Bashir Ahmad Mir And Another vs State And Others
2021 Latest Caselaw 764 j&K/2

      IN THE HIGH COURT OF JAMMU AND KASHMIR
                    AT SRINAGAR

                                           Reserved on:09.07.2021
                                        Pronounced on: 15.07.2021

                        CRM(M) No.210/2019

                          CrlM No.660/2019




Bashir Ahmad Mir and another                      ...PETITIONER(S)

          Through: Mr. S.T.Hussain, Sr. Advocate with
                     Ms. Nida Nazir, Advocate

Vs.

State and others                                 ....RESPONDENT(S)

          Through: Mr. B.A.Dar, Sr. AAG


CORAM:HON'BLE MR. JUSTICE SANJEEV KUMAR,JUDGE

                              JUDGMENT

1) The petitioners, who are facing trial in FIR No.51/2013 under

Sections 302/307/120-B, 419, 467, 468, 447-A, 326, 323 RPC,

Section 14 of Forest Act, Sections 7/25, 7/27 Arms Act, Sections 3,

4 and 5 of Explosive Act and Sections 16, 17, 19, 20 and 40 of

Unlawful Activities Prevention Act before Special Judge Designated

under National Investigation Agency Act, Srinagar ["the Special

Court"] are before this Court by way of instant petition filed under

Section 561-A of the Code of Criminal Procedure ("the Code")

seeking a direction to the respondents not to transfer them from

Kupwara sub-jail to any other jail outside the Kashmir valley and

adhere to the order of the trial Court dated 03.05.2019 in letter and

spirit.

2) It is submitted that a challan in FIR No.51/2013 against the

petitioners along with eight others was presented before the Special

Judge on 31.03.2013 and more than eight years have elapsed but the

trial is still proceeding at a snail's pace. The major reason for the

delayed trial attributed by the petitioners is the transfer of the

petitioners outside Kashmir valley and failure of the

prosecution/State to produce them in the Court on each and every

date of hearing. It is submitted that the Special Court vide its order

dated 03.05.2019 had directed that in case the Incharge Central Jail,

Srinagar intends to shift the petitioners and other accused from

Central Jail, Srinagar to another jail in Jammu, in that eventuality, he

shall shift the petitioners in jails situate either at Baramulla or

Kupwapra. This order, it is complained, has not been adhered to by

the respondents and they have instead shifted the petitioners to some

jail in Jammu.

3) This petition is resisted by the respondents and in the

objections filed by the respondents duly supported by an affidavit of

the S.H.O., Police Station, Parimpora, Inspector Jaffar Iqbal, it is

stated that a case FIR No.51/2013 was registered in the Police

Station, Parimpora against seven persons including the petitioners in

the instant petition. Subsequently, Final Report/Challan was

presented before the Special Court in the year 2013 against all the

accused. So far as change in custody is concerned, it is pleaded by

the respondents that the same falls under the domain of the jail

authorities and the police, which has registered the case has no say in

the matter.

4) Having heard learned counsel for the parties and perused the

record, it is necessary to first set out the prayer of the petitioners

made in the petition, which reads thus:-

"1. That a direction may be issued to the respondents

to act according to law and take into

consideration ANNEXURE-I a Judicial order

passed in this case for securing the ends of justice

u/s 561-A of the CRPC because under established

law the executive is bound to consider the

Judicial order which attains finality. Either bail or

time limit be fixed.

2. That a direction may be issued to Additional

Director General of Prisons to consider this

Application as a representation and decide the

same in accordance with law.

3. Any other writ, order or direction which this

Hon'ble Court may deem fit or proper in the facts

and circumstances of the case."

5) From perusal of the contents of this petition, it transpires that

the petitioners, who along with others are facing trial in FIR

No.51/2013 in the Court of Special Judge, apprehend that their

custody may be changed and they could be lodged in a jail outside

the Kashmir valley. They, therefore, place strong reliance on order

dated 03.05.2019 passed by the Special Judge, wherein it is held that

transfer of prisoners from one place of detention to another is

permissible only with the permission of the Court under whose

warrant an undertrial has been remanded to custody. The Special

Judge in the same order has also directed that in case the petitioners

are required to be shifted from Central Jail, Srinagar to any other jail

in Jammu, the Incharge Central Jail, Srinagar shall shift them to a jail

situated either at Baramulla or Kupwara.

6) Mr. B.A.Dar, learned Sr. AAG, has vehemently resisted the

petition and submitted that this petition is rendered infructuous, as

the petitioners have already been shifted to jails in Jammu and the

order of shifting them from Central Jail, Srinagar to a jail in Jammu

is not assailed by the petitioner. I cannot agree more with the learned

counsel for the respondents.

