Gurdial Singh vs Chandigarh Administration

Sat Pal, J.

This petition was filed by S. Gurdial Singh under Section 482 of the Code of Criminal Procedure (in short, the Code) and under Articles 226/227 of the Constitution of India, and in this petition, it has been prayed that the respondents be directed to release on parole the son of the petitioner, Kanwaljit Singh Sandhu who is in custody since 3rd September 1984, for a period of six months to enable him to have parental care and proper medical treatment, under Section 3(1) (a) or (d) of the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962 (in short, the Act). It was also stated in the petition that the petitioner''s son and other accused were convicted on 12th April, 1993 under Section 4 of the AntiHijacking Act and were sentenced to life imprisonment and since then the petitioner''s son is undergoing imprisonment in the Central Jail, Ajmer and at present is lodged in the Central Jail, Jodhpur.

Notice of this petition was issued to the respondents on 27th October, 1994.

On 29th March, 1995 the learned counsel for the petitioner sought time to file an application for amendment. Thereafter, an application bearing No. 5869/95 was filed on behalf of the petitioner seeking amendment of the main petition. In this application, besides the earlier prayer, the petitioner made another prayer that he alongwith other coaccused Tejinder Singh, Devinder Singh, Amrinder Singh, Avtar Singh, Mann Singh and Surinder Singh be transferred from Central Jail, Jodhpur to Model Jail, Chandigarh. It may be pointed out here that in support of this application for amendment, an affidavit of the petitioner who is the father of convict Kanwaljit Singh Sandhu, has been filed and in this affidavit there is no averment that the petitioner has been authorised to file any application on behalf of the other coaccused mentioned herein above.

Notice of this application was issued to the respondents on 4th April, 1995. Written statement to the petition as well as the application for amendment, on behalf of the respondent Nos. 1 and 2 was filed on 19th May, 1995. In this written statement, it was contended that the present petition was not maintainable at Chandigarh as Kanwaljit Singh Sandhu, convict, was undergoing life imprisonment in Rajasthan and as such the petition for parole was maintainable only in Rajasthan and not in Chandigarh.

Reply on behalf of respondent Nos. 3 and 4 to the amended petition was filed on 29th May 1995 and in this reply, the said respondents raised a preliminary objection that the present petition was not maintainable as neither the son of the petitioner nor any of the 7 convicts had requested the Inspector General (Prisons) Rajasthan or any other jail authority for their transfer from Rajasthan to Chandigarh. It was also stated to the written statement that according to the Rajasthan Prisoners Release on Parole Rules, 1951 Part XXV, Section V Rules 158 and 159, a prisoner could be transferred from Rajasthan to another State on his report on reciprocal basis with the Inspector General (Prisons) of that State and since the said consent had not been received, the petitioner was not entitled to any relief.

On 29th May, 1995, the learned counsel for the petitioner stated that convict Kanwaljit Singh Sandhu, was not in a fit mental condition but this fact was controverted by the learned counsel for the respondents. Accordingly, this Court directed that his medical report from a panel of doctors from Medical College, Jodhpur be filed on 4th July, 1995. Thereafter, the medical report by the Medical Board dated 29th June, 1995 was received in this court. As per the said medical report, convict Kanwaljit Singh Sandhu was not suffering from any mental or physical ailment.

During the pendency of this petition, one of the coconvicts Amrinder Singh filed a writ petition bearing Writ Petition (Crl.) No. 412 of 1995 in the Supreme Court for his transfer from Jail in Rajasthan to Burail Central Jail near Chandigarh. This writ petition was disposed of by the apex Court vide order, dated 21st August, 1995, which reads as under :

"Mr. K.T.S. Tulsi, learned Additional Solicitor General very fairly states that the petitioner would be transferred to Burail Central Jail near Chandigarh. This may be done within two months from today. The petitioner may, if so advised, send his representation to the Government concerned, for premature release. He may do so through the jail authorities. As and when such representation is made, the Government will consider the same in accordance with law and decide within a reasonable period.

The writ petition is disposed of."

After the above mentioned order, dated 21st August, 1995 was passed by the Hon''ble Supreme Court, a copy of the same was filed by the learned counsel for the petitioner. Thereafter, an affidavit dated 21st September, 1995 of Shri Sanjay Kothari, Home Secretary, Chandigarh Administration, was filed in the court and in this affidavit, it was stated that the aforesaid order dated 21st August, 1995 was passed by the Supreme Court on the statement of Shri K.T.S. Tulsi, learned Additional Solicitor General of India and since the aforesaid Additional Solicitor General was not authorised by the Chandigarh Administration to give the statement in the Supreme Court, the Chandigarh Administration had decided to file the review petition in the Supreme Court through its Standing Counsel and it was prayed that the case may be adjourned awaiting the decision in the review petition.

