Gujarat High Court
Bharatsinh Gumansinh Jadeja vs State Of Gujarat & 2 on 8 September, 2017
Author: G.R.Udhwani
Bench: G.R.Udhwani
R/SCR.A/4811/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 4811 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.R.UDHWANI
================================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
================================================================
BHARATSINH GUMANSINH JADEJA....Applicant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
================================================================
Appearance:
MR ASHISH M DAGLI, ADVOCATE for the Applicant(s) No. 1
NOTICE UNSERVED for the Respondent(s) No. 3
MS. JIRGA JHAVERI, APP, for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
================================================================
CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 08/09/2017
ORAL JUDGMENT
[1] The petitioner is an under-trial prisoner; being tried in Sessions Case No.15 of 2014 by the Special Court, Jamnagar in respect of the offences registered against the petitioner in Jamnagar Panch-B Division Police Station bearing C.R.No.I-
Page 1 of 6
HC-NIC Page 1 of 6 Created On Sat Sep 16 11:07:05 IST 2017
R/SCR.A/4811/2017 JUDGMENT
177 of 2013. For his alleged misconduct, the petitioner has been permitted to be transferred to Rajkot Central Jail from Jamnagar Jail for a period of six months by the Special Court abovestated. This petition is thus filed challenging his transfer from jail of one District to the jail of other District.
[2] The facts of the case as revealed from the application made by respondent dated 12.05.2017 to the learned Additional Sessions Judge, Jamnagar requesting for transfer of the petitioner to Rajkot Central Jail would indicate that the petitioner is alleged to have attempted to instigate other jail mates for the activities against the jail authorities; as also he was suspected having dominated other prisoners, as also committing misconducts even outside the jail. He was also suspected to have involved himself in the assault by prisoners on the jail staff in past.
[3] It it stated that on 16.08.2016, the petitioner was recommended to be referred to Civil Hospital, Jamnagar under Police Japta, but he got excited and detached the mirror fitted on the gate of the jail and hit it on his head and thus caused damage to the Government property. It is stated that his conduct of dominating the prisoners and the jail staff is recorded in CCTV Camera which was produced before the Court. It was stated that the petitioner is habituated in dominating the jail staff.
[4] The application further refers to the incident dated 06.05.2017 alleging that the petitioner left his Barrack and went beyond the yard and circle of the main gate and when stopped by the Jail Superintendent, he got excited and did not Page 2 of 6 HC-NIC Page 2 of 6 Created On Sat Sep 16 11:07:05 IST 2017 R/SCR.A/4811/2017 JUDGMENT offer satisfactorily explanation and exhibited unruly conduct.
[5] He was alleged to have disturbed the law and order while on temporary leaves by the High Court and that in order to save himself, it is stated that he used to surrender to the jail before the scheduled date of his surrender. It was pointed out that the incident in that regard has been registered with Jamnagar Panchkoshi 'B' Division Police Station at C.R.II-263 of 2016.
[6] On consideration of the above application and without calling upon the petitioner to show cause against his proposed transfer, the trial Court permitted his transfer to Rajkot Central Jail by its impugned order dated 08.05.2017.
[7] The petitioner thereafter, made an application on 05.06.2017 praying for recall of the above referred order which was eventually heard after issuing notice to the respondents and the above stated order came to be modified by restricting petitioner's transfer to Rajkot Central Jail for six months.
[8] Learned counsel for the petitioner while relying upon the State of Maharashtra and others vs. Saeed Sohail Sheikh and others [(2012) 13 SCC 192] as also Vikas Tiwari Alias Vikas Nath v/s. The State of Jharkhand (Cr.M.P. No.2267 of 2015); an order dated 08.03.2016 passed by the Jarkhand High Court at Ranchi would contend that the orders for transfer of under-trial prisoner can only be passed with the permission of the Court having the custody of the prisoner; either under Sections 167 or Section 309 of the Code of Criminal Procedure (for short "Cr.P.C.). He would Page 3 of 6 HC-NIC Page 3 of 6 Created On Sat Sep 16 11:07:05 IST 2017 R/SCR.A/4811/2017 JUDGMENT submit that the powers in the said provisions are judicial powers and therefore, it was imperative for the trial Court to hear the petitioner before passing of the order dated 12.05.2017 above referred. He would contend that the orders once passed under either of the abovementioned provisions cannot be reviewed by the same Court; however, an application came to be preferred by the petitioner under the misconceived advise to seek review of the above referred order which also was illegally rejected by the Court below. Learned counsel would contend that similar such reasons for transfer were not approved as good reasons in case of other two accused being Kamleshbhai Lakhmanbhai Jam and Aziz Yusufbhai Surya and therefore, the same treatment ought to have been given to the petitioner.
