Mudasir Sultan Bhat vs Through: Mr Nissar Ahmad Bhat
2023 Latest Caselaw 1325 j&K/2

                                                                           S. no. 51
                                                                           Supp list
             HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                              AT SRINAGAR
                                   HCP no. 113/2023
                                    CrlM 6183/2023

Mudasir Sultan Bhat
                                                                 .... Petitioner(s)
                             Through:     Mr Nissar Ahmad Bhat, Advocate

                                          v.
Union Territory of JK and others
                                                                 ... Respondent(s)
                             Through: Mr Sajjad Ashraf, GA
CORAM:
          Hon'ble Ms Justice Moksha Khajuria Kazmi, Judge
                                     ORDER

13.10.2023 By this application, the applicant is seeking shifting of detenue from District

Jail Baderwah, Jammu to Central Jail, Srinagar, inter alia on the grounds that the

detenue is facing trial before the Court of Principal District & Sessions Judge,

Srinagar, in case FIR no. 186/2017 of Police Station Batmalaoo, Srinagar and

19/2021 of Police Station Crime Branch, Srinagar; and the applicant is

incapacitated to meet the detenue at such a far off place being suffering from

various ailments.

Learned counsel for the applicant submits that the lodgment of a detenue

who is an under-trial at a place which is far away from the court where he is facing

trail hampers the trial and delays the disposal of criminal cases registered against

him and such practice is against the provisions of the Code of Criminal Procedure

which regulates the custody of the under-trials.

He further submits that the detaining authority ought to have had permission

from the trial court before ordering lodgment of the detenue being an under-trial.

In support of his submissions, the learned counsel referred to and relied upon the

judgment of this Court passed in case titled Abdul Wahid Mir v. State of J&K and others, bearing HCP No. 178/2018 decided on 12.02.2019. It is apt to reproduce

operative portion of the said judgment herein:

"I, as such, am of the opinion that the petitioner has been able to carve out a case for grant of relief. Accordingly, by issuance of a Writ of Certiorari, Order No. 126 of 2018 dated 28.02.2018, directing shifting of the detenue to District Jail, Udhampur, is quashed. The petitioner shall be produced before the trial Court forthwith and further orders for his custody if any needed be solicited by the respondents from the trial court. The authorities concerned having control over the prisons and having power to regulate and control the prisons and to manage prisoners, may pass such orders as may be necessary to meet any exigency but same should be subject to approval of the concerned criminal court where the case is pending. In case the concerned criminal court is approached by such authorities with any memo or prayer for remanding the undertrial to any prison other than located nearer to his place of residence, the said court shall consider the same under the relevant provisions and rules having regard to the object sought to be achieved and dispose of same by passing speaking orders.

Having regard to the averments taken in the application coupled with the

submissions made by the learned counsel for the applicant, the application is

allowed and the respondents are directed to consider the claim of the applicant in

respect of the lodgment of the detenue at Central Jail, Srinagar, in terms of the

rules occupying the field and the ratio laid down in the judgment supra, taking into

consideration the fact that the detenue is facing trial before the court of learned

Principal District and Sessions Judge, Srinagar.

CM disposed of.

(Moksha Khajuria Kazmi) Judge Srinagar 13.10.2023 Amjad Lone, Secretary