Research › Search › Judgment

Uttarakhand High Court · body

2015 DIGILAW 535 (UTT)

Zalam v. State of Uttarakhand

2015-11-17

U.C.DHYANI

body2015
JUDGMENT : U.C. Dhyani, J. 1. By means of present writ petition, the petitioners seek writ in the nature of certiorari quashing the impugned orders dated 30.07.2012 and 31.07.2012, passed by respondent no. 4. A writ in the nature of mandamus has also been sought commanding the respondents not to shift the prisoners from Sampoornanand Shivir Jail, Sitarganj, District Udham Singh Nagar to any other jail in the State of Uttar Pradesh. 2. In the erstwhile State of Uttar Pradesh, certain prisoners were detained in Sampoornanand Open Jail, Sitarganj, District Udham Singh Nagar. The petitioners are convicts of different courts of Uttar Pradesh. They are the residents of Uttar Pradesh. This fact is under no dispute that they are convicted by different courts of Uttar Pradesh and are serving their sentence in a jail situated in Uttarakhand. State of Uttar Pradesh, by Government Orders dated 30.07.2012 and 31.07.2012, has taken a decision to transfer these convicts to different jails situated in Uttar Pradesh, which is subject matter of challenge in the present writ petition. 3. Learned counsel for the petitioners submitted that most of the petitioners have already undergone their sentence, which is of more than 14 years. It is on account of their good behaviour that they were shifted / transferred to open jail in Sitarganj, which was the only jail of its kind in erstwhile State of Uttar Pradesh and the only jail of its kind in Uttarakhand. It is his submission that no such jail presently exists in Uttar Pradesh and if the prisoners are transferred to Uttar Pradesh, they will be deprived of certain facilities which they are currently enjoying in the open jail. According to learned counsel for the petitioners, if the petitioners are transferred to different jails in Uttar Pradesh, they will be deprived of the facilities which they are enjoying in the open jail. 4. When the petition was taken up on 07.09.2012 for admission, this Court directed the District Magistrate, Udham Singh Nagar to file a report as to under what conditions the petitioners are undergoing their sentence. What were the circumstances under which they were placed in an open jail and whether they will be deprived of any facilities, if they are transferred to any other jail in Uttar Pradesh? The report submitted by the Addl. District Magistrate has been placed before this Court by learned Addl. What were the circumstances under which they were placed in an open jail and whether they will be deprived of any facilities, if they are transferred to any other jail in Uttar Pradesh? The report submitted by the Addl. District Magistrate has been placed before this Court by learned Addl. C.S.C. for the State of Uttarakhand. In her report, the Addl. District Magistrate has mentioned certain facilities which the petitioners are enjoying, which will be denied to them, if they are transferred to any jail in Uttar Pradesh. Addl. District Magistrate has mentioned these facilities, as were told to her by the inmates of the jail. The prisoners themselves are willing to stay in Uttarakhand and are unwilling to go to Uttar Pradesh. 5. The fact remains that they have been convicted by different courts of Uttar Pradesh and are the residents of Uttar Pradesh. 6. It is the prerogative of the Executive to decide as to how and in which jail the prisoners shall be kept for serving out their sentence. No prisoner can claim, as a matter of right, that he wants to be detained in a particular jail. Had that been so, all the prisoners languishing in different jails in the country would have opted for their detention in Sampoornanand Open Jail at Sitarganj. But it is not so. If the petitioners have undergone some part of their sentence in open jail, here at Uttarakhand, they cannot claim, in the absence of any authority, that they will serve the remainder of their sentence in the open jail itself. 7. In his affidavit filed in the Court on 31.10.2015, Dr. P.V.K. Prasad, Inspector General of Prisons, Uttarakhand, has deposed thus: “……..The present petition has been filed by the petitioner challenging the orders dated 30.07.2012 and 31.07.2012 by means of which the petitioner was directed to be shifted to the State of Uttar Pradesh as they are under the custody in connection with offences committed in the State of Uttar Pradesh….. P.V.K. Prasad, Inspector General of Prisons, Uttarakhand, has deposed thus: “……..The present petition has been filed by the petitioner challenging the orders dated 30.07.2012 and 31.07.2012 by means of which the petitioner was directed to be shifted to the State of Uttar Pradesh as they are under the custody in connection with offences committed in the State of Uttar Pradesh….. …….It is submitted that since the petitioners are under the judicial custody in connection with the offences committed in the State of Uttar Pradesh, therefore, has no right to remain in the jail situated in State of Uttarakhand and since due to the pendency of aforesaid writ petition the petitioner could not shifted to the jail situated in the State of Uttar Pradesh, therefore, the matter is urgent one……...” 