Undertrial Prisoners Don't Have Right To Dictate Choice Of Prison; Authority Not Obligated To Seek Trial Court's Permission: J&K HC

The Jammu and Kashmir High Court on Thursday held that an Undertrial Prisoner does not have a right to dictate his choice of prison for lodgement during trial and as such, there is no question of providing him an opportunity of being heard in this regard.

Justice Sanjeev Kumar also held that since the permission of the Court is not mandatory before shifting the undertrial from one prison to another, in such a situation, the Court does not perform any judicial or quasi-judicial function, which may necessitate hearing of the undertrial before granting permission.

"..it is held that the function performed by the Inspector General prisons in relation to shifting of undertrials from one prison to another in case of an emergency or on administrative reasons is administrative in nature and, therefore, there is no place for providing an opportunity of being heard to the undertrial, which does not have any right to choose a prison of his choice for lodgement during trial," the Court held.

Furthermore, it said:

" An undertrial is not placed at a superior pedestal than a person under preventive detention and cannot claim rights higher than those available to a person under preventive detention."

The Court was dealing with a 2013 case involving two persons accused under UAPA, Arms Act and other offences, facing trial before Special NIA Judge. The petition was filed resisting their transfer to a jail outside the Kashmir valley.

They alleged that their trial was being delayed due to their transfer outside Kashmir and failure of the prosecution to produce them before the Court on each and every date of hearing.

The Special Court had vide order dated 3rd May 2019 directed the Incharge Central Jail, Srinagar to shift the petitioners and other accused in the FIR from Central Jail, Srinagar to a specified jail in Jammu, in case he intends to do so. According to the petitioners, the said order wasn't complied with by the State and that they were shifted to some other jail in Jammu.

Issues Before the Court

- Whether an undertrial, who is remanded to judicial custody by the trial Court can be shifted from one prison to another without permission of the trial Court?

- Whether before shifting an undertrial from one prison to another requires compliance of principles of natural justice, in that, undertrial sought to be shifted is required to be provided an opportunity of being heard?

Doing a conjoint reading of Section 167, 309 and 417 of CrPC, the Court observed that neither an undertrial nor a convict has a right to dictate his choice of prison nor the Court is obligated to nominate a jail or prison for the lodgement of an undertrial while issuing remand or warrant for his lodgement.

"..when the Code of Criminal Procedure does not authorise the trial Court to remand an undertrial to a particular jail, it is not correct and logical to assume that the jail where an undertrial on remand by the trial Court is lodged is the one identified or nominated by the trial Court and for removal of an undertrial from such jail, it is incumbent upon the respondents to seek prior permission of the trial Court," the Bench held.

Furthermore, it said:

"Undoubtedly, an undertrial has a fundamental right to speedy trial and any attempt by the State to scuttle such right by resorting to arbitrary transfer of an undertrial from a prison located nearer the trial Court to a prison located at far off place in certain circumstances may amount to violation of right to fair and speedy trial of the undertrial.

In such eventuality, Constitutional Court may intervene, but for that undertrial has to demonstrate and make out a case of violation of his right to speedy trial conferred upon every undertrial under Article 21 of the Constitution. In the absence of any such foundational facts pleaded and demonstrated in the petition, embarking upon by the Court on such aspects would be an exercise in futility."

Coming to the facts of the case, the Court was of the view that the order passed by the Special Court cannot be construed to have taken away the power of Inspector-General Prisons vested in him under the Jail manual.

While dismissing the petition, the Court however directed the IGP to ensure that the trial of petitioners and other accused in the FIR is not delayed due to their absence in the trial.

"It shall be the duty of the Inspector General Prisons to ensure that the petitioners are produced in the trial Court on due date/dates, either physically or through video conferencing," the Court ordered.

Case Title: Bashir Ahmad Mir and another v. State and others