7) The application is totally cryptic and very poorly drafted,

though, two important questions of law were raised by Mr.

S.T.Hussain, learned Senior Counsel, during arguments for

consideration:-

1) Whether an undertrial, who is remanded to judicial

custody by the trial Court can be shifted from one

prison to another without permission of the trial Court?

2) Whether before shifting an undertrial from one prison to

another requires compliance of principles of natural

justice, in that, undertrial sought to be shifted is

required to be provided an opportunity of being heard?

Question No.1

8) The custody of an accused, during the course of investigation

and before the competent Court takes cognizance, is regulated by

Section 167 of the Code of Criminal Procedure. Section 57 of the

Code provides that no police officer shall detain in custody a person

arrested without warrant for a longer period than under all

circumstances of the case is reasonable and such period shall not, in

the absence of special order of Magistrate under Section 167 of the

Code, exceed twenty-four hours exclusive of the time necessary for

the journey from the place of arrest to the Magistrate's Court. It is,

thus, evident that if a person is arrested in connection with a

cognizable offence, he cannot be detained by the police officer for a

period more than 24 hours and if during such period investigation is

not completed or it appears that it cannot be completed then the

police officer not below the rank of Sub-Inspector shall forthwith

transmit the accused to the nearest Judicial Magistrate. It is the

Judicial Magistrate, to whom the accused is forwarded, who can

authorize further detention in police custody for a term not exceeding

15 days in the whole. There is, however, a proviso added to Sub

Section (2) of Section 167 of the Code, which lays down that the

Magistrate may authorize the detention of the accused person,

otherwise than in police custody, beyond the period of fifteen days

provided he is satisfied that adequate ground exists for doing so but

no Magistrate shall authorize such detention for total period

exceeding 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; and sixty days where the

investigation relates to any other offence. The provisions of Section

167 of the Code, as is evident from its bare reading, relate to

regulation of custody of accused person during investigation.

9) So far as custody of an undertrial is concerned, it is dealt with

in Section 309 of the Code. What is provided in Section 309, in

nutshell, is that if the Court after taking cognizance of offence and

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.

The plain language of Section 309 does not suggest that Magistrate

has to remand accused produced before him during the course of

inquiry or trial for his lodgement in a particular prison/jail nor from a

reading of Sections 167, 309 or other provision in the Code, one

would find that accused person/undertrial is conferred any right to

choose a prison/jail of his choice.

10) In terms of Section 417 of the Code, it is the State

Government, which is enjoins to direct in what place any person

liable to be imprisoned or committed to custody under the Code shall

be confined. It shall, however, be subject to any provision in this

regard made by any law for the time being in force. A conjoint

reading of Sections 167, 309 and 417 of the Code, makes it

abundantly clear that neither an undertrial or for that matter a convict

has a right to dictate his choice of prison nor the Court under any

provision of the Code is obligated to nominate a jail or prison for the

lodgement of an undertrial while issuing remand/warrant for

lodgement during the course of trial. For facility of reference

relevant extract of Section 417(1) of the Code of Criminal Procedure

is reproduced hereunder:-

"417. Power to appoint place of imprisonment.--(1) Except when otherwise provided by any law for the time being in force, the State Government may direct in what place any person liable to be imprisoned or committed to custody under this Code shall be confined. ........................................."

11) As a matter of fact, under Section 29 of the Prisons Act, 1990,

it is left to the State Government concerned to provide by general or

special order the removal of any prisoner confined in a jail when he

is under sentence of death, or, or in lieu of a sentence of

imprisonment, or in default of payment of fine, or in default of

giving security for keeping the peace or for maintaining good

behaviour, to any other prison in the State. Subject to such orders

and under the control of the State Government such powers can also

be exercised by the Inspector General of Prisons.

12) Admittedly, Section 29 pertains to regulating of custody of

convicts and does not deal in any manner with the undertrials. The

reliance placed by Mr. B.A.Dar, learned Sr. AAG on Section 29 of

the Code is, thus, misplaced.

13) In exercise of powers conferred by Sections 59 and 60 of the

Prisons Act, Svt. 1977 read with Section 51 of the Prisons Act, Svt.

1977, the Government has promulgated "Manual for

Superintendence and Management of jails in the State of J&K". Rule

18.(59), which deals with transfer of undertrial is reproduced

hereunder:-

"18.(59) During an emergency or on administrative grounds, the Inspector-General Prisons is authorised to transfer undertrial prisoners from one prison to another, within the State: Provided that if a prisoner is transferred to a place outside the jurisdiction of the Court

concerned, prompt intimation shall be sent to the concerned Court. The prisoner shall be produced before Court on the due date."

