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Jharkhand High Court · body

2015 DIGILAW 899 (JHR)

Sanjay Gope v. State of Jharkhand

2015-07-31

RAVI NATH VERMA

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JUDGMENT The sole petitioner Sanjay Gope by invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India has questioned the legality of the order of respondent no.2-Superintendent of Mandal Kara, Gumla whereby he has shifted the petitioner from Mandal Kara, Gumla to Lok Nayak Jai Prakash Kendriya Kara, Hazaribagh (in short “L.N.J.P. Kendriya Kara, Hazaribagh”) without taking prior permission of the court concerned. 2. The factual matrix of the case, in short, is that the petitioner was transferred from Mandal Kara, Gumla to L.N.J.P. Kendriya Kara, Hazaribagh, though he is an undertrial prisoner and involved in as many as 14 cases in the district of Gumla. The respondent no.2-the Superintendent of Mandal Kara, Gumla following the direction of the Inspector General of Prison, which was based on the reports of Superintendent of Police, Gumla and Deputy Commissioner of Gumla, issued the letter as contained in Annexure-1 of this writ petition and transferred the petitioner to L.N.J.P., Kendriya Kara, Hazaribagh but before that, respondent no.2 did not take any permission from the court concerned, which would be clear from the fact that when information was given to the court, the learned Chief Judicial Magistrate, Gumla vide his order dated 31.08.2013 has called for an explanation from respondent no.2. It appears from Annexure-1 that the petitioner has been transferred on administrative ground. 3. Mr. Mohit Prakash, learned counsel for the petitioner submitted that in the light of the mandates given in the case State of Maharashtra & Ors. Vs. Saeed Sohail Sheikh; 2013(1) JLJR 137, it was incumbent upon respondent no. 2 or the other authorities to take permission of the court concerned through which the petitioner was remanded in jail custody and secondly before taking any step to transfer the petitioner, it was also the duty of respondent no.2 to afford an opportunity to the undertrial i.e. the petitioner to give his opinion on his transfer and since the mandates of the Supreme Court have not been followed, the transfer of this petitioner is illegal. It was also submitted that Section 29 of the Prisoners Act, 1900 did not empower the Government or Inspector General of Prison to direct transfer of undertrials. 4. It was also submitted that Section 29 of the Prisoners Act, 1900 did not empower the Government or Inspector General of Prison to direct transfer of undertrials. 4. Contrary to the aforesaid submissions, learned counsel representing the State relying upon different paragraphs of the counter affidavit submitted that after the report of the Deputy Commissioner, Gumla dated 17.08.2013 enclosing the copy of letter of Superintendent of Police, Gumla, the Inspector General of Prisons, Jharkhand vide order dated 23.08.2013 directed the respondent no. 2 to transfer the petitioner from the District Jail, Gumla to L.N.J.P. Central Jail, Hazaribagh on administrative ground and the said transfer was made in the light of Section 770(B) of Jail Manual. It was also submitted that the petitioner will be produced through video conferencing from Hazaribagh Central Jail and in case the physical production of the petitioner will be required, the concerned Superintendent of Police will provide armed escort party to produce the petitioner in Courts of Gumla but fairly submitted that the mandates given in the above case State of Maharashtra & Ors. Vs. Saeed Sohail Sheikh (supra) appears to have not been followed. 5. The Hon’ble Supreme Court in the case State of Maharashtra & Ors. Vs. Saeed Sohail Sheikh (supra) in a similar situation of transfer of prisoners from Bombay Central Prison to other Prisons in the State laid down that transfer of an undertrial to a distant prison may adversely affect his right to defend himself and also isolate him from the society of his friends and relatives and in paragraph 39 of the above judgment, the Supreme Court held as follows:- “39. 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 prisoner 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. 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 undertrials 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 undertrials to Bombay Jail. It is common ground that the stay of the proceedings in three trials pending against the respondents has been vacated by this Court. Appearance of the undertrials 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.” The Hon’ble Supreme Court in paragraph 25 of the above judgment while dealing with Section 309 of the Code of Criminal Procedure further held as follows:- “25. Reference may also be, at this stage made, to Section 309 of the Code which, inter alia, empowers the court after taking cognizance of an offence or commencement of the trial to remand the accused in custody in cases where the court finds it necessary to postpone the commencement of trial or inquiry. The rationale underlying both these provisions is that the continued detention of the prisoner in jail during the trial or inquiry is legal and valid only under the authority of the Court/Magistrate before whom the accused is produced or before whom he is being tried. An undertrial remains in custody by reasons of such order of remand passed by the concerned court and such remand is by a warrant addressed to the authority who is to hold him in custody. An undertrial remains in custody by reasons of such order of remand passed by the concerned court and such remand is by a warrant addressed to the authority who is to hold him in custody. The remand orders are invariably addressed to the Superintendents of Jails where the undertrials are detained till their production before the court on the date fixed for that purpose. The prison where the undertrial is detained is thus a prison identified by the competent court either in terms of Section 167 or Section 309 of the Code. It is axiomatic that transfer of the prisoner from any such place of detention would be permissible only with the permission of the court under whose warrant the undertrial has been remanded to custody.” 6. For proper determination of the issue involved in this case, a reference of Section 29 of the Prisoners Act, 1900 is necessary, which reads as follows:- “Section 29. Removal of prisoners.-(1) The State Government may, by general or special order, provide for the removal of any prisoner confined in a prison- (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, to any other prison in the State. (2) 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.” 7. From bare perusal of the above provision, it is amply clear that removal of the prisoner under the four corners of Section 29 is envisaged only at the instance of the State Government in cases where the prisoner is under a sentence of death or under, or in lieu of a sentence of imprisonment or transportation or, is undergoing in default of payment of fine or imprisonment in default of security for keeping the peace or for maintaining good behaviour. Obviously, the State Government has power to transfer the prisoner from one jail to another but it is permissible only in distinct situations as provided in Section 29 of the above Act. Obviously, the State Government has power to transfer the prisoner from one jail to another but it is permissible only in distinct situations as provided in Section 29 of the above Act. The provision does not apply to the undertrial prisoners, who do not come within the description given under Section 29 of the said Act. The petitioner in the present case is an undertrial prisoner, who could not have been transferred in terms of the order of the Inspector General of Prisons under Section 29 of the Prisoners Act or by the respondent no. 2. Even before removal of prisoners, who come under the four corners of Section 29 of the Prisoners Act, the prior permission of the court concerned is mandatory. 8. Apparently, the mandates given by the Hon’ble Supreme Court in State of Maharashtra & Ors. Vs. Saeed Sohail Sheikh (supra) have not been followed in the instant case in as much as the request for transfer had been dealt with without affording an opportunity to the petitioner to oppose the same and even no prior permission of the court concerned was taken by the respondent no.2. 9. Regard being had to the facts and circumstances of the case as discussed above, I am constrained to hold that the order of transferring the petitioner from Mandal Kara, Gumla to L.N.J.P. Kendriya Kara, Hazaribagh is illegal and unacceptable. Hence, the respondent no.2 or the authority concerned is, hereby, directed to transfer the petitioner immediately from L.N.J.P. Kendriya Kara, Hazaribagh to the Mandal Kara, Gumla. 10. The Writ Petition (Cr.) is, accordingly, allowed and the order of respondent no.2 as contained in Annexure-1 is, hereby, quashed.