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2016 DIGILAW 268 (JK)

Mohammad Abdullah Cheechi v. State of J&K

2016-05-14

MOHAMMAD YAQOOB MIR

body2016
JUDGMENT : 1. Petitioner seeks direction in the name of respondents for shifting lodgment of the detenue/convict from Central Jail No.5 Tihar Delhi to Central Jail, Srinagar so that trial of the case FIR No.41/2010 P/S D. H. Pora is concluded at an earliest, with a further direction to the respondents to complete the investigation of the another case FIR No.101/2010, P/S D. H. Pora. 2. Mohammad Abdullah Cheechi(petitioner), after facing trial before the Court of Additional Sessions Judge, 02/FTC, New Delhi, in connection with case FIR No.148/2010 for commissions of offence punishable under Sections 486, 353, 307, 419 420 and 471 IPC, 25 U. Act and 14 Foreigners Act, has been convicted and sentenced to undergo seven years rigorous imprisonment, as such, has been lodged in Central Jail, Tihar, New Delhi. 3. While undergoing the sentence, it appears that in connection with trial of the case registered as FIR No.41/2010 P/S D. H. Pora for commission of offence under Section 323 RPC and 7/25 Arms Act had been produced and lodged in Central Jail, Srinagar, for being produced before the trial court at Damhal Hanjipora Kulgam. 4. Another development i.e. police required his custody for investigation purposes in connection with FIR No.101/2010 P/S D. H. Pora for having committed the offences punishable under Section 7/25 Arms Act, 18, 19, 20 and 21 of ULA(P) Act, as such, an application had been filed before Chief Judicial Chief Judicial Magistrate, Kulgam, which has been disposed of by directing Superintendent Central Jail, Srinagar to hand over custody of the accused(petitioner) for investigation purposes of the case FIR 101 of 2010 to SSP, Kulgam. Now the accused is presently lodged in Central, Jail, Srinagar. Apprehending his shifting back to Tihar Jail, instant petition has been filed. 5. It is contended by learned counsel for the petitioner that trial of the case based on FIR No.41/2010, P/S D. H. Pura, is getting hampered in view of non-production of the accused from Tihar Jail and also investigation of case FIR No.101/2010 P/S D. H. Pura is getting hampered. By keeping the accused in Central Jail, Srinagar, two objectives will be achieved, one that the trial of the case before Judicial Magistrate 1st Class, will be concluded and second investigation of the case FIR No.101/2010 P/S D. H. Pura will also be concluded. By keeping the accused in Central Jail, Srinagar, two objectives will be achieved, one that the trial of the case before Judicial Magistrate 1st Class, will be concluded and second investigation of the case FIR No.101/2010 P/S D. H. Pura will also be concluded. According to him speedy trial is a fundamental right which will get negated in case accused is not retained in Central Jail, Srinagar. 6. Respondents, in their reply, have not denied the aforesaid positions but have stated that there is no capacity in Central Jail, Srinagar, to lodge the accused person who are convicted and undergoing sentence outside the State. Furthermore, it has been stated that the Department of Prisons, J&K, has already taken up the matter with the Home Department of J&K State regarding shifting of foreign national prisoners presently lodged in Central Jail, Srinagar, therefore, matter is under active consideration. It is further added that the J&K State Human Rights Commission has taken serious note of the overcrowding of Central Jail, Srinagar, as it has put a lot of pressure on the accommodation, sanitation, health care and other basic requirements, which adversely affect the physical and mental health of inmates-prisoners. 7. Petitioner (accused) has been convicted by the Court of Additional Sessions Judge 02/FTC, New Delhi, as such, is undergoing sentence in Tihar Jail. Question of shifting the accused to Central Jail, Srinagar, is a basic issue. When two cases are pending, one is under investigation and regarding one trial is in progress, it is for the respondents to ensure presence of the accused before the concerned Court as well as before Investigating Officer even the petitioner is kept in Central Jail, Tihar. 8. Question of shifting the accused to Central Jail, Srinagar, is a basic issue. When two cases are pending, one is under investigation and regarding one trial is in progress, it is for the respondents to ensure presence of the accused before the concerned Court as well as before Investigating Officer even the petitioner is kept in Central Jail, Tihar. 8. Since, as per objections, matter has been taken up by the Department of Prisons, J&K, with the Home Department of J&K State, for shifting of accused lodged in Central Jail, Srinagar, it shall be quite appropriate to direct the authorities to look into the aspect as aforesaid i.e. to make suitable arrangement so as to ensure presence of the accused before the Court of Judicial Magistrate 1st Class, D. P. Pura in connection with case FIR No.41/2010 P/S d. H. Pura so that trial of the case is not hampered anymore and at the same time shall also make suitable arrangements for ensuring presence of the accused for the purposes of completion of investigation of the case FIR No.101/2010 P/ S, D. H. Pura. In the process they shall also consider as to whether it would be appropriate to shift the accused back to Tihar Jail and then to get him there from on various dates of hearing as shall be fixed by the trial court at D. H. Pura or would it be otherwise more convenient to lodge the accused (petitioner) in Central Jail, Srinagar, till the trial of the case FIR No.41/2010 by Judicial Magistrate 1st Class, D. H. Pura, is concluded and also investigation of the case FIR No.101/2010 is concluded. 9. In the background of afore-stated reasons and circumstances, appropriate decision shall be taken by the respondents. Until such decision is taken, the petitioner (accused) be not shifted to Delhi. 10. Disposed of as above along with connected CMP.