The State Of Uttar Pradesh vs Jail Superintendent (Ropar) on 26 March, 2021


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Supreme Court of India

The State Of Uttar Pradesh vs Jail Superintendent (Ropar) on 26 March, 2021

Author: Ashok Bhushan

Bench: Ashok Bhushan, R. Subhash Reddy

   W.P.(Crl.) No.409 of 2020, etc.


                                                                            REPORTABLE


                                          IN THE SUPREME COURT OF INDIA

                                         CRIMINAL ORIGINAL JURISDICTION

                                     WRIT PETITION (CRIMINAL) NO.409 OF 2020


                         STATE OF UTTAR PRADESH                         ...Petitioner


                                                      versus


                      JAIL SUPERINTENDENT (ROPAR) & Ors.              ...Respondent(s)


                                                       WITH

                           [Transfer Petition (Criminal) NO.104-114 of 2021]




                                             J U D G M E N T

R. Subhash Reddy, J.

(Writ Petition (Crl.) No.409/2020)

This Writ Petition is filed under Article 32 of the

Constitution of India, read with Section 406 of the Code

of Criminal Procedure, 1973 (Cr.P.C.) by the State of

Uttar Pradesh, seeking Writ of Mandamus, seeking
Signature Not Verified

Digitally signed by
MEENAKSHI KOHLI appropriate directions, directing the respondent-State
Date: 2021.03.26
16:06:58 IST
Reason:

of Punjab and the Learned Judicial Magistrate-I, Mohali,

1
W.P.(Crl.) No.409 of 2020, etc.

State of Punjab, to transfer the criminal proceedings

and trial in the Case Crime No.05 of 2019, titled as

State of Punjab v. Mukhtar Ansari, pending before the

Judicial Magistrate-I, Mohali, State of Punjab, to the

Court of Special Judge (MP/MLA), Allahabad, Uttar

Pradesh and with a further direction to the Respondent

Nos.1 and 2 to handover the custody of the accused / 3 rd

Respondent from Roopnagar Jail, District Ropar, Punjab

to District Jail Banda, Uttar Pradesh.

2. The case of the petitioner-State, as averred in the

Writ Petition, is as follows:

I. The 3rd Respondent herein, is sitting MLA

from District Mau in the State of Uttar Pradesh.

It is the case of the petitioner-State that large

number of criminal cases have been registered

against the accused / Respondent No.3, namely

Mohd. Mukhtar Ansari in various Districts of the

State of Uttar Pradesh in the past. Further, in

addition to the same, there are presently ten

criminal cases pending trial against him. In

pursuance of the directions, issued by this Court

in Writ Petition (Civil) No.699/2016, titled as

Ashwini Kumar Upadhyay & Ors. v. Union of India &

2
W.P.(Crl.) No.409 of 2020, etc.

Ors., vide orders dated 10.09.2020 and 16.09.2020,

all the pending criminal cases against the MPs and

MLAs, pending in various Courts, have been

transferred to the Special Court, constituted to

deal with the cases of MPs and MLAs. The ten

criminal cases, which are pending trial against

the accused / 3rd Respondent, were transferred from

various Districts to the Special Court and

pursuant to the order passed by the Special Court,

the accused / 3rd Respondent was lodged in District

Jail, Banda, Uttar Pradesh, so as to be produced

before the Court, as and when required.

Thereafter, every effort is made to fast track the

cases and some cases have reached the stage of

arguments.

II. It is the case of the petitioner-State

that in view of the conspiracy, hatched by the

accused / 3rd Respondent, a Case in Crime No.05 of

2019 is registered against the 3rd Respondent for

the offences punishable under Sections 386 & 506

of the IPC on the file of Police Station Mathaur,

District Mohali, State of Punjab. The said crime

is registered based on an anonymous call,

3
W.P.(Crl.) No.409 of 2020, etc.

allegedly made by one Ms. Rizwana Bano. Pursuant

to registration of Crime No.05 of 2019 in Police

Station Mohali, Punjab, on 19.01.2019, the

Judicial Magistrate-I, Mohali, Punjab issued a

production warrant under Section 267 of Cr.P.C.,

and in execution of the same, Senior

Superintendent of District Jail, Banda, Uttar

Pradesh, without seeking permission from the

Special Court (MPs/MLAs), Allahabad gave custody

of the accused / 3rd Respondent to the Judicial

Magistrate, Mohali, State of Punjab. Pursuant to a

remand order, made by the Judicial Magistrate-I,

Mohali, Punjab, 3rd Respondent is lodged in

Roopnagar Jail, State of Punjab.

III. It is stated that the action taken by the

Jail Superintendent, District Jail, Banda, Uttar

Pradesh was in violation of Section 267(2) of

Cr.P.C. and consequently, a departmental inquiry

is initiated against him and the same is pending.

IV. It is alleged that the Judicial

Magistrate-I, Mohali, Punjab, instead of sending

the accused / 3rd Respondent back to the District

Jail, Banda, Uttar Pradesh, after he was produced

4
W.P.(Crl.) No.409 of 2020, etc.

in the Court, sent him to the District Jail,

Roopnagar, Punjab on 24.01.2019 and since then, he

is continuing in the same Jail. It is stated that

neither the Charge-sheet has been filed nor the 3rd

Respondent applied for default bail, as

contemplated under Section 167(2) of Cr.P.C.

V. It is the case of the petitioner that the

accused / 3rd Respondent is making every effort to

continue in the Jail at Punjab. Though, from the

last two years, number of warrants have been

issued to bring the accused / 3rd respondent from

Roopnagar Jail, District Ropar, Punjab for

production before the various Courts in the State

of Uttar Pradesh, all efforts made by the Police

were futile as every time the Jail Authorities

refused to give custody on the pretext that the

accused was unwell. The medical reports dated

17.08.2019, 27.08.2019, 29.08.2019, 02.09.2019,

04.09.2019, 08.09.2019, 11.09.2019, 13.09.2019,

20.09.2019, 26.09.2019, 27.09.2019, 29.09.2019 and

02.10.2019 were prepared showing that the

accused / 3rd respondent was unwell. Though the

medical reports do not reveal any serious ailments

5
W.P.(Crl.) No.409 of 2020, etc.

except ailments like diabetes, skin allergy,

hypertension, backache, etc., but custody of the

3rd Respondent is denied on such health grounds.

VI. It is alleged that though the State has

made every effort to produce the accused / 3 rd

Respondent before various Courts in the State of

Uttar Pradesh, where his appearance is required,

it could not produce the 3rd Respondent as he was

denied custody by the Jail Authorities at Punjab

and as such, production warrants are not being

executed on one pretext or the other.

VII. Precisely, it is the case of the

petitioner that the accused / 3rd Respondent is

making every effort to continue his incarceration

outside the State of Uttar Pradesh (in Punjab) and

is avoiding his presence in the Special Court and

other Courts, where number of criminal cases have

come up for appearance/trial/arguments.

3. Counter Affidavit is filed on behalf of the

Superintendent of District Jail, Roopnagar, Punjab (1st

Respondent) and the State of Punjab (2nd Respondent).

While denying various allegations, made in the Writ

6
W.P.(Crl.) No.409 of 2020, etc.

Petition, the case of the Respondent Nos.1 & 2 is as

under:

I. The Writ Petition, as filed under Article 32

of the Constitution of India read with Section 406

of the Code of Criminal Procedure, 1973 is not

maintainable, inasmuch as there is no infringement

of fundamental rights of the petitioner-State of

Uttar Pradesh and further, the Writ Petition is

also not maintainable under Section 406 of Cr.P.C.

It is stated under Section 406 of Cr.P.C. the

transfer petition is maintainable only on the

application, made by the Attorney-General of India

or by a party interested, as such, the petitioner-

State of Uttar Pradesh cannot maintain a petition,

as filed, seeking transfer of Case No.05 of 2019,

pending before the Judicial Magistrate-I, Mohali,

State of Punjab to any other Court in the State of

Uttar Pradesh.

