Orissa High Court
Mushtaque Alam @ Mustaq Allam vs State Of Odisha ......... Opposite ... on 5 January, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.4743 of 2023
Mushtaque Alam @ Mustaq Allam ......... Petitioner
Mr. Jyoti Ranjan Deo, Advocate
-Versus-
State of Odisha ......... Opposite Party
Mr. P.K. Maharaj,
Additional Government Advocate
CORAM:
JUSTICE SIBO SANKAR MISHRA
ORDER
05.01.2024
Order No.
01. 1. Heard.
2. The petitioner has invoked the jurisdiction of this Court under
Section 482 Cr.P.C., interalia, seeking quashment of order dated
17.08.2023 passed by the learned 2nd Additional Sessions Judge, Rourkela
in S.T. Case No.64/16 of 2022, whereby the prayer of the petitioner
seeking his transfer from Circle Jail, Sambalpur to Bonai Sub-jail did not
find favour from the Court.
3. The petitioner has assailed the aforementioned order primarily on
the following grounds:
(I) The Circle Jail, Sambalpur is at a distance of 180-200 kms.
from the place where the petitioner ordinarily resides and
facing trial.
(II) Detention of the petitioner as under-trial at a distance place is
curtailment of his right to access to his counsel, therefore, he
is deprived of from the fair trial.
(III) His detention at a far off place has indeed completely cut-off
him from his peers and relatives, therefore, curtails his
fundamental rights under Articles- 14, 19 and 21 of the
Constitution of India. Accordingly, it is contrary to the
principles laid down by Hon'ble the Supreme Court in the
matter of State of Maharashtra and others vs. Saeed
Sohail Sheikh and others, (2012) 13 SCC 192.
(IV) His entitlement to the transfer is in consonance with Rule-662
of the Odisha Model Jail Manual.
The aforementioned grounds were meticulously elaborated by Mr. Deo,
learned counsel appearing for the petitioner. He submitted that the
impugned order is contrary to the settled principles of law by the Hon'ble
Supreme Court in the judgment Saeed Sohail Sheikh (supra).
4. Mr. Maharaj, learned counsel appearing for the State controverted
the arguments advanced by learned counsel for the petitioner and stated
that learned trial court has passed a very reasoned order. Therefore,
interference by this Court at this stage is not called for.
5. Heard both the counsels at length and perused the documents placed
before the Court.
6. Learned trial Court has rightly rejected the claim of the petitioner
because there is serious apprehension that peace and tranquility in the
Special Jail, Rourkela where the petitioner was lodged, was under serious
threat. There was possibility of bloodshed, loss of human life and rioting
etc.
7. The petitioner is facing trial for having committed murder. The
brother of the deceased namely Suraj Kumar Sah and his associates are
detained in the Special Jail, Rourkela. Therefore, the Investigating Officer
of the case has made prayer before the trial Court to transfer the petitioner
from Special Jail, Rourkela to Circle Jail, Sambalpur. This prayer of the
Investigating Officer was rightly found favour by the learned trial Court.
Accordingly, the petitioner has been transferred to Circle Jail, Sambalpur.
At this stage, the prayer of the petitioner to transfer him from Circle Jail,
Sambalpur to Sub-Jail Bonai has been turned down rightly by the learned
trial Court by the impugned order dated 17.08.2023. Relevant would be to
reproduce the following passage of the trial court order:
"Heard from both the side. Perused the case record. On perusal of the
case record, it is found that the present accused-petitioner namely
Mustaq Allam and his associates were committing murder and are
resident of Rourkela town. Further, it is revealed that the brother of
deceased namely Suraj Kumar Sah and his associates are detained in
Special Jail, Rourkela. Perused the order dated 20.10.2021 and
26.10.2021 of the learned SDJM, Panposh, Rourkela and it clearly
reveals that the I.O. has made a prayer to shift the accused-petitioner
from Special Jail, Rourkela to Circle Jail, Sambalpur as the present
accused-petitioner and his associates are local residents of Rourkela
town and the brother of deceased and his associates who are also
resident of Rourkela town, are detained in Special jail, Rourkela. The
I.O. has made a prayer to shift the present accused-petitioner to Circle
jail, Sambalpur to avoid possibility of bloodshed, loss of human life,
rioting etc. Basing upon the prayer, the learned SDJM, Panposh,
Rourkela allowed the prayer and directed to Superintendent, Circle Jail,
Sambalpur to keep the accused-petitioner in Circle jail, Sambalpur. On
perusal of the case record, it reveals that there are two rival groups,
accused-petitioner and his associates who are one group and the brother
of deceased and his associates are another group. The learned SDJM,
Panposh, Rourkela has opined that if both the rival groups were kept in
same jail, there is possibility of bloodshed, loss of human life, tussle in
jail, causing life risk to the prisoner and jail staffs. After considering the
above materials on record, learned SDJM, Panposh, Rourkela has
rightly allowed the prayer of the I.O. to shift the accused- petitioner to
Circle Jail, Sambalpur."
8. I have perused the entire records, considered the submissions of the
petitioner at length and arrived at the conclusion that the learned trial Court
has rightly refused to accede to the prayer made by the petitioner in the
application. However, the petitioner/accused is granted liberty to repeat his
prayer at appropriate stage of trial and the learned trial Court shall give a
re-consideration to the request taking into account all the attending
circumstances available then.
9. Hence, no interference is required at this stage. Therefore, the
CRLMC is dismissed.
(S.S. Mishra)
Judge
Location: High Court of Orissa, Cuttack.
