Criminal Writ Petition No.642 of 2017

12th June, 2017.

Petitioner Counsel: Mr. D.S. MANORKAR
Respondent Counsel: Mr. K.S. PATIL

Cases Cited:
State of Maharashtra & Ors. Vs. Saeed Sohail Shaikh etc., 2013 ALL SCR 894=2012 (12) LJSOFT 445 [Para 3,5,8]

JUDGMENT

R. M. Borde, J. :- Rule. Rule made returnable forthwith. Heard finally with the consent of the respective parties and taken up for final disposal at admission stage.

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 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 : [2013 ALL SCR 894].

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 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 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 [2013 ALL SCR 894] (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 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 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 quasijudicial 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 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.

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 [2013 ALL SCR 894] (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 respondentState 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 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 affidavitinreply, 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 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.

Ordered accordingly.