Madhya Pradesh High Court
Shri Haji Abdul Razzak vs The State Of Madhya Pradesh on 7 May, 2025
Author: Vishal Dhagat
Bench: Vishal Dhagat
NEUTRAL CITATION NO. 2025:MPHC-JBP:21963
1 WP-37391-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
ON THE 7 th OF MAY, 2025
WRIT PETITION No. 37391 of 2024
SHRI HAJI ABDUL RAZZAK
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Mohammad Ali - Senior Advocate with Shri Sharik Akeel
Farooqui - Advocate for the petitioner.
Shri Bramha Datt Singh - Deputy Advocate General for the State.
Law Laid Down -
(i) The State's power to make rules flows form Section 59 of Act
of 1894. Rules 791 to 795 of the M.P. Prisons Rules, 1968 do not
distinguish between undertrial and convicted prisoners. Section
59(22) relates to transfer of prisoners nearing sentence
completion; Section 59(23) concerns criminal lunatics. There is
no provision under Section 59 empowering the State to frame
rules for transfer of under trial prisoners. Rules 791 to 795 do not
confer authority on the State Government to transfer under trial
prisoners.
(ii) Sections 167, 309 and 417 of the Code of Criminal Procedure
must be read harmoniously. Section 417 provides for State
Government's power to direct in what place any prisoner is liable
to be imprisoned or committed to custody under this Code. Said
power is qualified by words except when otherwise provided by
any law time being in force. If Court directs custody in a
particular prison then power under Section 417 of the Cr.P.C. is
not available to State Government.
..............................................................................................................................................
ORDER
Petitioner has filed this petition under Article 226 of the Constitution Signature Not Verified Signed by: SHABANA ANSARI Signing time: 26-05-2025 12:11:19 NEUTRAL CITATION NO. 2025:MPHC-JBP:21963 2 WP-37391-2024 of India challenging order dated 19.11.2024 contained in Annexure-P/28 by which petitioner was transferred from Netaji Subhas Chandra Bose Central Jail Jabalpur to Central Jail Bhopal.
2. Learned Senior Counsel appearing for petitioner submitted that order is malafide and arbitrary in nature. Petitioner is placed under judicial custody by order of Court. Removing prisoner outside the territorial jurisdiction of trial Court violates Sections 187 and 232 BNSS 2023 and Article 14 and 21 of Constitution of India. No reason is assigned in passing of impugned order. Action is drastic in nature, therefore, adequate Justification ought to have been given in the order. Impugned order dated 19.11.2024 was supplied to petitioner in Court room during course of argument on admission on 05.12.2024. It is submitted that said communication of order of transfer is as ex post facto, hence, illegal. Such an order is not conceived under Regulation 791 of MP Prison Rules 1968, Section 26 of Prisons Act, 1894 and Section 29 of Prisoners Act 1900. Petitioner was remanded in judicial custody by C.J.M. Jabalpur in FIR No.249/2024. Impugned order was not communicated to petitioner or his relatives and he was shifted to Central Jail Bhopal. Petitioner is being deprived of right to raise objection against his transfer. Senior counsel appearing for petitioner has relied upon the judgment passed by Apex Court in case of State of Maharashtra and other Vs. Saeed Sohail Sheikh reported in (2012) 13 SCC 192 . Placing reliance upon paragraph No.19, 20 and 23, it is submitted that transfer of prisoner in terms of Section 29(1) of the Prisoners Act of 1900 is permissible only in distinct situation covered by Signature Not Verified Signed by: SHABANA ANSARI Signing time: 26-05-2025 12:11:19 NEUTRAL CITATION NO. 2025:MPHC-JBP:21963 3 WP-37391-2024 clause A to D thereof. Said provision does not deal with under trial prisoner. Transfer of an under trial prisoner is also not permissible under Section 29(2) of Act of 1900. Section 29(2) empowers Inspector General of Prisons to direct a transfer but such transfer of a prisoner who is confined in circumstances mentioned in Section 29(1) of the Act of 1900. Respondent could not have transferred under trial prisoner in terms of order of Inspector General of prison under Section 29 of the Prisoners Act 1900. As per rational of provision of Sections 167 and 309 of Cr.P.C., continue detention of prisoner in jail during trial or injury is legal and valid only under authority of Court, prison where under trial is detained, is a prison identify by the competent Court either in terms of Sections 167 or 309 of the Cr.P.C. In these circumstances, transfer of a prisoner from any such