jail, Gautam Budh Nagar forthwith. 16. There shall be however, no order as to costs. ———————