Sanjeev Singh vs The State Of Jharkhand
2021 Latest Caselaw 2488 Jhar

                           1

IN THE HIGH COURT OF JHARKHAND AT RANCHI

                   W.P.(Cr) No.122 of 2021
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Sanjeev Singh, aged about 36 years, s/o late Suryadeo Singh, r/o Singh Mansion, Kola Kusma, Saraidhela, PO, PS-Saraidhela & District -Dhanbad ... ... Petitioner

---V E R S U S---

1.The State of Jharkhand

2.The Inspector General (Prison), Jharkhand, Project Bhawan, PO, PS Dhurwa and District -Ranchi

3.The Jail Superintendent, Divisional Jail, Dhanbad, PO, PS- Dhanbad and District-Dhanbad

4.The Jail Superintendent, Central Jail, Dumka, PO, PS and District- Dumka

5.The Registrar, Civil Court, Dhanbad, PO, PS-Dhanbad and District- Dhanbad

6.Sri Birendra Bhushan, s/o not known to the petitioner, Inspector General (Prison), Jharkhand, Project Bhawan, PO, PS Dhurwa & District-Ranchi

7.Sri Ajay Kumar, s/o not known to the petitioner, Jail Superintendent, Divisional Jail, Dhanbad, PO, PS-Dhanbad and District-Dhanbad

8.The Registrar General, Jharkhand High Court, PO, PS-Doranda and District-Ranchi ......Respondents

With

W.P.(Cr) No.106 of 2021

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State of Jharkhand through Superintendent, District Jail, Dhanbad, resident of Superintendent Quarter, PO & PS-Dhanbad, District-

Dhanbad                              ... ... Petitioner

                  ---V E R S U S---

Sanjeev Singh, s/o late Suryadeo Singh, r/o Singh Mansion, PO & PS-Saraidhela, District -Dhanbad ......Respondent

PRESENT:

HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For Petitioner     :        Mr. Ajit Kumar, Sr. Advocate
                            Mr. Chanchal Jain, Advocate
For the State      :        Mr. P.A.S. Pati, G.A.-II

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CAV on 05.07.2021              PRONOUNCED ON : 23/07/2021

Heard Mr. Ajit Kumar, the learned Senior counsel

assisted by Mr. Chanchal Jain, the learned vice counsel appearing

on behalf of the petitioner and Mr. P.A.S. Pati, the learned counsel

appearing on behalf of the respondent-State.

2. These writ petitions have been heard through Video

Conferencing in view of the guidelines of the High Court taking into

account the situation arising due to COVID-19 pandemic. None of

the parties have complained about any technical snag of audio-

video and with their consent this matter has been heard.

3. In both the writ petitions, the common judgment has

been questioned and that is why both the writ petitions have been

heard together.

4. Firstly, the facts of W.P.(Cr) No.106 of 2021 is being

taken up.

5. State of Jharkhand through Superintendent, District

Jail, Dhanbad has filed this petition for quashing the order dated

25.02.2021 passed in S.T.No.276/2017 by learned District and

Additional Sessions Judge-IV, Dhanbad whereby the Superintendent

of Jail, Dhanbad has been directed to shift prisoner Sanjeev Singh

from the Central Jail, Dumka to Divisional Jail, Dhanbad. The prayer

is also made to recall the order dated 25.02.2021 passed in

S.T.No.276/2017 and pass a fresh and appropriate order granting

permission to shift prisoner Sanjeev Singh from Divisional Jail,

Dhanbad to Central Jail, Dumka as there is serious threat of life of

prisoner in view of report of Deputy Commissioner, Dhanbad and

report of Senior Superintendent of Police, Dhanbad. The Senior

Superintendent of Police, Dhanbad submitted a confidential report

to the Deputy Commissioner, Dhanbad vide his letter dated

20.02.2021 along with report of Special Branch that there is serious

threat/danger to the life of prisoner Sanjeev Singh who himself is

Ex-MLA of Jhariya Vidhan Sabha and is a big face in crime field of

Dhanbad area. The Deputy Commissioner, Dhanbad submitted a

confidential report in view of report of Senior Superintendent of

Police, Dhanbad vide his letter dated 20.02.2021 to Inspector

General of Prison, Jharkhand, mentioning therein that there is

serious threat/danger to the life of prisoner Sanjeev Singh. The

Deputy Commissioner, Dhanbad has also pointed out about the

activity of different criminal gang of Dhanbad in that report. In

view of the report of Deputy Commissioner, Dhanbad, the

Government of Jharkhand decided to take immediate steps for

safety of life of the Prisoner and accordingly after due permission of

the Government passed the order dated 20.02.2021 to transfer the

prisoner from District Jail, Dhanbad to Central Jail, Dumka and

directed the Deputy Commissioner, Dhanbad and Senior

Superintendent of Police, Dhanbad to ensure transfer of prisoner.

