Allahabad High Court
Sunder Bhati vs State Of U.P. And 6 Others on 29 May, 2017
Bench: Bala Krishna Narayana, Shashi Kant
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved Judgment.
Court No. - 40
Case :- CRIMINAL MISC. WRIT PETITION No. - 7030 of 2015
Petitioner :- Sunder Bhati
Respondent :- State Of U.P. And 6 Others
Counsel for Petitioner :- Sangam Lal Kesharwani,Anand Kumar Yadav
Counsel for Respondent :- Govt. Advocate
connected with
Case :- CRIMINAL MISC. WRIT PETITION No. - 24104 of 2015
Petitioner :- Ashraf Alam
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- T.K. Mishra
Counsel for Respondent :- Govt. Advocate
And
Case :- CRIMINAL MISC. WRIT PETITION No. - 27600 of 2015
Petitioner :- Sunny @ Chida
Respondent :- State Of U.P. And 3 Ors.
Counsel for Petitioner :- Anshul Kumar Singhal
Counsel for Respondent :- G.A.
And
Case :- CRIMINAL MISC. WRIT PETITION No. - 29764 of 2015
Petitioner :- Vikram Bahadur Singh
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Ajay Kumar Pandey
Counsel for Respondent :- G.A.,Rajesh Kr.,Shiv Nath Singh
And
Case :- CRIMINAL MISC. WRIT PETITION No. - 5132 of 2016
Petitioner :- Ashok Dixit
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Sudarshan Singh
Counsel for Respondent :- G.A.
And
Case :- CRIMINAL MISC. WRIT PETITION No. - 3441 of 2016
Petitioner :- Chandra Kumar @ Chandu & 2 Others
Respondent :- State Of U.P. & 2 Others
Counsel for Petitioner :- Sushil Dubey
Counsel for Respondent :- G.A.
And
Case :- CRIMINAL MISC. WRIT PETITION No. - 7123 of 2016
Petitioner :- Sabir
Respondent :- State Of U.P. & 2 Others
Counsel for Petitioner :- Atul Kumar
Counsel for Respondent :- G.A.
And
Case :- CRIMINAL MISC. WRIT PETITION No. - 11594 of 2016
Petitioner :- Yogesh Bhadauda
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- A. C. Srivastava
Counsel for Respondent :- G.A.
And
Case :- CRIMINAL MISC. WRIT PETITION No. - 11865 of 2016
Petitioner :- Satyavrat Rai
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Manoj Kumar Gupta, Anoop Trivedi
Counsel for Respondent :- G.A.
And
Case :- CRIMINAL MISC. WRIT PETITION No. - 17855 of 2016
Petitioner :- Ahsan
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Sunil Kumar
Counsel for Respondent :- G.A.
And
Case :- CRIMINAL MISC. WRIT PETITION No. - 3649 of 2016
Petitioner :- Randeep Bhati
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Desh Ratan Chaudhary
Counsel for Respondent :- G.A.
And
Case :- CRIMINAL MISC. WRIT PETITION No. - 11750 of 2016
Petitioner :- Anil Dujana
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Brijesh Sahai
Counsel for Respondent :- G.A.
And
Case :- CRIMINAL MISC. WRIT PETITION No. - 19014 of 2016
Petitioner :- Shiv Singh And Another
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Yashpal Yadav, Rajesh Yadav
Counsel for Respondent :- G.A.
And
Case :- CRIMINAL MISC. WRIT PETITION No. - 19739 of 2016
Petitioner :- Yogesh & Another
Respondent :- State Of U.P. & 3 Others
Counsel for Petitioner :- Rajeev Kumar Rai
Counsel for Respondent :- G.A.
Hon'ble Bala Krishna Narayana, J.
Hon'ble Shashi Kant,J.
(Delivered by Hon. Shashi Kant, J.)
1. The above petitioners/ undertrial prisoners have filed the aforesaid writ petitions for redressal of their grievances against the allegedly wrong and illegal orders for their transfers from one jail to another, consequential and the grievances relating to their place of detention.
2. In Writ Petition Nos. 7030/2015, 24014/2015, 27600/2015, 29764/2015, 11594/2016, 11865/2016 and 3649/2016, the pleadings are complete, though in Writ Petition Nos. 5132/2016, 3441/2016, 7123/2016, 11594/2016, 17855/2016, 11750/ 2016, 19014/2016 and 19739/2016, the pleadings are not complete but learned counsel for the parties submitted that as they are adopting the arguments advanced in the leading writ petition and the grounds for challenge of their transfer orders and grounds for claiming the reliefs by them are almost common to the leading writ petition, therefore, there is no need to file counter and rejoinder affidavits.
3. Since all the transfer orders from one jail to another have been challenged by the respective petitioners on almost common grounds, other reliefs have also been claimed by some petitioners on the similar grounds, therefore, on request of the learned counsel for the parties, we have heard all the aforesaid writ petitions together and decided by this common judgment.
4. To properly appreciate the factual backgrounds of above cases, we may refer here the summarized facts, as stated by the respective petitioners in the aforesaid writ petitions, in the following table.:
Sl. No.
Case No.
Particulars of impugned order
Important facts
Remarks
1.
W.P. No.
7030/ 2015
i. G.O. dated 25.02.2015 (Annexure 3) for transfer.
ii. 28.02.2015 (Annexure 4) permission of the court for transfer.
iii. 27.02.2015 (Annexure 5) permission of the court for transfer.
iv. 28.02.2015 (Annexure 6) permission of the court for transfer.
Transferred from Gautam Budh Nagar to Hamirpur; No recommendation of Jail Superintendent for transfer for the petitioner; Several cases pending in various court at District Gautam Budh Nagar; No opportunity of hearing by State Government and the Court concerned before passing of the order; Distance is 1000 kms.
Transfer order was passed prior to obtaining permission from the courts concerned for transfer of the petitioner.
2.
W.P. No.
24104/ 2015
08.07.2015 (Annexure 5) passed by District Magistrate Jaunpur transferring the petitioner.
Transferred from Jaunpur to Central Jail, Allahabad.
No permission from the court concerned was obtained.
3.
W.P. No.
29764/ 2015
i. 21.09.2015 (Annexure 2) transfer order by D.M.
ii. 22.09.2015 (Annexure 3) communication of transfer order by SSP
iii. 13.10.2015 (Annexure 4) rejection order by Sessions Judge.
Petitioner has been transferred from Azamgarh to Ghazipur; Balram Yadav, who is the accused in cross case, is sitting MLA and was holding the post of Prison Minister and using political influence, managed to transfer the petitioner; Distance between Azamgarh and Ghazipur is about 80 kms.
No permission from the court concerned was obtained.
4.
W.P. No.
27600/ 2015
For a mandamus directing the respondents to transfer the petitioner from Agra Jail to Saharanpur Jail.
15 cases are pending in Saharanpur.
Grievances of the petitioner related to the place of detention.
5.
W.P. No.
5132/ 2016
Circular No./Bandistha (Agra Mandal) dated 21.01.2016 (Annexure 8) regarding transfer
Jail authorities has been directed to keep the petitioner in Central Jail Agra during gap of two or three days in the date fixed in criminal trial and then sent back to Bareilly jail; Petitioner is aged abuot 68 years and under treatment; Seven cases are pending at Agra and Firozabad but without any reason he is detained at Central Jail Bareilly with in about 250 kms. Away.
Grievances of the petitioner related to the place of detention.
6.
W.P. No.
3441/2016
For a mandamus commanding the respondents not to transfer the petitioners from District Jail Mainpuri to other district jail.
The petitioner was earlier transferred to Etah and thereafter after six months to Central Jail Fatehgarh, though presently he is in Mainpuri Jail. The petitioner and his mother are apprehending that he may be transferred to another jail under political pressure with intention to his murder.
Grievances of the petitioner related to the place of detention.
7.
W.P. No.
7123/2016
i. G.O. dated 29.01.2016 (Annexure 1) granting permission.
ii. 01.02.2016 (Annexue 2) of Deputy Inspector General of Prisons, transferring petitioner
Petitioner has been transferred from District Jail Muzaffar Nagar to District Jail Siddhartha Nagar; Twenty-three cases are pending against the petitioner near district Muzaffarnagar; Distance between Muzaffarnagar and Siddhartha Nagar is about 700 kms.
No permission from the court concerned was obtained.
8.
W.P. No.
11594/ 2016
i. 24.09.2015 (Annexure 1) granting permission.
ii. 29.09.2015(Annexure 12) transferring petitioner.
Transferred from District Jail Meerut to District Jail Siddharth Nagar; Transfer has been refused earlier four times; and there is only one criminal case, trial of which is pending before Sessions Judge.
The petitioner was transferred only on permission of District & Sessions Judge, obtained subsequent to passing of transfer orders. Two Courts refused permission for transfer of the petitioner.
9.
W.P. No.
11865/ 2016
i. 26.11.2015 (Annexure 7) rejecting application of the petitioner for not transfer him.
ii. G.O. dated 15.10.2015 (Annexure 2) granting permission.
iii. 19.10.2015 (Annexure 3) transferring petitioner.
Petitioner has been transferred from District Jail Gorakhpur to District Ghaziabad; and distance between Gorakhpur and Ghaziabad is 250 kms.
No permission from the court concerned was obtained.
10.
W.P. No.
17855/2016
23.02.2016 (Annexure 3) passed by District Magistrate, Bulandshahar transferring the petitioner.
Petitioner has been transferred from District Jail Bulandshahar to Gautambudh Nagar; Distance between Bulandshahar to Gautambudh Nagar is 65 kms; Seven cases are pending in Bulandshar; and no opportunity has been provided to the petitioner before transfer.
No permission from the court concerned was obtained.
11.
W.P. No.
3649/2016
i. G.O. dt. 21.9.15 (Annx.-1) granting permission.
ii. Consequential order dt. 23.09.2015 (Annexure 2) of Superintendent Jail, G.B. Nagar.
iii. Court order dt. 28.09.2015 (Annexure 3) granting permission for transfer.
iv. Court order dt. 05.10.2015 (Annexure 4) granting permission for transfer.
v. Court order dt. 23.10.2015 (Annexure 5) granting permission for transfer.
Petitioner has been transferred from District Jail Gautambudh Nagar to Basti.
Transfer orders passed earlier, permission from the courts concerned were obtained subsequently. No opportunity of hearing.
12.
W.P. No.
11750/2016
Order dated 09.06.2014 (Annexure 2) passed by CJM, Muzaffarnagar in pursuance of the recommendation dated 09.06.2014 made by Superintendent, District Jail, Muzaffarnagar.
Petitioner has been permitted to transfer from District Jail, Muzaffarnagar to other district.
No sufficient opportunity of hearing. No application of mind by the Court concerned while granting permission for transfer of the petitioner.
13.
W.P. No.
19014/ 2016
Order dated 10.06.2016 (Annexure 1) passed by District Magistrate, Kanpur Dehat transferring the petitioner.
Petitioner has been transferred from District Jail, Kanpur Dehat to District Jail Etawah; 8 cases are pending at District Court, Kanpur Nagar.
The petitioner was transferred without providing any opportunity of hearing and without obtaining permission from the court concerned.
14.
W.P. No.
19739/ 2016
Government Order/letter No.60/16/110 dt. 22.3.2016 (Annexure 2) granting permission.
Petitioner has been transferred from District Jail G.B.Nagar to District Jail Sitapur; except present case no other case is pending against petitioner.
No permission from the court concerned was obtained.
5. Heard Sri Sangam Lal Kesharwani, Sri Anand Kumar Yadav, Sri T.K. Mishra, Sri Ajay Kumar Pandey, Sri Sudarshan Singh, Sri Sushil Dubey, Sri Atul Kumar, Sri A.C. Srivastava, Sri Manoj Kumar Gupta, Sri Anoop Trivedi, Sri Sunil Kumar, Sri Desh Ratan Cahdhary, Sri Brijesh Sahai, Sri Yashpal Yadav, Sri Rajesh Yadav and Sri Rajeev Kumar Rai, learned counsel for the petitioners, Sri A.K. Sand and Sri Ashish Pandey, learned A.G.A. for the State of U.P.