II. The accused / 3rd Respondent is presently

confined in District Jail, Roopnagar, Punjab in

connection with the FIR No.05 of 2019 dated

08.01.2019 under Sections 386 and 506 of IPC,

Police Station Mathaur, District SAS Nagar

7
W.P.(Crl.) No.409 of 2020, etc.

(Mohali), State of Punjab. Learned Magistrate has

issued production warrants under Section 267 of

the Cr.P.C. and in view of the said warrants, the

accused was taken into custody from District Jail,

Banda, State of Uttar Pradesh on 22.01.2019 and is

presently lodged in District Jail, Roopnagar,

Punjab, pursuant to a remand order, passed by the

Judicial Magistrate-I, Mohali, State of Punjab in

the aforesaid case on 24.01.2019.

III. It is stated that the said case is

registered in view of the complaint of Mr. Umang

Jindal, C.E.O., Homeland Hights, Mohali, Punjab,

where it is alleged that there was a call from

Mobile No.6390407709, demanding ransom of Rs.10

crores. As per the information, the accused / 3rd

Respondent has called him on 07.01.2019, as such,

the case was registered and he was taken into

custody in connection with the said case. Further,

it is stated that the accused / 3 rd Respondent

Mohd. Mukhtar Ansari was also figured as an

accused in case FIR No.252 dated 26.11.2014 for

the offences punishable under Section 302 read

with 34 of IPC, on the file of P.S. Morinda and in

8
W.P.(Crl.) No.409 of 2020, etc.

connection with the said case, he is not yet

arrested.

IV. It is stated that as per the jail records, 14

other cases are pending against the accused / 3rd

Respondent in different Courts in the State of

Uttar Pradesh and out of the said cases, in 06

cases, the concerned Trial Courts have permitted

the accused / 3rd Respondent to appear through

video conferencing and the accused / 3rd Respondent

is already appearing in those cases. The details

of cases against the accused/3rd Respondent,

pending in the State of Uttar Pradesh are given in

tabular form. Further, it is stated that vide

order dated 10.02.2020, the Presiding Officer,

Special Court MPs/MLAs, Allahabad, Uttar Pradesh

had desired to verify the report sent by the Jail

Authorities, and had directed the Additional Chief

Secretary, Home Affairs, State of Punjab to

constitute a committee of three doctors to

evaluate the ailments of the accused / 3rd

Respondent. Pursuant to the same, a committee of

doctors was constituted and medical report was

submitted vide letter dated 27.02.2020. Further,

9
W.P.(Crl.) No.409 of 2020, etc.

it is stated that the accused / 3rd Respondent /

under-trial prisoner Mohd. Mukhtar Ansari, had

been undergoing treatment at the jail hospital and

at other secondary and tertiary hospitals, from

time to time, since his date of admission to

District Jail, Roopnagar, Punjab i.e. 24.01.2019.

Details of medical examinations (date-wise) are

furnished in a tabular form.

V. It is stated that in view of the aforesaid

reasons, the accused / 3rd Respondent could not be

handed over to the petitioner-State of Uttar

Pradesh due to the specific advice of medical

authorities / medical board / specialists, from

time to time, and in view of the legal obligations

on the answering respondent, as per Section 269 of

Code of Criminal Procedure, 1973. While denying

the allegation of conspiracy, it is stated that

accused / 3rd Respondent is lodged in Roopnagar

Jail, State of Punjab, pursuant to a case

registered in Crime no.05 of 2019.

VI. It is stated that as per the record, available

in the office of the deponent, neither chargesheet

has been submitted nor the accused / 3rd Respondent

10
W.P.(Crl.) No.409 of 2020, etc.

has applied for bail. While denying that the

deponent is bound to follow provisions under

Section 269 of Cr.P.C., it is stated that in view

of the medical conditions of the accused / 3 rd

Respondent, he could not be handed over to the

petitioner-State of Uttar Pradesh.

With the aforesaid pleas, in the counter

affidavit, Respondent Nos.1 and 2 prayed for dismissal

of the Writ Petition.

4. A separate counter affidavit is filed by the

accused / 3rd respondent Mohd. Mukhtar Ansari. While

denying the various allegations made in the Writ

Petition, the case, as averred in the counter affidavit,

is as under:

I. The accused / Respondent No.3 is a sitting MLA from

MAU Constituency from Bahujan Samaj Party (BSP). On

account of his long political career, the ruling

party in the State of Uttar Pradesh, has

acrimonious political rivalry against him. There

were several attempts on his life by the person

inimically deposed against him, in view of

political affiliations, including Shri Brijesh

Singh, who is currently a sitting MLA from Ruling

11
W.P.(Crl.) No.409 of 2020, etc.

Party). The accused / 3rd Respondent has been in

jail since 25.10.2005 i.e. over 15 years and is

himself desirous of early and expeditious disposal

of trial in pending cases. He has been taken into

custody in connection with the case, registered in

Crime No.05 of 2019 in Police Station Mathaur,

District Mohali, State of Punjab and pursuant to a

remand order, passed by the learned Judicial

Magistrate, he is remanded and presently lodged in

Jail at Roopnagar in the State of Punjab on

08.01.2019. He has won last three elections from

jail, which goes to show the support of the people

in eastern Uttar Pradesh towards him. Out of the

pending ten cases, referred in the Writ Petition,

he is already granted permission to appear through

video conferencing by the Trial Court in nine cases

and he is appearing regularly. For the remaining

one case i.e. S.T. No.22 of 2005 (i.e. at Serial

No.05 of the table at Page-D), the application for

permission to appear through video conferencing is

pending before the Special Court (MP/MLA). The

status of each of the cases, in the tabular form,

is shown, and it is stated that he is regularly

12
W.P.(Crl.) No.409 of 2020, etc.

appearing through video conferencing in trials in

the State of Uttar Pradesh.

II. With reference to the allegations made in the

Writ Petition, it is stated that the Writ Petition,

as filed, is not maintainable, inasmuch as the

rights, guaranteed under Articles 14 and 21 of the

Constitution of India, are to ‘persons’ as against

actions of the ‘State’, as such, the State of Uttar

Pradesh cannot invoke the writ jurisdiction under

Article 32 of the Constitution of India. As he is

continuously participating in the pending cases in

the State of Uttar Pradesh, the petitioner-State

cannot seek relief, as sought in the Writ Petition.

III. While referring to the provision under Section

406 of Cr.P.C., it is stated that the said

application can be maintained only at the instance

of the Attorney-General Of India or a party

interested, as such, the present petitioner-State

of Uttar Pradesh cannot be considered as a party

interested, so as to invoke power under Section 406

of Cr.P.C. The Petitioner has suppressed various

orders passed by the competent Court in the State

of Uttar Pradesh, granting permission to the

13
W.P.(Crl.) No.409 of 2020, etc.

accused / 3rd Respondent to appear through video

conferencing, and sought relief, as such, the same

is to be rejected on the said grounds also.

IV. It is stated that the accused / 3rd Respondent

is appearing through video conferencing in all the

cases, pending in the State of Uttar Pradesh, even

after after his incarceration in the jail at

Punjab. He, himself, is interested in an

expeditious trial through video conferencing so

that all the false cases, filed against him, could

be brought to an end.

V. While referring to his appearance through

video conferencing, it is stated that three of the

cases, where he has appeared through video

conferencing, are already acquitted. He is also

permitted to appear through video conferencing in

new cases, lodged against him.

VI. With regard to his medical conditions, it is

stated that he is around 65 years old and is

suffering from diseases like high blood pressure,

diabetes and also has undergone angiography. In

view of his medical conditions, the doctors and

medical board, had advised him to take complete

14
W.P.(Crl.) No.409 of 2020, etc.

rest for several months, which is also approved by

PGI, Chandigarh.