After receiving the order of the Inspector General (Prison), the

Superintendent, District Jail, Dhanbad by letter dated 21.02.2021

informed the learned trial court and sought the consent for transfer

of prisoner Sanjeev Singh from District Jail, Dhanbad to Central

Jail, Dumka on the point of security. The learned District and

Additional Sessions Judge-IV, Dhanbad passed the order dated

25.02.2021 directing the Superintendent of Jail, Dhanbad for

shifting of prisoner Sanjeev Singh from Central Jail, Dumka to

Divisional Jail, Dhanbad at once. In view of this, the State of

Jharkhand has preferred this W.P.(Cr.) petition.

6. The facts of W.P.(Cr) No.122 of 2021 are:

In this writ petition, prayer has been made for

commanding upon the court below i.e., the learned court of

Additional Sessions Judge-IV, Dhanbad in S.T. Case No.276/2017

arising out of Saraidhela P.S.Case No.48/2017 to immediately and

forthwith take up the petition dated 01.03.2021 filed by and on

behalf of the petitioner whereby he has complained of

violation/non-compliance and non-implementation of the order

dated 25.02.2021 passed by the said learned court and has also

prayed for initiation of criminal contempt proceeding against the

respondent nos.6 and 7 for violation, disobedience and non-

compliance of the order dated 25.02.2021 passed in S.T.Case

No.276/2017. A prayer is also made for commanding upon the

respondent nos.2, 3 and 4 to immediately and forthwith comply the

order dated 25.02.2021 passed in S.T.Case No.276/2017 by

Additional Sessions Judge-IV, Dhanbad in its letter and spirit by

transferring/shifting the petitioner from Central Jail, Dumka to

Divisional Jail, Dhanbad.

7. Saraidhela P.S.Case No.48/2017 was instituted on the

written complaint of the informant Abhishek Singh alleging inter alia

that on 21.03.2017 at about 03.30 PM the deceased Niraj Singh

along with Ashok Yadav, Munna Tiwari, Aditya Raj and driver Jhalu

Mahto went to the office at Katras More in a Fortuner Vehicle

bearing Registration No.JH-10AR-4500. At about 07:00 PM called on

mobile of the informant and told him that bullet has been fired

upon the deceased Niraj Singh at Steel Gate, upon which informant

immediately rushed towards Steel Gate from wrong direction then

he saw to Jainendar Singh @ Pintu and Sanjeev Singh are coming

from the opposite direction in a motorcycle and stopped and told to

the informant that we committed the murder of Niraj Singh.

Sanjeev Singh was sitting as pillion rider having a rifle covered with

a cloth. Since informant's brother got bullet injury that is why the

informant did not give heed on Sanjeev Singh. When the informant

reached near place of occurrence he came to know that the

deceased has been taken to Central Hospital, where the deceased

was declared dead. It is further alleged that Aditya Raj told to the

informant that as soon as the vehicle of the deceased arrived at

Steel Gate and vehicle was slow down due to speed breaker 08-10

persons having Pistol and Cerbine among them Jharia MLA Sanjeev

Singh, Gaya Singh and Mahatab Singh were identified, moved

towards the deceased and on instruction of Sanjeev Singh opened

fire and resultantly Niraj Singh, Ashok Yadav, Munna Tiwari and

Thalu Mahto died and Aditya Raj got injury. It is further alleged

that Sidharth Gautam @ Manish Singh under criminal conspiracy

and committed the murder of the deceased Niraj Singh by Sanjeev

Singh, Jainandar Singh @ Pintu Singh, Gaya Singh, Mahant Pandey

and Sidharth Gautam. On the basis of the aforesaid written

complaint, F.I.R has been registered against the petitioner and

other named accused for the offence under section 307/302/120B

IPC and section 27 of the Arms Act. After investigation charge

sheet was submitted against the petitioner and other accused

persons and thereafter cognizance was taken on 27.06.2017. After

commitment of the case, charges were framed against the

petitioner and other accused persons and trial commenced. During

the course of investigation, the petitioner was arrested and

remanded in the case on 11.04.2017 and sent to Divisional Jail,

Dhanbad.

