Power To Transfer Undertrial Prisoner From One Jail To Another Only With Court: Jammu & Kashmir High Court

The Jammu & Kashmir and Ladakh High Court has ruled that the power to direct transfer of an undertrial prisoner from one jail to another vests only with the Magistrate/ Court which had remanded the detenue to a certain prison, and not with the prison authorities.

A bench comprising Justice M A Chowdhary referred to Prison Manual, 2022- For the Superintendence and Management of Prisons in the Union Territory of Jammu and Kashmir read with Prisoners Act, 1900 and observed,

"The power to remand or transfer of an undertrial prisoner from one jail to another is to be exercised by the Court by passing a judicial order, obviously after providing opportunity of being heard and that the change in the place of detention would be permissible only with the permission of the Court under whose warrant the undertrial has been remanded to custody."

The observations were passed while hearing a plea filed by a widowed mother seeking transfer of her undertrial son, from district jail, Poonch to Central jail, Srinagar or any other jail close to his home to meet the ends of justice.

In the instant case the petitioners son was facing trial for a 2017 case registered at Police Station Uri, Baramulla under various sections of the Narcotic Drugs and Psychotropic Substances Act (NDPS) and had been in judicial custody since his arrest in July 2017, with the trial is going in the Court of 1st Additional Sessions Judge, Baramulla.

The undertrial was previously lodged in Sub Jail, Baramulla, where his mother visited him as needed but was later shifted to District Jail, Poonch without any intimation to the petitioner. The petitioner approached the Director General of Police, Prisons, J&K seeking transfer of her son to District Jail, Srinagar, but received no response. The petitioner then filed an application in the trial court seeking change in custody, which was dismissed. In view of the same the petitioner was constrained to file the instant petition seeking transfer/shifting of her son's custody from District Jail, Poonch to Central Jail, Srinagar or any other jail near his home.

After considering the contentions of the petitioner the bench observed,

"In the considered opinion of this Court, in a case of an undertrial, who has already been remanded to custody by the trial court in the name of the Superintendent of a particular jail, can only be removed from that jail by seeking a judicial order from the trial court."

Elaborating further on the matter Justice Chowdhary observed that though Section 417 of the Code of Criminal Procedure provides for appointment of the place of imprisonment by the State Government, however, in view of the interpretation by the Apex Court in State of Maharashtra & Ors. v. Saeed Sohail Sheikh 2013, the power to direct transfer of the undertrial prisoner from one jail to another clearly vests with the Magistrate/ Court which had remanded the detenue to a certain prison.

Underscoring that it will be difficult for a widowed mother to go to Poonch to meet her son, the court pointed out that petitioner, in this case, has been shifted from Sub Jail Baramulla to a distant prison which is at the farthest place in Jammu Division at Poonch.

"The petitioner’s family, in case they require to meet the petitioner as an undertrial in district jail, Poonch, have to travel all along from Kashmir to Jammu and then from Jammu to Poonch for almost two days," the court said.

Deliberating on the contention of respondents that the petitioner has been removed from Sub Jail, Baramulla to District Jail, Poonch that he was not a disciplined prisoner and that he had misbehaved with the jail staff and created law and order situation in the jail, the court noted that the respondents have failed to place on record as to what were the jail offences that he committed and how he had been proceeded against.

"Merely saying that he had been an undisciplined prisoner creating difficulties for the jail staff shall not suffice in the matter, so as to warrant his transfer from district Baramulla to a distant place at Poonch," Justice Chowdhary observed.

Allowing the plea, the court directed the respondents to shift the petitioner from district jail, Poonch and keep him in any other prison in Kashmir Division, preferably near his home, after seeking necessary orders on his behalf from the trial Court.

Case Title: Nayeem Rasool Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 102

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