State of U.P. vs Fast Track, Court No. 2, Additional Chief Judicial Magistrate and Amarmani Tripathi

Imtiyaz Murtaza and R.M. Chauhan, JJ.—Present petition has been preferred by the State of U.P for the relief of a writ in the nature of mandamus commanding the respondents 1 and 2 not to interfere with the transfer of respondent No. 3 from District Jail Gorakhpur to Central Jail Varanasi.

The matter relates to Amar Mani Tripathi, who, it is alleged, has got a chequered criminal history with as many case 7 cases to his discredit. The respondent No. 3 it is stated was kept confined in District Jail Gorakhpur between the period 15th Oct 2006 to 3rd March 2007 and in the course of his incarceration in the aforesaid District Jail, it is further stated, owing to number of visitors swelling with each passing day, the smooth administration of District Jail Gorakhpur was disrupted and security of jail in disarray and consequently, Authorities of District Jail sought the transfer of the respondent No. 3 from District Jail to Central Jail firstly on the ground that he was a convict and in this connection the Superintendent District Jail referred to relevant Regulation of the Jail manual who envisaged that a convict has to be lodged in Central Jail and secondly, on the ground of the security of the respondent No. 3 and other co-prisoners was being rendered vulnerable in case the convict is allowed to be kept in District Jail Gorakhpur. The State Government acceding to the grounds urged in support of transfer, passed orders transferring the respondent No. 3 to Central Jail Varanasi.

It is further stated that on 14.11.2007, the respondent No. 2 i.e. Addl. Chief Judicial Magistrate Gorakhpur passed order in case No. 1103 of 2007 pending u/s 406 IPC directing to detain the respondent No. 3 in District Jail Gorakhpur. It is further stated that the respondent No. 3 being a native of Gorakhpur is making all out efforts to stay back in Gorakhpur Jail and with a purpose to a design, he also maneuvered to have the application moved from the sureties in the case for withdrawal of sureties on 5.2.2008 which application, it is further stated was allowed the same day i.e. On 5.2.2008. It is further stated that in case No. 1101 of 2007 and in case No. 1104 of 2008 the aforesaid court directed the respondent No. 3 to be produced on 13.2.2007 while in case No. 1103 of 2007, the respondent No. 3 was directed to be produced on 7.2.2008. It is further stated that a request was made to the court to fix a common date in all the three cases but the request went unheeded and was not acted upon.

Again, it is further stated, the District Magistrate Gorakhpur vide order dated 5.2.208 issued direction to the Supdt District Jail Gorakhpur to comply with the order dated 14.11.2007 whereby the respondent No. 3 had been transferred to Central Jail Varanasi. It is lamented that despite the court having been intimated with the orders of the State Govt the respondent No. 2 directed the respondent No. 3 to be kept in Gorakhpur jail attended with direction to the Jail authorities to comply with the order and intimate the court by FAX.

In para 19, it is spelt out that three cases are pending in the court of respondent No. 2 while two sessions trial are pending in the Fast Track Court No. 2 Maharajganj. The petitioner has also catalogued the dates fixed in the cases pending before the respondent No. 2 which are enumerated below.

27.3.2008, 28.3.2008, 1.4.2008, 5.4.2008, 10.4.2008, 21.4.2008, 30.4.2008, 1.5.2008, 7.5.2008, 9.5.2008, 14.5.2008, 16.5.2008, 17.5.2008, 21.5.2008, 23.5.2008, 24.5.2008, 27.5.2008, 29.5.2008, 30.5.2008, 31.5.2008. 2.6.208, 6.6.2008, 11.6.2008, 13.6.2008, 18.6.2008, 20.6.2008, 23.6.2008, 24.5.2008, 27.6.2008, 4.8.2008, 28.8.2008, 5.9.2008.

Again the petitioner has delineated the details of dates fixed in the Sessions trial pending before respondent No. 1 at Maharajganj. The dates fixed are enumerated below.

29.3.2008, 3.4.2008, 7.4.2008, 15.4.2008, 24.4.2008, 5.5.2008, 13.5.2008, 23.5.2008, 27.5.2008, 28.5.2008, 5.6.2008, 10.6.2008, 16.6.2008, 24.6.2008, 1.8.2008, 4.8.2008,5.8.2008, 8.8.2008, 11.8.2008, 6.9.2008.

We have also heard learned A.G.A at length who fiercely contended that it is a function relating to the administration of the prison and the executive authorities are required to reckon with various factors including the security of the co-prisoners and also the prisoners and the petitioner cannot claim his being retained in a particular jail. The learned A.G.A. also adverted attention to the cases in which the petitioner is involved.

To shore up his submissions, the learned A.G.A referred to a decision of this Court rendered in writ petition No. 6719 (MB) of 2002 Raghuraj Pratap Singh alias Raja Bhaiyya and Anr. v. State of U.P. and Ors. We have also been taken through the Division Bench decision rendered on 11.12.2002 the relevant portion whereof is quoted below.