8. Inspector General (Prison), Jharkhand directed the Jail

Superintendent, Divisional Jail, Dhanbad to transfer the petitioner

from Divisional Jail, Dhanbad to Birsa Munda Central Jail, Hotwar,

Ranchi after taking permission from the court below. The Jail

Superintendent, Divisional Jail, Dhanbad respondent no.3 sought

permission from the learned court of Chief Judicial Magistrate,

Dhanbad vide letter dated 19.04.2017. The learned Chief Judicial

Magistrate, Dhanbad granted permission vide letter dated

19.04.2017 with direction to produce the accused through video-

conferencing on the date fixed in the case as contained in

Annexure-3. The order dated 19.04.2017 was challenged before

this Court in Cr.M.P. No.2304/2017. By order dated 16.01.2018, this

court quashed the order dated 19.04.2017 of the Chief Judicial

Magistrate, Dhanbad and remanded back the matter to the learned

Chief Judicial Magistrate, Dhanbad with a direction to pass the

order afresh in accordance with law. After the order of this Court

dated 16.01.2018, the Additional Sessions Judge-VII, Dhanbad by

order dated 14.02.2018 passed in S.T.No.276/2017 directed the

respondent no.3 to transfer the petitioner immediately from Birsa

Munda Central Jail, Hotwar, Ranchi to Divisional Jail, Dhanbad. The

order dated 14.02.2018 was not complied with and the respondent

no.3 sat tight over the matter and did not take any action for

transferring the petitioner from Birsa Munda Central Jail, Hotwar,

Ranchi to Divisional Jail, Dhanbad. Order dated 14.02.2018

attained finality and this order was not challenged. The petitioner

filed a petition for issuing show-cause and taking appropriate action

upon the respondent no.3 for deliberate and willful non-compliance

of the order dated 14.02.2018. By order dated 23.02.2018, the

court below has called for the report from the respondent no.3 as

to why the order dated 14.02.2018 has not been complied. The

respondent no.2, by letter dated 20.02.2021 directed to transfer the

under-trial accused Sanjeev Singh from Divisional Jail, Dhanbad to

Central Jail, Dumka assigning the reason of security of the

petitioner. In the said letter it was also stated to inform the learned

court below about shifting of the petitioner instead of taking

permission from the court below. The petitioner was transferred

from Divisional Jail, Dhanbad to Central Jail, Dumka by order dated

20.02.2021 and by letter dated 21.02.2021 it was informed to the

Additional Sessions Judge-IV, Dhanbad about shifting of the

petitioner. After that, the petitioner filed two petitions, both dated

22.02.2021 for directing the respondent no.3 to immediately shift

the petitioner from Central Jail, Dumka to Divisional Jail, Dhanbad

and for issuing show cause notice to respondent no.3 and to take

appropriate action against him for willful and deliberate violation of

mandate of the Supreme Court as well as order of remand of the

learned court. The learned Additional Sessions Judge-IV, Dhanbad

vide order dated 23.02.2021 directed the respondent no.3 to file

show cause as to under what circumstances the under-trial prisoner

Sanjeev Singh was transferred to Central Jail, Dumka without

permission of that Court. Rejoinder was filed to that effect by the

State. The Additional Sessions Judge-IV, Dhanbad vide order dated

25.02.2021 allowed the petition of the petitioner and directed the

respondent no.3 to shift the petitioner from Central Jail, Dumka to

Divisional Jail, Dhanbad at once under cover of proper and

adequate security as per the Jail Manual. The said order was not

complied with and thereafter the petitioner filed a petition dated

01.03.2021 praying to take appropriate action and initiation of

criminal contempt proceeding against the respondent no.6 and 7

for violation, disobedience and non-compliance of the order dated

25.02.2021. No order was passed on the petition dated 01.03.2021.

Aggrieved with this, the petitioner had filed this criminal writ

petition.

9. Mr. P.A.S. Pati, the learned counsel appearing on

behalf of the State of Jharkhand-petitioner, in W.P.(Cr)

No.106/2021, had submitted that it is not necessary to take prior

permission of the Court for shifting any prisoner from one jail to

another jail. The learned Additional Sessions Judge-IV, Dhanbad

while passing the order dated 25.02.2021 vehemently relied on the

judgment of the Hon'ble Supreme Court in the case of "State of

Maharashtra v. Saeed Sohail Sheikh", (2012) 13 SCC 192. He

submitted that in that judgment, it has not been considered that for

shifting a prisoner to another jail, prior permission of the court is

necessary. He submitted that the court is required to apply its mind

fully and objectively to the circumstances in which the transfer is

being prayed. To buttress his this argument, he relied in the case of

" Asha Ranjan v. State of Bihar", (2017) 4 SCC 397 and referred to

paragraph nos.32, 64, 67, 85 and 86 of the said judgment, which

are quoted hereinbelow:

"32. In the ultimate analysis, the Court in Saeed Sohail case arrived at the conclusion that any order that the Court may make on a request for transfer of a prisoner is bound to affect him prejudicially, and, therefore, 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.