VII. While referring to his political background,

it is stated that he has come from a respectable

family and in view of political rivalry, there have

been several attempts on his life on multiple

occasions. The counter affidavit has referred to

certain instances, where attacks were made on him

on 15.07.2001 & 13.01.2014. It is, further, stated

that there is a political rivalry between Shri

Brijesh Singh and the accused / 3 rd Respondent, and

the same is well known in the State of Uttar

Pradesh. It is, further, stated that there were

open threats made by the members of the ruling

party in the State of Uttar Pradesh and it is

alleged that the political opponents of the

petitioner were exerting pressure through various

State Agencies to ensure that there was a constant

interference in the case of the respondent and

hanging threats to his life. Referring to certain

complaints filed by him to various authorities, it

is stated that in view of the undue harassment,

being caused to the members of his family, his

15
W.P.(Crl.) No.409 of 2020, etc.

family members were constrained to move out of the

State of Uttar Pradesh on account of the malicious

prosecutions being carried out.

                    VIII.          It     is     stated       that        in    view       of        the

                    apprehension           in    the    mind       of     the   accused          /   3 rd

                    Respondent,           he    has    also    sought        transfer       of       his

cases from the State of Uttar Pradesh and stated

that every possible attempt is made to

inconvenience him.

IX. It is stated that in view of the threat to his

life, as he is already permitted to appear through

video conferencing by the competent Court, there is

no reason to seek transfer, as prayed for. Further,

in view of the threat to his life in all the

trials, he is allowed to appear through video

conferencing and further, in view of the ailments,

which he is suffering, there is no merit in the

Writ Petition filed by the petitioner-State to seek

transfer as prayed for. It is stated that he

himself is interested in expeditious disposal of

the cases and every attempt is made by him for

expeditious disposal of cases registered against

him.

16
W.P.(Crl.) No.409 of 2020, etc.

With the aforesaid averments in the counter

affidavit, 3rd Respondent prayed for dismissal of writ

petition.

6. We have heard Mr. Tushar Mehta, learned Solicitor

General, appearing for the petitioner and Shri Dushyant

Dave, learned senior counsel, appearing for Respondents

1 & 2; and Shri Mukul Rohatgi, learned senior counsel,

appearing for the 3rd Respondent.

7. Shri Tushar Mehta, learned senior counsel, has

contended that accused no.3 is involved in several

cases, where serious charges of murder, extortion,

cheating, fraud and offences under Gangsters Act, etc.,

are pending trial and all the cases are transferred to

the Special Court, constituted by the High Court of

Allahabad, to try the cases of MPs/MLAs. The learned

Special Judge has ordered to incarcerate respondent no.3

in District Jail, Banda ,Uttar Pradesh so that

Respondent No.3 could be produced before the Court on

every date in each case and trials be concluded

expeditiously. It is submitted that in connection with

the case in Crime No.05 of 2019, registered for offences

punishable under Sections 386 and 506 of the IPC on the

file of Police Station Mathaur, District Mohali in the

17
W.P.(Crl.) No.409 of 2020, etc.

State of Punjab, the Judicial Magistrate-I, Mohali

issued Production Warrant under Section 267 of Code of

Criminal Procedure and in view of the same, the Senior

Superintendent of District Jail, Banda, Uttar Pradesh,

without any approval / order from the Court of Special

Judge (MPs/MLAs), Allahabad, gave custody of the 3rd

Respondent, and the same was in utter disregard to the

provision under Section 267(2) of the Code of Criminal

Procedure. It is submitted that learned Judicial

Magistrate-I, Mohali, instead of sending back respondent

No.3 to District Jail, Banda in Uttar Pradesh, sent him

to District Jail, Roopnagar, Punjab on 24.01.2019. It is

submitted that large number of warrants have been issued

by the Special Judge (MPs/MLAs) Court and several Courts

in the State of Uttar Pradesh to bring 3rd Respondent

from District Jail, Roopnagar, Punjab, but all efforts

for securing the custody of 3rd Respondent proved futile

for the reason that every time the Jail Superintendent

refused to give custody of the 3rd Respondent on the

ground of ill health of the 3rd Respondent. The reports

of ill health do not indicate any severe ailment and

only to avoid to give his custody to the petitioner-

State of Uttar Pradesh, such reports are prepared.

18
W.P.(Crl.) No.409 of 2020, etc.

8. It is submitted that the Writ Petition, filed by

the State, is certainly maintainable under Article 32 of

the Constitution of India, for the reason that the

administration of Criminal Justice is bestowed upon the

State on behalf of the victims of crime and also, on the

premise that a crime against a citizen is a crime

against the State. To maintain the petition under

Article 32 of the Constitution of India, learned counsel

placed reliance on the judgment in case of Union of

India v. V. Sriharan1. Further, it is submitted that in

any event, the petition is filed not only under Article

32 of the Constitution of India, but the same is filed

under Section 406 of Code of Criminal Procedure. It is

contended that the word “Party Interested”, used in

Section 406 (2) of the Code of Criminal Procedure, is to

be interpreted widely by giving wide connotation. It is

submitted that the words “Party Interested” are of a

wide import, therefore, wider meaning is to be given to

include the State also as much as purpose of Criminal

Justice Administration is to preserve and protect the

rule of law. To support his arguments, learned counsel

placed reliance on the judgments of this Court in the

1
2016(7)SCC 1

19
W.P.(Crl.) No.409 of 2020, etc.

case of K. Anbazhagan v. Superintendent of Police &

Ors.2.

9. It is, further, submitted that in any event,

this Court may invoke powers under Article 142 of the

Constitution of India for doing complete justice,

inasmuch as several cases involving the 3rd Respondent,

with serious charges, are under trial in the State of

Uttar Pradesh.

10. It is, further, submitted that accused /

Respondent no.3 is also operating his illegal activities

in the State of Uttar Pradesh from the Jail in Punjab,

inasmuch as on 05.04.2020, FIR No.04 of 2020 is

registered in Police Station Dakshin Tola, Mau, Uttar

Pradesh for the offences under Sections 419, 420, 467,

468, 471, 120-B of the IPC and Section 7 of the Arms

Act. It is submitted that the alleged medical ailments,

mentioned in the counter affidavits, are not of serious

nature. Further, it is submitted that the ailments shown

in the medical reports by the respondents are not new,

he was having such ailments since the year 2008, and the

same is evident from the medical certificate issued from

the Superintendent, District Jail, Gazipur. It is

2
2004 (3) SCC 767

20
W.P.(Crl.) No.409 of 2020, etc.

submitted that the transfer of 3rd Respondent is

imperative from District Jail, Roopnagar, State of

Punjab to District Jail, Banda, Uttar Pradesh and the

appearance through video conferencing would not serve

the purpose, in view of the fact that the attendance

could not be secured at several times in the past.

Resultantly, there is abnormal delay in the trials,

pending in Special Court in Uttar Pradesh. The alleged

threat of the 3rd Respondent to his life is also

unsustainable and cannot be a ground for not handing

over custody of the 3rd Respondent. The rivalry with

another accused namely Shri Brijesh Singh is without any

substance, inasmuch as Shri Brijesh Singh is also lodged

in the Jail of Uttar Pradesh, since past more than 10

years. Further, the 3rd Respondent had been safely

lodged in the District Jail, Banda, Uttar Pradesh from

the last more than fifteen years and he was duly

provided the required medical care.

11. Shri Dushyant Dave, learned senior counsel,

appearing for Respondent Nos. 1 & 2, at the outset, has

contended that the petition, as filed by the State of

Uttar Pradesh under Article 32 of the Constitution of

India read with Section 406 of the Code of Criminal

21
W.P.(Crl.) No.409 of 2020, etc.

Procedure, 1973, is not maintainable. It is submitted

that the sole objective of Article 32 of the

Constitution of India is for enforcement of fundamental

rights, guaranteed under Part-III of the Constitution of

India, as such, the petitioner, being a State, cannot

agitate violation of fundamental rights, guaranteed

under Part-III of the Constitution of India. Learned

senior counsel, to support his contention, relied on

judgment of this Court in A.P. Christian Medical

Educational Society v. Govt. of A.P.3 and judgment in

the case of Ujjam Bai v. State of Uttar Pradesh4 and

judgment in the case of State Trading Corporation of

India Ltd. v. Commercial Tax Officer5 and judgment in

the case of Coffee Board Bangalore v. Jt. Commercial

Tax Officer Madras6.