place of detention will be permissible only with the permission of the Court under whose warrant the under trial has been remanded to custody. Power to exercise by Court permitting or refusing transfer of an under trial prisoner is judicial in nature and not ministerial. Exercise of ministerial power is out of place in situations where quality of life or liberty of citizen is affected. Transfer of prisoner to distant place may affect him adversely. On strength of aforesaid judgment and argument, learned Senior Counsel appearing for petitioner submitted that order of transfer dated 19.11.2020 contained in Annexure- P/28 is bad in law and deserves to be set aside. He further submitted that wife of petitioner is suffering from Cancer and she has to visit prison at Bhopal to meet her husband. It is very difficult for her to go to Bhopal for meeting her husband. Right of under trial prisoner to meet his wife and Signature Not Verified Signed by: SHABANA ANSARI Signing time: 26-05-2025 12:11:19 NEUTRAL CITATION NO. 2025:MPHC-JBP:21963 4 WP-37391-2024 relatives is also jeopardized due to said transfer. Further, petitioner is adversely affected in defending his case.
3. Learned Government Advocate appearing for the State submitted that a detailed order has been passed by this Court on 01.04.2025 and Government Advocate was directed to produce material on basis of which petitioner was transferred. Looking into the material is for purposes that order is not arbitrary and malifide in nature. It has also been held that prisoners can be transferred by Inspector General Prisons under Regulation-
791. Ongoing through order dated 01.04.2025 passed by this Court, it is found that many legal questions of law which were raised at the time of final hearing were not raised when case was argued on 01.04.2025 and further Court did not examine the issue whether a prisoner can be transferred by ministerial order when he is sent to prison by judicial order of Court. Government Advocate for State tried to distinguish the case of Saeed Sohail Sheikh (supra) from the present case. It is submitted that facts in the case of Saeed Sohail Sheikh (supra) were entirely different. Reliance is also placed on the judgment passed by High Court of Jammu and Kashmir reported in (2021) SCC Online J & K 469. It is submitted that custody of accused during course of investigation and before competent Court take cognizance is regulated by Sections 57 and 167 of the Cr.P.C. An arrested person cannot be kept in police custody for more than 24 hours and he is to be produced before the Court. Court exercising its power under Section 167 can grant police remand for a term not exceeding 15 days in a whole. Beyond period of 15 days, Magistrate can direct custody otherwise then in police custody.
Signature Not Verified Signed by: SHABANA ANSARI Signing time: 26-05-2025 12:11:19NEUTRAL CITATION NO. 2025:MPHC-JBP:21963 5 WP-37391-2024 No Magistrate shall authorized such detention for total period exceeding 90 days where investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term not less than 10 years and 60 days when investigation relates to other offenses. So far as custody of under trial prisoner is concerned same is dealt with in Section 309 of the Cr.P.C. when cognizance is taken and trial commences. Court may by a warrant remand the accused into custody. Language of Section 309 does not suggest that Magistrate has to remand accused produced before him during course of inquiry or trial to a particular jail. Powers is with State Government under Section 417 of the Cr.P.C. which directs in what place person is liable to be imprisoned or committed to custody under the Court. Sections 167, 309, 417 of the Code are to be read conjointly. Conjoint reading makes it clear that under trial or convict does not have any right to dictate his choice of prison nor Court is obligated to nominate a jail or prison. Section 29 of Prisons Act is left to State Government. Section 29 does not deal with under trial. Further, Jail Manual in State of Madhya Pradesh gives power to Inspector General Prison for transfer and transfer has been exercised validly by State Government. Supreme Court in case of Saeed Sohail Sheikh (supra) considered Jail Manual of Maharashtra in which there was no specific provision regarding transfer of under trial from one prison to another within the State. In these circumstances, Supreme Court has passed judgment placing reliance on Section 29 of Prisons Act. Reliance placed by petitioner on judgment Saeed Sohail Sheikh (supra) is misplaced, therefore, petition deserves to be dismissed.