6. Learned counsel for the petitioners submitted that :
6.1. According to the decision of Hon'ble Apex Court in the case of State of Maharashtra vs. Saeed Sohail Sheikh, AIR 2013 SC 168, (hereinafter referred as "State of Maharashtra's case") the State Government has no power to transfer under trial prisoners from one jail to another except to prior permission obtained from the court concerned.
6.2. The State Government has no right to pass order for transfer of the petitioners, who are undertrial prisoners from one jail to another and order for any such transfer can be passed only by the court concerned, who has passed the remand order for custody of the petitioners' in the particular jail or with prior permission of that court.
6.3. The provisions of paragraphs 137 and 138 of Jail Manual relate to the convicted prisoners and not applicable to the petitioners/undertrial prisoners.
6.4. The provisions of paragraphs 137 and 138 also could not be made applicable to the petitioners with the help of paragraph 409-A of Jail Manual because provisions of Jail Manual have no legal sanctity.
6.5. The directions issued by Hon'ble Apex Court in State of Maharashtra's case is applicable with full force in the State of Uttar Pradesh, being law of land under Article 141 of the Constitution of India.
6.6. The State of Uttar Pradesh could not escape from its liability to give effect to the directions provided in State of Maharashtra's case on the grounds that provisions of Section 417 of Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') and paragraphs 13-A, 137, 138 and 409-A of Jail Manual etc. are not being considered in that case.
6.7. G.O./Circular No 11/ Sama-1(3)/ 2015 dated 27th April, 2015 issued by Additional Director General / Inspector General of Police Prisons Administration and Reform Services Uttar Pradesh, Lucknow is also not complied with by the respondents/authorities concerned.
6.8. The impugned orders for transfer of the petitioners from one jail to another and the orders granting permission for their transfer passed by the respondents/the courts concerned are wrong and illegal because those were passed without providing opportunity of hearing to the petitioners on the administrative side instead of passing those in judicial side.
6.9. The impugned orders for transfer of the petitioners from one jail to another by the State of Uttar Pradesh and its Officers, without obtaining prior permission from the courts concerned, are violative of the directions of Hon'ble Apex Court in State of Maharashtra's case .
6.10. The impugned orders for transfer of the petitioners from one jail to another are passed includes the orders based on the permission obtained only by one court instead of all, wherein cases of petitioners were pending/ orders in which permission of the court concerned was obtained subsequent to passing of transfer orders/ orders passed without obtaining permission from the court concerned and orders passed despite refusal of granting permission for transfer of petitioners to another jail by some courts, wherein cases of the petitioners were pending.
6.11. The Court concerned/the State Government has also not taken into consideration the relevant facts related to the petitioner concerned like their illness, threats of life and other dangers, nature of pending criminal cases in the various courts of particular place, distance from the present jail to the original jail in convenience to attending the courts concerned on various dates of cases at short intervals and other difficulty arising out from transfer of the petitioners concerned from one jail to another which is a clear indication of non application of the mind by the authorities concerned, who passed the impugned orders and the impugned orders are unreasoned and non-speaking.
6.12. The impugned orders suffer from material irregularity, illegality and not sustainable in the eyes of law.
6.13. In the facts and circumstances of the case, all the petitioners are entitled for the reliefs claimed by them.
6.14. In addition to in State of Maharashtra's case, learned counsel for the petitioners has also placed reliance on the following decisions in support of their various contentions :
(i) Yogesh & another vs. State of U.P. & others, passed in Criminal Misc. Writ Petition No. 18153 of 2015), decided on 11.12.2015.
(ii) Anil Singh vs. State of U.P., passed in Criminal Misc. 482 Application No. 32585 of 2012, decided on 16.01.2013.
(iii) South Central Railway Employees Co-operative Credit Society Employees Union vs. B. Yashodabai & others, 2015 (2) SCC 727.
7. Per contra, learned A.G.A. and counsel for respondents urge as under :
7.1. The undertrial prisoners may be transferred from one jail to another under Rules 137, 138 read with 409-A of U.P. Jail Manual (hereinafter referred as 'Jail Manual').
7.2. The impugned transfer orders were passed under Rules 137,138 read with 409-A of U.P. Jail Manual in the exercise of administrative capacity whereunder providing opportunity of hearing to the concerned petitioners and stating detailed reasons for passing thereof is not required.
7.3. There is no force in the submission of the petitioners that Uttar Pradesh Jail Manual has no legal sanctity and it is in the teeth of Prisons Act, 1894 because the Uttar Pradesh Jail Manual has seen the light of the day in exercise of powers of the Government of Uttar Pradesh conferred on it under Section 59 (28) of the Prisons Act and same has been enforced to give effect the purposes of the Prisons Act.
7.4. Section 3 (3) and 3 (2) provide two categories of criminal prisoners. Those are 'convicted criminal prisoners and criminal prisoners'. In the light of Rule 409-A of Jail Manual, provisions related to the transfer of convicted criminal prisoners is ipso facto applicable upon the under trial prisoners also, as is also held by this Court in Balram Singh Yadav and others vs. State of U.P., 1991 JIC 95.
7.5. The State Government is the final authority to decide the place of detention of the petitioners as prescribed in Section 417 Cr.P.C. Para 13-A of the Uttar Pradesh Jail Manual is also of the same effect as section 417 Cr.P.C. The Remand Magistrate is neither required nor authorized to mention the place of detention in the Custody Warrant, rather he is only concerned with the presence of detenue on the date fixed in the case.
7.6. Chapter XXII of the Code of Criminal Procedure deals with the attendance of persons confined or detained in prison. The provisions under the aforesaid Chapter empowers that courts to issue direction to the office-in-charge of a prison under Section 267 Cr.P.C. thereof, but at the same time Section 268 Cr.P.C. again empowers the State Government to refuse removal of a prisoner subject to the condition enumerated in sub-section (2) thereof.
7.7. For passing of transfer order of any detenue from one jail to another, permission of the court concerned, who has issued custody warrant, is not required.
7.8. The document relied upon by the petitioners as Government Order/Notification wherein the Higher Officers of the Jail Administration has made an order to the effect that the ratio of the judgment of State of Maharashtra's case, has to be followed is neither a Government Order nor a notification. At the best the same could be regarded as an internal communication between the officers of the State Government, as such, it has no relevance with the present controversy. Even if the aforesaid office communication is taken to be true, still the State Government has right to correct its mistakes or wrong understanding of the law. However, the principles remains the same " the sooner, the later" as is held by the Apex Court in case of Rajasthan State Industrial Development and Investment Corporation vs. Subhash Sindhi Cooperative Society Jaipur and others, (2013, 5 SCC 427 (paragraph no. 34)).
7.9. It is submitted with profound respect that the the decision of State of Maharashtra's case is not applicable to the State of Uttar Pradesh for the following reasons :
A- In State of Maharashtra's case, there was no provision for transfer of under trial prisoners from one jail to another. Contrary to that in the State of Uttar Pradesh, there is provision of convicted criminal prisoners in Rule 137 and 138 of the Jail Manual and above Rules are applicable with equal strength to the under trial prisoners with the aid of Rule 409-A. This aspect of the matter is also not considered in the above judgment.
B- Effect of Section 417 Cr.P.C. and para 13-A of Jail Manual is also find no place in consideration of the above judgment.
C- Subsequent to passing of the judgment of State of Maharashtra's case, Division Benches of this Court has passed the orders in the cases of Ritesh alias Bantu vs. State of U.P and others, in Criminal Misc. Writ Petition No. 5337/2015 decided on 25.02.2015 and in Sagar Malik vs. State of U.P. and others, in Criminal Misc. Writ Petition No. 10050/2015 decided on 01.05.2015 and taken a different view of the matter. In this background if Hon'ble this Bench is not agree with the view taken by this Court in the above two cases, then matter is desirable to be heard by the Larger Bench.
8. Learned counsel for the respondents also referred to Annexure No. 7 of his written submissions which contains data of various incidents of firing, beating riots and attempts of suicide in the prisons of Uttar Pradesh during the period from 2009 to 2015., submitted as
9. It is also contended that aforesaid writ petitions are devoid of merit, liable to be dismissed with costs and the petitioners are not entitled for any relief claimed by them.
10. Learned counsel for the respondents has placed reliance on the decisions referred above.
11. We have given our thoughtful consideration to the rival submissions raised on behalf of the parties alongwith written submissions made available on behalf of the petitioners Randeep Bhati and others and on behalf of the respondents and perused the record.
12. In view of the rival submissions raised by the learned counsel for the parties, pleading and material evidence available on record, following questions emerge for our consideration :
1. Effect of the law laid down by Hon'ble Apex Court in State of Maharashtra's case in the State of Uttar Pradesh, on the matters of transfer of undertrial prisoners from one jail to another?
2. Whether impugned orders subject to challenge by means of aforesaid writ petitions are sustainable in the eyes of law and the petitioners are entitled for the reliefs claimed by them?
Answer to question no. 1.
13. To find out answer of above question, we have to take into consideration various relevant provisions, case laws referred by learned counsel for the parties and relevant for our purpose, which are as under :
The Constitution of India :
Article 141 : Law declared by Supreme Court to be binding on all courts.- "The law declared by the Supreme Court shall be binding on all courts within the territory of India".
Criminal Procedure Code, 1973.
Procedure when investigation cannot be completed in twenty-four hours.:
167. (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that--
(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,--
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;
(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.
Power to require attendance of prisoners.:
267. (1) Whenever, in the course of an inquiry, trial or other proceeding under this Code, it appears to a Criminal Court,--
(a) that a person confined or detained in a prison should be brought before the Court for answering to a charge of an offence, or for the purpose of any proceedings against him, or
(b) that it is necessary for the ends of justice to examine such person as a witness, the Court may make an order requiring the officer in charge of the prison to produce such person before the Court for answering to the charge or for the purpose of such proceeding or, as the case may be, for giving evidence.
(2) Where an order under sub-section (1) is made by a Magistrate of the second class, it shall not be forwarded to, or acted upon by, the officer in charge of the prison unless it is countersigned by the Chief Judicial Magistrate to whom such Magistrate is subordinate.
(3) Every order submitted for countersigning under sub-section (2) shall be accompanied by a statement of the facts which, in the opinion of the Magistrate, render the order necessary, and the Chief Judicial Magistrate to whom it is submitted may, after considering such statement, decline to countersign the order.
Power of State Government to exclude certain persons from operation of Section 267:
268. (1) The State Government may, at any time, having regard to the matters specified in sub-section (2), by general or special order, direct that any person or class of persons shall not be removed from the prison in which he or they may be confined or detained, and thereupon, so long as the order remains in force, no order made under Section 267, whether before or after the order of the State Government, shall have effect in respect of such person or class of persons.
(2) Before making an order under sub-section (1), the State Government shall have regard to the following matters, namely:--
(a) the nature of the offence for which, or the grounds on which, the person or class of persons has been ordered to be confined or detained in prison;
(b) the likelihood of the disturbance of public order if the person or class of persons is allowed to be removed from the prison;
(c) the public interest, generally.
Power to postpone or adjourn proceedings.:
309. (1) In every inquiry or trial the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded:
Provided that when the inquiry or trial relates to an offence under Section 376, Section 376-A, Section 376-B, Section 376-C or Section 376-D of the Indian Penal Code (45 of 1860), the inquiry or trial shall, as far as possible be completed within a period of two months from the date of filing of the charge sheet.
(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, 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:
Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him:
Provided also that--
(a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party;
(b) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment;
(c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be.
Explanation 1. If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.
Explanation 2. The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused.