12. Further submissions of the learned senior

counsel are that as the case is at investigation stage,

as such, the petitioner is virtually seeking transfer of

investigation from one police station to another in the

country and the same is impermissible. To support this

contention, reliance is also placed on the judgment of
3
1986(2)SCC 667
4
1963(1)SCR 778
5
1964(4)SCR 99
6
1969(3)SCC 349

22
W.P.(Crl.) No.409 of 2020, etc.

this Court in the case of Ram Chander Singh Sagar (DR.)

v. State of Tamil Nadu7. Further, by referring to

Section 406 of the Cr.P.C., it is submitted by the

learned senior counsel that this Court’s power to act

under this Section is confined to cases, where the

application is filed by the Attorney-General of India or

by a Party Interested. It is submitted that in absence

of any such application by the Attorney-General of India

or Party Interested, petitioner-State cannot seek

transfer even under Section 406 of the Cr.P.C. Lastly,

it is submitted that the petitioner also cannot seek

invoking of Article 142 of the Constitution of India by

this Court, inasmuch as no direction can be issued,

which will run contrary to the substantive statutory

provisions.

13. Shri Mukul Rohatgi, learned senior counsel,

appearing for the 3rd Respondent has contended that the

writ petition, as filed by the petitioner-State of Uttar

Pradesh is not maintainable, inasmuch as the petitioner-

State cannot complain violation of any fundamental

rights, as guaranteed under Part-III of the Constitution

of India. It is submitted that none of the

7
1978(2)SCC 35

23
W.P.(Crl.) No.409 of 2020, etc.

victims/complainants have approached this Court seeking

the relief, in absence of which, the petitioner-State is

not entitled for the relief, as sought for. It is

submitted that the fair trial, guaranteed under Article

21 of the Constitution of India, is meant to protect the

interest of accused and the witnesses and it is not open

for the State to allege that fair trial requires

custodial presence of the accused / 3rd Respondent.

Further, referring to provisions under Section 406 of

the Code of Criminal Procedure, it is also submitted

that only in cases where application is filed by the

Attorney-General of India or by a Party Interested, this

Court can act under Section 406 of Cr.P.C., but not at

the instance of the State. It is submitted that the

powers under Article 32 of the Constitution of India

also cannot be utilised to take away a citizen’s

fundamental rights. It is submitted that Respondent No.3

is lodged in Jail since 2005, as such, no delay can be

attributed to him for delaying the trials. Further, it

is submitted that the 3rd Respondent is regularly

appearing through video conferencing in cases mentioned

by the petitioner, as such, there is no impediment for

proceeding with the trials. It is submitted that in view

24
W.P.(Crl.) No.409 of 2020, etc.

of the political rivalry and serious threats to the 3rd

Respondent, this Court may not grant any relief, as

prayed for. It is submitted that not only the 3rd

Respondent, all the family members of the 3rd Respondent

are harassed by registering false cases. Lastly, it is

submitted that the 3rd Respondent may be permitted to

continue to appear through video conferencing in all the

trials, which are pending trial in the State of Uttar

Pradesh and this Writ Petition, which is devoid of

merits, be dismissed.

14. We have considered submissions made by the

learned counsels on both the sides and perused the

material available on record.

15. The 3rd Respondent / accused is sitting MLA in

the State of Uttar Pradesh. It is the case of the

petitioner-State that, he is involved in several cases

where serious charges are framed against him, and

several such cases were transferred to Special Court,

constituted to try the cases of MPs/MLAs in Allahabad.

It is specifically stated in the petition that in order

to fast track the cases, after creation of Special Court

for trial of cases of MPs/MLAs in the year 2018, all the

cases were consolidated by the High Court of Allahabad.

25
W.P.(Crl.) No.409 of 2020, etc.

The 3rd Respondent was lodged in District Jail, Banda,

Uttar Pradesh, pursuant to order of the learned Special

Judge. The cases which are at the stage of trial, as

stated in the writ petition, by indicating the status of

the case is given in a tabular form which reads as

under:

             Sl.        P.S./District     CASE No.         SECTIONS          STATUS OF
             No.                                                               CASE

               1.      South      Tola, 399/2010,       302, 307,      120 Argument
                       Mau              S.T.            &, 34 IPC
                                        No.130/2010     25/27 Arms     Act
                                                        & 7 CLA

               2.      South      Tola, 891/2010      3(1)        U.P. Framing
                       Mau              S.T.      No. Gangster Act     of
                                        6200002/2012                   Charges


               3.      Mohammadabad, 1182/2009          307,   506,   120B Evidence
                       Ghazipur      S.T.               IPC
                                     No.10/2010

               4.      Mohammadabad, 1051/2007     3(1)          Gangster Evidence
                       Ghazipur      S.T.      No. Act
                                     6200090/2012

               5.      Mohammadabad, 263/1990           420, 467,    468, Framing
                       Ghazipur      S.T.               120B IPC          of
                                     No.22/2005         7/13   Prevention Charges
                                                        of     Corruption
                                                        Act

               6.      Bhelupur,        377/1997     506          IPC Framing
                       Varanasi         S.T.         (Rs.1.25   crore of

No.3541/2011 extortion case) Charges

7. Chetganj, 229/1991 147, 148, 149, For
Varanasi 302 IPC Evidence

26
W.P.(Crl.) No.409 of 2020, etc.

Sl. P.S./District CASE No. SECTIONS STATUS OF
No. CASE

S.T.

                                          No.265/2007

               8.      Karanda,           482/2010          3(1)       Gangster Evidence
                       Ghazipur           S.T.              Act
                                          No.557/2012

               9.      Kotwali,           192/1996      3(1)           Gangster Evidence
                       Ghazipur           S.T.      No. Act
                                          620007/2012

               10. Tarwa,                 20/2014       302, 307, 147, Framing
                   Azamgarh               S.T.      No. 148, 149, 120B, of
                                          6200195/2018 506 IPC & 7 CLA Charges


When the aforesaid cases were in trial, it appears,

a case is registered in Crime No.05 of 2019 in Police

Station Mathaur, District Mohali, State of Punjab, under

Sections 386 & 506 of the IPC. The concerned Judicial

Magistrate issued a production warrant under Section 267

of the Cr.P.C., and it is stated that pursuant to the

same, he was released from the custody by the

Superintendent of District Jail, Banda, Uttar Pradesh

without any counter signature / permission from the

Court of Special Judge (MPs/MLAs), Allahabad.

Thereafter, he was produced before the Judicial

Magistrate-I, Mohali, State of Punjab and was remanded

to District Jail, Roopnagar, Punjab on 24.01.2019, since

27
W.P.(Crl.) No.409 of 2020, etc.

then, he is continuing in the said jail. It is stated

that during the period from 14.02.2019 to 14.02.2020,

large number of warrants have been issued for production

of the 3rd Respondent, who is lodged in District Jail

Roopnagar, Punjab to produce before the various Courts

in the State of Uttar Pradesh, but, efforts made by

Uttar Pradesh Police to secure the custody of the 3rd

Respondent were futile inasmuch as, every time Jail

Authorities of Roopnagar Jail, Punjab refused to give

custody on the pretext that the accused was unwell. It

appears that various medical reports are made basis to

deny the custody to the Uttar Pradesh Police. It is the

specific case of the petitioner that number of warrants

issued against the 3rd Respondent in connection with the

crimes registered in various Police Stations in Uttar

Pradesh during the period from 14.02.2019 to 14.02.2020

could not be executed as the Jail Authorities of

Roopnagar Jail, Punjab have refused to give custody on

the ground that the accused / 3rd Respondent is not

medically fit. Date of issuing of warrants in connection

with several cases in various crimes in Police Stations

of Uttar Pradesh; and reasons for non-production are

28
W.P.(Crl.) No.409 of 2020, etc.

also stated in the petition, in a tabular form, which

reads as under:

DATE OF DUE DATE S.T. NO. / REASON FOR NON-
ISSUE OF FOR THE CASE CRIME PRODUCTION
B-WARRANT ACCUSED TO NO./P.S.