Signature Not Verified Signed by: SHABANA ANSARI Signing time: 26-05-2025 12:11:19NEUTRAL CITATION NO. 2025:MPHC-JBP:21963 6 WP-37391-2024
4. Heard the counsel for the parties.
5. Learned counsel appearing for the petitioner has placed heavy reliance on judgment passed by Apex Court in case of Saeed Sohail Sheikh (supra). In said case Apex Court has held that transfer of petitioner in terms of Section 29(1) of Act of 1900 is permissible only in distinct situation covered by Clause-A to D thereof. Said provision does not deal with under trial prisoners who do not answer description given therein. Transfer of under trial prisoner is not permissible under Section 29(2) of the Act of 1900. Section 29(2) empowers Inspector General, Prison to direct transfer of prisoner who is confined in circumstances mentioned in Section 29(1) of the said Act. Under trial prisoner will not be covered under Section 29 of the Act and Inspector General, Prison cannot transfer under trial prisoner under Section 29(2) under Prisoners Act, 1900. Further, Sections 167 and 309 of the Cr.P.C. lay down that detention of a person in jail is legal and valid only under authority of Court/Magistrate before whom accused is produced or tried. Transfer of a prisoner to another prison is permissible with permission of Court under whose warrant under trial has been remanded to custody. Power to be exercised for transfer of prisoner is judicial and not ministerial. Transfer of ministerial power for transfer of a prisoner is out of place as quality of life and liberty of citizen is affected. It is immaterial where prisoner is under sentence of imprisonment or is under trial prisoner.
Transfer of an under trial prisoner to a distant prison may adversely affect his right to defend himself and also isolate from society and his friends and relatives.
Signature Not Verified Signed by: SHABANA ANSARI Signing time: 26-05-2025 12:11:19NEUTRAL CITATION NO. 2025:MPHC-JBP:21963 7 WP-37391-2024
6. On strength of said judgment, counsel for petitioner argued that ministerial power could not have been exercised by Inspector General, Prison for transfer of petitioner. Jail authority ought to have filed an application before Court seeking permission of transfer. Ministerial order is without sanction of law and, therefore, same is to be quashed.
7. Section 29 of the Prisons Act, 1900 is quoted as under:-
"Section 29. Removal of prisoners [Substituted by Act 1 of 1903, Section 3 and Sch.II, for Section 29.
(1)The [State Government] may, by general or special order, provide for the removal of any prisoner confined in a person-
(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 behavior, to any other prison in [the State [- - - ] [Substituted by A.O. 1937.].] (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] [Substituted by A.O. 1937.] [- - -] [Certain words omitted by A.O. 1937.]."Signature Not Verified Signed by: SHABANA ANSARI Signing time: 26-05-2025 12:11:19
NEUTRAL CITATION NO. 2025:MPHC-JBP:21963 8 WP-37391-2024
8. Apex Court in case of Saeed Sohail Sheikh (supra) considering Section 29 of Prisons Act, 1900 held that transfer of prisoner by ministerial order can be made if conditions mentioned in Section 29 are satisfied. Provision under Section 29(1) is only in respect of convicted prisoners. No provision is mentioned in Section 29 in respect of under trial prisoners. Further, reliance is placed on Sections 167 and 309 of the Cr.P.C. which makes it clear that under trial prisoner is sent to prison by order of Court. Considering aforesaid, Apex Court in case of Saeed Sohail Sheikh (Supra) held that transfer of a prison is permissible only with permission of Court. Prisons Act, 1894 is amended in its application in India. In Definition clause of Section 3 of Act of 1894, "criminal prisoner" means a prisoner duly committed to custody under writ, warrant or order of any Court or authority exercising criminal jurisdiction, or by order of Court-martial and "convicted criminal prisoner" is defined as "criminal prisoner" under sentence of Court or Court-martial. "Criminal Prisoner" is under trial accused and "convicted criminal prisoner" is accused held to be guilty by judgment.
