Dalim Pandey vs The State of West Bengal & Ors.

The petitioner is an under trial prisoner. The petitioner assails

memos dated September 12, 2014 and September 14, 2014 by which

the petitioner was transferred from Midnapore Central Correctional

Home to the Dum Dum Central Correctional Home.

Learned Advocate for the petitioner submits that, the petitioner

being an under trial prisoner in a pending criminal case, the authorities

ought to have taken leave of the learned Court under whose custody the

petitioner was placed prior to the transfer. Such leave not having been

obtained, the impugned memos permitting transfer should be set aside.

In support of the contention that, the authorities not having obtained a judicial order permitting such transfer, the transfer is bad, learned

Advocate for the petitioner relies upon All India Reporter 2013

Supreme Court page 168 ( State of Maharashtra & Ors. v. Saeed

Sohail Sheikh ).

Learned Advocate for the petitioner submits that, the family of the

petitioner is stationed at Midnapore, it is inconvenient for the petitioner

and his family members to contact each other by reason of the

petitioner being stationed at Dum Dum Central Correctional Home. The

residence of the petitioner and the Dum Dum Central Correctional

home is more than 200 kilometers apart. The petitioner is not in a

position to conduct the litigation properly since the petitioner is not

having an opportunity to contract his Advocate at Midnapore.

Therefore, the petitioner is seriously prejudiced.

Learned Advocate for the State submits that, the petitioner was

transferred in exercise of powers under Sections 5 and 64 of the West

Bengal Correctional Services Act, 1992. He refers to one of the

impugned memos dated September 12, 2014 and submits that, the

authorities had received a report from a public representative

concerning the activities of two under trial prisoners then in custody at

the Midnapore Central Correctional Home. The petitioner was one of them. Consequently, the appropriate authority had considered it

prudent to transfer the petitioner to the Dum Dum Central Correctional

Home. The learned Court in seisin of the criminal proceedings was

informed. The transfer had happened in 2014. The petitioner has now

approached the Writ Court in 2017. The petitioner did not make any

grievance with regard to the transfer before the Court in which the

proceedings are pending. The reason for the transfer is the local

influence of the petitioner as noted in the memo dated September 12,

2014. Therefore, the impugned memos should not be interfered with.

Referring to Saeed Sohail Sheikh (supra) learned Advocate for the

State submits that, the same was rendered in the context of the Prisons

Act, 1894, and the Prisoners Act, 1900, both of which stand repealed by

the West Bengal Correctional Services Act, 1992. In such

circumstances, he submits that the writ petition should be dismissed.

The petitioner is an accused in Lalgarh P.S. Case No. 04/11 dated

January 7, 2011 initiated for investigation of offences under Sections

302 / 120B / 148 / 149 / 326 / 307 / 374 of the Indian Penal Code. The

investigation was taken over by the Central Bureau of Investigation and

initiated a case being CBI SCB Kolkata Case No. RC-03(S)/2011. The

petitioner was arrested and placed under judicial custody at the

Midnapore Central Correctional Home. The investigating authority has already submitted a charge-sheet. The criminal proceeding is at the

stage of trial pending before the learned Additional Sessions Judge, RD

Court, Paschim Midnapore.

The State in its affidavit states that, the petitioner was transferred

from Midnapore Central Correctional Home on September 13, 2014 to

the Dum Dum Central Correctional home. The State contends that,

discretionary powers under Section 64(1) of the West Bengal

Correctional Services Act, 1992 was exercised as there were reports of

affectation of maintenance of security norms, good orders and discipline

at the Midnapore Central Correctional Home due to the local influence

of the petitioner along with another under trial prisoner. The reports

spoken of in the affidavit-in-opposition have not been placed for

consideration of the Court. The impugned memos dated September 12,

2014 and September 14, 2014 are not produced with the affidavit.

However, a copy of the memo dated September 12, 2014 is produced at

the time of hearing by the State. Such memo speaks of a report being

received from a public representative concerning the activities of two

under trial prisoners of which the petitioner is one of them. No incident

of maintenance of security norms, good order or discipline is placed on

record. It is difficult to assess the materials on the basis of which the

discretion under Section 64 of the Act of 1992 was exercised by the authorities, either from the memo dated September 12, 2014 or from

the affidavit-in-opposition, assuming that, the authorities are entitled to

improve upon the impugned memo by an affidavit-in-opposition.

Section 64 of the Act of 1992 permits the Inspector General of

Correctional Services to transfer any prisoner from one correctional

home to another within West Bengal. The Inspector General of

Correctional Services can exercise such power in its discretion or on an

application made to him. The scenario in which the provisions of

Section 64 were invoked by the Inspector General of Correctional

Services in the present case has not been placed on record. It has not

been stated as to why the Inspector General of Correctional Services

chose to exercise discretion. The impugned memo refers to a report

which such report has not been placed for consideration before the

Court.

Saeed Sohail Sheikh (supra) has dealt with the provisions of the

Prisons Act, 1894 and the Prisoners Act, 1900. Those two acts stand

repealed by the West Bengal Correctional Services Act, 1992 by virtue

of Section 108 thereof.

The impugned memo does not give any reasons for the transfer.

What is canvassed as a reason is vague. The foundational basis of such reason has not been made good in the litigation. The authorities also

have not stated in their affidavit as to why the petitioner is required to

be kept continuously at a different location other than the Midnapore

Central Correctional Home.

Although Section 64 of the Act of 1992 allows exercise of

discretion, and the Courts ought to be slow in interfering in the exercise

such discretion, in the facts of the present case, considering that, a

considerable period of time has elapsed since the transfer of the

petitioner from Midnapore Central Correctional Home to Dum Dum

Central Correctional Home and that, such transfer has the potentiality

of adversely affecting the defence of the petitioner at the trial of the

proceedings, and no material being placed to suggest that, the

continued presence of the petitioner at Dum Dum Central Correctional

Home is required, it would be appropriate to direct that, the petitioner

be returned to Midnapore Central Correctional Home forthwith. This

order, however, not prevent the authorities from transferring the

petitioner again, if the occasion so arises in accordance with law. The

authorities will inform the Court before whom the criminal proceedings

are pending as to this order and its compliance.

W.P. No. 10040 (W) of 2017 is disposed of. No order as to costs.

Urgent certified website copies of this order, if applied for, be made

available to the parties upon compliance of the requisite formalities.