Transfer of an under-trial prisoner by ministerial order is invalid if the trial court has specifically ordered custody in a particular jail. Absent such a specific judicial direction, the State Government may exercise its power to determine the place of imprisonment under Section 417 of the Cr.P.C.

ORDER :

VISHAL DHAGAT, J.

Petitioner has filed this petition under Article 226 of the Constitution of India challenging order dated 19.11.2024 contained in Annexure-P/28 by which petitioner was transferred from Netaji Subhas Chandra Bose Central Jail Jabalpur to Central Jail Bhopal.

2. Learned Senior Counsel appearing for petitioner submitted that order is malafide and arbitrary in nature. Petitioner is placed under judicial custody by order of Court. Removing prisoner outside the territorial jurisdiction of trial Court violates Sections 187 and 232 BNSS 2023 and Article 14 and 21 of Constitution of India. No reason is assigned in passing of impugned order. Action is drastic in nature, therefore, adequate Justification ought to have been given in the order. Impugned order dated 19.11.2024 was supplied to petitioner in Court room during course of argument on admission on 05.12.2024. It is submitted that said communication of order of transfer is as ex post facto, hence, illegal. Such an order is not conceived under Regulation 791 of MP Prison Rules 1968, Section 26 of Prisons Act, 1894 and Section 29 of Prisoners Act 1900. Petitioner was remanded in judicial custody by C.J.M. Jabalpur in FIR No.249/2024. Impugned order was not communicated to petitioner or his relatives and he was shifted to Central Jail Bhopal. Petitioner is being deprived of right to raise objection against his transfer. Senior counsel appearing for petitioner has relied upon the judgment passed by Apex Court in case of State of Maharashtra and other Vs. Saeed Sohail Sheikh reported in (2012) 13 SCC 192. Placing reliance upon paragraph No.19, 20 and 23, it is submitted that transfer of prisoner in terms of Section 29(1) of the Prisoners Act of 1900 is permissible only in distinct situation covered by clause A to D thereof. Said provision does not deal with under trial prisoner. Transfer of an under trial prisoner is also not permissible under Section 29(2) of Act of 1900. Section 29(2) empowers Inspector General of Prisons to direct a transfer but such transfer of a prisoner who is confined in circumstances mentioned in Section 29(1) of the Act of 1900. Respondent could not have transferred under trial prisoner in terms of order of Inspector General of prison under Section 29 of the Prisoners Act 1900. As per rational of provision of Sections 167 and 309 of Cr.P.C., continue detention of prisoner in jail during trial or injury is legal and valid only under authority of Court, prison where under trial is detained, is a prison identify by the competent Court either in terms of Sections 167 or 309 of the Cr.P.C. In these circumstances, transfer of a prisoner from any such place of detention will be permissible only with the permission of the Court under whose warrant the under trial has been remanded to custody. Power to exercise by Court permitting or refusing transfer of an under trial prisoner is judicial in nature and not ministerial. Exercise of ministerial power is out of place in situations where quality of life or liberty of citizen is affected. Transfer of prisoner to distant place may affect him adversely. On strength of aforesaid judgment and argument, learned Senior Counsel appearing for petitioner submitted that order of transfer dated 19.11.2020 contained in Annexure- P/28 is bad in law and deserves to be set aside. He further submitted that wife of petitioner is suffering from Cancer and she has to visit prison at Bhopal to meet her husband. It is very difficult for her to go to Bhopal for meeting her husband. Right of under trial prisoner to meet his wife and relatives is also jeopardized due to said transfer. Further, petitioner is adversely affected in defending his case.

3. Learned Government Advocate appearing for the State submitted that a detailed order has been passed by this Court on 01.04.2025 and Government Advocate was directed to produce material on basis of which petitioner was transferred. Looking into the material is for purposes tha