Power to appoint place of imprisonment.:
417. (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 section 23 of the Provincial Insolvency Act, 1920 (5 of 1920), as the case may be; 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.
Prisons Act, 1894.
3. Definition - In this Act -
(1) x x x x x x
(2) "criminal prisoner" means any prisoner duly committed to custody under the writ, warrant or order of any Court or authority exercising criminal jurisdiction, or by order of a Court-material.
(3) "convicted criminal prisons" means any criminal prisoner under sentenced of a Court or Court-material and includes a person detained in prison under the provisions of Chapter VIII of the Code of Criminal Procedure, 1889 (X of 1889), or under the (Prisoners Act 1871 (V of 1871);"
4. Accommodation for prisoners.- The State Government shall provide, for the prisoners in the territories under such Government, accommodation in prisons constructed and regulated in such manner as to comply with the requisitions of this Act in respect of the separation of prisoners.
26. Removal and discharge of prisoners.-
(1) All prisoners, previously to bring removed to any other prison, shall be examined by the Medical Officer.
(2) No prisoner shall be removed from one prison to another unless the Medical Officer certifies that the prisoner is free from any illness rendering him unfit for removal.
(3) No prisoner shall be discharged against his will from prison, if labouring under any acute or dangerous distemper, nor until, in the opinion of the Medical Officer, such discharge is safe.
27. Separation of prisoners.- The requisitions of this Act with respect to the separation of prisoners are as follows:--
(1) in a prison containing female as well as male prisoners, the females shall be imprisoned in separate buildings, or separate parts of the same building, in such manner as to prevent their seeing, or conversing or holding any intercourse with, the male prisoners;
(2) in a prison where male prisoners under the age of twenty-one are confined, means shall be provided for separating them altogether from the other prisoners and for separating those of them who have arrived at the age of puberty from those who have not;
(3) unconvicted criminal prisoners shall be kept apart from convicted criminal prisoners; and
(4) civil prisoners shall be kept apart from criminal prisoners.
28. Association and segregation of prisoners.- Subject to the requirements of the last foregoing section, convicted criminal prisoners may be confined either in association or individually in cells or partly in one way and partly in the other.
59. Power to make rules.- (1) The State Government may by notification in the Official Gazette make rules consistent with this Act--
x x x x x
(28) generally for carrying into effect the purposes of this Act.
Prisoners Act, 1900.
29. Removal of Prisoners. (1) The State Government may, by general or special order, provide for the removal of any prisoner confined in a prison-
(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 behaviour, to any other prison in [the State.
(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.
Relevant paragraphs of U.P. Jail Manual:
Paragraph 8. Undertrial and civil prisoners and prisoners sentenced to simple imprisonment.--Undertrial and civil prisoners and prisoners sentenced to simple imprisonment shall ordinarily be confined in the district jails of the district where such prisoners are tried or committed to prison.
Paragraph 13.A.- The State Government, whenever it is satisfied that it is necessary to extend the provisions of the Prisons Act and the rules framed thereunder to any subsidiary jail or special place of confinement appointed under Section 541 of the Code of Criminal Procedure, 1898 and to the officers employed and the prisoners confined therein, may, by notification, extend all or any of the provisions of the aforesaid Act or the rules framed thereunder to such subsidiary jail or place of confinement and to the officers employed and the prisoners confined therein.
Paragraph 17. Time of admission of convicted and undertrial prisoners.- All convicted prisoners shall be admitted irrespective of the time at which they may arrive at a prison. Undertrial prisoners shall not be admitted after the jail has been locked up for the night without the written orders of a Magistrate.
Paragraph 128. Transfer of convicts from one prison to another.- The transfer of convicts from one prison to another within the State shall be directed by the Inspector General, subject to the orders and the control of the State Government.
Paragraph 137. Transfer of prisoners to relieve overcrowding.- As soon as the number of prisoners confined in a jail exceeds its capacity, the Superintendent shall submit to the Inspector General a nominal roll, in the prescribed form, of convicts whom he recommends for transfer to another jail to relieve overcrowding. The nominal roll shall be accompanied by a memorandum showing the jail population, the authorized capacity of the jail and the number of prisoners of each class confined in the jail.
Only such convicts as are in good health and of good character shall, as far as possible, be recommended for transfer. If absolutely necessary, convicts in different health may be included up to the limit of 10 per cent.
Note: Nominal rolls of different classes of convicts shall be prepared separately.
Paragraph 138. Transfer of convicts for local or disciplinary reasons.- The Superintendent may recommend the transfer to another jail, of any prisoner whose detention in the prison is considered to be expedient for local or disciplinary reasons or for any other sufficient cause, to the District Magistrate. The District Magistrate may order for transfer of such prisoners, to the neighbouring district. The reason for transfer should always be communicated to the District Magistrate and the Superintendent of the jail of the district, to which the prisoner is transferred and should also be recorded on the history ticket of the prisoner concerned. The Inspector General of Prisons shall be informed of such transfers. The Superintendent shall recommend to the Inspector General of Prisons for the transfer of prisoner to be transferred to the district other than neighbouring districts.
Paragraph 271. Classes of prisoners.- A prisoner confined in a jail may be -
(1) a criminal prisoner, which term includes:
(a) a convicted prisoner, including a prisoner committed to or detained in prison under Section 123 of the Code of Criminal Procedure, 1898, on his failure to give security when ordered to do so under section 118 of the said Code;
(b) an unconvicted or undertrial prisoner;
(2) (a) State prisoner detained under Regulation III of 1818; or
(b) a prisoner detained without trial under any other law relating to the detention of such prisoners; and
(3) a civil prisoner.
Paragraph 284. Undertrial prisoners.--Unconvicted criminal prisoners shall be divided into two classes -
(1) Superior; and
(2) Ordinary.
409-A. Undertrial prisoners - Except as provided in this chapter, the rules in the Jail Manual applicable to superior and ordinary classes of convicts shall apply to the superior and ordinary classes of undertrial prisoners also.
14. In Balram Singh Yadav & others vs. State of U.P. and others, 1991 CriLJ 903 : 1991 JIC 95 the Court in paragraphs 14 to 24 observed and held as under :
"14. The contention is devoid of any merit. Section 4 of the Prisoners Act makes provision for the accommodation of prisoners. It states that the State Government shall provide for the prisoners in the territories under such government, accommodation in prisons constructed and regulated in the manner laid down in the Act. Section 5 of the same Act lays down :
"Inspector General. (1) An Inspector General shall be appointed for the territories subject to each State Government and shall exercise, subject to the orders of the State Government, the general control and superintendence of all prisons situated in the territories under such Government.
(2) The State Government may also appoint one or more Deputy Inspectors General of Prisons, and they shall perform such of the functions of the Inspector General under this Act or under any other law for the time being in force as may be entrusted to them by or under the rules made under Act."
15. The Inspector General has thus been armed with the power to exercise general control and superintendence of all prisons in the State. This power, in our opinion, is wide enough to include the power to make provisions for temporary accommodation of the prisoners to meet over-crowding in any jail. This has been made further explicit by Section 7 of the Prisoners Act which provides that whenever it appears to the Inspector General that the number of Prisoners in any prison is greater than can be conveniently or safely be kept therein and it is not convenient to transfer the excess, number to some other prison he may make provision for temporary shelter and custody of the prisoners in such manner as the State Government may direct. Section 7, in our considered view, clearly and unmistakably supports the premise that the Inspector General does posses the power to make provision for the transfer of prisoners to another jail where it appears to him that the excess number of the prisoners cannot be conveniently lodged in the jail. Paragraph 137 of the Jail Manual is thus clearly referable to the power conferred on the Inspector General of Prisons under the Prisoners Act to make provision for temporary accommodation of prisoners who are in excess, i.e., to make provision for relieving overcrowding. It is, therefore, wrong to suppose that paragraph 137 does not have any support in the statute.
16. In any case, even if these rules are merely administrative instructions not having the force of a statute, we think that the same may be applied in the absence of any statute to the contrary for dealing with the situation arising out of over crowding provided that the jail authorities to which the custody of the prisoner remanded Under Section 167(2) is committed shall stand charged with the responsibility of producing the prisoner before the Judicial Magistrate on the date fixed in the order of remand. There is no complaint in the present case that the jail authorities at Etawah have not produced the petitioners before the Judicial Magistrate on the date or dates fixed in the order of remand.
17. We are further of the opinion that once it is found that the detention of the petitioners is supported by valid orders of remand and there are valid custody warrants issued against them, the mere transfer of the petitioners from one jail to another would not per se and without more render the detention illegal. We are aware of the contrary view expressed in the case of Hari Prasad Dubey Tyagi v. District Magistrate, Farrukhabad reported in 1976 All LJ 62. In this case, the Bench held that the transfer of a prisoner from one jail to another without obtaining an order from the Judicial Magistrate was illegal. This decision has been expressly overruled by a Full Bench of this Court in the case of Surjeet Singh v. State of Uttar Pradesh reported in 1984 All LJ 375. It is, however, important to note that the Division Bench did not notice either paragraph 137 or paragraph 409 A of the Jail Manual both of which, if read along with the provisions of the Prisoners Act referred to above, completely negative the premise that the transfer for temporary accommodation from one jail to another on account of overcrowding is not authorised by law. It is, however, unnecessary to dilate on this point further in view of the fact that Tyagi's case (supra) has been overruled by the Full Bench.
18. That takes us to the next ground of challenge urged by Sri. P.P. Yadav. It was submitted that Section 167(2) Cr. P.C. necessarily implies the mandate that a person committed by the Judicial Magistrate Under Section 167(2) to a particular jail authority cannot be altered during the period of remand without the permission or concurrence or approval of the Judicial Magistrate and that transfer of a prisoner from one jail to another would ipso facto be infringement of the order of remand, if the transfer is effected without the permission or approval of the Judicial Magistrate.
19. We refrain from expressing any concluded opinion on this aspect of the case in view of the fact that in the present case even if such a requirement could be read into Sub-section (2) of Section 167 the same stood amply satisfied. As mentioned above, the concerned Judicial Magistrate was aware of transfer of the prisoners from one jail to another during the period of remand. This is fully borne out by the custody warrants filed or produced in the case by the respondents. In spite of this, the Judicial Magistrate has been granting/extending the remand of the petitioners. We would, therefore, be entitled to assume that the transfer of the petitioners from one jail to another for temporary accommodation has received the approval of the Judicial Magistrate. Under the circumstances, the custody of the petitioners with the jails to which they have been transferred would tantamount to 'transferred custody' a concept which has received the approval and recognition of the Supreme Court in several decisions See AIR 1971 SC 178 : (1971 Cri LJ 244) and AIR 1971 SC 62 and AIR 1978 SC 1675 : (1978 Cri LJ 1741).
20. Our conclusion, therefore, is that the detention of both the petitioners, Darshan Singh and Hargoind Singh, is legal and proper, being supported by valid orders of remand and extension thereof passed by the concerned Judicial Magistrate Under Section 167(2). We further hold that their detention in the jail is backed by valid custody warrants as well as orders of transfer issued by the Inspector General of Prisons in accordance with law.
(Emphasis supplied by us)
21. We should not, however, be taken to have laid down that the transfer of a prisoner from one jail to another in accordance with the Jail Manual or Prisoners Act would take the matter beyond the purview of Judicial review. Even the orders of transfer for temporary accommodation of prisoners are subject to scrutiny by the Courts to ensure that there is no infraction of Article 21 and 22 of the Constitution of India. We have not the least doubt that this Court is perfectly competent to examine whether the transfer of a prisoner and his detention in the 'transferee' prison conforms to the tests laid down by the Supreme Court and this Court for the purpose of satisfying itself that the rights of prisoners guaranteed under Articles 21 and 22 of the Constitution are neither curtailed nor side tracked. Learned counsel for the petitioner, however, did not press the allegations made in the petition that they are being subjected to any torture or inconvenience or ill-treatment or that they are not being extended the facilities in conformity with human dignity. The few allegations made in the petition in a half-heated manner have been specifically denied in the counter affidavit filed by the jail authorities.
