Jammu & Kashmir High Court - Srinagar Bench
Abdul Wahid Mir vs State Of J&K; & Ors. on 12 February, 2019
Author: Rashid Ali Dar
Bench: Rashid Ali Dar
On board matter
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
HCP No.178/2018
Date of decision:12.02.2019
Abdul Wahid Mir v. State of J&K and ors.
Coram:
Hon'ble Mr Justice Rashid Ali Dar, Judge.
Appearance:
For the Petitioner(s): Mr. Mir Shafaqat Hussain, Adv.
For the Respondent(s): Mr. Usmani Gani, GA.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
1) The petitioner herein is stated, in terms of the petition, to be facing trial in the
Court of learned Principal Sessions Judge, Bandipora for commission of offence punishable under Section 302 RPC, 7/25 Arms Act. During trial he had been lodged at Central Jail, Srinagar and Sub Jail, Baramulla. However, in the month of March, 2018, he has been shifted to District Jail, Udhampur, which, according to the petitioner, was made without any prior information either to the detenue or his family members. The family is stated to have learnt about his shifting from the learned trial court by virtue of an order dated 28.02.2018 of respondent No.2, of which a Photostat copy was provided also to the petitioner. The action of the respondent No.2, according to the petitioner, is bad, precisely, for the following reasons:
(i) The detenue is an under-trial prisoner and until the pendency of criminal, case, his custody is to be regulated by the trial court and the respondent No.2 has no authority to change the lodgment of the detenue;
(ii) The detenue was never informed that his lodgment is being changed nor was he given any opportunity of being heard before making change of his lodgment;HCP No.178/2018 Page 1 of 10
(iii) The detenue is an old man suffering from various ailments and was under
treatment of doctors at the Govt. Hospital, Srinagar. The shifting of the detenue has deprived him of the necessary medical treatment. Further, the shifting has deprived him of right of speedy trial as he is not being produced regularly before the concerned criminal court;
(iv) The respondent No.2 has passed the order of shifting in violation of the constitutional rights guaranteed to the detenue under Article 22(5) of the Constitution of India;
(v) The detenue was in judicial custody and his custody could not be changed without seeking approval from the trial court. The detenue was lodged in judicial custody in terms of Section 309 of Cr. P. C and he could not have been shifted without seeking change of custody from the concerned trial court;
(vi) The respondent No.2 has no authority under law to change the lodgment of the under trial prisoners from one jail to another and this is the exclusive domain of the trial court. The order of shifting is without any authority of law and the consequential custody of the detenue in District Jail, Udhampur is illegal and amounts of illegal confinement.
2) Counter has been filed only by respondent No.2 wherein the petition is stated to be without any force as the case of the petitioner regarding shifting being covered by Para 18.59 of J&K Jail Manual, there was no occasion to challenge the same. A copy of the communication dated 28.02.2018 sent by Superintendent, District Jail, Baramulla, to learned Sessions Judge, Bandipora, as may be quite apposite to refer herein reads as:
"OFFICE OF THE SUPERINTENDENT DISTT JAIL BARAMULLA The ld. Sessions Judge, Bandipora.
No.- DJBK/MH/1019-20 Dated 28-02-208 HCP No.178/2018 Page 2 of 10 Sub:-Information regarding shifting of security prisoners to District Jail, Udhampur.
Sir, Two security prisoners mentioned below facing trial before your Hon'ble Court are being shifted to District Jail Udhampur from District jail Baramulla, in pursuance to Director General of Police, Prisons J&K Govt. Jammu order No.126 of 2018 dated 28/02/2018 issued under endorsement No.DS/Cvt/Shifting/2017/24420-23 dated 28.02.2018 (copy enclosed) under proper police custody.
This is for kind information of the Hon'ble Court
S.No. Name of the prisoner FIR No/offence
1. Ab. Waheed Mir S/o Mohd. Abdullah R/o 174/1993 u/s 307,7/25 IA Act
Ongam Bandipora P/S Bandipora
170/1993 u/s 302, 7/27 IA Act
P/S Bandipora
2. Ali Mohd Khaja s/o Mohd Subhan 170/1993 u/s 302, 7/27 IA
R/o Panzagam Bandipora Act P/S Bandipora
Yours faithfully,
Superintendent,
Distt Jail Baramulla
3) Heard learned counsel for the parties.