"64. The next limb of controversy relates to exercise of power and jurisdiction. The plea that is propounded by Mr Naphade is that in the absence of any provision in the 1950 Act, there cannot be any direction for shifting. According to him, any

State action which prejudices the right of an individual has to be backed by the authority of law and in the absence of law, such an order is not permissible. In this regard, he has drawn inspiration from a passage from the State of M.P. v.

Bharat Singh. It reads as follows: (AIR p. 1173, para 5) "5. ... All executive action which operates to the prejudice of any person must have the authority of law to support it, and the terms of Article 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State to make or take, but for the provisions contained in Part III of the Constitution. Article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others: it merely provides that so long as the proclamation of emergency subsists laws may be enacted, and exclusive action may be taken in pursuance of lawful authority, which if the provisions of Article 19 were operative would have been invalid."

67. The aforesaid decision in Committee for Protection of Democratic Rights case compels us to repel the submission of Mr Naphade on this score which is to the effect that when no power is conferred under the 1950 Act, the Court cannot exercise the power or when the power is curtailed, the Court cannot issue directions. The controversy in the Constitution Bench pertained to direction by the High Court to transfer the investigation to CBI in respect of the crime that occurs within the territory of the State and this Court held that the High Court has the authority to so direct despite the prohibition contained in the Special Police Act. Therefore, the non-conferment of power under the 1950 Act would not prohibit the High Court, in exercise of its power under Article 226 to transfer a case from one jail to another inside the State depending upon the circumstances.

85. It is fruitful to note that in Praful B.

Desai it has been clearly held that recording of evidence by way of videoconferencing is valid in law.

86. In view of the aforesaid analysis, we record our conclusions and directions in seriatim: 86.1. The right to fair trial is not singularly absolute, as is perceived, from the perspective of the accused. It takes in its ambit and sweep the right of the victim(s) and the society at large. These factors would collectively allude and constitute the Rule of Law i.e. free and fair trial.

86.2. The fair trial which is constitutionally protected as a substantial right under Article 21 and also the statutory protection, does invite for consideration a sense of conflict with the interest of the victim(s) or the collective/interest of the society. When there is an intra-conflict in respect of the same fundamental right from the true perceptions, it is the obligation of the constitutional courts to weigh the balance in certain circumstances, the interest of the society as a whole, when it would promote and instil Rule of Law. A fair trial is not what the accused wants in the name of fair trial. Fair trial must soothe the ultimate justice which is sought individually, but is subservient and would not prevail when fair trial requires transfer of the criminal proceedings.

86.3. A wrongful act of an individual cannot derogate the right of fair trial as that interest is closer, especially in criminal trials, to the Rule of Law. An accused cannot be permitted to jettison the basic fundamentals of trial in the name of fair trial.

86.4. The weighing of balance between the two perspectives in case of fair trial would depend upon the facts and circumstances weighed on the scale of constitutional norms and sensibility and larger public interest.

86.5. Section 3 of the 1950 Act does not create an impediment on the part of the court to pass an order of transfer of an accused or a convict from one jail in a State to another prison in another State because it creates a bar on the exercise of power on the executive only.

86.6. The Court in exercise of power under Article 142 of the Constitution cannot curtail the fundamental rights of the citizens conferred under the Constitution and pass orders in violation of substantive provisions which are based on fundamental policy principles, yet when a case of the present nature arises, it may issue appropriate directions so that criminal trial is conducted in accordance with law. It is the obligation and duty of this Court to ensure free and fair trial.

86.7. The submission that this Court in exercise of equity jurisdiction under Article 142 of the Constitution cannot transfer the accused from Siwan Jail to any other jail in another State is unacceptable as the basic premise of the said argument is erroneous, for while addressing the issue of fair trial, the Court is not exercising any kind of jurisdiction in equity."

10. He further submitted that for shifting a prisoner from

one jail to another, prior permission is not necessary and that can

be taken post-facto also. To buttress this argument, he relied in

the case of "V.L.S. Finance Ltd. v. Union of India, (2013) 6 SCC 278.

Paragraph nos. 10 and 17 of the said judgment are quoted

hereinbelow:

"10. Section 621-A of the Act, as stood at the relevant time and relevant for our purpose reads as follows: "621-A. Composition of certain offences.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), any offence punishable under this Act (whether committed by a company or any officer thereof), not being an offence punishable with imprisonment only, or with imprisonment and also with fine, may, either before or after the

institution of any prosecution, be compounded by--

(a) the Company Law Board; or

(b) where the maximum amount of fine which may be imposed for such offence does not exceed five thousand rupees, by the Regional Director,on payment or credit, by the company or the officer, as the case may be, to the Central Government of such sum as that Board or the Regional Director, as the case may be, may specify:

Provided that the sum so specified shall not, in any case, exceed the maximum amount of the fine which may be imposed for the offence so compounded:

Provided further that in specifying the sum required to be paid or credited for the compounding of an offence under this sub-section, the sum, if any, paid by way of additional fee under sub-section (2) of Section 611 shall be taken into account.