22. Before concluding, however, we may add that the transfer in the present case was ostensibly effected for relieving over crowding in the District Jail, Etawah. It naturally follows that as soon as the pressure on the District Jail, Etawah ceases out, the petitioners must be brought back to that jail. We may at this point refer to some pertinent observations made in Mrs. Geetinder Kaur's case reported in AIR 1985 SC 1409 : (1985 Cri LJ 1640) in which His Lordship R.S. Pathak, J. (as the learned Chief Justice then was) speaking for the Court made the following observations in paragraph 3 of the judgment:
"While it is ordinarily desirable that a detenu- should be detained in the environment natural to him in point of climate, language, food and other incidents of living. in the actual decision concerning the place of detention, these considerations must yield to factors related to, and necessitated by the need for placing him in preventive detention."
23. Though these observations were made in the context of preventive detention they apply with equal validity to cases of detention under the ordinary law as well. We think that it is desirable that unless the administrative considerations warrant other wise, the detenu should be detained in any environment natural to him in point of climate, language, food and other incidence of life and living. These factors should be kept in mind. This is however not to say that even if there is overcrowding in a jail a prisoner cannot be transferred from one jail to another in accordance with Paragraph 137 for temporary accommodation.
24. With these observations, the petition is dismissed. In regard to the fifth respondent Chaudhri Raghuraj Singh, the petition stands dismissed as having become infructuous. The first two petitioners have already withdrawn from the contest and had their petition dismissed vide this Court's order dated 27-8-90."
15. In Raghuvir Pratap Singh @ Raja Bhaiya vs. State of U.P. and others, passed in Writ Petition No. 6719 (MB) 2002 decided on 11.12.2002, a Division Bench of this Court while considering the legality of two separate transfer orders dated 08.11.2002 passed by the Director General of Prisons for transfer of petitioners, undertrial prisoners has taken into consideration sections 167, 267, 268, 309 and 471 Cr.P.C. alongwith relevant provisions of Prisons Act, 1894, Prisoners Act, 1900, paragraphs 8, 137, 138, 271 and 409-A of U.P. Jail Manual alongwith meaning of 'custody' in Black's Law Dictionary Fifth Edition at page 347, i.e., "the care and control of a thing or person". and cases of Public Prosecutor v. Nellayappa Pillai, AIR (35) 1948 MAD, 291, Hari Prasad Dubey 'Tyagi' v. District Magistrate, Farrukhabad, U.P. and others, Surjeet Singh v. State of U.P. and others, 1984 ALJ 375, Raj Narain v. Superintendent, Central Jail, New Delhi, Matabar Parida and others v. The State of Orissa, 1975 SCC (Crl.) 484, Ram Kumar v. State of U.P. and others, 1982 A. Cr. R.32, observed and held as under:
"Para 138 requires the following condition to be fulfilled for transfer of a convict which in turn applies to the under trial prisoners also, namely (i) their has to be a recommendation from the Superintendent for transfer of the prisoner to another jail (ii) the detention in the prison should be considered to be inexpedient for local or disciplinary reasons, (iii) or there should be any other sufficient cause.
In the case of Balram Singh Yadav Vs. State of U.P. and others (1991) JIC 95, a Division Bench of this Court had already taken a view that the transfer of the accused or under trial prisoners in view of Para 137 read with 409. A from one jail to another was permissible and Section 167 (2) of the Code of Criminal Procedure, which could not be a bar for such transfer.
With respect to the argument that the permission should be taken from the remand Magistrate before transfer in view of Section 167 (2) of the Code of Criminal Procedure, the Division Bench although left the matter open, but did not agree with the submission of the petitioners in that case on the ground that the accused was produced before the Court having been brought from different jails, while extending the remand and, therefore, there was implied consent of the remand Magistrate to the transfer effected. We are in respectful agreement of the view taken by the Division Bench in the case of Balram Singh Yadav (supra), wherein it has been held that In view of Para 137 read with 409-A of the U.P. Jail Manual an under trial prisoner can also be transferred from one jail to another. Principal would be the same in the case, where undertrial prisoner is to be transferred under Para 138 of the U.P. Jail manual.
Authorizing the detention of accused in police custody or judicial custody is the judicial function of the Magistrate whereas the peace/places where an accused has been authorized to be detained in judicial custody by the Magistrate is to be kept would be a matter relating to the administration in the prisons, thus would be an administrative act, which would be dependent upon the conditions existing in accordance with the various provisions of the U.P. Jail Manual for example, in Paras 128, 137, 133 read with para 409-A of the U.P. jail manual. The placing or keeping an accused in a particular jail, while he is in judicial custody has to be seen and cared for, in the light of the security of the co-prisoners as well as prisoner himself (who is detained under the orders of the Magistrate in judicial custody), law and order situation and many other factors, which need not be exhaustively dealt with in the instant case, apart from the factors given in Para 137 and 138 of the U.P. jail manual. The term "for any other sufficient cause" would include all such causes, which may be relevant for the detention of the accused in one or the other jail.
In regard to the permission being taken from the remand Magistrate, we while rejecting the contention of the petitioners' counsel regarding the meaning and import of Section 167 (2) of the Code of Criminal Procedure, would hasten to add that in the instant case the aforesaid question is not of much importance, as the remand Magistrate, while remanding the petitioners for judicial custody himself permitted and allowed the transfer of the petitioners from one jail to another by observing that in case it was thought that the detention of the petitioners in Lucknow Jail was not called for they may be transferred in accordance with the provisions of U.P. Jail Manual and the Rules to other jails. The remand Magistrate having himself allowed and had given discretion to the District Magistrate/State Government to consider the propriety of keeping the petitioners in Lucknow Jail and in case it was found that they should not be allowed to remain in Lucknow Jail, then the authorities were left to take necessary action as per U.P. Jail Manual. In view of the aforesaid consent given by the remand Magistrate, it cannot be presumed that the transfer of the petitioners from one jail to another has been done without any authority or in violation of Section 167 (2) of the Code of Criminal Procedure. The remand Magistrate not agreeing with the order of transfer passed by the District Magistrate, Lucknow to the District Jail, Fatehgarh, directed the petitioners to be kept in Lucknow jail on that day, but at the same time permitted the authorities to take appropriate action for transfer, if it was so required. The remand Magistrate in his order has mentioned that without deciding the question on merits of the transfer order transferring the petitioners to District Jail, Fatehgarh passed the aforesaid order. Apparently, the District Magistrate, Lucknow ordered the transfer of the petitioners not to the neighbouring district, but to a faraway district and, therefore, the Magistrate directed that the petitioners be detained in Lucknow Jail for the day, but gave liberty for passing appropriate orders of transfer in case it was so required. The clear and unambiguous direction give by the remand Magistrate to detain the petitioners 'only for the day in Lucknow District Jail', gave liberty to the authorities to lodge the petitioners in any other jail, if so though expedient as per rules in the Jail Manual.
In view of the aforesaid order of the Magistrate, which has already been quoted in the earlier part of the judgment, there remains no necessity for the Director General of Prisons to take any further permission from the Magistrate, while passing the order of transfer of the petitioners from one jail to another.
Learned counsel for the petitioners also made an attempt to challenge the order of transfer on the ground that there being no provision under the Prisons Act or the Prisoners Act for framing such rule of transfer of under trial prisoners, the provisions of Jail Manual can not made applicable to the under trials. Reliance has been placed upon Section 29 of the Prisoners Act 1900 dealing with removal of prisoners. The State Government under this provision may, by general of special order for the removal of any prisoner confined in a prison.
(a) under sentence of death, or
(b) under, or in lieu of, a sentence of imprisonment or transportation: and
(c) in default of payment of fine, or
(d) in default of giving security for keeping the peace or for maintaining good behavior to any other person in the State.
The emphasis is that removal of a prisoner can be ordered with respect to a prisoner confined in prison under given conditions, which could not include undertrial prisoner. Attention has also been drawn to the provisions of Section 7 of the Prisoners Act, 1894, which according to the learned counsel is only meant for temporary accommodation for prisoners.
Section 29 has no application in the instant case nor is relevant for the purpose of present controversy.
Prisons Act, 1894 has been enacted to provide Rules for the regulation of prisons. Learned Government Advocate has place reliance upon the definition of word 'Prison' with means any jail or place used permanently or temporarily under the general of special orders of a State Government for the detention and reformation of prisoners and including all lands and building appurtenant thereto, but does not include:-
(a) any place for the confinement of prisoners who are exclusively in the custody of the police;
(b) any place specially appointed by the State Government under section 541 of the Code of Criminal Procedure, 182; or
(c) any place which has been declared by the State Government, by general or special order, to be a subsidiary jail,
Attention has also been drawn to the term "criminal prisoner", which means any prisoner duly committed to custody under the writ, warrant or order of any Court or authority exercising criminal jurisdiction, or by order of a Court martial whereas "convicted criminal prisoner" is defined in sub-section (3) of Section 3 which means any criminal prisoner under sentence of a court or Court martial and includes a person detained in prison under the provisions of Chapter VII of the Code of Criminal Procedure. 1889 (X of 1889,) or under the Prisoners Act 1871 (V of 1871). A criminal prisoner may be a convicted criminal prisoner or unconvicted or undertrial prisoner. Rule 272 of the U.P. Jail manual which falls under Chapter VII has the heading 'Classification and Separation of Prisoners' (Rules framed under section 59 (17) of the Prisons Act for the Classification and Separation of Prisoner, Rule 271 defines classes or prisoners as follows:
"271. A prisoner confined in a jail may be - (1) a criminal prisoner, which term includes:
(a) a convicted prisoner, including a prisoner committed to or detained in prison under section 123 of the Code of Criminal Procedure, 1898, on his failure to give security when ordered to do so under section 118 of the said Code.
(b) an unconvicted or undertrial prisoner;
(2) (a) a State prisoner detained under Regulation III of 1818;
(b) a prisoner detained without trial under any other law relating to the detention of such prisoner; and
(c) a civil prisoner.
The aforesaid provision thus means that criminal prisoner would include unconvicted or undertrial prisoner also. Undertrial prisoner in Rule 284 have been divided into two classes, namely (1) Superior and (2) Ordinary.
Placing reliance upon the provisions of Section 59 of the Act and in particular sub-section (27) and (28), which reads as follows, learned Government Advocate submitted that Section 59, which authorizes the State Government to make Rules consistent with the Act and in particular sub-section (27) and 28 submitted that the word 'custody' mentioned in sub-section (27) would mean and include the power to frame rules with respect of the transfer of the prisoners also. Reliance has also been placed upon sub-section (28), in support of the submission that the State Government is authorized to make rule generally for carrying into effect the purposes of the Act the Prisons Act has been enacted for providing Rules for regulating all the prisons. The scheme of the Act would indicate that it is meant for providing Rules with respect to maintenance of prisons, officers of the prisons, for accommodating prisoners in the prisons. The Act regulates the condition of the prisoners and prescribes the duties of the officer and also takes care of appointment of medical officer and other officers for taking care of the health of the prisoners. In Chapter V, discipline of prisoners has also been provided and Section 27 (3) it has been provided that' unconvicted criminal prisoner' shall be kept apart from the convicted criminal prisoner'. The visit to prisoners including that of unconvicted criminal prisoner is also to be regulated under Chapter IX. Rule 59 gives power to make rules in regard to custody and for carrying into effect the purpose of the Act. The purpose of the Act would include discipline in the prisons, which is specifically provided under Chapter V of the Act, which deals with the discipline of prisoner. We are, therefore, not inclined to accept the argument of the learned counsel of the petitioners that the Prisons Act does not vest any power to regulate the prison administration or for making rule with respect to the transfer of prisoners, may be 'under trial prisoner'.