4) Learned counsel for the petitioner has laid emphasis on the argument that the
custody of an under-trial is to be regulated in terms of provisions of the Code of Criminal Procedure and it would be, as such, for the learned trial court to identify the place of custody, of course, if there is any emergency or administrative exigency on the basis of which the jail authorities would feel necessity of shifting an under-trial to any other place. Same is to be made under an intimation to the said Court. Jail authorities are required to produce the under-trial on each date of hearing before the Court and the place of custody so identified has to be approved by the learned trial court on subsequent hearings. In this regard, he has placed reliance on Section 344 of Cr. P. C.
5) Learned counsel for the petitioner also raised the plea that this Court is required to examine the nature and motive of the action taken vis-à-vis the petitioner for shifting him from District Jail, Baramulla, to District Jail, Udhampur. The respondents have not been able to depict the shifting so ordered was made bona fidely for any HCP No.178/2018 Page 3 of 10 administrative exigency or emergency is being also canvassed. Wherever transfer or shifting of an under-trial from one place to another subjects the family and the under-
trial to inconvenience and agony and is virtually intended to punish the detenue, the Court has to strike down the same, according to him. One of the facets of Article 21 of the Constitution of India is to enable an accused, indicted for commission of offence, to prepare his defence properly and wherever an attempt is being made, either directly or indirectly, to thwart such a course of action, it is required to be quashed. In this regard, reliance has been placed on various judgments of the Hon'ble Apex Court including judgment in "A.K. Roy v. Union of India & anr" (AIR 1982 SC71) and "State of Maharashtra and Ors . etc. etc. v. Saeed Sohail Sheikh etc. etc." (AIR 2013 SC 168).
6) On the other hand, learned counsel for the respondents contended that the action taken by the respondents has been made in exercise of statutory powers and so there is no scope to throw it to challenge in terms of the instant petition.
7) I have considered the respective contentions raised in the light of the record available before me. The fact remains that the respondent No.1 has not filed his reply in the instant petition. The only document available to examine as to what led to shifting of detenue to District Jail, Udhampur is the communication dated 28.02.2018 referred supra. It is admitted in terms of the pleadings that the detenue had been facing trial for the commission of offence under Section 302 RPC and 7/25 Arms Act in the Court of ld. Sessions Judge, Bandipora. The Said Court had power under Section 344 Cr. P. C to regulate his custody until trial was concluded. Proper it may be herein to have a glance of said provision:
"344. Power to postpone or adjourn proceedings.--(1) in every inquiry or trial, the proceedings shall be held as expeditiously as possible and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds HCP No.178/2018 Page 4 of 10 the adjournment of the same beyond the following day to be necessary for reasons to be recorded.
(1-a) If from the absence of a witness, or any other reasonable cause, it becomes necessary to advisable to postpone the commencement of, or adjourn any inquiry or trial the Court may, if it thinks fit, order in writing, by stating the reasons therefor from the time to time, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody;
Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time;
Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing.
(2) Every order made under this section by a Court other than the High Court shall be in writing signed by the presiding Judge or Magistrate.
Explanation. --Reasonable cause for remand.--If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and if appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.
8) It may also be necessary to quote para 18.59 of the J&K Jail Manual:
"18.(59) During an emergency or an administrative grounds, the Inspector-General Prisons is authorized to transfer undertrial prisoners from one prison to another, within the State : Provided that if a prisoner is transferred to a place outside the jurisdiction of the Court concerned, prompt intimation shall be sent to the concerned court. The prisoner shall be produced before Court on the due date."
9) The preamble of the Prisons Act lays down that the Act is intended to amend the law relating to prisons in the State and to provide rules for the regulation of such prisons. Inspector General of Prisons has been assigned various functions and empowered to exercise certain powers related with regulation of the prisons. It is by dint of this Rule, said officer has been authorized to order for transfer of an undertrial HCP No.178/2018 Page 5 of 10 prisoner from one jail to another. It, however, lays an obligation on him to have prompt intimation to the Court where the case against the undertrial is pending and where he is required to be produced on the due date. The said power has direct nexus with Section 29 of the Act which provides for removal of prisoners either undergoing sentence or confined in the prison in the State to any other prison in the same State.