14) From a reading of Rule 18.(59) of the Jail Manual, it becomes

abundantly clear that Inspector General Prisons is conferred the

power to transfer undertrial prisoners from one prison in the State to

another during an emergency or on administrative grounds. The only

caveat is that if a prisoner is to be transferred to a place outside the

jurisdiction of the Court concerned, prompt intimation is required to

be sent to the Court and it shall be ensured that the prisoner is

produced before the Court on the due date. This power conferred

upon the Inspector General Prisons is statutory in nature.

Admittedly, in the instant case this statutory provision of the manual

enacted by the State in exercise of powers conferred by Section 59 of

the Prisons Act has not been called in question in this petition.

15) As a matter of fact, this petition, when filed was premature

and the petitioners were only apprehending their shifting to a jail in

Jammu and no formal order of transfer of the petitioners from a jail

in Srinagar to a jail in Jammu/Kathua had been passed. Even when

the case was heard, it was not brought on record as to whether the

petitioners have been transferred from a jail in Kashmir to a jail in

Jammu. Though, report of medical examination of petitioner No.1 by

the Medical Officer, District Jail Kathua, which is placed on record

by Mr. B.A.Dar, learned Sr. AAG, suggests that petitioner No.1 has

been shifted from a jail in Kashmir to District Jail, Kathua. There is,

however, no whisper with regard to transfer of petitioner No.2 from

one jail of the State to another.

16) Be that as it may, looking to the importance of the questions

raised and its ramifications, I have, with the assistance of learned

counsel appearing for the parties, attempted to put the legal position

in proper perspective.

17) It is, thus, concluded that that when the Code of Criminal

Procedure does not authorise the trial Court to remand an undertrial

to a particular jail, it is not correct and logical to assume that the jail

where an undertrial on remand by the trial Court is lodged is the one

identified or nominated by the trial Court and for removal of an

undertrial from such jail, it is incumbent upon the respondents to

seek prior permission of the trial Court. This conclusion arrived at by

me finds support from the provisions of Section 417 of the Code of

Criminal Procedure, which leaves it to the Government to determine

as to where a convict or undertrial is required to be lodged. Aside,

Rule 18.(59) of the Manual for Superintendence and Management of

Jails in the State of J&K gives such power to the Inspector General

Prisons. In an emergency or for administrative reasons, Inspector

General Prisons is authorized to shift the custody of an undertrial

from one prison to another within the State. In the absence of any

contrary or overriding provision in the Code of Criminal Procedure,

statutory provision i.e. Rule 18.(59) of the Manual framed by the

Government in exercise of powers conferred by Section 59 of the

Prisons Act deserves to be given effect to.

18) Judgment of the Supreme Court in the case of State of

Maharashtra v. Mohd. Saeed Sohail Sheikh, AIR 2013 SC 168

strongly relied upon by Mr. S.T.Hussain, learned Senior Counsel,

may not be applicable to the facts and circumstances of this case. In

the aforesaid case Hon'ble Supreme Court was confronted with the

Jail Manual of State of Maharashtra in which there was no specific

provision regarding transfer of undertrials from one prison to another

within the State. Hon'ble the Supreme Court repelled the argument

of the State of Maharashtra that it had such powers conferred on

them under Section 29 of the Prisons Act. The Supreme Court, after

analysing Section 29 of the Prisons Act, concluded that power under

Section 29 of the Prisons Act conferred on the Government was only

in relation to change of custody of convicts or those, who are

undergoing imprisonment of the descriptions given in Clause 1 of

Section 29 of the Prisons Act and further held that Section 29 did not

deal with the undertail prisoners who did not answer the description

given in Section 29. It may be noted that there was no statutory

provision like 18.(59) of the Jail Manual adopted by the State of

J&K, in the Jail Manual or the rules framed by Maharashtra

Government under the Prisoners Act or the Prisons Act. The

provisions of Section 417 of the Code of Criminal Procedure also did

not fall for consideration of the Hon'ble Supreme Court where it is

unequivocally mentioned that it is for the State Government to

determine as to where a convict or even undertrial is to be lodged.

19) In view of the aforesaid analysis, I have no doubt in my mind

that under the Code of Criminal Procedure neither undertrial is

conferred any right to dictate choice of his prison for his lodgement

during trial nor the trial Court while giving remand of an undertrial

during the course of trial is authorized to indicate or specify a

particular prison/jail for keeping the undertrial in judicial custody. In

view of the clear and unequivocal provisions in Sections 167 and

309 of the Code of Criminal Procedure, it is not permissible to resort

to the doctrine of "reading into" and insert something, which the

legislature never intended.