[9] Opposing this petition, learned APP would support the impugned orders. She has taken this Court through the reasons assigned by the Court in its order dated 19.06.2017 for transfer of the petitioner from one prison to another. It was submitted that the petitioner was heard and the order eventually was modified by restricting the period of transfer of the petitioner to Rajkot jail to six months.
[10] There can be no dispute on the proposition of law emerging from the case of State of Maharashtra and others vs. Saeed Sohail Sheikh and others (Supra) that the under-trial prisoners cannot be transferred by jail authorities under the provisions of Prisons Act, 1990 and the Prisons Act, 1894 and that the transfer of under-trial prisoners from one jail to another can be made only under Sections 167 and 309 of the Cr.P.C. and that orders under the Page 4 of 6 HC-NIC Page 4 of 6 Created On Sat Sep 16 11:07:05 IST 2017 R/SCR.A/4811/2017 JUDGMENT said provisions are not ministerial in nature, such orders are either judicial or quasi judicial orders obligating the Court concerned to hear the prisoner, who may be adversely affected thereby. It is settled legal position that in judicial or quasi judicial proceedings, the charge against the prisoner must be specifically stated and he must be called upon to defend himself to the said charge. Stating of the charge would only mean that the prisoner must be confronted with the accusation and must be asked to show against the proposed transfer and the decision can be taken only after considering the cause shown by person concerned. Thus, relevant material relied upon against under-trial prisoner must be produced before the Court and the Court would after hearing both the parties, pass the order either permitting or declining the transfer of the under-trial prisoner.
[11] Viewed in the light of the above well settled principles, it appears that the petitioner was not specifically stated the charge against him. He was also not supplied with material relied upon against him and was not called upon to defend himself on the said charges. The charges against the accused as indicated above criticized his conduct and behaviour within and outside the jail. It was therefore, not for the administrative reasons that he was sought to be transferred, but the transfer was sought to be affected with the abovestated stigma and therefore, there were all the more reasons to hear him.
[12] Having regard to the nature of powers vested with the Court under Section 167 and 309 of Cr.P.C. in respect of the under-trial prisoner, it cannot be said that the power to review its own order was not available with the Court under Page 5 of 6 HC-NIC Page 5 of 6 Created On Sat Sep 16 11:07:05 IST 2017 R/SCR.A/4811/2017 JUDGMENT the said provisions, however, the flaw exist even in the reviewed order; inasmuch as when the Court noticed that the petitioner was not heard before passing the order dated 12.05.2017, only course open for it was to recall the said order and rehear the application after giving opportunity of heating to all concerned; instead the Court dealt with the defence of the petitioner and reiterated the earlier order with a modification as regards the term of the transfer of the petitioner to other jail. Merely because some respite was given to the petitioner, it cannot be said that the provisions of Sections 167/309 of Cr.P.C. stood complied with in terms indicated in State of Maharashtra and others vs. Saeed Sohail Sheikh and others (Supra).
[13] For the foregoing reasons, the impugned orders dated 12.05.2017 and 19.06.2017 cannot be sustained and the case is required to be remanded to the trial Court for its reconsideration in accordance with law as pointed out in State of Maharashtra and others vs. Saeed Sohail Sheikh and others (Supra).
[14] Accordingly, impugned orders are quashed and set aside and the application dated 12.05.2017 seeking transfer of the petitioner to Rajkot Central Jail is remanded to the trial Court for its reconsideration as above. Rule is made absolute to the above extent with no order as to costs. It is clarified that it will be open for the parties to raise all contentions that may be available to them under the law in the trial Court. Direct service is permitted.
(G.R.UDHWANI, J.) siddharth Page 6 of 6 HC-NIC Page 6 of 6 Created On Sat Sep 16 11:07:05 IST 2017