The Review Petition bearing No. 1927 of 1995 filed by the Chandigarh Administration was, however, dismissed by the Hon''ble Supreme Court vide order, dated 19th October, 1995, which reads as under :

"We have carefully gone through the review petition and the connected papers. We find no merit in the review petition which is dismissed accordingly."

Mr. Navkiran Singh, learned counsel appearing on behalf of the petitioner submitted that the offences for which the petitioner''s son and his coconvicts have been convicted and sentenced were committed in the Union Territory of Chandigarh and it was at the request of the Administration of Union Territory of Chandigarh that these offences were directed to be tried by the Additional Special Court established in the State of Rajasthan. He further submitted that the Special Court at Ajmer was in fact constituted only for this case as the said Court was established immediately after the registration of this case. Learned counsel contended that the case related to the Union Territory of Chandigarh and the FIR was registered at Chandigarh. He further submitted that the Special Court constituted at Ajmer was for Chandigarh Zone and even the Rajasthan Government had requested that the convicts in this case could be transferred to Chandigarh vide letter dated 29th June, 1995 (Annexure P5). He further submitted that petitioner''s son Kanwaljit Singh Sandhu had become a mental case and was admitted in the Mental Hospital, Jaipur. He submitted that the petitioner''s son and his coconvicts had been in custody since 3rd September, 1984 in Rajasthan and a convict normally is required to be kept or transferred to a place which is his usual place of residence. In support of his submissions, he placed reliance on two judgments of the Supreme Court in Sunil Batra v. Delhi Administration, AIR 1980 SC 1759 and A.K. Roy v. Union of India, 1982 SC 710.

Lastly he contended that one of the coaccused Amrinder Singh has already been permitted to be transferred to Burail Central Jail, Chandigarh by the Hon''ble Supreme Court and as such, the petitioner''s son and his coconvicts were also entitled to be transferred to the said jail. The learned counsel, however, submitted that the petitioner was not pressing the relief of grant of parole at this stage.

Mr. Aggarwal, learned Senior Counsel appearing on behalf of respondent Nos. 1 and 2 (Chandigarh Administration) raised a preliminary objection that this Court has got no jurisdiction to entertain this petition inasmuch as the convicts were tried, convicted and sentenced in Ajmer and the court passing the sentence forwarded the warrants of the convicts to a jail in Rajasthan. He further submitted that since the convicts were undergoing life imprisonment in Rajasthan, the petition seeking the relief of parole or transfer could be filed in the High Court of Rajasthan. Another preliminary objection raised by the learned counsel was that the present petition was initially filed on behalf of one of the convicts namely Kanwaljit Singh Sandhu and though in the application for amendment, relief of transfer from Jodhpur jail to a jail in Chandigarh has been sought on behalf of other coconvict, but neither the application seeking the relief bears the signatures of any of the other co convicts nor any affidavit of the coconvicts or their near relatives has been filed in support of the application for this relief. He, therefore, contended that even on this ground the petition on behalf of other coconvicts, namely Tejinder Singh, Devinder Singh, Avtar Singh, Mann Singh, Surinder Singh and Amrinder Singh is not maintainable.

Learned counsel also referred to Sections 417 and 418 of the Code and submitted that as per Section 418, the Court convicting the accused had forwarded the warrants of commitment to Jodhpur jail. He further submitted that under Section 417(1), the State Government has the power to direct in what place any person committed to custody under this Code should be confined but in the present case, the petitioner''s son and his coconvicts have not approached the State Government concerned so far and as such, the petition was liable to be dismissed as premature.

Dealing with the judgments of the Supreme Court relied upon by the learned counsel for the petitioner. He submitted that as per the law laid down by the apex Court in the case of A.K. Roy (supra), in exceptional cases a convict can be kept in a place other than where he ordinarily resides. He contended that the present case was covered under the exception as the petitioner''s son and his coconvicts are likely to vitiate the atmosphere if they are kept in a jail at Chandigarh.

