1. Heard learned counsel for the parties.

2. The petitioner, an undertrial prisoner, who has been transferred from Divisional Jail, Nawada to Central Jail, Bhagalpur being aggrieved by the order as contained in Annexure-1 has come to this court challenging the correctness, validity and propriety of the said order.

3. From the said order it appears that two groups having rivalries on number of scores were lodged in the very same jail at Nawada, The order says that Akhilesh Singh, Ratan Singh, Mohan Sinigh and Nikhail Singh belong to one group white the other prisoner Ram Kumar Yadav belongs to another group. These prisoners are facing trials in different courts and are alleged to be involved in the massacres. The order further says that because of the bad blood between these two groups and the permanent enmity between them, law and order situation has erupted in the said jail. Under the said order all the five prisoners have been transferred from Nawada Jail to Special Central Jail, Bhagalpur and Central Jail, Bhagalpur. The petitioner says that this transfer order is per se illegal and is without any authority of law.

4. Learned counsel for the petitioner referring to Section 268 of the Code of Criminal Procedure and Section 29 of the Prisoners Act, 1900 submitted to the court that powers under Section 268 of the Code of Criminal Procedure do not relate to transfer of one prisoner from one prison to another but in fact clothes the State Government with a power to issue an order that a particular offender/undertrial prisoner shall not be produced before a Court even if a production warrant is issued under section 267 of the Code of Criminal Procedure. Interpreting section 29 of the Prisoners Act, it is further contended that class of the convicts only can be transferred from one jail to another and as the petitioner is not a convict he should not be transferred either under Section 29(1) or Section 29(2) of the said Act.

5. Learned counsel for the State Govt. however submitted that in relation to particular prisoner/convicts, the Prisoner Acts, 1990 has given authority to the State Govt to transfer them from one jail to another jail but as the Criminal Procedure Code or the Prisoners Act do not put any ban on the powers of the State Govt. in effecting transfer of one undertrial prisoner from one jail to another jail, no wrong can be found with the order issued by the State Government. He further submits that looking to the law and order situation prevailing in the Divisional Jail, Nawada, the State cannot be allowed to remain a silent spectator and give a licence to the rival groups to have the law in their hands. I have heard the parties at length.

6. Section 268 of the Code of Criminal Procedure, as rightly contended by the learned counsel for the petitioner, relates to issuance of an order by the State Govt. whether general or special that any prisoner or class of prisoners shall not be removed from the prison in which he or they may be confined or detained. It further provides that after such an order is issued, so long as the orders remain in force, any order made by any Court under Section 267 of the Code of Criminal Procedure so long as the order issued under Section 268 of the Code of Criminal Procedure remains in force, shall have effect in respect of such prisoner or class of prisoners. Obviously Section 268 has nothing to do with the power of the State Govt. in effecting transfer of one prisoner from the jail to another jail.

7. Section 29 of the Prisoners Act provides that the State Govt. may by general or special order provide for the removal of any prisoner confined in a prison, who is under sentence of death, or in lieu of sentence of imprisonment or transportation, or in default of payment of fine, or in default of giving security for keeping the peace or for maintaining good behaviour, to any other prison in the State. Section 29, sub-section (1) in fact relates to the convicts who are lodged in jail an