Apart from the above, the argument of the petitioners counsel would even otherwise fail, as in the absence of any statutory rules, administrative orders and executive instructions can be issued and such administrative orders and executive instructions would be binding unless they are repugnant to any statutory enactment or rules. No such statutory provision or rule has been cited dealing with the transfer of 'undertrial prisoners' to which the provisions of U.P. Jail Manual run contrary and are repugnant.
It has been held in the case of Balram Singh Yadav (supra) as follows:-
" There is nothing in the rest of Chapter XVIII of the Jail Manual which may militate against the transfer of undertrial prisoner from one jail to another for temporary accommodation in the exigencies mentioned in paragraph 137 quoted above. It must follow, therefore, that the rules in the Jail Manual applicable to superior and ordinary classes of convicts are attracted to the undertrial prisoners as well. this will necessarily bring in the application of all the rules of the transfer of convicts from one prison to another".
The Division Bench rejected the contention of the petitioners that the Rules incorporated in the Jail Manual have no statutory sanction or force and neither the Prisons Act nor the Prisoners Act authorized the transfer of a prisoner committed to the custody of a prison in pursuance of an order of remand passed under section 167 (2) of Coder of Criminal Procedure from one jail to another. While rejecting the said argument, the Division Bench observed as under:-
" The contention is devoid of any merit, Section 4 of the Prisons Act makes provision for the accommodation of prisoners. It states that the State Government shall provide for the prisoners in the territories under such government accommodation in prison constructed any regulated in manner laid down in the Act. Section 5 of the same Act lays down.
" Inspector General :- (1) An Inspector shall be appointed for the territories subject to each State Government and shall exercise, subject to the orders of the State Government, the general control and superintendence of all prisons situated in the territories under such Government.
(2) " The State Government may also appoint one or more Deputy Inspector General of Prisons and they shall perform such of the functions of the Inspector General under this Act or under any other law for the time being in force as may be entrusted to them by or under the rules made under Act."
"The Inspector General has thus been armed with power to exercise general control and superintendence of all prison in the State. This power, in our opinion, is wide enough to include the power to make provisions for temporary accommodation of the prisoners to meet over-crowding in any jail. This has been made further explicit by Section 7 of the Prisons Act which provides that whenever it appears to the Inspector General that the number of prisoners in any prison is greater than can be conveniently or safely by kept therein and it is not convenient to transfer the excess number to some other prison he may make provision for temporary shelter and custody of the prisoners in such manner as the State Government may direct Section 7 in our considered view, clearly and unmistakably supports the premise that the Inspector General does possess the power to make provision for the transfer of prisoners to another jail where it appears to him that the excess number of the prisoners cannot be conveniently lodged in the jail Paragraph 17 of the Jail Manual is thus clear referable to the power conferred on the Inspector General of Prisons under the Prisons Act to make provision for temporary accommodation of prisoners who are in excess. i.e. to make provision for relieving overcrowding. It is, therefore, wrong to suppose that Paragraph 137 does not have any support in the statute".
The Court further held:
"In any case, even if these are merely administrative instructions not having the force of a statute, we think that the same may be applied in the absence of any statute to the contrary for dealing with the situation arising out of overcrowding provided that the jail authorities to which the custody of the prisoner remanded under Section 167 (2) is committed shall stand charged with the responsibility of producing the prisoner before the Judicial Magistrate on the date fixed in the order of remand. There is no complaint the present case that the jail authorities at Etwah have not produced the petitioners before the Judicial Magistrate on the date of dates fixed in the order of remand".
Learned counsel for the petitioners has been able to indicate any repugnancy in the provisions of the Jail Manual with respect of transfer of convicts and under trials. The Division Bench in the case of Balram Singh Yadav (supra) was also passed order after taking note of the fact that the provisions of the Jail Manula may be only administrative orders, but were enforceable. We are in respectful agreement with the above view".
16. In State of Maharashtra vs. Saeed Sohail Sheikh, AIR 2013 SC 168, Hon'ble Apex Court has discussed in detail, the various aspects of transfer of undertrial prisoners from one jail to another and held as under:
"14. Appearing for the appellants Mr. Shekhar Naphade, learned senior counsel, made a three-fold submission before us. Firstly, it was contended that the undertrial prisoners had no enforceable right to demand that they should be detained in a prison of their choice or to resist their transfer from one jail to the other if the court under whose orders they were remanded to such custody permitted such transfer. He argued that although Section 29(2) of the Prisoners Act, 1900 permitted the Inspector General of Prisons to remove any prisoner from one prison to another in the State even if that power was not available qua undertrial prisoners, there was no impediment in such removal after the court under whose orders the prisoners were committed to jail had permitted such a transfer.
15. Secondly, it was argued by Mr. Naphade, that the power exercisable by the court in the matter of permitting or refusing the transfer of a prisoner was ministerial in character and that the prisoner had no right to demand a notice of any such request nor an opportunity to oppose the same.
It is a matter entirely between the jail authorities on the one hand and the court concerned on the other in which the prisoner had no locus standi to intervene.
16. Thirdly, it was argued by Mr. Naphade that the High Court had fallen in a palpable error in holding that the use of force by the jail authorities was excessive, which called for any administrative or disciplinary action against those responsible for using such excessive force. He contended that what would constitute reasonable force to restore discipline and peace within the jail depends largely upon the nature of the incident, the extent of disturbances and the gravity of the consequences that would flow if force was not used to restore order. It was not, according to Mr. Naphade possible to sit in judgment over the decision of the jail authorities who were charged with maintenance of discipline and peace within the jail and determine whether force was rightly used and, if so, whether or not the use of force was excessive.
17. Mr. Naphade also urged that the underlying cause of the incident in the instant case was resistance put up by the undertrials involved in heinous offences against the society threatening the very sovereignty and integrity of the country. It was not open to the concerned prisoners, argued Mr. Naphade to resist their transfer from one jail to the other and to create a situation in which the jail authorities found it difficult to effectuate their transfer. It was also contended by Mr. Naphade that the reports submitted by the Sessions Judge was at best a preliminary fact finding report which has neither afforded an opportunity to all concerned to defend themselves against the insinuations or to examine witnesses in their defence. No such report could, therefore, be made a basis by the High Court to issue a mandamus to the State to institute disciplinary action against the officials concerned as though the finding that the use of force was excessive was unimpeachable and could constitute a basis for any such direction.
18. On behalf of the respondents Mr. Amrender Saran, learned senior counsel, argued that the transfer of a prisoner especially an undertrial from one prison to the other was not inconsequential for the prisoner and could not, therefore, be dealt with at a ministerial level. A prisoner was entitled to oppose the transfer especially if the same adversely affected his defence. It was also contended that Section 29 did not empower the Government or the Inspector General of Prisons to direct transfer of undertrials. It was argued that while the inquiry conducted by the Sessions Judge was not a substitute for a regular inquiry that may be conducted by the State, yet the exercise undertaken by a senior officer like the Sessions Judge under the orders of the High Court could furnish a prima facie basis for the High Court to direct an appropriate investigation into the case, and to initiate proceedings against those who may be found guilty of any misconduct on the basis of any such investigation.
19. Section 29 of the Prisoners Act, 1900 reads as under:
29. Removal of prisoners-(1) The State Government] may, by general or special order, provide for the removal of any prisoner confined in a prison (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 behaviour, to any other prison in [the State] (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
20. It is evident from a bare glance at the above provision that removal of any prisoner under the same is envisaged only at the instance of the State Government in cases where the prisoner is under a sentence of death or under or in lieu of a sentence of imprisonment or transportation or is undergoing in default of payment of fine or imprisonment in default of security for keeping the peace or for maintaining good behaviour. Transfer in terms of sub-section (1) of Section 29 (supra) is thus permissible only in distinct situations covered by clauses (a) to (d) above. The provision does not, it is manifest, deal with undertrial prisoners who do not answer the description given therein.
21. Reliance upon sub-section (2) of Section 29, in support of the contention that the transfer of an undertrial is permissible, is also of no assistance to the appellants in our opinion. Sub-section (2) no doubt empowers the Inspector General of Prisons to direct a transfer but what is important is that any such transfer is of a prisoner who is confined in circumstances mentioned in sub-section (1) of Section 29. That is evident from the use of words any prisoner confined as aforesaid in a prison. The expression leaves no manner of doubt that a transfer under sub-section (2) is also permissible only if it relates to prisoners who were confined in circumstances indicated in sub-section (1) of Section 29. The respondents in the present case were undertrials who could not have been transferred in terms of the orders of the Inspector General of Prisons under Section 29 extracted above.
22. We may at this stage refer to Prison Act, 1894 to which our attention was drawn by learned counsel for the appellants in an attempt to show that the Government could direct transfer of the undertrials from one prison to another. Reliance, in particular, was placed upon the provisions of Section 26 of the Act which reads as under:
26. Removal and discharge of prisoners.
(1) All prisoners, previously being removed to any other prison, shall be examined by the Medical Officer.
(2) No prisoner shall be removed from one prison to another unless the Medical Officer certifies that the prisoner is free from any illness rendering him unfit for removal.
(3) No prisoner shall be discharged against his will from prison, if labouring under any acute or dangerous distemper, nor until, in the opinion of the Medical Officer, such discharge is safe.
23. The above, does not, in our opinion, support the contention that the Inspector General of Prisons could direct removal of undertrial from one prison to other. All that Section 26 provides is that before being removed to any other prison the prisoner shall be examined by the medical officer and unless the medical officer certifies that the prisoner is free from any illness rendering him unfit for removal, no such removal shall take place.
Section 26 may, therefore, oblige the prison authorities to have the prisoner, whether a convict or an undertrial, medically examined and to remove him only if he is found fit but any such requirement without any specific power vested in any authority to direct removal, cannot by itself, be interpreted to mean that such removal can be ordered under the order either by the Inspector General of Prisons or any other officer for that matter.
24. That leaves us with the question as to whether undertrials can be transferred to any prison with the permission of the court under whose orders he has been committed to the prison. Reference in this connection may be made to Sections 167 and 309 of the Code of Criminal Procedure, 1973. Section 167(2) empowers the Magistrate to whom an accused is forwarded whether or not he has jurisdiction to try the case to authorize his detention in such custody as the Magistrate deems fit for a term not exceeding 15 days in the whole. It reads:
167. Procedure when investigation cannot be completed in twenty four hours (1) xxxx (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be to so released under the provisions of Chapter XXXIII for the purposes of that Chapter;
(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;
25. Reference may also be, at this stage made, to Section 309 of the Code which, inter alia, empowers the court after taking cognizance of an offence or commencement of the trial to remand the accused in custody in cases where the court finds it necessary to postpone the commencement of trial or inquiry. 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 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.
26. Both Mr. Naphade and Mr. Saran had no serious quarrel on the above proposition. It was all the same argued that if the provisions of the Prisoners Act, 1900 and the Prisons Act, 1894 did not empower the Inspector General of Prisons to transfer the undertrial, the only other mode of such transfer was with the permission of the court and pursuant to whose warrant of remand the undertrial is held in a particular jail.
27. The forensic debate at the Bar was all about the nature of the power exercisable by the court while permitting or refusing transfer. We have, however, no hesitation in holding that the power exercisable by the court while permitting or refusing transfer is judicial and not ministerial as contended by Mr. Naphade. Exercise of ministerial power is out of place in situations where quality of life or the liberty of a citizen is affected, no matter he/she is under a sentence of imprisonment or is facing a criminal charge in an on-going trial. That transfer of an undertrial to a distant prison may adversely affect his right to defend himself but also isolate him from the society of his friends and relations is settled by the decision of this Court in Sunil Batra v. Delhi Administration AIR 1980 SC 1579, where this Court observed:
48. Inflictions may take many protean forms, apart from physical assaults. Pushing the prisoner into a solitary cell, denial of a necessary amenity, and, more dreadful sometimes, transfer to a distant prison where visits or society of friends or relations may be snapped, allotment of degrading labour, assigning him to a desperate or tough gang and the like, may be punitive in effect.