With regard to the transfer of coconvict Amrinder Singh by the Hon''ble Supreme Court, the learned counsel submitted that Amrinder Singh was permitted to be transferred on the basis of concession given by the learned Additional Solicitor General though in fact the Chandigarh Administration had not given any such instructions to the learned Additional Solicitor General to give such a concession. However, the said concession was only with regard to Amrinder Singh only and it cannot made applicable in case of other coconvicts.

Mr. Ajay Lamba, learned counsel appearing on behalf of respondent Nos. 3 and 4, referred to the written statement dated 29th May, 1995 filed on behalf on respondents Nos. 3 and 4 and submitted that according to Rajasthan Prison Rules, 1951, a prisoner can be transferred from Rajasthan to another place on his report on reciprocal basis with the consent of Inspector General (Prisons) of that State. He submitted that in the present case, the Chandigarh Administration has not given any such consent for the transfer of the convicts to a jail at Chandigarh. He further submitted that six out of seven convicts were wanted in other criminal cases in Chandigarh and it was on that ground that the Rajasthan Government requested for their transportation only and not for their permanent transfer and since these cases have since been disposed of, they cannot be transferred to Chandigarh Jail. With regard to letter, dated 29th June, 1995, he submitted that this letter pertains to internal correspondence between the counsel and the State Government and as such, no reliance could be placed on internal noting or correspondence. In support of this submission, he placed reliance on a judgment of the Supreme Court in Puranjit Singh v. Union Territory of Chandigarh, JT 1994(6) SC 239.

I have given my thoughtful consideration to the submission made by the learned counsel for the parties and have perused the records including the record of C.W.P. No. 130 of 1985. From the records, I find that the case FIR No. 435 was registered on 24th August, 1984 at Police Station Sector 34, Chandigarh, and thereafter, the matter was referred to CBI and case No. RC 7/84S14III/SIC/CBI, New Delhi dated 29th August, 1984 was registered. From the records, it further appears that on the request of the Administration of Union Territory of Chandigarh, the Central Government decided vide notification dated 4th December, 1984 that the offences in the present case should be tried by the Additional Special Court established at Ajmer in the State of Rajasthan. The point to be examined is as to whether this Court has jurisdiction to entertain the present petition in the facts and circumstances of the case.

Admittedly, the petitioner''s son and his coconvicts were tried, convicted and sentenced at Ajmer in the State of Rajasthan. Under Section 418 of the Code, the Court passing the sentence shall forthwith forward a warrant to the jail in which he is, or is to be, confined and shall forward him to such jail with the warrant. In the present case, the Additional Special Court Ajmer, vide Warrant of Commitment to Jail dated 12th April, 1993, forwarded the convicts to Central Jail, Ajmer (Rajasthan) thereby requiring the officer incharge of the said jail to carry out the sentence into execution according to law. As per averments made in the petition, the son of the petitioner along with his coconvicts is lodged in Central Jail Jodhpur which is again in the State of Rajasthan. As stated in the reply filed on behalf of respondent Nos. 3 and 4 (State of Rajasthan), a prisoner can be transferred from Rajasthan to any other State on his report on reciprocal basis with the consent of I.G. Prisons of that State in terms of Rajasthan Prison Rules, 1951. Since the petitioner''s son is lodged in a jail in the State of Rajasthan, he can approach I.G. (Prisons), Rajasthan, Jaipur in accordance with the said Rules. In view of the aforesaid facts, this Court has no jurisdiction to entertain this petition and consequently, the petition is liable to be dismissed on this ground.

Further in terms of the law laid down by the Supreme Court in the case of A.K. Roy (supra), a detenu may be transferred to a place where he ordinarily resides, to make it possible for his relatives and friends to meet him. From the petition, I find that the petitioner is a resident of District Ferozepur. Thus petitioner''s son could be transferred to Central Jail, Ferozepur and not to a jail in Chandigarh. Further the Central Jail is situated in Punjab but state of Punjab has not been impleaded as a respondent. It may be relevant to point out here that Amrinder Singh who has been transferred to Burail Central Jail, Chandigarh by the Supreme Court, was a resident of House No. 5, Sector 27A, Chandigarh as shown in the writ petition filed in the Apex Court.

As regards the coconvicts of the son of the petitioner, the petition on their behalf is liable to be dismissed on the ground that there is no averment in the petition as to in which area they ordinary resided. Besides, in support of this petition, affidavit of Shri Gurdial Singh has been filed but from the affidavit, it appears that said Gurdial Singh was not authorised to depose on their behalf as there is no such averment in the said affidavit. For the reasons recorded herein above, the petition is dismissed.