Karnataka High Court
Gopal vs The State Of Karnataka And Ors on 26 March, 2024
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NC: 2024:KHC-K:2552
WP No. 200383 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
WRIT PETITION NO.200383 OF 2024 (GM-RES)
BETWEEN:
GOPAL S/O BAJIRAO
AGED ABOUT 35 YEARS,
OCC: AGRICULTURE,
R/O BASAVANAGAR
KALABURAGI-585105.
...PETITIONER
(BY SRI KEDAR M. DESAI, ADVOCATE)
AND:
Digitally signed
1. THE STATE OF KARNATAKA
by KHAJAAMEEN THROUGH ITS SECRETARY HOME DEPARTMENT,
L MALAGHAN VIDHANA SOUDHA, BANGALORE-560001.
Location: HIGH
COURT OF
KARNATAKA 2. THE SUPERINTENDENT
KALAMBA CENTRAL JAIL,
GARGOTI ROAD,
KOLHAPUR, MAHARASHTRA-416007.
3. THE SUPERINTENDENT
BIDAR CENTRAL JAIL, BIDAR-585401.
...RESPONDENTS
(BY SMT. ANITA M. REDDY, HCGP)
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NC: 2024:KHC-K:2552
WP No. 200383 of 2024
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING
THE ORDER PASSED BY THE HON'BLE PRINCIPAL DISTRICT
AND SESSIONS JUDGE AT BIDAR IN SC NO.123/2018, DATED
25.7.2023 AT ANNEXURE-G, TO ISSUE WRIT OF MANDAMUS
DIRECTING SUPERINTENDENT OF JAIL BIDAR RESPONDENT
NO.3 TO KEEP THE PETITIONER IN CENTRAL PRISON BIDAR
TILL DISPOSAL OF THE CASE BEFORE HON'BLE PRINCIPAL
DISTRICT AND SESSIONS JUDGE AT BIDAR IN SC
NO.123/2018 AND ETC.
THIS PETITION COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
In this petition, the petitioner has sought for quashing of the order passed by the Principal District and Sessions Judge at Bidar in SC No.123/2018 dated 25-07-2023 vide Annexure-G and also sought for a mandamus to the Superintendent of Jail Bidar/respondent No.3 to keep the petitioner in Central Prison, Bidar, till disposal of the case before the District and Sessions Judge, at Bidar in SC No.123/2018.
2. Heard the learned counsel appearing for the petitioner and learned High Court Government Pleader for respondent-State.
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NC: 2024:KHC-K:2552 WP No. 200383 of 2024
3. The petitioner is a prisoner kept in Kolhapur Central Jail as under trial prisoner in Special Case No. 1/2020 for the offences punishable under Sections 302, 120(B) of IPC and under Sections 3, 4, 5 and 27 of MCOCA Act in Crime No.244/2018 pending before the Principal District and Sessions Judge at Pandhrapur.
4. The petitioner contends that he had moved an application before the Special Court at Pandhrapur seeking his transfer to the prison at Bidar for trial in SC No.123/2018 for the offence punishable under Sections 323, 324, 307, 504 r/w Section 34 of IPC pending before Principal District and Sessions Judge, Bidar.
5. The said application was considered by the Special Court, Pandhrapur and the said Court had permitted the production of the accused before the District and Sessions Court, Bidar, as per Annexure-C. Thereafter, the petitioner moved the District and Sessions Court at Bidar, seeking his transfer to prison at Bidar and for -4- NC: 2024:KHC-K:2552 WP No. 200383 of 2024 completion of the trial on various grounds as per an application at Annexure-B dated 27-6-2023. The said application was considered by the learned Sessions Judge at Bidar and was rejected by order dated 25-7-2023. Assailing the same, the writ petitioner is before this Court.
6. The learned counsel appearing for the petitioner would submit that the matter which is pending before the Sessions Court at Bidar is of the year 2018 and the matter which is pending before the Special Court, Pandhrapur is of the year 2020 and therefore, the petitioner is ready to face the trial in the Sessions Court at Bidar. But his production before the Sessions Court at Bidar is affected due to the distance as well as the poor connectivity between jail at Kolhapur and jail at Bidar. It is submitted that the right to fair trial being an integral part of any criminal trial requires the presence of the prisoner before the trial Court and when the petitioner is kept in prison at Kolhapur, he is unable to have communication with his counsel at Bidar and therefore, the Jail Authorities be -5- NC: 2024:KHC-K:2552 WP No. 200383 of 2024 directed to permit the petitioner to be kept at Bidar Central Prison, so that the trial may proceed in the matter.
7. Per contra, the learned HCGP would submit that in view of Section 3 of the Prisoners Act, the removal of the prisoner from one State to another is permissible and as such, transfer of the prisoner from one State to another has to be approved by the State Government of the particular State. It is submitted that the Government of Maharashtra can take action in this regard and no such directions can be issued for the Jail authorities for removal of the petitioner herein from the prison at Kolhapur and to be housed in the prison at Bidar. Therefore, it is submitted that the petition is bereft of any merits. It is also submitted that the petitioner is being produced before the Sessions Court at Bidar for holding the trial through video conferencing and therefore, no prejudice will be caused to the petitioner.