8. Chapter VII of the U.P. Jail Manual (which is applicable to the State of Uttarakhand as well) deals with transfer of prisoners, paragraph 128 whereof says that the transfer of convicts from one prison to another within the State shall be directed by the Inspector General, subject to the orders and the control of the State Government. 9. Paragraph 141 of the U.P. Jail Manual deals with transfer of convict to a jail outside the State. The said provision is being reproduced here-in-below for reference: “141. Transfer of convict to a jail outside the State. –The transfer of convicts from a jail in Uttar Pradesh to a jail in another State for execution of sentence or for release requires the previous consent of the State Governments of both Uttar Pradesh and the other State concerned. When such a transfer is rendered necessary by any general or special order or for disciplinary reasons, the Superintendent shall submit the nominal roll in duplicate of the convict to the Inspector General for transmission to the State Government.” 10. Paragraph 142 of U.P. Jail Manual is also relevant in the context of present case and is being reproduced here-in-below for convenience: “142. Transfer of convicts from another State for release. –When any convict is transferred from another State to any jail in Uttar Pradesh for release, the Superintendent of the jail shall inform the District Magistrate of the impending release. The District Magistrate in communication with the Superintendent of Police shall take such action as he may consider necessary.” 11. Transfer of convicts from another State for release. –When any convict is transferred from another State to any jail in Uttar Pradesh for release, the Superintendent of the jail shall inform the District Magistrate of the impending release. The District Magistrate in communication with the Superintendent of Police shall take such action as he may consider necessary.” 11. In the instant case, the State of Uttarakhand desired the petitioners to be transferred to different jails in Uttar Pradesh, to which State of Uttar Pradesh has no objection. Counter affidavit has been filed on behalf of State of Uttarakhand to facilitate petitioners’ transfer from open jail, Sitarganj to different jails in Uttar Pradesh. In fact it was on the request of State of Uttarakhand that the State of Uttar Pradesh has passed the impugned Government Orders. 12. Sub-Section (2) of Section 29 of the Prisoners Act, 1900 deals with such contingencies. The same reads as under: “Subject to the orders, and under the control, of the State Government, the Inspector-General of Prisons may, in like manner, provide for the removal of any prisoner confined as aforesaid in a prison in the State to any other prison in the State.” 13. Sub-Section (1) of Section 29 of the aforesaid Act provides for removal of prisoners and says that the State Government may, by general or special order, provide for the removal of any prisoner confined in a prison to any other prison in the State. 14. It will also be useful to quote Section 3 of the Transfer of Prisoners Act, 1950. The same is reproduced here-in-under: “Removal of prisoners from one State to another.- (1) Where any person is confined in a prison in a State,- (a) under sentence of death, or (b) under or in lieu of, a sentence of imprisonment or transportation, or (c) in default of payment of a fine, or (d) in default of giving security for keeping the peace or for maintaining good behaviour; the Government of that State may, 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 State. (2) The Officer in charge of the prison to which any person is removed under sub-section (1) shall receive and detain him, so far as may be, according to the exigency of any writ, warrant or order of the court by which such person has been committed or until such person is discharged or removed in due course of law.” 15. It, therefore, transpires that the Government of one State can transfer the prisoners to another State with the consent of the Government of that State where any prisoner is confined in a prison –(i) under sentence of death, or (ii) under or in lieu of, a sentence of imprisonment or transportation, or (iii) in default of payment of a fine, or (iv) in default of giving security for keeping the peace or for maintaining good behaviour. 16. No provision of law has been violated by either of the States (i.e., State of Uttar Pradesh or State of Uttarakhand) while directing the transfer of petitioners from open jail, Sitarganj, situated in Uttarakhand to different jails in Uttar Pradesh. It is being observed, at the cost of repetition, that the petitioners were convicted by different courts of Uttar Pradesh, are residents of Uttar Pradesh and were detained in Sampoornanand open jail, Sitarganj, when State of Uttarakhand was part of erstwhile State of Uttar Pradesh. This Court, therefore, cannot interfere in the orders impugned solely on the ground that certain facilities which are available to the petitioners in Uttarakhand, will no more be available to them in Uttar Pradesh, for, the petitioners cannot claim the same, as a matter of right, that they want to be detained in a particular jail. 17. Writ petition, therefore, fails and is dismissed.