Bombay High Court
Sayyad Jahir @ Shera Bakar Kureshi vs The State Of Maharashtra on 12 June, 2017
Bench: R.M. Borde
1 WP642.2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
CRIMINAL WRIT PETITION NO. 642 OF 2017
Sayyad Jahir @ Shera Bakar Kureshi,
Age : 27 years, Occu. Nil,
R/o. Chelipura, Aurangabad. Petitioner...
Versus
1. The State of Maharashtra.
2. Inspector General of Prisons,
Old Central Building,
Maharashtra State, Pune.
3. The Superintendent of Jail,
Central Jail at Aurangabad.
4. The Superintendent of Jail,
Central Jail at Nashik. Respondents...
..........
Mr D. S. Manorkar, Advocate for the petitioner
Mr K. S. Patil, APP for respondents/State
.............
CORAM : R. M. BORDE &
A. M. DHAVALE, JJ.
DATE : 12TH JUNE, 2017
ORAL JUDGMENT (Per R. M. Borde, J.) :-
1. Rule. Rule made returnable forthwith. Heard finally with
the consent of the respective parties and taken up for final disposal at
admission stage.
2 WP642.2017
2. The petitioner is undertrial prisoner facing charges u/s 302,
364, 201, 120(B), 143, 147, 149 of the Indian Penal Code and
Sections 3(1)(i), 3(1)(ii), 3(2), 3(4) of the Maharashtra Control of
Organized Crime Act, 1999. The petitioner is charged for commission
of aforesaid offences along with other co-accused named in the
charge-sheet. It is informed that, there are four charge-sheets
presented to the Court wherein the petitioner is arrayed as an
accused. The petitioner is arrested in connection with Crime No.
I-21/2012 on 26.04.2012 and was remanded in PCR and finally he
has been sent to magisterial custody. The petitioner was lodged at
Central Prison at Aurangabad. A charge-sheet has been presented
against the petitioner in the Special Court bearing Special Case
No. 21/2012 and the case is pending before the Special Judge
(MCOC Act) at Aurangabad.
3. The petitioner is resident of Aurangabad and his all
relations are staying at Aurangabad. The petitioner is making
grievance in respect of his transfer from Aurangabad Central Jail to
Nashik Central Jail without assigning any reason or without
extending any opportunity of being heard to him. It is contended
that, undertrial prisoner has been transferred to Nashik Central
3 WP642.2017
Prison in the month of August-September 2015. The presence of the
petitioner is required in Special Case No. 21 of 2012, pending before
the Special Court at Aurangabad and his transfer to Nashik Central
Prison is arbitrary and in breach of provisions of Section 29 of the
Prisoners Act, 1900 and violative of the directions issued by the
Supreme Court of India in the matter of State of Maharashtra &
Ors. Vs. Saeed Sohail Shaikh etc. reported in 2012 (12) LJSOFT
445.
4. An affidavit-in-reply has been presented on behalf of the
respondent, wherein it has been stated that the petitioner is an
undertrial prisoner No. 109/2015 and is a member of Imran Mehandi
Gang. It is contended that, the gang has a membership of 13
individuals and all are active in Aurangabad city. It is contended
that, the members of gang are habitual offenders indulging in
offences like riots, theft, kidnapping, kidnapping for ransom, murder,
counterfeiting documents and arms act etc. It is contended that, the
gang members have extracted money and are instrumental in five
murders committed around the city. It is contended that, proper
arrangement could not be made for lodging the undertrial prisoner
i.e. the petitioner herein at Central Prison on account of
overcrowding of the Jail and paucity of sufficient space. It is
4 WP642.2017
contended that, a direction regarding transfer has been sought for
from Dy. Inspector General of Prison, Central Prison, Aurangabad and
in view of the permission accorded by the higher authorities the
petitioner has been transferred to Central Prison at Nashik. It is also
pointed out that an application was moved to the learned Special
Judge, which is at Exh. 30, in Special (MCOCA) Case No. 21/2012.
Considering the order passed, the petitioner has been transferred to
Nashik Central Prison. The petitioner contends that, there is no
provision empowering the Jail authorities to transfer an undertrial
prisoner from one prison to another. It is contended that, the
petitioner is facing trial before the Special Court at Aurangabad and
is required to be produced before the court on the date prescribed by
the court and it is thus logical and mandatory also for the Jail
authorities to keep the petitioner in magisterial custody only at
Aurangabad. It is stated that, the provisions of Section 29 of the
Prisoners Act, 1900 empowers the State Government to issue a
general or special order providing for removal of any prisoner
confined in a prison and transfer him, however, such order shall be
passed in the circumstances prescribed under sub-section 1 of Section
29 of the Prisoners Act and those are; (a) under sentence of death, or
(b) under, or in lieu of, a sentence of imprisonment or transportation
or in default of a payment of fine, or (c) in default of a payment of
5 WP642.2017
fine, or (d) in default of giving security for keeping the peace for
maintaining good behaviour.
