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IN THE HIGH COURT OF JAMMU AND KASHMIR
Rashid Ali Dar, J.
Abdul Wahid Mir – Appellant
Versus
State of Jammu and Kashmir and Others - Respondents
HCP No. 178 of 2018
Decided On : 12-02-2019
Constitution of India, 1950 - Article 22 – Criminal Procedure Code, 1973 - Section 309 – Ranbir Penal Code - Section 302 - Arms Act – Section 7/25 – Offence of Punishment - Convenience - Petitioner herein is stated in terms of petition to be facing trial in Court of Principal Sessions Judge for commission of offence punishable under Section Arms Act - During trial he had been lodged at Central Jail Srinagar and Sub Jail - However in month of March he has been shifted to District Jail which according to petitioner was made without any prior information to detune or his family members - Family is stated to have learnt about his shifting from learned trial court by virtue of an order of respondent of which a Photostat copy was provided also to petitioner – Held Communication received from 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 case - Such being position High Court was right in declaring transfer to be void and directing re-transfer of to Bombay jail - It is common ground that stay of proceedings in three trials pending against respondents has been vacated by this Court - Appearance of undertrials would therefore be required in connection with proceedings pending against m for which purpose y have already been transferred back to Arthur Road Jail in Bombay - Nothing in that view needs to be done by this Court in that regard at this stage - At cost of repetition it may have to be reiterated that respondent has not been able to show how authority which was vested in him in exercise of powers under Section of Prisons Act read with Jail Manual was used in present case and so action taken for shifting of detenue from District Jail to District Jail cannot be saved - Respondents have to depict to satisfaction of Court that shifting was done to meet any administrative exigency or emergency - May be presumption of being lawful and fair is attributed to administrative actions in ordinary circumstances but where malafides to such an action are imputed it would be for such authority which has exercised power to show that it was not so - Moreover power to be exercised in terms of Section of Act read with of Jail Manual in no case can override power of regular criminal court to order for remand during trial in terms of Section or frustrate proceedings in pending trial or militate right of an accused to defend himself meaningfully - Petition disposed
1. The petitioner herein is stated, in terms of the petition, to be facing trial in the Court of learned Principal Sessions Judge, Bandipora for commission of offence punishable under Section 302 RPC, 7/25 Arms Act. During trial he had been lodged at Central Jail, Srinagar and Sub Jail, Baramulla. However, in the month of March, 2018, he has been shifted to District Jail, Udhampur, which, according to the petitioner, was made without any prior information either to the detenue or his family members. The family is stated to have learnt about his shifting from the learned trial court by virtue of an order dated 28.02.2018 of respondent No.2, of which a Photostat copy was provided also to the petitioner. The action of the respondent No.2, according to the petitioner, is bad, precisely, for the following reasons:
(i) The detenue is an under-trial prisoner and until the pendency of criminal, case, his custody is to be regulated by the trial court and the respondent No.2 has no authority to change the lodgment of the detenue;
(ii) The detenue was never informed that his lodgment is being changed nor was he given any opportunity of being heard before making change of his lodgment;
(iii) The detenue is an old man suffering from various ailments and was under treatment of doctors at the Govt. Hospital, Srinagar. The shifting of the detenue has deprived him of the necessary medical treatment. Further, the shifting has deprived him of right of speedy trial as he is not being produced regularly before the concerned criminal court;
(iv) The respondent No.2 has passed the order of shifting in violation of the constitutional rights guaranteed to the detenue under Article 22(5) of the Constitution of India;
(v) The detenue was in judicial custody and his custody could not be changed without seeking approval from the trial court. The detenue was lodged in judicial custody in terms of Section 309 of Cr. P. C and he could not have been shifted without seeking change of custody from the concerned trial court;
(vi) The respondent No.2 has no authority under law to change the lodgment of the under trial prisoners from one jail to another and this is the exclusive domain of the trial court. The order of shifting is without any authority of law and the consequential custody of the detenue in District Jail, Udhampur is illegal and amounts of illegal confinement.
2. Counter has been filed only by respondent No.2 wherein the petition is stated to be without any force as the case of the petitioner regarding shifting being covered by Para 18.59 of J&K Jail Manual, there was no occasion to challenge the same. A copy of the communication dated 28.02.2018 sent by Superintendent, District Jail, Baramulla, to learned Sessions Judge, Bandipora, as may be quite apposite to refer herein reads as:
"OFFICE OF THE SUPERINTENDENT DISTT JAIL BARAMULLA
The ld. Sessions Judge,
Bandipora.
No.- DJBK/MH/1019-20 Dated 28-02-208
Sub:-Information regarding shifting of security prisoners to District Jail, Udhampur.
Sir,
Two security prisoners mentioned below facing trial before your Honble Court are being shifted to District Jail Udhampur from District jail Baramulla, in pursuance to Director General of Police, Prisons J&K Govt. Jammu order No.126 of 2018 dated 28/02/2018 issued under endorsement No.DS/Cvt/Shifting/2017/24420-23 dated 28.02.2018 (copy enclosed) under proper police custody.
This is for kind information of the Hon’ble Court
S.No.
Name of the prisoner
FIR No/offence
1.
Ab. Waheed Mir S/o Mohd. Abdullah R/o Ongam Bandipora
174/1993 u/s 307,7/25 IA Act P/S Bandipora 170/1993 u/s 302, 7/27 IA Act P/S Bandipora
2.
Ali Mohd Khaja s/o Mohd Subhan R/o Panzagam Bandipora
170/1993 u/s 302, 7/27 IA Act P/S Bandipora
Yours faithfully,
Superintendent,
Distt Jail Baramulla
3. Heard learned counsel for the
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