The central legal point established in the judgment is that the exercise of powers under the Prisoners Act, 1900 and the Code of Criminal Procedure for the transfer of prisoners must be within the appropriate jurisdiction and stage of the legal process.

Narayan Roy, J.

1. Heard Counsel for the parties.

2. This writ application under Art. 226 of the Constitution is directed against the order as contained in Annexure-6 dated 21-11-2002 whereby an whereunder the petitioner is being transferred from Beur Central Jail, Patna to Central Jail, Bhagalpur in purported exercise of power u/s. 29(2) of the Prisoners Act, 1900 (hereinafter referred to as the Act) read with Section 417 of the Code of Criminal Procedure (hereinafter referred to as the Code) and at the same time the State Government has also exercised its power under Section 268 of the Code.

3. Learned Counsel for the petitioner questions the correctness and propriety of the order impugned on the ground that the order of transfer of the petitioner from Beur Central Jail to Central Jail, Bhagalpur in purported exercise of powers of the State Government u/s. 29(2) of the Act and sec. 417 of the Code is wholly without jurisdiction as the powers.under sec. 29(2) of the Act is exercisiable at post conviction stage whereas power u/s. 417 of the Code is exercisable only when there is no other law providing for the custody of a prisoner and in view of provisions made in Prisoners Act, 1900 , this power cannot be exercised and at the same time the purported exercise of the power of the authorities u/s. 268 of the Code is also without jurisdiction inasmuch as that this provision deals with confinement of the prisoner and to frustrate the provision of sec. 267 of the Code.

4. Learned Counsel for the petitioner submits that sec. 268 of the Code empowers the State Government to exclude certain persons from the operation of Sec. 267 of the Code and in no way this power can be exercised for transfer of a prisoner from one jail to another.

5. Learned Government Advocate appearing on behalf of the respondents very frankly conceded to the first part of the submission of learned Counsel for the petitioner saying that sec. 29(2) of the Act and sec. 417 of the.Code would not apply in the facts and circumstances of this case but the power of the State Government u/s. 268 of the Code has correctly been exercised in transferring the petitioner from Beur Central Jail to Central Jail, Bhagalpur and the impugned order is well sustainable in law:

6. To appreciate rival submissions of the parties, it would be necessary to notice sec. 29(2) of the Act and sec. 417 of the Code. sec. 29 of the Act reads as follows :

"29. Removal of Prisoners.--(1) The (State Government) may, by genera! 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 behavour, 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)."

7. On bare reading of sec. 29 of the Act as a whole, it appears that Subsection (2) of sec. 29 of the Act is exercisable when a prisoner has been confined in a prison under sentence of death, a sentence of imprisonment or transportation or in default of payment of fine or in default of giving security for keeping peace or for maintaining good behavour. This power, as noticed above, however, cannot be exercised at pre-trial stage. The petitioner, as it appears from the record, has been detained in Beur Central Jail, at pre-trial stage. The provision as laid down under Sub-sec. (2) of sec. 29 of the Act, therefore, has no application in this case.

8. sec. 417 of the Code reads as follows :

"417. Power to appoint place of imprisonment.--(1) Except when otherwise provided by any law for the time being in force, the State Government may direct in what place any person liable t