20) That apart, reading into Section 167 or Section 309 of the

Code of Criminal Procedure, the power of the Court to specify or

identify prison or jail for lodgement of an undertrial on remand

would run counter to the provisions of Section 417, which gives such

power of regulating the lodgement of convicts and undertrials to the

State. Saeed Sohail Sheikh's case (supra) has been decided by the

Supreme Court in different context and under different set of

circumstances. Undoubtedly, an undertrial has a fundamental right to

speedy trial and any attempt by the State to scuttle such right by

resorting to arbitrary transfer of an undertrial from a prison located

nearer the trial Court to a prison located at far off place in certain

circumstances may amount to violation of right to fair and speedy

trial of the undertrial. In such eventuality, Constitutional Court may

intervene, but for that undertrial has to demonstrate and make out a

case of violation of his right to speedy trial conferred upon every

undertrial under Article 21 of the Constitution. In the absence of any

such foundational facts pleaded and demonstrated in the petition,

embarking upon by the Court on such aspects would be an exercise

in futility.

Question No.2

21. Having answered question No.1 in negative and as a necessary

corollary, it is held that the functions or the authority exercised by

the Inspector General Prisons for transfer of undertrial from one

prison to another in the State is administrative in nature and does not

call for providing an opportunity of being heard to the undertrial

concerned. As held above, neither Constitution nor the Code of

Criminal Procedure gives any right to the undertrial to claim his

lodgement in a particular prison, for, shifting of prisoner/undertrial

from one prison to another in an emergency or on administrative

reasons cannot said to have any civil or evil consequences

necessitating compliance of principle of audi alteram partem.

22) Judgment of the Supreme Court in A.K.Roy v. Union of

India, AIR 1982 SC 71, in which their lordships while dealing with

change of custody of the person in preventive detention observed

that the requirements of administrative convenience, safety and

security may justify in a given case the transfer of a detenu to a place

other than that where he ordinarily resides, but that can only be by

way of an exception and not as a matter of general rule. It was

further observed that even when a detenu was required to be

transferred to a place, which is other than his usual place of

residence, he ought not to be sent to any far-off place which, by the

very reason of its distance, is likely to deprive him of the facilities to

which he is entitled. The judgment aforesaid was rendered in the

context of rights of persons detained under preventive detention and

who have the protection of Article 22 of the Constitution of India.

23) The instant case is a case of undertrials, who have filed the

instant petition apprehending their transfer from a jail in Kashmir to

a jail in Jammu. The undertrial is not placed at a superior pedestal

than a person under preventive detention and cannot claim rights

higher than those available to a person under preventive detention.

24) Be that as it may, the fact remains that as per the observations

of the Supreme Court in A.K.Roy's case (supra), even person under

preventive detention can also be shifted from one place to another, of

course, keeping in view certain factors as described in the judgment.

25) In the conclusion, it is held that the function performed by the

Inspector General prisons in relation to shifting of undertrials from

one prison to another in case of an emergency or on administrative

reasons is administrative in nature and, therefore, there is no place

for providing an opportunity of opportunity of being heard to the

undertrial, which does not have any right to choose a prison of his

choice for lodgement during trial. Since permission of the Court

before shifting of the undertrial from one prison to another within the

State is not mandatory and trial Court is only required to be

intimated, as such,the Court in such situation also does not perform

any judicial or quasi-judicial function, which may necessitate

hearing of the undertrial before granting permission.

The discussion made herein above, thus, answers question

No.2.

26) The order of Special Court dated 03.05.2019 does not deal

with issues considered by this Court hereinabove. That apart, vide

order dated 03.05.2019, Incharge Central Jail alone was directed not

to shift the petitioner to jails other than Kupwara or Baramulla jails.

The order dated 03.05.2019 passed by the Special Court cannot be

construed to have taken away the power of Inspector-General

Prisons vested in him under Para 18.(59) of Jail manual.

27) For the foregoing reasons and the discussion made herein

above, I find no merit in this petition and the same is, accordingly,

dismissed. It is, however, provided that Inspector General Prisons

shall ensure that the trial of the petitioners and others in FIR

No.51/2013 is not delayed due to absence of the petitioners and other

accused during trial. It shall be the duty of the Inspector General

Prisons to ensure that the petitioners are produced in the trial Court

on due date/dates, either physically or through video conferencing.

Any delay in conducting of trial by the trial Court for the reasons

aforesaid would be taken as violation of the right of speedy trial of

the petitioners giving them a fresh cause of action to approach this

Court again for enforcement of their fundamental right of speedy and

fair trial.

(Sanjeev Kumar) Judge Srinagar 15.07.2021 "Vinod, PS"

                                             Whether the order is speaking:         Yes
                                             Whether the order is reportable:       Yes




VINOD KUMAR
2021.07.15 16:53
I attest to the accuracy and
integrity of this document