9. Section 26 of said Act has been considered by Apex Court in case o f Saeed Sohail Sheikh (Supra) and it was held that said provision only oblige prison authority to have prisoner whether convict or under trial medically examined before their removal. Said Section does not unable prison authority to transfer of a prisoner from one prison to another.
10. Madhya Pradesh Prisons Rules, 1968 was enacted by State Legislature under MP Prisons Rules, 1968. Rule 791 provides for transfer of prisoners under the order of Director General of Prisons and Correctional Signature Not Verified Signed by: SHABANA ANSARI Signing time: 26-05-2025 12:11:19 NEUTRAL CITATION NO. 2025:MPHC-JBP:21963 9 WP-37391-2024 Services. Relevant Rules 791, 792, 793, 794 and 795 are reproduced as under:-
िनयम 791. [कै दय का महािनदे शक जेल एवं सुधारा मक सेवाएं] के आदे श के अधीन अ तरण (Transfer of prisoners under order of Director General of Prisons and Correctional Services)- (एक जेल से दस ू र जेल म बं दय के िन निल खत मामल म अ तरण {िमहािनदे शक जेल एवं सुधारा मक सेवाएं} ारा रा य सरकार के आदे श तथा िनयं ण के अ यधीन रहते हुए कया जाएगा -
(a) कै दय का उनके वा य के हे तु अ तरण।
(b) अ यािधक जमाव कम करने के िलए कै दय का अ तरण।
(c) िस दोष आ फसर , भंगी, रसोईया आ द के प म कसी अ य जेल म काय कसे के िलए कै दय का अ तरण।
(d) कोई वशेष यापार िसखलाने के िलए कै दयो का अ तरण।
(e) युवा कै दय का सुधार व ालय या नरिसंहपुर बो टल सं था म अ तरण।
(1) कसी वशेष कारण से अ य कै दय का अ तरण।
िनयम 792. कितपय कै दयो का अ तरण नह ं करना (Transfer of certain prisoners not to be made)- कसी भी कैद के, जो आयु बीमार या अंग शैिथ य के कारण मानूले क ठन, प र म करने म असमथ हो या जसे सादा कारावास का द डादे श दया गया हो, वशा प र थितय के अित र , अ तरण के िलए िसफा रश नह ं क जाएगी।
िनयम 793. सं ामक रोग के कारण कै दय का एक जेल से दस ू र जेल म अ तरण (Transfer of prisoners from one jail to another on account of infectious disease)-एक जेल से दस ू र जेल म Signature Not Verified Signed by: SHABANA ANSARI Signing time: 26-05-2025 12:11:19 NEUTRAL CITATION NO. 2025:MPHC-JBP:21963 10 WP-37391-2024 तब तक कोई भी अ तरण नह ं कया जाएगा जब तक क दोन म से कसी भी जेल म या सड़क के उस माग पर जस माग पर क कै दय क चलना हो, है जा या अ य सं ामक रोग न फैला हो।
िनयम 794. जेल के अधी क ारा {महािनदे शक जेल एवं
सुधारा मक सेवाएं} क मंजूर क या ा म कै दय का अ तरण
(Transfer of prisoners by superintendent of jails in anticipation sanction of Director General of Prisons and Correctional Services)- जनस (अटे डे स इन कोटस) ए ट, 1955 के अधीन अ तरण से िभ न अ य सम त अ तरण के िलए व हत प ( मांक 106-107 बारह.जे.इ.) म एक नामाविल का उपयोग कया जायगा। िनयम 791 के ख ड (क) के अधीन अ तरण जेल अधी क ारा मंजूर क याशा म कया जा सकेगा जब क अिभिन य करने के प ात ् यह अ याव यक समझा जाय क उस जेल म जसम क कै दय को अ त रत करना ता वत हो, थान उपल ध है । ख ड (c) तथा (e) के अधीन अ तरण समय-समय पर अपे त कए गए अनुसार कए जा सकेगे। एक जेल से दस ू र जेल म अ तरण क दवा म नामाविल (रोल) उस जेल अधी अधी क को भेजी जानी चा हए, जसम क कैद अ त रत कए जाने हो जो क अ तरणकता जेल को लौटाते समय उस पर यह अिभिल खत कर क थान उपल ध है अथवा नह ं। नामाविल अ ततः (महािनदे शक जेल एवं सुधारा मक सेवाएं) को सूचनाथ और अ तरणकता जेल क वापस भेजी जाना चा हए।