* * * (4)(a) Every application for the compounding of an offence shall be made to the Registrar who shall forward the same, together with his comments thereon, to the Company Law Board or the Regional Director, as the case may be.

(b) Where any offence is compounded under this section, whether before or after the institution of any prosecution, an intimation thereof shall be given by the company to the Registrar within seven days from the date on which the offence is so compounded.

(c) Where any offence is compounded before the institution of any prosecution, no prosecution shall be instituted in relation to such offence, either by the Registrar or by any shareholder of the company or by any person authorised by the Central Government against the offender in relation to whom the offence is so compounded.

(d) Where the composition of any offence is made after the institution of any prosecution, such composition shall be brought by the Registrar in writing, to the notice of the court in which the prosecution is pending and on such notice of the composition of the offence being given, the company or its officer in relation to whom the offence is so compounded shall be discharged.

* * * (7) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)--

(a) any offence which is punishable under this Act with imprisonment or with fine, or with both, shall be compoundable with the permission of the court, in accordance with the procedure laid down in that Act for compounding of offences;

(b) any offence which is punishable under this Act with imprisonment only or with imprisonment and also with fine shall not be compoundable.

(8) No offence specified in this section shall be compounded except under and in accordance with the provisions of this section."

17. Ordinarily, the offence is compounded under the provisions of the Code of Criminal Procedure and the power to accord permission is conferred on the court excepting those offences for which the permission is not required. However, in view of the non obstante clause, the power of composition can be exercised by the court or the Company Law Board. The legislature has conferred the same power on the Company Law Board which can exercise its power either before or after the institution of any prosecution whereas the criminal court has no power to accord permission for composition of an offence before the institution of the proceeding. The legislature in its wisdom has not put the rider of prior permission of the court before compounding the offence by the Company Law Board and in case the contention of the appellant is accepted, same would amount to addition of the words "with the prior permission of the court" in the Act, which is not permissible.

11. On the ground of grant of leave of the court and the

safeguard of the interest of the petitioner, he relied in the case of

"Erach Boman Khavar v. Tukaram Shridhar Bhat, (2013) 15 SCC 655.

Paragraph nos. 21 and 22 of the said judgment are quoted hereinbelow:

"21. In State of J&K v. UCO Bank, while interpreting Section 446(1) of the 1956 Act, the Court opined that a suit cannot be instituted once a winding-up order is passed except by leave of the court. The two-Judge Bench referred to the earlier decision rendered in Bansidhar Shankarlal v. Mohd. Ibrahim, wherein the leave had been obtained at the time of filing of the suit and the question was whether fresh leave ought to be obtained before proceeding under Section 446(1) of the 1956 Act

before institution of execution proceedings. The Court considered the contrary views expressed by different High Courts on the effect and purport of Section 446(1) of the 1956 Act and came to the conclusion that the view that failure to obtain leave prior to institution of suit would not debar the court from granting such leave subsequently and that the only consequence of the same would be that the proceedings would be regarded as having been instituted on the date on which the leave was obtained from the High Court.

22. We have referred to the aforesaid decisions solely for two purposes. First, grant of leave of the court is not a condition precedent for initiation of a civil action or the legal proceedings. It is because the section does not expressly provide for annulment of a proceeding that is undertaken without the leave of the court. There can be no shadow of doubt that leave of the winding-up court can be obtained even after initiation of the proceeding. Second, the seminal object behind engrafting of the said provision is to see that the interest of the company is safeguarded so that it does not face deprivation of its right and claims are adjudicated without the knowledge of the Company Court and further the court has a discretion to see whether leave should be granted and, if so, with what conditions or no condition. That apart, the court may grant leave if it felt that the company should not enter into unnecessary litigation and incur avoidable expenditure."

12. Relying on these judgments, he fortified his arguments and

submitted that the order dated 25.02.2021 passed by Additional Sessions

Judge-IV, Dhanbad is not in accordance with law. He submitted that

transfer of prisoner is administrative order and the State in the light of

the report had rightly shifted the petitioner to Dumka Jail. He submitted

that the respondent no.3 has not bye-passed the authority of the court.

On this ground, he submitted that the order dated 25.02.2021 is fit to be

interfered with by this Court.

