IMPORTANT POINTS
Nature of power to transfer prisoners.
Principles for ordering transfer of prisoners and judicial enquiry.

JUDGMENT

T.S. Thakur, J.-Leave granted.

2. These appeals have been filed by the State of Maharashtra and senior officers in the Department of Prisons, Government of Maharashtra against a common judgment and order dated 21st July, 2009 passed by a Division Bench of the High Court of Judicature at Bombay whereby a batch of criminal writ petitions filed by the respondents have been allowed, transfer of the respondents-prisoners from Arthur Road Jail in Bombay to three other jails in the State of Maharashtra held to be illegal and the appellants directed to transfer the prisoners back to the jail at Bombay. The High Court has expressed the view that jail authorities having used force against undertrial prisoners for no fault of theirs and since such force was used for extraneous reasons and was excessive, the Chief Secretary of the State of Maharashtra shall initiate a disciplinary inquiry against all those involved in the incident. The High Court has further held that if need be in addition to departmental inquiry, criminal action be also taken against the concerned officers including an inquiry into the conduct of the jail doctors for dereliction of their duty and alleged fudging of the records.

3. The factualmatrix relating to the transfer of the prisoners from Bombay Central Prison to other prisons in the State and use of force causing injuries to some of them has been set out in the order passed by the High Court at some length. We need not, therefore, recount the same over again except to the extent it is necessary to do so for the disposal of these appeals.

4. Superintendent of the Bombay Central Prison appears to have addressed a letter to the Special Judge under The Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as the MCOC Act) requesting for permission to transfer accused persons in three different Bombay blast cases being MCOC cases No.16/2006, 21/2006 and 23/2006. The request for transfer was proceeded on two distinct grounds namely (i) that against a capacity of 840 prisoners, the Bombay jail had as many as 2500 prisoners housed in it resulting in over-crowding and consequent problems of management in the jail and (ii) that proceedings in the on-going cases in question had been stayed with the result that the presence of the accused persons involved in the said cases was no longer required in the near future.

5. In response to the request aforementioned the Special Judge passed an order dated 26th March, 2004, inter alia, stating that:

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It is true that Honourable Supreme Court has granted stay to entire further proceedings of above referred cases and therefore, presence of accused is no more required in near future. It is total domain of Jail Authorities to transfer accused to other jails due to scarcity of premises or for security purpose. As the presence of accused is not required immediately, you are at liberty to take action of transfer of above referred accused to other jails as per rules and regulations.”

6. Administrative approval for the transfer of 37 undertrial prisoners involved in the above three cases was also obtained from the Inspector General of Prisons who directed the Superintendent, Bombay Central Prison, to keep in mind the criminal background of the prisoners while allocating them to different jails in the State.

7. On 22nd June, 2008 the jail authorities appear to have sent a requisition for an escort to the police headquarters which police escort was provided and reached the jail premises on 28th June, 2008 at 9.00 a.m. An announcement was then made requesting thirty-two undertrial prisoners to gather near Lal Gate in the prison premises out of whom seven prisoners were transferred to Ratnagiri Special Jail around 11.40 a.m. The other nineteen undertrials were said to be sitting outside while two other undertrial prisoners named Kamal Ahmad Vakil Ansari and Dr. Tanveer Mohd. Ibrahim Ansari refused to leave their cell to join the escort party despite pers