िनयम 795. कै दयो या कु यात जेल तोड़ने वाले या हसंक कृ ित के य य का अ य जेल म अ तरण (Transfer to another jail of of prisoners or notorious jail breakers, or voilent characters) Signature Not Verified Signed by: SHABANA ANSARI Signing time: 26-05-2025 12:11:19 NEUTRAL CITATION NO. 2025:MPHC-JBP:21963 11 WP-37391-2024 य द कु यात जेल तोड़ने वाले या हं सक कृ ित के अ य य कसी जला या सहायक जेल म कारावािसत कए जाए या य द कोई जेल आफ सर या सेवक एक मास से अिधक कालाविध के िलए कारावािसत कया जाय या य द कसी जेल आफ सर का िनकट संबंधी या कोई थानीय अ यािधक भावशाली य कारावािसत कया जाए तो ऐसे कैद के अ तरण क से 'महािनदे शक जेल एवं सुधारा मक सेवाएं) को त काल सूचना द जानी चा हए।"
11. Under said rules classification of "under trial prisoner" and "convicted prisoner" is not made. Transfer can be made in respect of both the prisoners. MP Prisons Rules, 1968 is enacted under Section 59 of the Prisons Act, 1894. In Section 59 of the Prisons Act 1894, it is specifically provided on what subject Rules can be enacted by the State Government. 28 subjects were mentioned under Section 59 on which State Government can enact the rules. Relevant topic which may relates to transfer of prisoner are quoted as under:-
"59. Power to make rules-
*** (22) for regulating the transfer of prisoners whose term of transportation or imprisonment is about to expire; subject, however, to the consent of the State Government of any other State to which a prisoner is to be transferred;
(23) for the treatment, transfer and disposal of criminal lunatics or recovered criminal lunatics confined in prisons."
12. Power to make rules flows from Section 59 of the Prisons Act, Signature Not Verified Signed by: SHABANA ANSARI Signing time: 26-05-2025 12:11:19 NEUTRAL CITATION NO. 2025:MPHC-JBP:21963 12 WP-37391-2024 1894. Rules which have been enacted by State of Madhya Pradesh named as M.P. Prisons Rules, 1968 have Rules 791, 792, 793, 794 and 795. Rule 791 is very generalistic in nature. It does not draw distinction between under trial prisoner and convicted prisoner. On perusal of Rules 791 to 795, at first sight, it appears that under trial prisoner can also be transferred under said Rules but Section 59(22)(23) of Prisons Act, 1894 lays down subject over which rules can be enacted by State Government. Section 59(22) regulates transfer of prisoner whose term of transportation or imprisonment is about to expire and Section 59(23) gives authority to enact rules in respect of treatment, transfer and disposal of criminal lunatics or recovered criminal lunatics confined in prison. Section 59(22) or 59(23) does not give any power to frame rules of transfer in respect of under trial or convicted prisoner. Since, there is no power with State to enact rules regarding under trial prisoner conferred to it under Section 59, therefore, power granted under Rule 791 to 795 could not be exercised in respect of under trial prisoner.
13. Now it is to be seen whether transfer of petitioner to another jail is without jurisdiction as respondent/State does not have any power under Rules 791, 792, 793, 794 and 795 of the Prisons Rules, 1968.