13. Mr. Ajit Kumar, the learned Senior counsel appearing on

behalf of the petitioner in W.P.(Cr.) No.122 of 2021 submitted that once

the order has been passed by a competent court in this regard the State

was obliged to comply that order. He submitted that the first order is

dated 14.02.2018 whereby the respondent no.3 was directed to transfer

the petitioner from Birsa Munda Central Jail, Hotwar, Ranchi to Divisional

Jail, Dhanbad. Inspite of that order, the respondent no.3 has not taken

any action for transferring the petitioner and only on the direction of the

respondent no.2 dated 20.02.2021, the petitioner has been shifted from

Divisional Jail, Dhanbad to Central Jail, Dumka assigning the reason of

security of the petitioner. He further submitted that subsequent order

dated 25.02.2021 was passed pursuant to application filed by the

petitioner and this was on ground of violation of section 29 of the

Prisoners Act, 1900. He submitted that this Court in Cr.M.P.No.2304 of

2017 by order dated 16.01.2018 has already remanded the matter to the

court below for passing a fresh order. By way of quashing the order dated

19.04.2017 of the learned Chief Judicial Magistrate, Dhanbad and the

matter was remanded back to the learned Chief Judicial Magistrate,

Dhanbad with a direction to pass a fresh order in accordance with law.

Thereafter, the order dated 14.02.2018 was passed which was not

complied and subsequent order dated 25.02.2021 has been passed. He

submitted that the report of the Deputy Commissioner is dated

01.03.2021 wherein the petitioner has already been shifted to Dumka Jail

on 20.02.2021. He submitted that this report was after shifting of the

petitioner in Dumka Jail and only due to made out a case of security

concern. He relied in the case of "State of Maharashtra v. Saeed Sohail

Sheikh", (2012) 13 SCC 192 referring to paragraph nos.18, 19, 20, 21, 23

and 35, which are quoted hereinbelow:

"18. On behalf of the respondents Mr Amarendra

Sharan, 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 the 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."

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.

20. 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.

21. We may at this stage refer to the Prisons Act, 1894 to which our attention was drawn by the 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."

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.

23. 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 court concerned 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.

35. 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 undertrials 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."

14. He further relied in the case of "Vikash Tiwary v.

State of Jharkhand", 2016 SCC Online Jhar. 1017. Paragraph no.12

of the said judgment is quoted hereinbelow:

"12. The factual matrix in the backdrop of the provisions regulating transfer of a prisoner and the judicial pronouncement which has been extracted above suggests

that the learned court below cannot decide or accede to an application in a strait jacket formula. The learned court has to consider such application in a judicious manner as an under trial prisoner is in custody under the authority of the learned court and, therefore, the necessity and the situational demand of such transfer and other factors must weigh on the mind of the learned Magistrate. The order dated 30.10.2015 merely allowed the transfer of the petitioner in view of the contents of the letter dated 29.10.2015. The subsequent application submitted by the petitioner was also disallowed merely on the ground that such transfer is a prerogative of the State/District Administration. Such ground cannot be construed to be sufficient reasonings as once again the learned Magistrate did not take a considered view on the objections made by the prisoner (Petitioner). The orders impugned do not contain sufficient reasons so as to reflect independent application of judicial mind and such orders in absence of reasoning becomes unsustainable."

15. He also relied in the case of "Abdul Wahid Mir v.

State of J&K", 2019 SCC Online J&K 111 and referred to paragraph

nos.14 and 15 of the said judgment which are quoted hereinbelow:

"14. At the cost of repetition, it may have to be reiterated that the respondent No. 2 has not been able to show how the authority which was vested in him in exercise of powers under Section 29 of the Prisons Act read with para 18.59 of the Jail Manual was used in the present case and so the action taken for shifting of detenue from District Jail, Baramulla to District Jail, Udhampur, cannot be saved. The respondents have to depict, to the satisfaction of the Court, that shifting was done to meet any administrative exigency or emergency. May be presumption of being lawful and fair is attributed to the administrative actions in ordinary circumstances but where malafides to such an action are imputed, it would be for such authority which has exercised the power to show that it was not so. Moreover, the power to be exercised in terms of Section 29 of the Act read with para 18.59 of the Jail Manual in no case can override the power of a regular criminal court to order for remand during trial in terms of Section 344 Cr. P. C or frustrate proceedings in

a pending trial or militate the right of an accused to defend himself meaningfully.

15. 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."