Authorizing the detention of accused in police custody or judicial custody is the judicial function of the Magistrate whereas the place/places where an accused has been authorized to be detained in judicial custody by the Magistrate is to be kept would be a matter relating to the administration in the prison, thus would be an administrative act, which would be dependent upon the conditions existing in accordance with the various provisions of the U.P. Jail Manual for example, in Paras 128, 137, 138 read with Para 409 A of the U.P. Jail Manual. The placing or keeping an accused in a particular jail while he is in judicial custody has to be seen and cared for, in the light of the security of the co-prisoners as well as prisoner himself (who is detained under the orders of the Magistrate in judicial custody) law and order situation and many other factors which need not be exhaustively dealt with in the instant case, apart form the factors given in Paras 137 and 138 of the U.P. Jail Manual. The term "for any other sufficient cause" would include all such causes which may be relevant for the detention of the accused in one or the other jail.

Having considered the matter in all its ramifications and regard being had to a settled position in law as supra the crux of which is that the matter pertaining to transfer of accused persons from one prison to another would not ordinarily be interfered with, we do not find any justification for interference by the respondent No. 2 with the executive order passed by the State Government.

The Apex Court in Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav and Another, dealt with the similar contentions elaborately and answered all the questions as raised in this petition. On the question of fundamental rights of a prisoner under Article 21 of the Constitution of India, the Apex Court in para 21 observed that the fundamental right of an under-trial prisoner under Article 21 of the Constitution is not absolute. In para 23 of the said decision the Apex Court observed that if the factual situation requires the transfer of a prisoner from one prison to another, be he a convict or an under-trial, the courts are not to be a helpless bystander when the rule of law is being challenged with impunity.

It was further observed that the arms of law are long enough to remedy the situation even by transferring a prisoner from one prison to another that is by assuming that the Jail Manual concerned does not provide such a transfer. In para 43 of the said decision, the Apex Court observed that ft is true that in a normal trial the Criminal Procedure Code requires the accused to be present at the trial but in the peculiar circumstances of this case a procedure will have to be evolved which will not be contrary to the rights given to an accused under the Criminal Procedure Code but at the same time protect the administration of justice. No doubt, in para 44 of the said decision, the Apex Court observed that while it is true that it is necessary in the interest of justice to transfer the respondent out of the State of Bihar, we are required to keep in mind certain basic rights available to the respondent which should not be denied by transferring the respondent to any one of the jails suggested by C.B.I. It will cause some hardship to the wife and children of the respondent who we are told are normally residents of Delhi, his wife being a Member of Parliament and two young children going to school in Delhi. In this conspectus, the Hon. Supreme Court made observation that the respondent be transferred to Tihar Jail at Delhi.

It would thus transpire that the observation to the above effect was made regard being had to the recommendations made by the C.B.I to any of the prisons situated at remote places i.e. Chennai, Palayamokottai Central Jail, Vellore Central Jail, Coimbatore Central Jail and Mysore Central Jail which had video conferencing facilities. No such question is involved in the instant petition. Besides, there is no indicium on record to show that the petitioner is sought to be transferred to a prison outside the Slate of U.P.

In Crl. Misc. Writ Petition No. 11893 of 2008 Ramesh Singh v. State of U.P., this Court relying on the decision rendered on 11.12.2002 in Crl.Misc. Writ Petition No. 671 (MB) 202 Raghuraj Pratap Singh v. Raja Bhaiyya v. State of U.P., this Court observed that in case petitioner is sought to be transferred from one Jail to another it is purely administrative function which does have the effect of impinging upon the fundamental rights of the petitioner as enshrined under Article 21(1)(g) of the Constitution of India. In both the cases the question raised was similar to one raised in this petition.

The next aspect agitated before us is that the learned Magistrate has passed orders in utter disregard of the executive orders passed by the Government in the matter, directing the Jail Authorities to keep the respondent No. 3 back in Gorakhpur jail instead of sending him back to Varanasi Jail where he has been transferred by the Government by its administrative order. As stated supra, in order to frustrate the executive order, the learned Magistrate has been fixing dates at short intervals and some of the dates fixed are on alternate day. The crux of grievance of the State is that the Magistrate has shown undue interest in the retention of the respondent No. 3 in the District Jail at Gorakhpur which betrays lack of his judicial approach to the entire matter.

Be that as it may, in the above conspectus, what transpires to us ex facie does not commend to us for acceptance. The Magistrate is under a duty to give agreed date if it otherwise does not overlap with the calendar of the court. The other way open to the Magistrate is to exempt the presence of the accused in the court. In the instant case the accused is being tried in three cases at Gorakhpur and in the circumstances, it is desirable that he should summon the respondent No. 3 on one agreed date bearing in mind that the respondent No. 3 has to be escorted all the way from Varanasi to Gorakhpur for the purpose.

Since there is no representation from the other side, we forbear from expressing any opinion in the matter and therefore, feel called to issue notice to respondent No. 3 who may file counter affidavit within 4 weeks. The learned Counsel appearing for the respondents 1 and 2 who may be represented by the Counsel engaged by the High Court may also file counter affidavit within the aforesaid period. List this matter immediately after expiry of the aforesaid period.

In the meanwhile, it is directed that the operation of the orders passed by respondents 1 and 2 directing to keep the respondent No. 3 in District Jail Gorakhpur shall remain stayed studded with further direction that the respondent No. 2 shall not insist for keeping the respondent No. 2 back in Gorakhpur Jail and shall fix common date in all the cases pending before them or shall exempt his personal appearance, if otherwise not required. The petition shall be listed on 16.10.2008.

Let a copy of this order be supplied to learned A.G.A and also the Registrar General High Court Allahabad within three days from today.