Every such affliction or abridgment is an infraction of liberty or life in its wider sense and cannot be sustained unless Article 21 is satisfied. There must be a corrective legal procedure, fair and reasonable and effective. Such infraction will be arbitrary, under Article 14 if it is dependent on unguided discretion, unreasonable, under Article 19 if it is irremediable and unappealable, and unfair, under Article 21 if it violates natural justice. The string of guidelines in Batra set out in the first judgment, which we adopt, provides for a hearing at some stages, a review by a superior, and early judicial consideration so that the proceedings may not hop from Caesar to Caesar. We direct strict compliance with those norms and institutional provisions for that purpose.
28. The expressions ministerial, ministerial office ministerial act and ministerial duty have been defined by Black Law Dictionary as under:
Ministerial, Adj. (16c) of our relating to an act that involves obedience to instructions or laws instead of discretion, judgment, or skill the court clerk ministerial duties include recording judgments on the docket.
Ministerial office. An office that does not include authority to exercise judgment, only to carry out orders given by a superior office, or to perform duties or acts required by rules, statutes, or regulations.
Ministerial act. An act performed without the independent exercise of discretion or judgment. If the act is mandatory, it is also termed a ministerial duty.
Ministerial duty. A duty that requires neither the exercise of official discretion nor judgment.29. Prof. De Smith in his book on Judicial Review (Thomson Sweet & Maxwell, 6th Edn. 2007) refers to the meaning given by Courts to the terms judicial, quasi-judicial, administrative, legislative and ministerial for administrative law purposes and found them to be inconsistent. According to the author ministerial as a technical legal term has no single fixed meaning. It may describe any duty the discharge whereof requires no element of discretion or independent judgment. It may often be used more narrowly to describe the issue of a formal instruction, in consequence of a prior determination which may or may not be of a judicial character. Execution of any such instructions by an inferior officer sometimes called ministerial officer may also be treated as a ministerial function. It is sometimes loosely used to describe an act that is neither judicial nor legislative. In that sense the term is used interchangeably with executive or administrative. The tests which, according to Prof. De Smith delineate judicial functions, could be varied some of which may lead to the conclusion that certain functions discharged by the Courts are not judicial such as award of costs, award of sentence to prisoners, removal of trustees and arbitrators, grant of divorce to petitioners who are themselves guilty of adultery etc. We need not delve deep into all these aspects in the present case. We say so because pronouncements of this Court have over the past decades made a distinction between quasi-judicial function on the one hand and administrative or ministerial duties on the other which distinctions give a clear enough indication and insight into what constitutes ministerial function in contra distinction to what would amount to judicial or quasi-judicial function.
30. In Province of Bombay v. Khusaldas Advani (AIR 1950 SC 222) this Court had an occasion to examine the difference between a quasi-judicial order and an administrative or ministerial order. Chief Justice Kania, in his opinion, quoted with approval an old Irish case on the issue in the following passage:
The point for determination is whether the order in question is a quasi-judicial order or an administrative or ministerial order.
In Regina (John M'Evoy) v. Dublin Corporation [1978] 2 L.R. Irish 371, 376, May C.J. in dealing with this point observed as follows:
It is established that the writ of certiorari does not lie to remove an order merely ministerial, such as a warrant, but it lies to remove and adjudicate upon the validity of acts judicial. In this connection, the term judicial' does not necessarily mean acts of a judge or legal tribunal sitting for the determination of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances, and imposing liability or affecting the rights of others. This definition was approved by Lord Atkinson in Frome United Breweries Co. v. Bath Justices [1926] A.C. 586, 602, as the best definition of a judicial act as distinguished from an administrative act.
31. In Khushaldas Advani case (supra) the Court was examining whether the act in question was a ministerial/administrative act or a judicial/quasi-judicial one in the context of whether a writ of certiorari could be issued against an order under Section 3 of the Bombay Land Requisition Ordinance, 1947. The Court cited with approval the observation of L.J. Atkin in The King v. The Electricity Commissioner [1924] 1 K.B. 171 that laid down the following testWhenever anybody of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King Bench Division exercised in these writs.
32. The Court quoted with approval the decision in The King v. London County Council [1931] 2 K.B. 215 according to which a rule of certiorari may issue; wherever a body of persons (1) having legal authority (2) to determine questions affecting rights of subjects and (3) having the duty to act judicially (4) act in excess of their legal authority-a writ of certiorari may issue.
33. Justice Fazl Ali, in his concurring opinion in Khushaldas case (supra) made the following observations as regards judicial and quasi judicial orders:
16. Without going into the numerous cases cited before us, it may be safely laid down that an order will be a judicial or quasi judicial order if it is made by a court or a judge, or by some person or authority who is legally bound or authorised to act as if he was a court or a judge. To act as a Court or a judge necessarily involves giving an opportunity to the party who is to be affected by an order to make a representation, making some kind of enquiry, hearing and weighing evidence, if any, and considering all the facts and circumstances bearing on the merits of the controversy before any decision affecting the rights of one or more parties is arrived at. The procedure to be followed may not be as elaborate as in a court of law and it may be very summary, but it must contain the essential elements of judicial procedure as indicated by me.
xxx xxx The mere fact that an executive authority has to decide something does not make the decision judicial. It is the manner in which the decision has to be arrived at which makes the difference and the real test is: Is there any duty to decide judicially?
34. The detailed concurrent opinion of Justice Das, in the same case, also agreed with the above test for determining whether a particular act is a judicial or an administrative one. Das J., observed:
The real test which distinguishes a quasi-judicial act from an administrative act is the third item in Atkin L.J. as definition, namely the duty to act judicially.
35. In State of Orissa v. Dr. Binapani Dei (AIR 1967 SC 1269) Justice Shah, speaking for the Court observed that the duty to act judicially arose from the very nature of the function intended to be performed. It need not be shown to be superadded. The Court held:
If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power.
36. In A.K. Kraipak v. Union of India (1969) 2 SCC 262, Hegde, J., as His Lordship then was, recognised that the dividing line between an administrative power and a quasi-judicial power was fast vanishing. What was important, declared the Court, was the duty to act judicially which implies nothing but a duty to act justly and fairly and not arbitrarily or capriciously. The Court observed:
13. The dividing line between an administrative power and a quasi judicial power is quite thin and is being gradually obliterated.
For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. Under our Constitution the rule of law pervades over the entire field of administration. Every organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi-judicial power.
37. To the same effect is the decision of this Court in Mohinder Singh Gill. v. Chief Election Commission (1978) 1 SCC 405 where Krishna Iyer, J. speaking for the Court observed:
Once we understand the soul of the rule as fairplay in action and it is so we must hold that it extends to both the fields.
After all, administrative power in a democratic set-up is not allergic to fairness in action and discretionary executive justice cannot degenerate into unilateral injustice. Nor is there ground to be frightened of delay, inconvenience and expense, if natural justice gains access. For fairness itself is a flexible, pragmatic and relative concept, not a rigid, ritualistic or sophisticated abstraction. It is not a bull in a china shop, nor a bee in one's bonnet. Its essence is good conscience in a given situation:
nothing more but nothing less. The exception to the rules of natural justice are a misnomer or rather are but a shorthand form of expressing the idea that in those exclusionary cases nothing unfair can be inferred by not affording an opportunity to present or meet a case. Text-book excerpts and ratios from rulings can be heaped, but they all converge to the same point that audi alteram partem is the justice of the law, without, of course, making law lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation.
38. Recently this Court in Jamal Uddin Ahmad v. Abu Saleh Najmuddin (2003) 4 SCC 257 dealt with the nature of distinction between judicial or ministerial functions in the following words:
14. The judicial function entrusted to a Judge is inalienable and differs from an administrative or ministerial function which can be delegated or performance whereof may be secured through authorization. The judicial function consists in the interpretation of the law and its application by rule or discretion to the facts of particular cases. This involves the ascertainment of facts in dispute according to the law of evidence. The organs which the State sets up to exercise the judicial function are called courts of law or courts of justice. Administration consists of the operations, whatever their intrinsic nature may be, which are performed by administrators; and administrators are all State officials who are neither legislators nor judges.(See Constitutional and Administrative Law, Phillips and Jackson, 6th Edn., p. 13.) P. Ramanatha Aiyar's Law Lexicon defines judicial function as the doing of something in the nature of or in the course of an action in court. (p. 1015) The distinction between judicial and ministerial acts is: If a Judge dealing with a particular matter has to exercise his discretion in arriving at a decision, he is acting judicially; if on the other hand, he is merely required to do a particular act and is precluded from entering into the merits of the matter, he is said to be acting ministerially. (pp. 1013-14). Judicial function is exercised under legal authority to decide on the disputes, after hearing the parties, maybe after making an enquiry, and the decision affects the rights and obligations of the parties. There is a duty to act judicially. The Judge may construe the law and apply it to a particular state of facts presented for the determination of the controversy. A ministerial act, on the other hand, may be defined to be one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to, or the exercise of, his own judgment upon the propriety of the act done. (Law Lexicon, ibid., p. 1234).
In ministerial duty nothing is left to discretion; it is a simple, definite duty.
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 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."
(Emphasis supplied by us)
17. In Ritesh @ Bantu (supra), a Division Bench of this Court held as follows:
"It has been contended by the learned counsel for the petitioner that the under trial prisoners cannot be transferred from one jail to another except in accordance with the order passed by the judicial authority under whose order they are detained in judicial custody in jail. It is further contended that jail authority has no jurisdiction to transfer the under trial on administrative ground. On transfer of under trial prisoners before passing the order of transfer the opportunity of hearing have not been given to the petitioner and if no such hearing is provided to the petitioner the order of transfer would be vitiate as held by Hon'ble Supreme Court in State of Maharashtra Vs. Mohd. Saeed Sohail Sheikh reported in 2012 Law Suit (SC) 741.
After considering the citation we are of the opinion that jail authority in State of U.P. is empowered to transfer the under trial vide paragraph 138 read with para 409-A of the U.P. Jail Manual whereas in the State of Maharashtra such power is lacking, therefore, the ratio of case law cited by the petitioner is foreign to the State of U.P."
18. In compliance of law laid down by the Hon'ble Apex Court in State of Maharashtra's case, the Additional Director General/Inspector General of Police, Prisons Administration and Reform Services has issued a Circular Letter Dated 27th April, 2014 to All/Heads of Subordinate Offices, Prisons Department, Uttar Pradesh to comply the directions of the Court while submitting proposal for transfer of undertrial prisoners under paragraphs 138 and 409-A of U.P. Jail Manual for ready reference which is being reproduced here as under :
"Sub: Regarding submission of proposal for transfer of prisoners on administrative grounds.
Proposals for transfer of prisoners on administrative grounds are received with the headquarters. After scrutiny of the aforesaid proposals, it has been found that the proposals sent from the prisons are incomplete and without complete formalities, as a result of which time and energy goes waste not only of the officers submitting the proposal from the prisons but also in scrutinizing such proposals at the headquarters, thus causing effective proceeding not to take place within time. This state of affairs is utterly deplorable and unacceptable.
As you aware, the order dated 02.11.2012 passed by the Hon'ble Supreme Court in Special Leave Petition No. 1735-1739/2012 State of Maharashtra and others versus Saeed Suhail Sheikh and others mandates that so as to transfer an under-trial prisoner from one prison to another, it is mandatory to obtain the permission of Learned Trial Court. Moreover, it is essential to furnish the prisoner's transfer roll detailing all the cases pending against him and mentioning proceeding, if underway, against him in the prison necessitating his transfer from administrative point of view.