16. He further relied in the case of "Bharatsinh

Gumansinh Jadeja v. State of Gujarat", 2017 SCC Online

Gujarat 2415. Paragraph nos.10 and 11 of the said judgment are

quoted hereunder:

"10. There can be no dispute on the proposition of law emerging from the case of State of Maharashtra v. Saeed Sohail Sheikh (Supra) that the under-trial prisoners cannot be transferred by jail authorities under the provisions of Prisons Act, 1990 and the Prisons Act, 1894 and that the transfer of under-trial prisoners from one jail to another can be made only under Sections 167 and 309 of the Cr.P.C. and that orders under the said provisions are not ministerial in nature, such orders are either judicial or quasi judicial orders obligating the Court concerned to hear the prisoner, who may be adversely affected thereby. It is settled legal position that in judicial or quasi judicial proceedings, the charge against the prisoner must be

specifically stated and he must be called upon to defend himself to the said charge. Stating of the charge would only mean that the prisoner must be confronted with the accusation and must be asked to show against the proposed transfer and the decision can be taken only after considering the cause shown by person concerned. Thus, relevant material relied upon against under-trial prisoner must be produced before the Court and the Court would after hearing both the parties, pass the order either permitting or declining the transfer of the under-trial prisoner.

11. Viewed in the light of the above well settled principles, it appears that the petitioner was not specifically stated the charge against him. He was also not supplied with material relied upon against him and was not called upon to defend himself on the said charges. The charges against the accused as indicated above criticized his conduct and behaviour within and outside the jail It was therefore, not for the administrative reasons that he was sought to be transferred, but the transfer was sought to be affected with the above stated stigma and therefore, there were all the more reasons to hear him."

17. Relying on these judgments, Mr. Ajit Kumar, the

learned Senior counsel appearing for the petitioner submitted that

the State by way of violating the orders dated 14.02.2018 and

25.02.2021 had shifted the petitioner from Dhanbad Jail to Dumka

Jail which is interference with the majesty of law and the concerned

officers of the State are liable for contempt of court.

18. In view of the above facts and the submissions of the

learned counsels appearing on behalf of the parties, the Court has

gone through section 29 of the Prisoners Act, 1900 which 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."

19. In the case of "State of Maharashtra " (supra), on

examining section 29 of the Prisoners Act, 1900, it is held as

follows:

"23. 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 court concerned 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.

25. 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 ongoing 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 (2) v. Delhi Admn. wherein this Court observed: (SCC p. 510, para 48) "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."

35. 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 undertrials 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.

20. On perusal of section 29 of the Prisoners Act, 1900, it

transpires 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 sentence of death, or under, or in lieu

of, a sentence of imprisonment or transportation, or in default of

payment of a fine, or in default of giving security for keeping the

peace or for maintaining good behaviour, to any other prison in the

State. Thus, it is clear that transfer can take place under condition

(a) to (d) only of Section 29 of the Prisoners Act, 1900. There is no

doubt that State Government can take decision on administrative

side which required to be approved by the concerned court. In the

cases of such exigencies, decision of shifting a prisoner can be

made but that is in accordance with law. Rule 770(b) of the Jail

Manual, speaks of power of Inspector General on sufficient ground

of shifting of the prisoner from one jail to another jail. Rule 770(b)

of Jail Manual is quoted hereinbelow:

"(b) Long-term prisoners on admission to District Jails, who are certified fit to travel by the Medical Officers may be transferred to the affiliated Central Jails, irrespective of their age.

Nothing in this rule contained, shall be deemed in any way to interfere with the power of the Inspector General for sufficient reason, in his discretion, by general or special order to direct that any class or class of prisoners shall be confined in or transferred to any jail or class of jails"

21. In the case in hand, this Court remanded the matter

to the Chief Judicial Magistrate, Dhanbad by order dated

16.01.2018 passed in Cr.M.P.No.2304/2017. Pursuant thereto, the

Additional Sessions Judge-VII, Dhanbad passed the order dated

14.02.2018 and directed to shift the petitioner immediately from

Birsa Munda Central Jail, Hotwar, Ranchi to Dhanbad Jail. This

order was not challenged by the State as this order has attained

finality and the court by order dated 23.02.2018 called for report

from the respondent no.3 for non-compliance of that order. The

respondent no.2 by letter dated 20.02.2021 directed to shift the

petitioner to Dumka Jail. On further petition, the order dated

25.02.2021 was passed by the court below and it was incumbent

upon the State to comply the order of the learned Additional

Sessions Judge, Dhanbad. The law has been well laid down

considering Rule 29 of the Prisoners Act, 1900 which has been

taken care of while deciding the earlier Cr.M.P petition filed by the

petitioner being Cr.M.P. No.2304 of 2017 in light of case of "State of

Maharashtra and Ors. v. Saeed Sohail Sheikh and Others" (supra),

the State has not complied the order dated 14.08.2018 and

25.02.2021. Section 29 of the Prisoners Act speaks that in cases

where the prisoner who has been sentenced of death, or under, or

in lieu of sentence of imprisonment or transportation as the

petitioner is under-trial could not have been transferred in terms of

the order of the Inspector General of Prison in light of Section 29 of

the Prisoners Act as held in paragraph no.20 of the judgment in the

case of "State of Maharashtra and Ors. v. Saeed Sohail Sheikh and

Others" (supra) by the Hon'ble Supreme Court. In paragraph no.23

of the said judgment, it has been held 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 under-tried. An under-