10) The respondent No.2, by his omission to file reply in the instant petition, has not been able to show as to what were the circumstances which led him to passing of the orders in terms of which respondent No.3 has stated the petitioner herein has been shifted. By its very nature, shifting can be ordered to meet an unforeseen event or otherwise a contingency which could not be foreseen by the court where the case is pending and under whose orders the undertrial is being confined in the jail. On administrative side, the officer having powers to supervise the custody of the prisoners or the undertrials may face difficulty in lodging a person at any place. It may, for example happen, when the capacity in the jail of the inmates exceeds the limit which is to be managed in terms of the relevant statute or otherwise if a prisoner indulges in any activity which necessitates his transfer to any other prison or if same is necessitated for safety of a person. The power vested in the statutory authority may be exercised to meet cases like referred herein.
11) On a plain reading of Section 29 of the Act read with para 18.59 of the Jail Manual, there could be no two opinions that the Inspector General of Prisons can exercise such a power but while doing so, the concerned criminal court is to be taken on board, may be even on administrative side. In any case, the power under Section 29 and para 18.59 would be subject to further orders to be passed by the criminal court where the case is pending. Interpreting it otherwise would render the power conferred on a trial court redundant.
12) In "A.K. Roy v. Union of India & anr" (AIR 1982 SC71), their Lordships, while emphasizing on the necessity of fairness in detaining a person under preventive HCP No.178/2018 Page 6 of 10 detention, enunciated that the detenue should have to be kept in detention normally in a place which is within environs of his or her ordinary place of residence as otherwise it would make impossible for his friends and relatives to meet him or for the detenue to claim the advantage of facilities like having his own food. It has been further observed that:
"The requirement of administrative convenience, safety and security may justify in a given case the transfer of a detenue to a place other than that where he ordinarily resides, but that can only be by way of an exception and not as a matter of general rule. Even when a detenue is required to be kept in or transfer to a place which is other than his usual place of residence, he ought not to be sent to any far off place which, by the very reason of its distance, is likely to deprive him of the facilities to which he is entitled. Immediately after a person is taken in custody in pursuance of an order of detention, the members of his household preferably the parents, the child or the spouse, must be informed in writing of the passing of the order of detention and of the fact that the detenue has been taken in custody. Intimation must also be given as to the place of detention, including the place where the detenue is transferred from time to time."
13) Their lordships of Hon'ble Apex Court in State of Maharashtra and Ors . etc. etc. v. Saeed Sohail Sheikh etc. etc." (AIR 2013 SC 168), while commenting upon the power to be exercised under Section 29 of the Prisons Act, in para 25 and 39 observed as under:
"25........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 HCP No.178/2018 Page 7 of 10 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.
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. 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 under-trials 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 HCP No.178/2018 Page 8 of 10 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.
14) At the cost of repetition, it may have to be reiterated that the respondent No.2 has not been able to show how the authority which was vested in him in exercise of powers under Section 29 of the Prisons Act read with para 18.59 of the Jail Manual was used in the present case and so the action taken for shifting of detenue from District Jail, Baramulla to District Jail, Udhampur, cannot be saved. The respondents have to depict, to the satisfaction of the Court, that shifting was done to meet any administrative exigency or emergency. May be presumption of being lawful and fair is attributed to the administrative actions in ordinary circumstances but where malafides to such an action are imputed, it would be for such authority which has exercised the power to show that it was not so. Moreover, the power to be exercised in terms of Section 29 of the Act read with para 18.59 of the Jail Manual in no case can override the power of a regular criminal court to order for remand during trial in terms of Section 344 Cr. P. C or frustrate proceedings in a pending trial or militate the right of an accused to defend himself meaningfully.
15) I, as such, am of the opinion that the petitioner has been able to carve out a case for grant of relief. Accordingly, by issuance of a Writ of Certiorari, order No.126 of HCP No.178/2018 Page 9 of 10 2018 dated 28.02.2018, directing shifting of the detenue to District Jail, Udhampur, is quashed. The petitioner shall be produced before the trial Court forthwith and further orders for his custody if any needed be solicited by the respondents from the trial court. The authorities concerned having control over the prisons and having power to regulate and control the prisons and to manage prisoners, may pass such orders as may be necessary to meet any exigency but same should be subject to approval of the concerned criminal court where the case is pending. In case the concerned criminal court is approached by such authorities with any memo or prayer for remanding the undertrial to any prison other than located nearer to his place of residence, the said court shall consider the same under the relevant provisions and rules having regard to the object sought to be achieved and dispose of same by passing speaking orders.
16) Petition succeeds, shall, accordingly, stand disposed of.
(Rashid Ali Dar) Judge Srinagar 12.02.2019 "Bhat Altaf, PS"
HCP No.178/2018 Page 10 of 10