Hence, you are required to ensure the following documents to be attached while sending the transfer proposal of any prisoner :
1. Permission of the concerned court.
2. Transfer roll of the prisoner on the prescribed format.
3. Peshi chart of the prisoner.
4. If there be any other important reason for the transfer, details thereof.
This order is being issued under the powers conferred by Para 138 of the Jail Manual read with its Para 409 A. In case of the proposal being not sent as per above, strict action shall be taken against the proposal submitting officer. All concerned to ensure strict compliance."
19. In Sunny @ Chida (supra), Hon'ble Apex Court has held as under:
"The grievance of the petitioner is that he has been transferred from the District Jail, Agra on account of such transfer, he has not been produced before the trial court to conduct the trial.
The abovesaid grievance of the petitioner can be redressed by giving direction to the Superintendent, Central Jail, Agra, to produce the petitioner before the trial court as and when the date is fixed. The Trial Court shall intimate the same to the authorities to comply with this Order.
With the aforesaid observations and directions, the special leave petition is disposed of."
20. Subsequent to the decision of State of Maharashtra's case, in Anil Singh (supra) a Single Judge Bench of this Court held that proceedings before the court concerned while granting permission for transfer of a detenue from one jail to another is judicial one as is held by Hon'ble Apex Court in the above decision.
21. Another Single Bench of this Court in Misc. Single No. 7677 of 2014 in Ram Shlok Pandey vs. State of U.P., decided on 15.01.2015 relying on paras 27 and 39 of State of Maharashtra's case held that admittedly, in the case in hand, before passing the order impugned, opportunity of being heard before considering the request made by the jail authority has not been given to the present petitioner. Therefore, the order impugned cannot be allowed to sustain and is liable to be set-aside.
22. In Yogesh and another (supra) a Division Bench of this Court relying on paragraph 39 of State of Maharashtra's case held as under:
" Thus, in view of the admitted factual position that the Special Judge (Gangster Act), Gautam Budh Nagar and learned Third A.C.J.M., Gautam Budh Nagar upon receiving an application on 2.8.2014 from respondent no. 4 with a prayer for granting permission to the proposed transfer of the petitioners from their present place of detention to District Jail, Banda and Central Jail, Bareilly dealt with and disposed of the same at administrative level and granted permission to the proposed transfer without due and proper consideration, without affording any opportunity of hearing or filing objections to the petitioners against their proposed transfer although the request of petitioners' transfer affected them prejudicially and the settled law on the issue, the impugned orders dated 2.8.2014 passed by the learned Special Judge (Gangster Act), Gautam Budh Nagar and learned Third A.C.J.M., Gautam Budh Nagar can not be sustained and are liable to be quashed. Since the orders dated 2.8.2014 passed by the learned Special Judge (Gangster Act), Gautam Budh Nagar and learned Third A.C.J.M., Gautam Budh Nagar (annexure nos. 3 & 4) granting permission to the respondent no. 4 to transfer the petitioners from District Jail, Gautam Budh Nagar to District Jail, Banda and Central Jail, Bareilly have been held to be illegal by us, the consequential order dated 27.8.2014 (annexure-1) passed by the respondent no. 1, Government of Uttar Pradesh on the recommendation of the respondent no. 2 dated 27.8.2014, by which the petitioners have been transferred from District Jail Gautam Budh Nagar to District Jail, Banda and Central Jail, Bareilly also cannot be sustained."
(Emphasis supplied by us)
23. In Sagar Malik (supra), a Division Bench of this Court held as under:
"The provision that empowers that courts to issue directions to the officer-in-charge of a prison is Section 267 of the Cr.P.C. under Chapter XXII thereof, but at the same time Section 268 Cr.P.C. again empowers the State Government to refuse removal of a prisoner subject to the conditions enumerated in sub Section (2) thereof. Apart from this, it is the judgment in State of Maharashtra Vs. Saeed Sohail Sheikh (supra) that spells out the necessity of the courts granting permission for such transfer.
The petitioner has nowhere challenged the said order dated 26.2.2015 passed by the State Government and as indicated in the instructions received from the State Government. The Court/Magistrate concerned has only granted permission but the place of imprisonment has been fixed by the State Government in exercise of such powers.
In the absence of any challenge to the order of the State Government, the only question remains as to whether the permission granted by the Court is justified or not.
In our opinion, the Magistrate has only given a permission for transfer to another Jail and the reasons given are the existence of an eminent possibility of a gang war. Apart from this, the petitioner in his objection had only taken a plea that since his uncle and relatives are lodged in the same Jail, he should not be transferred. No other plea has been taken in the said objection. Thus, principles of natural justice have been complied with and the petitioner had filed an objection which has been noticed where after the impugned order has been passed by the learned Magistrate. Merely because the relatives of the petitioner are lodged in the same Jail, the same cannot be a ground to refuse transfer and, therefore, the order of the Magistrate does not suffer from any infirmity or perversity calling for an interference. The said order has now been already executed with the issuance of a Government Order on 26.2.2015 which has not been challenged. In the aforesaid circumstances, when the principles of natural justice have been complied with and sufficient reasons have been indicated in the order permitting transfer, we do not find any good ground to interfere with the same at least at this stage.
Now one of the grounds which has been additionally argued before us is about the distance of the transferred prison namely to Varanasi which according to the petitioner will not only cause inconvenience but would also violate his fundamental rights. Having given our anxious consideration the background in which the petitioner has been shifted cannot be ignored. Secondly, the system of Video Conferencing is already available at Varanasi and, therefore, the question of any long journey being undertaken by the petitioner at this stage affecting his rights does not arise. To the contrary at Muzaffarnagar his rival gang is also lodged in the same Jail which itself is an impending danger. Thirdly, the question of engaging a Counsel of his choice at this stage cannot be an impediment and would not violate any of his fundamental rights inasmuch as the petitioner is not being prohibited from engaging any Counsel of his choice. The transfer to a far off Jail can also be countenanced with the fact that the district of Varanasi itself has a large number of lawyers practising on the criminal side, who can cater to and give proper advice in such a case. After all whenever a litigant enters the portals of a Court, he has to opt and choose a lawyer as it cannot be supposed that all litigants have retainer lawyers from before. The choice of lawyers does not get limited nor does their engagement get prohibited. The petitioner is well within the State of U.P. This argument even otherwise would not be available to the petitioner inasmuch as the learned Counsel have time and again stated that they do not oppose the transfer of the petitioner to any nearby district. Thus, this plea also does not in any way help the petitioner in assailing the impugned order as he would still have to engage a lawyer whenever required.
Consequently, the shifting of the petitioner is in his own interest and for the time being does not prejudice his cause occasioning any miscarriage of justice or failure of justice. The order passed by the Magistrate, therefore, has to be upheld.
The issue of interference with such orders has also been dealt with by a Division Bench in the case of State of U.P. through Principal Secretary (Prison), U.P., Lucknow Vs. Fast Track Court No.2, Maharajganj, and others, 2008 (63) ACC 317, that has followed the ratio in the case of Kalyan Chandra Sarkar Vs. Rajesh Ranjan alias Pappu Yadav and another, (2005) 3 SCC 284.
It goes without saying that if and when any necessity arises or in such circumstances exists that may indicate the re-transfer of the petitioner from one Jail to another, it would be open to the competent authority to exercise such powers in accordance with law which may be necessary on the basis of material on record.
In view of the aforesaid reasons and the circumstances of the case, we do not find any fundamental rights of the petitioner being violated so as to cause interference inasmuch as the Court had applied it's mind fairly and objectively and after giving an opportunity to the petitioner. Paragraph No.35 of the judgment in the case of State of Maharashtra and others Vs. Saeed Sohail Sheikh and others (supra) is the ratio of the said judgment and which appears to have been complied with by the Magistrate while passing the order which has now taken the shape of the Government Order dated 26.2.2015 whereupon the petitioner has been transferred to Varanasi.
Consequently, there is no merit in the writ petition. The writ petition is dismissed." (Emphasis supplied by us)
24. In South Central Railway Employees Co-operative Credit Society Employees Union (supra) Hon'ble Apex Court has held in paras 17 and 18 as under :
Para -17 " If the view taken by the High Court is accepted, in our opinion, there would be total chaos this country because in that case there would be no finality to any order passed by this Court. Then a higher court has rendered a particular decision, the said decision must be followed by a subordinate or lower court unless it is distinguished or overruled or set-aside. The High Court had considered several provisions which, in its opinion, had not been considered or argued before this Court when C.A. No. 4343 of 1988 was decided. If the litigants or lawyers are permitted to argue that something what was correct, but was not argued earlier before the higher court and on that ground if the courts below are permitted to take a different view in a matter, possibly the entire law in relation to the precedents and ratio decidendi will have to be re-written and, in our opinion, that cannot be done. Moreover, by not following the law laid down by this Court, the High Court or the Subordinate Courts would also be violating the provisions of Articles 141 of the Constitution of India.
Para-18. "We do not want to go into the arguments advanced by the learned counsel appearing for the respondents before the High Court for the simple reason that it was not open to them to advance any argument which would run contrary to the judgment delivered by this Court in C.A. No. 4343 of 1988, in our opinion, the High Court did something which would be like setting aside a decree in the execution proceedings".
(Emphasis supplied by us)
25. In Rajasthan State Industrial Development and Investment Corporation (supra), the Court held as under :
"34. Be that as it may, there can be no estoppel against the law or public police. The State and Statutory Authority are not bond by their previous erroneous understanding or interpretation of law. Statutory Authorities are legislature cannot be asked to act in contravention of law...."
26. At this juncture we would like to clarify that first of all we will take up the cases of the petitioners challenging their transfer orders from one jail to another and consequential orders etc. relating thereto and will revert back to other cases, thereafter.
27. Learned A.G.A. has tried his best to convenience us that the law laid down by the Hon'ble Apex Court in State of Maharashtra's case is not applicable in the matter of transfer of undertrial prisoners in the State of Uttar Pradesh but a critical analysis of the instant cases in the above referred factual and legal background reveals otherwise as is being discussed hereinafter.
28. In the case of Balram Singh (supra), the Court approved the temporary transfer of custody of petitioner of that case from one jail to another under paragraph 137 and 409-A of Jail Manual on the ground of over crowding in jail. However, the Court has not expressed its view on the point of prior permission of the Court concerned under Section 167 (2) Cr.P.C. as subsequent remand orders passed by the Court concerned were treated implied consent of the Remand Magistrate.
29. In Raghuraj Pratap @ Raja Bhaiya (supra), the Court observed that under Section 167 (2) Cr.P.C., there is no requirement for the Remand Magistrate to mention the place of custody, while ordering for judicial custody to the accused and held that the transfer of the petitioner of that case to another jail was authorized under paragraph 138 and 409-A of Jail Manual. The Court has also held that transfer of place of custody of a detenue is an administrative function of the jail authorities. However, the Court has not dealt with the issue of prior permission of the Court concerned under Section 167 (2) Cr.P.C. as the Court concerned was granted permission for transfer of the petitioner of that case.
30. Though in the above cases, legal validity of various provisions of Jail Manual were challenged but the Court has not decided that issue observing in its decisions that in any case if those rules are merely administrative instructions having no force of a statute still the same may be applied in absence of any statute to the contrary dealing with the situation arising out of necessity of transfer of a detenue to another jail. Subsequent decision of Hon'ble Apex Court in State of Maharashtra's case has changed the above scenario altogether. In this Case, Hon'ble Apex Court held in this case 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 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.
31. The Court also held that the power exercisable by the Court while permitting or refusing the transfer is judicial and not ministerial as contended by Mr. Naphade. Exercise of ministerial power is out of place in situations where quality of life or the liberty of a citizen is affected, no matter he/she is under a sentence of imprisonment or is facing a criminal charge in an on-going trial. That transfer of an undertrial to a distant prison may adversely affect his right to defend himself but also isolate him from the society of his friends and relations is settled by the decision of this Court in Sunil Batra v. Delhi Administration AIR 1980 SC 1579.