                      APPEAR

          14.02.2019 21.02.2019   130/10      Court    informed    that
                                  399/10      accused   not   medically
                                  South Tola, fit. Unwell
                                  Mau

          07.03.2019 08.03.2019   130/10      Court    informed    that
                                  399/10      accused   not   medically
                                  South Tola, fit. Unwell
                                  Mau

          28.03.2019 30.03.2019   130/10      Court    informed    that
                                  399/10      accused   not   medically
                                  South Tola, fit. Unwell
                                  Mau

          10.04.2019 11.04.2019   130/10      Court    informed    that
                                  399/10      accused   not   medically
                                  South Tola, fit. Unwell
                                  Mau

          29.04.2019 30.04.2019   130/10      Court    informed    that
                                  399/10      accused   not   medically
                                  South Tola, fit. Unwell
                                  Mau

          22.06.2019 24.06.2019   130/10      Court     informed    that
                                  399/10      accused    not   medically
                                  South Tola, fit.  Unwell
                                  Mau

          27.06.2019 28.06.2019   130/10      Court     informed    that
          (sic)                   399/10      accused    not   medically
                                  South Tola, fit.  Unwell
                                  Mau

          04.07.2019 05.07.2019   130/10      Court    informed    that
                                  399/10      accused   not   medically
                                              fit. Unwell


                                        29
W.P.(Crl.) No.409 of 2020, etc.


          DATE     OF DUE    DATE S.T. NO. / REASON         FOR       NON-
          ISSUE    OF FOR     THE CASE CRIME PRODUCTION
          B-WARRANT ACCUSED TO NO./P.S.
                      APPEAR

                                  South Tola,
                                  Mau

          20.07.2019 22.07.2019   130/10      Court    informed    that
                                  399/10      accused   not   medically
                                  South Tola, fit. Unwell
                                  Mau

          23.07.2019 26.07.2019   130/10        Accused suffering from
                                  399/10        diabetes mellitus, PIVD,
                                  South Tola,   Skin            allergy,
                                  Mau           Hypertension.

          17.07.2019 22.07.2019   130/10        Accused    having   high
                                  399/10        grade     fever,    sore

South Tola, throat, backache & chest
Mau pain.

          27.07.2019 30.07.2019   130/10        Accused suffering from
                                  399/10        diabetes mellitus, PIVD,
                                  South Tola,   Skin              allergy,
                                  Mau           Hypertension,       severe
                                                backache,    high    grade
                                                fever,    sore     throat,
                                                backache,chest pain

          30.07.2019 01.08.2019   130/10        Accused   got   slip in
                                  399/10        bathroom and suffering
                                  South Tola,   from injury on his back
                                  Mau           and unable to walk

          02.08.2019 05.08.2019   130/10        Accused suffering from
                                  399/10        Diabetes mellitus, PIVD,
                                  South Tola,   Skin             allergy,
                                  Mau           Hypertension,       needs
                                                bedrest till 25.08.19.

          05.08.2019 08.08.2019   130/10      Court    informed    that
                                  399/10      accused   not   medically
                                  South Tola, fit. Unwell
                                  Mau

          10.08.2019 25.08.2019   130/10        Accused   not     medically


                                       30
W.P.(Crl.) No.409 of 2020, etc.


          DATE     OF DUE    DATE S.T. NO. / REASON       FOR       NON-
          ISSUE    OF FOR     THE CASE CRIME PRODUCTION
          B-WARRANT ACCUSED TO NO./P.S.
                      APPEAR

                                  399/10      fit.
                                  South Tola,
                                  Mau

          17.08.2019 25.08.2019   130/10      Accused   not     medically
                                  399/10      fit.

          27.08.2019 02.10.2019   130/10      Accused   not     medically
                                  399/12      fit.

          02.10.2019 12.10.2019   130/10      Accused    examined    by
                                  399/14      Board of Doctors (sic)
                                              at     Civil     Hospital
                                              Roopnagar.     Prescribed
                                              medication   and   strict
                                              bed rest from 03.10.19
                                              to            02.01.2020.
                                              Difficulty        bearing
                                              weight on legs.

          12.10.2019 22.10.2019   130/10      Accused   not   medically
                                  399/15      fit   and   advised   bed
                                              rest.

          26.10.2019 04.11.2019   130/10      Accused   not   medically
                                  399/15      fit   and   advised   bed
                                              rest.

          01.11.2019 02.01.2020   130/10      Accused   not   medically
                                  399/16      fit   and   advised   bed
                                              rest.

          03.01.2020 13.01.2020   3541/12     Accused   not   medically
                                  377/98      fit   and   advised   bed
                                              rest.

          27.01.2020 07.02.2020   3541/12     Accused   having   severe
                                  377/99      backache.         Advised
                                              bedrest            w.e.f.
                                              21.01.2020 to 20.04.2020

          07.02.2020 10.02.2020   3541/12     Accused   advised    three
                                  377/99      months   bed    rest    by
                                              Neurology,         PGIMER
                                              Chandigarh


                                       31
W.P.(Crl.) No.409 of 2020, etc.


          DATE     OF DUE    DATE S.T. NO. / REASON                        FOR           NON-
          ISSUE    OF FOR     THE CASE CRIME PRODUCTION
          B-WARRANT ACCUSED TO NO./P.S.
                      APPEAR

          14.02.2020 17.02.2020                   3541/12      Accused advised bedrest
                                                  377/100      w.e.f.   21.01.2020   to
                                                               20.04.2020 by Neurology,
                                                               PGIMER

                   By       referring        to    reasons   indicated    in   the   above

chart, it is the case of the petitioner that the reasons

assigned for not giving the custody are not true and

only at the instance of the 3rd Respondent, by referring

to minor ailments such as diabetes mellitus, skin

allergy, hypertension, backache, throat infection, etc.

the Uttar Pradesh Police has denied the custody, only to

protract the trials, which are pending in Special Court

constituted for trial of MPs/MLAs in Allahabad. It is

specifically pleaded by the petitioner-State that though

crime No.05 of 2019 was registered on 08.01.2019 by the

Police Station Mathaur, District Mohali, State of

Punjab, no Final Report is submitted by completing the

investigation within the statutory period, even then,

the 3rd Respondent has not chosen to apply for grant of

bail, so as to avoid his appearance in various cases in

the State of Uttar Pradesh.

32
W.P.(Crl.) No.409 of 2020, etc.

16. On the other hand, respondent-State as well as the

3rd Respondent is contesting the maintainability of this

petition, filed under Article 32 of the Constitution of

India and Section 406 of the Code of Criminal Procedure.

It is submitted that the petitioner, being a State,

cannot complain of violation of any fundamental rights,

guaranteed under Part-III of the Constitution of India,

so as to seek relief by filing the petition under

Article 32 of the Constitution of India. So also is the

case of the respondents that this petition also is not

maintainable under Section 406 of the Code of Criminal

Procedure. It is the case of the respondents that power

under Section 406 of Cr.P.C. is conferred on this Court

to transfer cases and appeals, only in the event of an

application by the Attorney-General of India or by a

party interested.