8. Having heard the learned counsel appearing for the petitioner and the learned HCGP for State, the records -6- NC: 2024:KHC-K:2552 WP No. 200383 of 2024 reveal that the petitioner is facing several cases in Maharastra and one of them is the case which is pending before the Special Court at Pandhrapur in Special Case No.1/2020. It is relevant to note that Section 10 of the MCOCA Act, provides that there shall be precedence for the trial before the Special Court. Section 10 of MCOCA Act, reads as below:
"10. The trial of any offence under this Act by a Special Court shall have precedence over the trial of any other case against the accused in any other Court (not being a Special Court) and shall be concluded in preference of the trial of such other cases and accordingly the trial of such other cases shall remain in abeyance."
9. It is evident from the communication which is placed before this Court at Annexure-C that the Special Court has no objection to transfer the prisoner to any other prison as per the Jail Manual and the only condition that was imposed was that the prisoner has to be -7- NC: 2024:KHC-K:2552 WP No. 200383 of 2024 produced before the Special Court through Video Conferencing on the fixed date.
10. The learned counsel for the petitioner places reliance on the judgment rendered by Jammu and Kashmir High Court in the case of Bashir Ahmad Mir and another Vs. State and others1 to contend that the impugned order passed by the Sessions Court is not proper. It is relevant to note that the said decision of Jammu and Kashmir High Court holds that the permission of the Court before shifting of any under trial from one prison to another within State is not mandatory and the trial Court is only required to be intimated by the Jail Authorities and State had come to the conclusion that shifting of any under trial from one prison to another prison do not require the principles of audi alteram Partem to be followed. Therefore, the said decision is not of any help to the petitioner herein.
1 Crl.M. No.660/2019 dated 15-7-2021 -8- NC: 2024:KHC-K:2552 WP No. 200383 of 2024
11. It is relevant to note that in the case on hand, the Special Court had permitted the production of the petitioner before the Sessions Court at Bidar. It is also submitted that the charges have been framed against the petitioner and another accused is also facing trial in SC No.123/2018. Therefore, there is no impediment for the Sessions court at Bidar to hold the trial on day- today basis and complete the same. It is also submitted by both the sides that there are only 08 witnesses that have been cited in SC No.123/2018. In all probability, the Sessions Court at Bidar can complete the trial by holding the same on day today basis within 30 days. Recording of the statement of the accused under Section 313 of Cr.P.C., may be done through video conferencing also. Therefore, this Court does not find any sufficient reason to direct the Jail Authorities to produce the accused before the Sessions Court at Bidar in person beyond the period of 30 days at maximum. During such period of the trial before the Sessions Court, the accused may be housed in the Central Prison at Bidar on transit basis with adequate security to -9- NC: 2024:KHC-K:2552 WP No. 200383 of 2024 be provided by the concerned Jail Authorities as well as the Superintendent of Police at Bidar. With these directions, it would be appropriate to dispose of the writ petition. Hence, the following:
ORDER
(i) The writ petition is allowed in part.
(ii) The trial Court in SC No.123/2018 is directed to hold the trial on day today basis by fixing the calendar of trial for examination of witnesses who are cited in the chargesheet.
(iii) The Jail Authorities are directed to produce the accused/petitioner before the Sessions Court at Bidar in SC 123/2018 in person during the trial, which in all probability should not exceed the period of 30 days, as per the calendar of trial.
(iv) For such period, the accused/petitioner may be kept in Central Jail at Bidar under the Security of the concerned Jail Authorities and the Superintendent of
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NC: 2024:KHC-K:2552 WP No. 200383 of 2024 Polcie, Bidar, who are is directed to provide adequate escort for production of the accused before the trial Court.
(v) In case, the Special Court at Pandhrapur feels that the presence of the petitioner is necessary before it, it shall have the precedence in terms of Section 10 of MCOCA.
(vi) The petitioner is directed to cooperate for the trial before the trial Court and any lapse on his part will forfeit his claim to be housed at Bidar Prison.
(vii) The trial Court shall fix the trial in terms of Section 309 Cr.P.C., and then intimate the same to the prison at Kolhapur keeping in mind the observations of the Apex Court in the case of State of UP vs. Shambunath Singh and others2 and also of this Court in N.R. Bhat Vs. State by CBI/SPE, Bangalore3, 2 2001 (4) SCC 667 3 ILR 2015 Karnataka 4829
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NC: 2024:KHC-K:2552 WP No. 200383 of 2024 In terms of the above directions, the writ petition stands disposed of.
Sd/-
JUDGE tsn* List No.: 1 Sl No.: 17 CT:PK