The detaining authority has the power to regulate the place and conditions of detention under the Public Safety Act, and the trial court's jurisdiction is limited to regulating the trial and ensuring the accused's presence at each hearing.

1. This Criminal Revision is directed against order dt. 23rd Aug 05, passed by the 3rd Additional Sessions Judge, Srinagar, in the case titled State v. Suhail Ahmad Kataria, FIR No. 165 of 1996, registered with Police Station, Maisuma, Srinagar. The said order, here-in-after shall be referred to as the impugned order.

2. The grievance of the petitioner is that the learned Additional Sessions Judge, has no power and jurisdiction to pass the impugned order. It is stated that there is no provision in the Code of Criminal Procedure or the Public Safety Act, which mandates or empowers any trial court to direct lodging of the accused in any jail outside the J&K State. It is further stated that the trial court has to regulate the trial and the executive has no role to play.

3. Mr. Rathore, learned AAG, appearing on behalf of respondent State, argued that the impugned order is interlocutory one and this revision petition is not maintainable. It is stated that the learned Additional Sessions Judge, has not passed any direction with respect to lodgment of the petitioner has been passed by the detaining authority in terms of provisions of Public safety Act.

4. The trial court is not having jurisdiction to change the lodgment and it is the detaining authority which has the power to fix the lodgment in terms of the provisions of the Public Safety Act. It is stated that the trial court has only to ensure speedy trial and presence of the accused on each and every hearing.

5. Heard Considered.

It appears that the impugned order is interlocutory one but the controversy raised and involved in the present case is of great importance because these questions do arise before the trial courts and in order in marshal out and thrash out this question, I deem it proper to return findings on merit.

6. If a person is detained under Public Safety Act, the lodgment is to be fixed by the detaining authority and the power to regulate the place and the conditions of detention vests with the executive. It is useful to reproduce Section 10 of Public Safety Act, 1978, herein:-

"10. Power to regulate place and conditions of detention- Any person in respect of whom a detention order has been made under section 8 shall be liable-

a/to be detained in such place and under such conditions including conditions as to the maintenance of discipline and punishment for breaches of discipline as the Government may, by general or special order, specify, and

b/to be removed from one place of detention to another place of detention in the State by order of the Government.

Clause (b) of the aforesaid Act stands amended and the words in the state stand omitted and the following provision stands added: -

Provided that the detenues who are permanent residents of the State shall not be lodged in Jails outside the State.

7. The detaining authority i.e. executive, while fixing the lodgment, has to take into account the, conditions prevailing in the State, allegations leveled against the accused/detenue, security of the State and the safety of the inmates who are lodged in the jails and also of the staff of the concerned jail.

8. The authority concerned is under legal obligation to bring the detenue before the court on each hearing and it is its duty to provide sufficient security to the detenue also.

9. In this backdrop, the executive has to exercise powers and it is within its rights to fix lodgment of a detenue outside the State while keeping in view the provision of the Public Safety Act, Criminal Procedure Code, The Prisoners Act and the Prisons Act read with the enabling provisions of the Jail Manual.

10. The trial court, cannot exercise powers while conducting trial in order to give a go-bye to the detention order and is not within its powers to say that the lodgment fixed by the competent authority under the Public Safety Act, is not correct and that the accused be lodged instead of that lodgment to any other jail. The trial court, however, is within its powers to regulate trial and to issue

Click Here to Read the rest of this document