17. This petition is filed under Article 32 of the

Constitution of India read with Section 406 of the Code

of Criminal Procedure. Chapter XXXI of the Code of

Criminal Procedure, 1973 is a chapter dealing with

Transfer of Criminal Cases. Section 406 of the Code of

Criminal Procedure, 1973 reads as under:

33
W.P.(Crl.) No.409 of 2020, etc.

“406.Power of Supreme Court to transfer cases
and appeals.–(1) Whenever it is made to appear
to the Supreme Court that an order under this
section is expedient for the ends of justice,
it may direct that any particular case or
appeal be transferred from one High Court to
another High Court or from a Criminal Court
subordinate to one High Court to another
Criminal Court of equal or superior
jurisdiction subordinate to another High
Court.

(2) The Supreme Court may act under this
section only on the application of the
Attorney-General of India or of a party
interested, and every such application shall
be made by motion, which shall, except when
the applicant is the Attorney-General of India
or the Advocate-General of the State, be
supported by affidavit or affirmation.

(3) Where any application for the exercise of
the powers conferred by this section is
dismissed, the Supreme Court may, if it is of
opinion that the application was frivolous or
vexatious, order the applicant to pay by way
of compensation to any person who has opposed
the application such sum not exceeding one
thousand rupees as it may consider appropriate
in the circumstances of the case.”

18. From a plain reading of the aforesaid Section 406

of the Code of Criminal Procedure, 1973, it is clear

34
W.P.(Crl.) No.409 of 2020, etc.

that power is conferred on this Court to transfer of

cases and appeals on the application filed by the

Attorney-General of India or by a party interested.

According to the learned senior counsels, appearing for

the respondents, the petitioner-State cannot be termed

as a “party interested”. It is difficult to accept the

submissions of the respondents to say that the

petitioner-State is not a party interested. It is well

said that a crime against an individual is to be

considered as a crime against a State and public, at

large. In the criminal administration system, State is

the prosecuting agency, working for and on behalf of the

people of the State. It is to be noticed that “party

interested” has not been defined under the Code of

Criminal Procedure, 1973. The words “party interested”

are of a wide import and, therefore, have to be

interpreted by giving a wider meaning. The words such as

“aggrieved party”, “party to the proceedings” and “party

interested” are used in various Statutes. If the words

used are to the effect “party to the proceedings” or

“party to a case”, it can be given a restricted meaning.

In such cases, the intention of the legislature is clear

to give restricted meaning. But, at the same time, the

35
W.P.(Crl.) No.409 of 2020, etc.

words used as “party interested”, which are not defined

under the Code of Criminal Procedure, have to be given a

wider meaning. As a prosecuting agency in the Criminal

Administration, the State can be said to be a party

interested within the meaning of Section 406(2) of the

Code of Criminal Procedure, 1973. It is a well settled

principle of law that the Statute must be interpreted to

advance the cause of the Statute and not to defeat the

same. The petitioner-State, being a prosecuting agency

in the Criminal Administration, is vitally interested in

such administration, as such, we are of the view that

the State is considered as a “party interested” within

the meaning of Sub-Section (2) of Section 406 of the

Code. The judgment of this Court in the case of K.

Anbazhagan v. Superintendent of Police & Ors.2 also

supports the case of the petitioner-State to accept the

said plea that they are party interested within the

meaning of Section 406(2) of the Code of Criminal

Procedure. Thus, we hold that this petition, as filed

under section 406 of the Code of Criminal Procedure, is

maintainable.

19. Inasmuch as, we are of the view that this petition,

as filed under Section 406 of the Code of Criminal

36
W.P.(Crl.) No.409 of 2020, etc.

Procedure, is maintainable at the instance of the State,

it is not necessary for us to decide the issue as to

maintainability of this petition under Article 32 of the

Constitution of India.

20. Nextly, we proceed to examine on the plea of the

petitioner for grant of reliefs, as prayed for in the

Writ Petition. Reliefs, as sought for in the Writ

Petition under Para-26(A) of the same, the petitioner is

seeking directions, commanding the respondent-State and

the Judicial Magistrate-I, Mohali, State of Punjab to

transfer the criminal proceedings and trial in the case

no.05 of 2019, titled as State of Punjab v. Mukhtar

Ansari, pending before the Judicial Magistrate-I,

Mohali. Further, under Para-26(B) of the Writ Petition,

the petitioner is seeking directions, directing the

Respondents 1 & 2, to hand over the custody of the 3 rd

Respondent from Roopnagar Jail, District Ropar, State of

Punjab, so as to keep him in District Jail, Banda in the

State of Uttar Pradesh. Opposing relief sought for in

the writ petition, while contesting on the

maintainability, it is also the case of the respondents

that as no case is registered so far in any competent

Court of law and as a crime registered in case no.05 of

37
W.P.(Crl.) No.409 of 2020, etc.

2019 is at the stage of investigation, no relief can be

granted in exercise of power under Section 406 of the

Code of Criminal Procedure, 1973. Learned counsel Shri

Dushyant Dave, appearing for the respondents 1 & 2, has

placed reliance on the judgment in the case of Ram

Chander Singh Sagar (DR.) v. State of Tamil Nadu7. In

the aforesaid judgment, this Court has held that the

Code of Criminal Procedure clothes this Court with power

under Section 406 of the Code of Criminal Procedure to

transfer a case or appeal from one High Court or a Court

subordinate to one High Court to another High Court or

to a Court subordinate thereto. But, it does not clothe

this Court with the power to transfer at the stage of

investigation.

21. Even, according to the case of the petitioner, that

in crime no.05 of 2019, registered on the file of Police

Station Mathaur, District Mohali, State of Punjab, for

offences punishable under Sections 386 and 506 of the

IPC, no Final Report is filed by the Police and the case

is at the stage of investigation. A copy of FIR is

placed on record in which FIR number is mentioned as FIR

No.05 and it was registered on 08.01.2019. As the

investigation in crime no.05 of 2019 on the file of

38
W.P.(Crl.) No.409 of 2020, etc.

Police Station Mathaur, District Mohali, State of Punjab

is still at the stage of investigation and in absence of

filing of Final Report, we are in agreement with the

submissions of the learned senior counsel, appearing for

the respondents that no case is made out by the

petitioner, seeking transfer under Section 406 of the

Code of Criminal Procedure, which relief is sought for

in Para-26(A) of the writ petition. The judgment of this

Court in the case of Ram Chander Singh Sagar (DR.) v.

State of Tamil Nadu7, relied on by Shri Dushyant Dave,

learned senior counsel, appearing for the respondents,

supports the case of the respondents. The relevant

portion of the said judgment, reads as under:

“The Code of Criminal Procedure clothes
this Court with power under Section 406 to
transfer a case or appeal from one High
Court or a Court subordinate to one High
Court to another High Court or to a Court
subordinate thereto. But it does not
clothe this Court with the power to
transfer investigations from one police
station to another in the country simply
because the first information or a remand
report is forwarded to a Court. The
application before us stems from a
misconception about the scope of Section

39
W.P.(Crl.) No.409 of 2020, etc.

406. There is as yet no case pending
before any Court as has been made clear in
the counter affidavit of the State of
Tamil Nadu. In the light of this counter
affidavit, nothing can be done except to
dismiss this petition.“

In view of the aforesaid reasoning of ours, no

relief can be granted, as sought for under Para-26(A) of

the writ petition, by this Court in exercise of power

under Section 406 of the Code of Criminal Procedure,

1973.

22. At the same time, learned Solicitor General, Shri

Tushar Mehta, appearing for the petitioner has submitted

that if, at all, no relief is to be granted by this

Court in exercise of power under Section 406 of the Code

of Criminal Procedure, it is evidently a fit case to

exercise power under Article 142 of the Constitution of

India by this Court, having regard to the facts of the

case, to do complete justice. It is submitted that more

than ten criminal cases involving the 3rd Respondent for

serious offences are at various stages of trial before

the Special Court constituted for trial of cases of

MPs/MLAs in the State of Uttar Pradesh. In spite of the

same, the custody of the 3rd Respondent is taken

40
W.P.(Crl.) No.409 of 2020, etc.

pursuant to one case, registered in the State of Punjab

and presently and continuously, he is lodged in the

Roopnagar Jail in the State of Punjab since 24.01.2019.