14. Apex Court in its judgment of Saeed Sohail Sheikh (supra) held that transfer of under trial prisoner is not permissible under Section 29(2) of Prisons Act and continued detention of a prisoner in jail is during trial, enquiry is legal and valid only under authority of Court/Magistrate before whom the accused is produced. Place where any under trial prisoner is Signature Not Verified Signed by: SHABANA ANSARI Signing time: 26-05-2025 12:11:19 NEUTRAL CITATION NO. 2025:MPHC-JBP:21963 13 WP-37391-2024 detained is a prison identified by competent Court in terms of Sections 167 and 309 of the Cr.P.C., therefore, transfer of prisoner from one jail to another jail is permissible only with permission of Court. It has been argued that Apex Court did not consider the provision under Section 417 of the Cr.P.C., 1973. As per said provision, State Government may direct in what place any prisoner is liable to imprisoned or committed to custody under this Code. Section 417 of the Cr.P.C. is quoted as under:-
"417. Power to appoint place of imprisonment.
(1)Except when otherwise provided by any law for the time being in force, the State Government may direct in what place any person liable to be imprisoned or committed to custody under this Code shall be confined.
(2)If any person liable to be imprisoned or committed to custody under this Code is in confinement in a civil jail, the Court or Magistrate ordering the imprisonment or committal may direct that the person be removed to a criminal jail.
(3)When a person is removed to a criminal jail under sub-
section (2), he shall, on being released therefrom, be sent back to the civil jail, unless either -
(a) three years have elapsed since he was removed to the criminal jail, in which case he shall be deemed to have been released from the civil jail under Section 58 of the Code of Civil Procedure, 1908 (5 of 1908), or under Section 23 of the Provincial Insolvency Act, 1920 (5 of 1920), as the case may be;
Signature Not Verified Signed by: SHABANA ANSARI Signing time: 26-05-2025 12:11:19NEUTRAL CITATION NO. 2025:MPHC-JBP:21963 14 WP-37391-2024 or
(b) the Court which ordered his imprisonment in the civil jail has certified to the officer in charge of the criminal jail that he is entitled to be released under Section 58 of the Code of Civil Procedure, 1908 (5 of 1908), or under Section 23 of the Provincial Insolvency Act, 1920 (5 of 1920), as the case may be."
15. Sections 167, 309 and 417 of the Cr.P.C. are to be read harmoniously. Section 417 contains a rider on State Government which lays down when power is to be exercised to transfer an under trial prisoner. Words used in Section 417 of the Cr.P.C. is "if it has otherwise provided in law". Said words reflect that power can be exercised by State Government to decide place of imprisonment of a prisoner, if there is no such direction or order by Court under Section 167 or 309 of the Cr.P.C. In light of above, State Government could only exercise power to transfer of an under trial prisoner to another prison if there is no order by Court to place him in custody in a particular jail.
16. Accordingly, petition is disposed off with following directions:-
(i) If Judicial Magistrate or trial Court exercising its power under Sections 167 and 309 of the Cr.P.C. has given a direction to commit petitioner in a particular prison i.e. Central Jail Jabalpur then order passed by State Government transferring petitioner to Central Jail, Bhopal is bad in law. Alternatively, if no order has been passed by Judicial Magistrate or trial Court to commit petitioner in a particular jail then order of transfer of petitioner to Signature Not Verified Signed by: SHABANA ANSARI Signing time: 26-05-2025 12:11:19 NEUTRAL CITATION NO. 2025:MPHC-JBP:21963 15 WP-37391-2024 another jail by jail authority is legal and cannot be faulted with.
(ii) Petitioner will be at liberty to file an application before Trial Court for transfer, if there is specific order of custody at Central Jail, Jabalpur by trial Court.
(iii) In case, if there is specific order by trial Court for custody of petitioner at Central Jail, Jabalpur then State Government will also be at liberty to file an application before the trial Court by placing all evidence before it that transfer of petitioner is necessary. Trial Court will be at liberty to examine the said material placed before it and pass order after giving opportunity of hearing to petitioner.
17. With aforesaid direction, petition filed by petitioner, is disposed off.
(VISHAL DHAGAT) JUDGE $A Signature Not Verified Signed by: SHABANA ANSARI Signing time: 26-05-2025 12:11:19