trial remains in custody by reasons of such order of remand passed

by the court concerned. It has been held in that case 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. In the case

in hand, the case of the petitioner has not been concluded and he

has not been sentenced and it was incumbent upon the State to

take permission of the court to transfer the petitioner from one jail

to another. Thus, it is crystal clear that in utter disregard of the

order dated 14.02.208 and 25.02.2021, the State has shifted the

petitioner from Dhanbad Jail to Dumka Jail which amounts to

interference with the administration of justice. Had there would

have been any exigency as of shifting of the petitioner to another

jail it was incumbent upon the State to take prior permission of the

concerned court. In the judgment relied by Mr. Pati, the learned

State counsel in the case of "V.S.L. Finance Limited v. Union of

India and Others" (supra), arising out of Companies Act and the

Hon'ble Supreme Court was considering the compounding of the

case in that case and held that the permission for compounding is

not required, this case is not helping the State. In the case of

"Asha Ranjan v. State of Bihar and Others" relied by Mr. Pati, the

learned counsel, Hon'ble Court has held that the court is required

to consider the circumstances having regard to the objections

which the prisoner may have to offer. There is no doubt that in

that case the Court has also held that Article 226 of the

Constitution of India can be exercised by the High Court to transfer

a case from one jail to another inside the State depending upon

the circumstances. Thus, the State is required to make out a case

of interference under Article 226 in a bona fide manner. This case

is also not helping the State. In the case of "Erach Boman Khavar

v. Tukaram Shridhar Bhat And Another" (supra), relied by Mr. Pati,

the learned State counsel, the Hon'ble Supreme Court was

considering two aspects, out of that one was with regard to

conditions precedent of initiation of civil action or legal proceeding

with leave of the court in winding-up proceeding can be obtained

was held even after initiation of the proceeding by the court that

was in the interest of the company to safeguard so that it does not

face deprivation of its rights and claim. This judgment is on

different footing. This judgment is also not helping the State.

There is no doubt that the fundamental right of an under-trial

prisoner under Article 21 of the Constitution is not absolute. His

rights of visitations as also other rights are provided in Jail Manual.

This is not a case and nowhere it has been alleged in either of the

petitions that the petitioner was not maintaining internal discipline

of the jail. The normal rule is that the detenu will be kept in

detention in a place which is within environs of his or her ordinary

place of residence. If a person ordinarily resides in a particular

place to keep him in detention in a far of place, is a punitive

measure by itself which is not being encouraged by the Court. In

appropriate cases, the Court has interfered to shift a prisoner from

one jail to another and for that it was ordered in the particular facts

and circumstances of the cases. Thus, the Court can exercise its

powers under Article 226 of the Constitution of India. Had it been

demonstrated before this Court that the petitioner is violating the

order of the authorities in the jail premises, which is lacking in the

case in hand; no case of violation of law has been made out

against the petitioner, who is in custody. Orders dated 14.08.2018

and 25.02.2021 of the learned Additional Sessions Judge, Dhanbad

was required to be complied with which has not been done in the

case in hand. After shifting of the petitioner in Dumka Jail a

further report has been sought which suggest that it was after

thought of the authorities to circumvent the two orders passed by

the Additional Sessions Judge-IV, Dhanbad. The case of shifting of

the prisoner from one jail to another has been considered by the

Hon'ble Supreme Court in the case of State of Maharashtra and

Ors. v. Saeed Sohail Sheikh and Others" (supra) and by this Court

and other High Courts in the cases of "Bharatsinh Gumansinh

Jadeja", "Abdul Wahid Mir" and "Vikash Tiwary @ Vikash Nath

Tiwary @ Bikash Tiwari @ Bikash Nath Tiwary" (supra). No case of

violation of any law by the petitioner has been made out.

22. As a cumulative effect of the above discussions,

W.P.(Cr.) No.122 of 2021 succeeds and the respondent-State is

directed to comply the order of the trial court in its letter and spirit

within two weeks from the date of receipt/production of a copy of

the order. W.P.(Cr.) No.106/2021 is dismissed. However, liberty is

kept with the respondent-State to move before the trial court if

such exigency arises in accordance with law.

23. W.P.(Cr) No.122 of 2021 is allowed and disposed of,

and W.P.(Cr) No.106 of 2021 is dismissed.

24. I.A., if any, stands disposed of.

(Sanjay Kumar Dwivedi, J.)

Jharkhand High Court, Ranchi Dated 23/07/2021 AFR /SI,