It is submitted that apart from the aforesaid cases,

which are pending trial in the Special Court constituted

for trial of MPs/MLAs in Allahabad, in various crimes,

registered against the 3rd Respondent in several police

stations in the State of Uttar Pradesh, warrants are

returned and unexecuted for one reason or the other. It

is submitted that by showing minor ailments, the custody

of the 3rd Respondent is denied by the Jail

Superintendent of Roopnagar Jail, District Ropar,

Punjab. It is, further, submitted that though in the

crime registered in Crime No.05 of 2019 on the file of

Police Station Mathaur, District Mohali, State of

Punjab, which is registered for offences punishable

under Sections 386 & 506 of the IPC, there is no

progress in the investigation and Final Report is not

submitted yet, even then the 3rd Respondent has not even

applied for grant of default bail, as he is entitled to.

It is submitted that the very conduct of the 3rd

Respondent indicates that he is trying to protract the

trials which are pending in Special Court for MPs/MLAs

41
W.P.(Crl.) No.409 of 2020, etc.

in the State of Uttar Pradesh and to avoid his

appearance in other Courts, where his presence is

required.

23. Shri Dushyant Dave, learned senior counsel,

appearing for Respondents 1 & 2 and Shri Mukul Rohatgi,

learned senior counsel, appearing for the 3rd

Respondent, strenuously contended that no case is made

out for grant of any relief by this Court, invoking the

power under Article 142 of the Constitution of India. It

is submitted that though Article 142 of the Constitution

of India gives wider power to this Court and not

restricted by statutory enactments, however, this Court

would not pass any order under Article 142 of the

Constitution of India, which would amount to supplanting

the substantive law applicable or ignoring the statutory

provisions dealing with the subject. In support of this

argument, learned senior counsel, appearing for the

respondents, relied on judgments of this Court in the

case of A.B. Bhaskara Rao v. CBI8 and in the case of

State of Haryana v. Sumitra Devi9.

24. Learned Solicitor General, Shri Tushar Mehta,

appearing for the petitioner-State, submitted that
8
2011 (10) SCC 259
9
2004 (12) SCC 322

42
W.P.(Crl.) No.409 of 2020, etc.

though all the cases were transferred to Special Court,

constituted for trial of cases of MPs/MLAs, Allahabad to

fast track the same, continuation of the 3 rd Respondent

in jail, which is at far off place in a different State,

has become an impediment to proceed with the trials. It

is submitted that in addition to the pending trials in

the Special Court against the 3rd Respondent, the

appearance of the 3rd Respondent is also necessary in

connection with various other cases, where serious

charges are leveled against the 3rd Respondent, which

are at the stage of investigation in several police

stations in the State of Uttar Pradesh and in spite of

the same, warrants issued by the competent Court are

returned by Jail Superintendent of Roopnagar Jail,

Punjab, every time by showing the ill health of the 3 rd

Respondent. To substantiate his plea that it is a fit

case to invoke power by this Court under Article 142 of

the Constitution of India, Shri Tushar Mehta, learned

Solicitor General, appearing for the petitioner-State,

has placed reliance on judgments of this Court in the

Case of Saihba Ali v. State of Maharashtra10, in the

case of Kalyan Chandra Sarkar v. Rajesh Ranjan alias

10
2003 (7) SCC 250

43
W.P.(Crl.) No.409 of 2020, etc.

Pappu Yadav & Anr.11 and in the case of Asha Ranjan v.

State of Bihar12.

25. Having considered the submission of the learned

Solicitor General, appearing for the petitioner-State,

as well as learned senior counsels, appearing for the

respondents, on the plea that whether it is a fit case

to invoke power under Article 142 of the Constitution of

India or not, we have carefully considered the

submissions and the material placed on record and we are

of the considered view that it is evidently a fit case

to invoke our power under Article 142 of the

Constitution of India for grant of relief to the extent,

as sought for, under Para-26(B) of the petition, to

order transfer the custody of the 3 rd Respondent from

Roopnagar Jail, District Ropar, Punjab to District Jail,

Banda, Uttar Pradesh. It is not in dispute that with

regard to the cases and status, which are pending trial

before the Special Judge, MPs/MLAs, Allahabad, a perusal

of the chart which is furnished by the petitioner,

indicates that the 3rd Respondent is involved in various

cases of attempt to murder, murder, cheating,

conspiracy, etc., apart from offences under Gangsters

11
2005 (3) SCC 284
12
2017 (4) SCC 397

44
W.P.(Crl.) No.409 of 2020, etc.

Act. The said cases, as mentioned by the petitioner,

number in Ten, are various stages of trial. Further, the

petitioner has furnished the cases, where warrants were

issued by the Courts in various crimes, registered in

the Districts of Mau, etc., and when the police went to

seek custody, the 1st respondent had refused to handover

the custody on medical grounds. The reasons for non-

production are mentioned in a tabular form. During the

period from 14.02.2019 to 14.02.2020, custody is denied

to the police of Uttar Pradesh by the 1st Respondent on

twenty six occasions. A perusal of the reasons for not

giving custody shows that it is mainly on the medical

grounds referring to diabetes mellitus, skin allergy,

hypertension, backache, throat infection, etc. Though,

it is the case of the petitioner, that the very

registration of crime in Crime no.05 of 2019 on the file

of Police Station Mathaur, District Mohali, Punjab is a

part of conspiracy at the instance of the 3rd Respondent

so as to continue in the jail at Punjab, by protracting

the trials, which are pending in the Special Court and

to deny his presence in various other crimes, registered

against him for completing the investigation. We do not

wish to record any finding on such allegation of

45
W.P.(Crl.) No.409 of 2020, etc.

conspiracy at this stage, but, at the same time, we are

satisfied that the custody is denied to the Police of

Uttar Pradesh at every time on trivial grounds under

guise of medical grounds by mentioning ordinary diseases

like diabetes mellitus, skin allergy, hypertension,

backache, throat infection, etc. In addition to the

same, it gives any amount of suspicion on the conduct of

the 3rd Respondent in not even applying for grant of

default bail, for not filing Final Report (Charge-sheet)

by the Police, Police Station Mathaur, District Mohali,

Punjab within the statutory period. Though, it is the

case of the 3rd Respondent, opposing the relief sought

for, on the ground that he is permitted in majority of

the cases to appear by video conferencing, but the same,

by itself, is no ground to oppose the relief sought for.

Though, the earlier cases were pending in various

Sessions Courts and only to fast track the cases,

Special Court is constituted for trial of cases of

MPs/MLAs in the year 2018 by the State of Uttar Pradesh.

On such constitution, all the cases where the 3 rd

Respondent is involved for serious offences under IPC

and Gangsters Act, were transferred to the Special Court

and all are pending trial at various stages. Pursuant to

46
W.P.(Crl.) No.409 of 2020, etc.

the orders of the Special Court, only the 3rd Respondent

was kept in jail at Banda in the State of Uttar Pradesh,

so as to order his presence, as and when required.

Therefore, in our opinion, a convict or an undertrial

prisoner, who disobeys the law of the land, cannot

oppose his transfer from one prison to another, be a

convict or an undertrial prisoner, Courts are not to be

a helpless bystander, when the rule of law is being

challenged with impunity. In such situations, this Court

can exercise power under Article 142 of the Constitution

of India to order transfer of prisoner from one prison

to another. Though, there is a separate enactment called

The Transfer of Prisoners Act, 1950, which permits

transfer of a prisoner from one State to another by the

Government, but, the same is circumscribed under Section

3 of the Act, as such, the claim of the petitioner will

not fit into the same. Even then this Court, in exercise

of power under Article 142 of the Constitution of India,

can consider for transfer of the prisoner in the

circumstances, as pleaded by the petitioner. The arms of

law are long enough to remedy the situation. If there

are any medical ailments to the petitioner, every care

shall be taken by the Jail Authorities but, at the same

47
W.P.(Crl.) No.409 of 2020, etc.

time, on the spacious plea of ill health by referring to

minor ailments, the accused / 3rd Respondent cannot

oppose the relief, as sought for in the writ petition.