5. In the instant matter, since the petitioner is an undertrial
prisoner and as the conditions specified in sub-section (1) of Section
29 are not attracted, it was impermissible for the prison authorities to
transfer the petitioner from Central Jail, Aurangabad to Central Jail,
Nashik. The petitioner relying upon the judgment of the Hon'ble
Supreme Court in the matter of State of Maharashtra Vs Saeed Sohail
Sheikh (cited supra) contends, that it is impermissible for the prison
authorities to issue orders of his transfer. In the reported matter, the
challenge was raised to an order passed by the Division Bench of the
High Court at Mumbai, whereby a batch of criminal writ petitions
presented by the undertrial prisoners have been allowed and the
order of the transfers of the undertrial prisoners from Arthur Road
Jail in Bombay to other three Jails in State of Maharashtra is held to
be illegal and a direction has been issued to re-transfer the undertrial
prisoners to Arthur Road Jail at Bombay. In para 20 of the judgment,
it is observed by the Hon'ble Apex Court that a bare glance at the
provisions (Section 29 of the Prisoners Act, 1900) would make it
clear that, removal of any prisoner is contemplated only at the
instance of the State Government in cases where a prisoner is under
6 WP642.2017
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. It is further recorded that, the transfer
in terms of sub-section (1) of Section 29 is permissible only in
distinct situations covered by clauses (a) to (d) of sub-section (1) of
Section 29 of the Prisoners Act, 1900. The provision does not deal
with undertrial prisoners who do not answer the description given in
sub-section (1) of Section 29 of the Act. In paras 25 and 39 of the
said judgment, it is observed thus:
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 under trials are detained till
their production before the court on the date fixed for that
purpose. The prison where the under trial 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
7 WP642.2017
permissible only with the permission of the court under whose
warrant the under trial has been remanded to custody.
39. Applying the above principles to the case at hand and keeping
in view the fact that any order that the Court may make on a
request for transfer of a prisoner is bound to affect him
prejudicially, we cannot but hold that it is obligatory for the
Court to apply its mind fairly and objectively to the circumstances
in which the transfer is being prayed for and take a considered
view having regard to the objections which the prisoner may have
to offer. There is in that process of determination and decision
making an implicit duty to act fairly, objectively or in other
words to act judicially. It follows that any order of transfer
passed in any such proceedings can be nothing but a judicial
order or at least a quasi-judicial one. Inasmuch as the trial court
appears to have treated the matter to be administrative and
accordingly permitted the transfer without issuing notice to the
under-trials or passing an appropriate order in the matter, it
committed a mistake. A communication received from the prison
authorities was dealt with and disposed of at an administrative
level by sending a communication in reply 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.
6. It does follow that, the rationale underlying the provision
of Section 309 of the Code is that, the continued detention of the
8 WP642.2017
prisoner in jail during the trial or enquiry 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. It does follow
that, the transfer of prisoner from the place of detention would be
permissible only with the permission of the court under whose
warrant the undertrial prisoner has been sent to custody. It would be
open for the prison authorities to remove the undertrial prisoner from
one prison and to lodge him to another prison subject to the orders
those may be issued by the competent court under whose warrant
undertrial prisoner has been remanded to the custody.
7. In the instant matter, the prosecution in fact moved an
application at the request of Jail authorities seeking permission to
remove the petitioner from Aurangabad Central Jail, however, the
learned Additional Sessions Judge decided the application without
recording any reason thereon. In para 4 of the order, it is observed
by the Additional Sessions Judge that the court is not empowered to
interfere with the administration of the Jail authorities and it is look
out of the Jail authorities to transfer or to keep the prisoner in Jail as
per their convenience. The court has recorded that, in such
circumstances, the question of granting permission as prayed for does
not arise and as such the application has been filed.
9 WP642.2017
8. The learned Additional Sessions Judge has not properly
applied his mind to the provisions of the law as well as the attention
of the court was not invited to the judgment of the Hon'ble Apex
Court in the matter of State of Maharashtra & Ors. Vs Saeed Sohail
Sheikh (cited supra). It cannot be controverted that the undertrial
prisoner is detained under the warrant of the Special Court and has
been remanded to the custody. If at all the petitioner is required to
be moved from one place to another, he can be moved only subject to
permission from the court under whose warrant he has been
remanded to the custody. The Special Court shall have to consider
and decide the application tendered by the prosecution on
instructions from Jail authorities, after extending an opportunity of
hearing to the petitioner in accordance with provisions of law and
keeping in mind that the provisions of Section 29 of the Prisoners
Act, 1900 as well as the Judgment of the Supreme Court referred to
above.
9. In the circumstances, we grant liberty to the respondent-
State to make a fresh request to the learned Additional Sessions
Court seeking approval to the transfer of the prisoner already made
by the Jail authorities. The order passed by the Dy. Inspector General
10 WP642.2017
of Prison directing the transfer of the petitioner from Central Jail,
Aurangabad to Nashik Central Jail is quashed and set aside.
10. It would be open for the Jail authorities to tender an
application seeking permission of the ld. Additional Sessions Court
for transfer of prisoner from Aurangabad Central Jail to Nashik
Central Jail. If the State tenders an application within a period of 4
weeks from today, the learned Additional Sessions Judge shall decide
the same after extending an opportunity of hearing to the other side
i.e. the petitioner herein as expeditiously as possible, preferably
within a period of two weeks from the date of tender of such
application.
11 Since the respondents have, in the affidavit-in-reply, cited
the reason of overcrowding of the prison at Aurangabad Central Jail
as well as have expressed the security concern, we permit the lodging
of the prisoner i.e. the petitioner at Central Jail, Nashik until the
decision on the application that would be tendered by the respondent
to the Special Court. It is a matter of record that, at present the
number of prisoners in the Central Prison, Aurangabad exceeds by at
least one and half times of the sanctioned capacity of the central
prison. In the Public Interest Litigation presented concerning the
11 WP642.2017
administration of the jail, orders have been issued for a transfer of
prisoners from Aurangabad Central Prison and about 400 prisoners
have been transferred to Jalna Central Prison and more than 300
prisoners have been transferred to Nashik Central Jail. Keeping this
aspect in mind, we permit the respondents to continue the lodging of
the petitioner at the Central Jail, Nashik until the decision on the
application that would be tendered by the respondent-State to the
Special Court.
12. Rule is accordingly made absolute. There shall be no order
as to costs.
[ A. M. DHAVALE ] [ R. M. BORDE ]
JUDGE JUDGE
sgp