32. It is clear from the above finding of this Court in Balram Singh and Raghuraj Pratap @ Raja Bhaiya (supra) that Section 167 (2) Cr.P.C. are not in accordance with the above law declared by Hon'ble Apex Court in State of Maharashtra's case, as far provisions of Section 309 is concerned, it has not been considered at all in Balram Singh (supra) while in Raghuraj Pratap @ Raja Bhaiya (supra) they are not considered in their right perspective.
33. In the above decisions the transfer orders of the respective petitioners were found good in the law of the provisions of paragraphs 137, 138 read with section 409-A of Jail Manual whose legal validity was not decided by the Court. As such, legal validity of above provisions still has to be decided. The same is also challenged before us, but as in State of Maharashtra's case, Hon'ble Apext Court decided that transfer of undertrial prisoners from one jail to another can be given effect with permission of the court concerned. In view of this, we find no necessity to enter into the controversy of legal validity of rules of Jail Manual.
34. Moreover, in the above decisions issue of obtaining prior sanction of the Court concerned for transfer of detenue is also left undecided.
35. In view of the above discussion, the decisions of Balram Singh and Raghuraj Pratap @ Raja Bhaiya (supra) could not be treated a good law.
36. So far as the case of Ritesh @ Bantu (supra) is concerned, the Court held in this case that jail authority in State of U.P. is empowered to transfer the under trial vide paragraph 138 read with 409-A of the U.P. Jail Manual whereas in State of Maharashtra's case such power is lacking, therefore, the ratio of case law cited by the petitioner is foreign to the State of U.P. We apprehended that above finding of the Court is not sustainable in view of the decision of Hon'ble Apex Court in the case of South Central Railway Employees Co-operative Credit Society Employees Union (supra) and decision of this case is judgment in per-curium having no value of precedent and binding law. Otherwise also law declared by the Hon'ble Apex Court is law of land under Article 141 of the Constitution of India and binding on the all concerned.
37. In compliance of law laid down in State of Maharashtra's case a Circular Letter Dated 27th April, 2015 has been issued by Additional Director General/Inspector General of Police, Prisons Administration and Reform Services to the All Heads of Subordinate Offices, Prisons Department, Uttar Pradesh in exercise of power conferred under para 138 read with para 409-A of Jail Manual. No doubt in view of the decision of Rajasthan State Industrial Development and Investment Corporation (supra), the State Government has right to correct it or correct its understanding about law as contended by the learned A.G.A. but admittedly till the time no such exercise has been taken by the State Government rather the State Government directed the compliance of law laid down by Hon'ble Apex Court in State of Maharashtra's case has been directed as is evident from perusal of Government Orders dated 27th April, 2015 (Annexure-3 of the Writ Petition No. 7030/2015, Annexure No.1 of the Writ Petition No. 7123/2016 and Annexure No. 2 of the Writ Petition No. 11865/2016, Annexure-1 of Writ Petition No. 3649/2016, Annexure No. 2 of the Writ Petition No. 19739/2016 etc). The above circular letter is still enforce and no assumption or presumption in respect of it can be drawn on the basis of any hypothetical event likely to take place in future.
38. The decision of State of Maharashtra's case is followed by this Court in terms of its analogy in Anil Singh, Ram Shlok Pandey, Yogesh and another (supra) and notice of compliance of that decision is also being taken in Sagar Malik (supra).
39. In view of the above, the arguments raised by learned A.G.A. regarding non-applicability of law laid down by Hon'ble Apex Court in State of Maharashtra's case, appear misconceived, fallacious, based on misreading of facts and law and are liable to be rejected.
40. Considering the facts and circumstances of the case in their totality/entirety, we hold that :
1. The decisions of Balram Singh and Raghuraj Pratap @ Raja Bhaiya (supra) are not good law, being not in consonance with the decision of Hon'ble Apex Court in State of Maharashtra's case, same is also about decision of Ritesh @ Bantu (supra).
2. The law laid down by Hon'ble Apex Court in the case of State of Maharashtra's case is also applicable in the manner of transfer of undertrial prisoners to another jail in the State of Uttar Pradesh and the State Government may transfer undertrial prisoners from one jail to another in accordance with above decision.
3. In the light of the directions in para 27 of the decision in State of Maharashtra's case, the matter relating to the transfer of undertrial prisoners from one jail to another in Uttar Pradesh be considered and decided by the Administrative/Jail Authorities in judicial manner after taking all relevant facts into consideration and providing opportunity of hearing to the concerned detenue. Needless to say that the courts concerned will also decide the matters pertaining to the permission for transfer of a detenue from one jail to another in judicial manner as stated above.
41. The question no. 1 is answered accordingly.
Answer to question no. 2
42. As we held in answer to question no.1 that law laid down by Hon'ble Apex Court in State of Maharashtra's case is applicable on the matters of transfer of undertrial prisoners from one jail to another, in which it is provided that proceedings before the Magistrate while granting permission for transfer of undertrial prisoners from one jail to another are not administrative rather it is judicial or at least semi-judicial and permission of the court under warrant of whom the detenue is in custody, is necessary for transfer of prisoners from one jail to another.
43. Perusal of the material available on the record reflects that in Writ Petition Nos. 24104/2015, 29764/2015, 7123/2016, 11865/2016,17855/2016, 9014/2016 and 19739/2016, the petitioners were transferred from one jail to another without obtaining permission from the court concerned.
44. In Writ Petition No.7030/2015, the order for transfer of the petitioner was passed prior to obtaining permissions from the courts concerned for transfer of the petitioner. The courts concerned have not properly taken into consideration relevant facts for granting permission for transfer of the petitioner.
45. In Writ Petition No. 29764/2015, the petitioner was transferred allegedly due to influence and on instance of then Prison Minister, Balram Yadav who was the accused in the cross case.
46. In Writ Petition No. 11594/2016, the petitioner was transferred only on the permission of District & Sessions Judge that was also obtained subsequent to passing of the transfer orders. Two Courts refused permission for transfer of the petitioner and permissions from all courts concerned were not obtained.
47. In Writ Petition No. 11750/2016, during hearing for granting permission very short period up to lunch was provided to file objection which does not appear sufficient opportunity of hearing, relevant factors related to transfer of the petitioners is also not properly discussed in the order. Non application of mind by the Court is also clear that court has granted permission for blanket transfer of the petitioner as name of the jail where the petitioner was intended to be transferred was not disclosed before the court.
48. It is clear from the discussion made in the predeceasing paragraphs that most of the petitioners were not provided opportunity of hearing before passing of their respective transfer orders and consequential orders relating thereto, same is also the position in respect of orders granting permission for transfer of the petitioners by the Courts concerned and if in some cases petitioners were provided opportunity of hearing, then either opportunity provided was not sufficient or peculiar facts of affecting the case of the concerned petitioner like number of pending cases in particular place, stage of case, age of the petitioner, his serious and critical illness, distance between one jail to another and other relevant factors were not taken into consideration at the time of passing of the impugned orders, which was desirable to be taken into consideration for proper exercise of powers in granting permission for transfer of the petitioners from one jail to another, in judicial manner.
49. In this regard, Hon'ble Apext Court held in para 27 in State of Maharashtra's case that transfer of an undertrial to a distant prison may adversely affect his right to defend himself but also isolate him from the society of his friends and relations as settled by the decision of this Court in Sunil Batra v. Delhi Administration AIR 1980 SC 1579.
50. Since the impugned transfer orders, consequential orders relating thereto were passed and permissions from the court concerned was obtained subsequently/without obtaining permission of the Court/ all the Courts concerned despite refusal of permission by some courts and without taking relevant facts into consideration and providing opportunity of hearing in most of the cases. In view of the above, we are of the considered opinion that impugned transfer orders, consequential orders and orders granting permission from the court concerned for transfer of the petitioners from one jail to another are not in conformity with law laid down by Hon'ble Apex Court in State of Maharashtra's case, not sustainable in the eyes of law and are liable to be quashed.
51. Now we are reverting back to the remaining cases in which though no order relating to the transfer of the petitioners from one jail to another has been challenged but grievances of the petitioners are relating to their place of detention.
52. In Writ Petition No. 27600/2015, the petitioner has sought his transfer from Agra Jail to Saharanpur Jail on the ground that 15 cases against him are pending in the Court of Saharanpur and his transfer to Agra Jail is violative of his rights of speedy trial of his cases. In this regard he has placed reliance on the decision of the Hon'ble Supreme Court in Criminal Appeal No. 637 of 2012 (arising out of S.L.P. (Crl.) No. 1772 of 2012 -Vikrant @ Vikki Tyagi vs. State of U.P.) in which the Hon'ble Supreme Court has specifically observed an under trial, no matter what offence he may have committed, is entitled to a fair and expeditious trial.
53. In Writ Petition No. 5132/2016, the petitioner has challenged Circular No. Bandistha (Agra Mandal) dated 21.01.2016 (Annexure-8) on the grounds that Jail authorities were directed to keep the petitioner in Central Jail Agra during gap of two or three days in the date fixed in criminal trial and then sent back to Bareilly jail; Petitioner is aged abut 68 years and under treatment; Seven cases are pending at Agra and Firozabad but without any reason he is detained at Central Jail Bareilly which is about 250 kms. away.
54. In the Writ Petition No. 3441/2016, the petitioner has sought relief for issuance of writ of mandamus commanding the respondents not to transfer the petitioner from District Jail Mainpuri to another District Jail on the grounds that the petitioner was earlier transferred to Etah and thereafter after six months to Central Jail Fatehgarh, though presently he is detained in Mainpuri Jail. The petitioner and his mother are apprehending that he may be transferred to another jail under political pressure with intention to his murder.
55. Considering the facts and circumstances of these cases, we are of the view that purpose of justice will be served, if the above writ petitions may be disposed of with the appropriate directions for time bound and reasoned orders on fresh representation of the petitioners, if any.
56. Question no. 2 is answered accordingly.
57. In view of our above answers to question nos. 1 and 2, we are passing the following orders:
1. Writ Petition Nos. 7030/2015 (Annexure Nos.3, 4, 5 and 6), 24104/2015 (Annexure No.5), 29764/2015 (Annexure Nos.2, 3 and 4), 7123/2016, (Annexure no.1), 11594/2016 (Annexure Nos.1 and 12), 11865/2016 (Annexure No.3), 17855/2016 (Annexure Nos.1, 2, 3 and 4), 3649/2016 (Annexure No.2), 11750/2016 (Annexure No.2), 19014/2016 (Annexure No.1) and 19739/2016 (Annexure No.2) are allowed and impugned orders contained in the Annexures mentioned within bracket of the respective writ petitions are hereby quashed to the extent those relate to the petitioners' concerned.
2. Writ Petition No. 11865/2016 is partly allowed and its Annexure Nos. 2 and 3 are hereby quashed to the extent those relate to the petitioner.
3. Since the transfer orders, consequential orders and orders granting permission for transfer of the petitioners subject to challenge in the aforesaid writ petitions are quashed by us consequent to that, the respondents/authorities concerned are directed immediately to return back the petitioners concerned to the jails wherefrom they have been transferred to the present jails.
4. It is clarified that quashing of the above orders will not preclude the State Government for passing of fresh transfer orders of the petitioners from one jail to another, if need arises to do so in accordance with law laid down by Hon'ble Apex Court in State of Maharashtra's case.
5. The Writ Petition Nos. 27600/2015, 5132/2016 and 3441/2016 are disposed of with the directions that in case the petitioners submit their fresh representations within sixty days from today to the State Government/ concerned Authorities for redressal of their grievances stating all necessary facts alongwith affidavit and relevant documentary evidence in support of their cases, same will be considered and decided within ninety days from the receipt thereof by means of reasoned and speaking orders, after providing opportunity of hearing to the petitioners.
58. No order as to costs.
Order dated : 29.05.2017
Monika
(Criminal Misc. Writ Petition No. 7030 of 2015)
