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IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
SANJEEV KUMAR, J.
Bashir Ahmad Mir and another – Appellant
Versus
State and others – Respondent
CRM(M) No.210 of 2019, CrlM No.660 of 2019
Decided on : 15-07-2021
Ranbir Penal Code - Sections 302/307/120-B, 419, 467, 468, 447-A, 326, 323 - Unlawful Activities Prevention Act - Sections 16, 17, 19, 20 and 40 - Explosive Act - Sections 3,4 and 5 - Arms Act - Sections 7/25, 7/27 - Forest Act - Section 14 - Code of Criminal Procedure, 1973 - Section 417(1) and 561-A – Offence of Murder – Preventive Detention - Whether an undertrial, who is remanded to judicial custody by trial Court can be shifted from one prison to another without permission of trial Court - Seeking a direction to respondents not to transfer them from Kupwara sub-jail to any other jail outside Kashmir valley and adhere to order of trial Court in letter and spirit.
Finding of the case:
It transpires that petitioners, who along with others are facing trial in FIR in Court of Special Judge, apprehend that their custody may be changed and they could be lodged in a jail outside the Kashmir valley - Function performed by Inspector General prisons in relation to shifting of undertrials from one prison to another in case of an emergency or on administrative reasons is administrative in nature and, therefore, there is no place for providing an opportunity of opportunity of being heard to the undertrial, which does not have any right to choose a prison of his choice for lodgement during trial. Since permission of the Court before shifting of undertrial from one prison to another within the State is not mandatory and trial Court is only required to be intimated, as such Court in such situation also does not perform any judicial or quasi-judicial function, which may necessitate hearing of undertrial before granting permission.
Result: Petition dismissed
JUDGMENT :
1) The petitioners, who are facing trial in FIR No.51/2013 under Sections 302/307/120-B, 419, 467, 468, 447-A, 326, 323 RPC, Section 14 of Forest Act, Sections 7/25, 7/27 Arms Act, Sections 3, 4 and 5 of Explosive Act and Sections 16, 17, 19, 20 and 40 of Unlawful Activities Prevention Act before Special Judge Designated under National Investigation Agency Act, Srinagar [“the Special Court”] are before this Court by way of instant petition filed under Section 561-A of the Code of Criminal Procedure (“the Code”) seeking a direction to the respondents not to transfer them from Kupwara sub-jail to any other jail outside the Kashmir valley and adhere to the order of the trial Court dated 03.05.2019 in letter and spirit.
2) It is submitted that a challan in FIR No.51/2013 against the petitioners along with eight others was presented before the Special Judge on 31.03.2013 and more than eight years have elapsed but the trial is still proceeding at a snail’s pace. The major reason for the delayed trial attributed by the petitioners is the transfer of the petitioners outside Kashmir valley and failure of the prosecution/State to produce them in the Court on each and every date of hearing. It is submitted that the Special Court vide its order dated 03.05.2019 had directed that in case the Incharge Central Jail, Srinagar intends to shift the petitioners and other accused from Central Jail, Srinagar to another jail in Jammu, in that eventuality, he shall shift the petitioners in jails situate either at Baramulla or Kupwapra. This order, it is complained, has not been adhered to by the respondents and they have instead shifted the petitioners to some jail in Jammu.
3) This petition is resisted by the respondents and in the objections filed by the respondents duly supported by an affidavit of the S.H.O., Police Station, Parimpora, Inspector Jaffar Iqbal, it is stated that a case FIR No.51/2013 was registered in the Police Station, Parimpora against seven persons including the petitioners in the instant petition. Subsequently, Final Report/Challan was presented before the Special Court in the year 2013 against all the accused. So far as change in custody is concerned, it is pleaded by the respondents that the same falls under the domain of the jail authorities and the police, which has registered the case has no say in the matter.
4) Having heard learned counsel for the parties and perused the record, it is necessary to first set out the prayer of the petitioners made in the petition, which reads thus:-
2. That a direction may be issued to Additional Director General of Prisons to consider this Application as a representation and decide the same in accordance with law.
3. Any other writ, order or direction which this Hon’ble Court may deem fit or proper in the facts and circumstances of the case.”
5) From perusal of the contents of this petition, it transpires that the petitioners, who along with others are facing trial in FIR No.51/2013 in the Court of Special Judge, apprehend that their custody may be changed and they could be lodged in a jail outside the Kashmir valley. They, therefore, place strong reliance on order dated 03.05.2019 passed by the Special Judge, wherein it is held that transfer of prisoners from one place of detention to another is permissible only with the permission of the Court under whose warrant an undertrial has been remanded to custody. The Special Judge in the same order has also directed that in case the petitioners are required to be shifted from Central Jail, Srinagar to any other jail in Jammu, the Incharge Central Jail, Srinagar shall shift them to a jail sit
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