It is true that in the case of A.B. Bhaskara Rao v. CBI8

and in the case of State of Haryana v. Sumitra Devi9,

this Court has held that in exercise of power under

Article 142 of the Constitution of India, no order can

be passed, which shall run contrary to the statute or

statutory rules. The transfer of a prisoner from one

prison to another prison in different States is covered

by the provisions of The Transfer of Prisoners Act,

1950. Section 3 of the Act reads as “the Government of

that State with the consent of the Government of any

other State, by order, provide for removal of the

prisoner from that prison to any prison in the other

State.” It is clear that there does not appear to be any

provision for transfer of an under trial prisoner. There

being no statutory provision, covering the transfer of

prisoner from one State to another, having regard to the

facts of the case on hand, this Court, certainly in

exercise of jurisdiction under Article 142 of the

Constitution of India, may issue necessary directions in

the given circumstances. The judgments relied on by the

48
W.P.(Crl.) No.409 of 2020, etc.

learned counsels for the respondents, as referred above,

would not render any support to their plea in this case.

In the judgment in the case of Saihba Ali v. State of

Maharashtra10, it is held that this Court can pass

appropriate on the facts to do complete justice, even if

the writ petition filed is not maintainable. Transfer of

a prisoner from one State to another State also fell for

consideration by this Court, in the case of Kalyan

Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav &

Anr.11, where this Court has held that power to transfer

a prisoner or detenu, either on his own motion or

otherwise, can be ordered by this Court, in exercise of

power under Article 142 of the Constitution of India.

Para 23, 24 & 25 of the said judgment, which are

relevant paragraphs to this case, read as under:

“……23.Therefore, in our opinion, a
convict or an undertrial who disobeys the
law of the land, cannot contend that it
is not permissible to transfer him from
one jail to another because the Jail
Manual does not provide for it. If the
factual situation requires the transfer
of a prisoner from one prison to another
be he a convict or an undertrial, courts
are not to be a helpless bystander when

49
W.P.(Crl.) No.409 of 2020, etc.

the rule of law is being challenged with
impunity. 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 our opinion, the
argument of the learned counsel, as noted
above, undermines the authority and
majesty of law. The facts narrated
hereinabove clearly show that the
respondent has time and gain flouted the
law even while he was in custody and
sometimes even when he was on bail. We
must note herein with all seriousness
that the authorities manning Beur Jail
and the doctors concerned of Patna
Medical College Hospital, for their own
reasons, either willingly or otherwise,
have enabled the respondent to flout the
law. In this process, we think the
authorities concerned, especially the
authorities at Beur Central Jail, Patna,
are not in a position to control the
illegal activities of the respondent.
Therefore, it is imperative that the
respondent be transferred outside Bihar.

2413*. The matter relating to inter-State
transfer of prisoners is governed by the

13
* Ed. Para 24 corrected vide Official Corrigendum No.F.3/Ed.B.J./25/2005 dated 18-3-2005.

50
W.P.(Crl.) No.409 of 2020, etc.

Transfer of Prisoners Act, 1950. Section
3
of the said Act reads thus:

‘3. Removal of prisoners from one
State to another.–(1) Where any person is
confined in a prison in a State,–

(a) under sentence of death, or

(b) under, or in lieu of, a sentence
of imprisonment or transportation, or

(c) in default of payment of a fine,
or

(d) in default of giving security for
keeping the peace or for maintaining
good behaviour;

the Government of that State may, with
the consent of the Government of any
other State, by order, provide for the
removal of the prisoner from that prison
to any prison in the other State.’

25. A bare perusal of the aforementioned
provision would clearly go to show that
there does not exist any provision for
transfer of an undertrial prisoner. The
prayer for inter-State transfer of a
detenu came up for consideration before
this Court in David Patrick Ward v. Union
of India14
where in a preventive detention
matter the petitioner therein was lodged
in Naini Jail at Allahabad. The

14
(1992) 4 SCC 154 : 1992 SCC (Cri) 814

51
W.P.(Crl.) No.409 of 2020, etc.

petitioner made a prayer for his transfer
to Tihar Jail, Delhi inter alia on the
ground that the Consular Officers had the
right to visit a national of the sending
State who is in prison or under detention
in terms of Article 36 of the Vienna
Convention on Consular Relations. The
authorities of Naini Jail having
indicated that whenever visits are
desired by the officers of the British
Consular Relations, proper arrangement
therefor would be made, this Court
refused to concede to the said request.
But, this decision is a pointer to the
fact that in an appropriate case, such
request can also be made by an undertrial
prisoner or a detenu and there being no
statutory provisions contrary thereto,
this Court in exercise of its
jurisdiction under Article 142 of the
Constitution may issue necessary
direction.”

26. The concept of fair trial and transfer of a

prisoner from one jail to another jail is also

considered elaborately by this Court in the case of

Asha Ranjan v. State of Bihar12. While analysing the

concept of fair trial as a facet of Article 21 of the

Constitution of India, this Court held that it covers

interest of the accused, prosecution and the victim. It

52
W.P.(Crl.) No.409 of 2020, etc.

is, further, held that victim may be a singular person

who has suffered, but the injury suffered by singular is

likely to affect the community interest. The relevant

paragraphs of the judgment covered by Paragraphs 86.4,

86.5, 86.6 & 86.7 reads as under:

“…86.4. The weighing of balance between the two
perspectives in case of fair trial would
depend upon the facts and circumstances
weighed on the scale of constitutional
norms and sensibility and larger public
interest.

86.5. Section 3 of the 1950 Act does not create
an impediment on the part of the Court to
pass an order of transfer of an accused
or a convict from one jail in a State to
another prison in another State because
it creates a bar on the exercise of power
on the executive only.

86.6. The Court in exercise of power under
Article 142 of the Constitution cannot
curtail the fundamental rights of the
citizens conferred under the Constitution
and pass orders in violation of
substantive provisions which are based on
fundamental policy principles, yet when a
case of the present nature arises, it may
issue appropriate directions so that
criminal trial is conducted in accordance

53
W.P.(Crl.) No.409 of 2020, etc.

with law. It is the obligation and duty
of this Court to ensure free and fair
trial.

86.7 The submission that this Court in
exercise of equity jurisdiction under
Article 142 of the Constitution cannot
transfer the accused from Siwan Jail to
any other jail in another State is
unacceptable as the basic premise of the
said argument is erroneous, for while
addressing the issue of fair trial, the
Court is not exercising any kind of
jurisdiction in equity.”

27. In addition to the reasons which we have already

assigned above, the case law, which is referred above by

the learned Solicitor General, appearing for the

petitioner, also supports the case of the petitioner for

grant of relief to the extent as sought for in Para-

26(B) of the writ petition.

28. For the aforesaid reasons, as indicated above, this

Writ Petition is allowed in part with the following

directions and observations:

i. This petition, filed under Article 32 of the

Constitution of India / Section 406 of the

Code of Criminal Procedure, 1973, is held to

54
W.P.(Crl.) No.409 of 2020, etc.

be maintainable under Section 406 of the

Code of Criminal Procedure, 1973.

ii. The relief, sought for transfer of the case,

in terms of of Para-26(A) of this petition

is not granted, inasmuch as the case in

Crime No.05 of 2019, on the file of Police

Station Mathaur, District Mohali, Punjab, is

at the stage of investigation, as such,

Section 406 of the Cr.P.C. cannot be pressed

into service.

iii. At the same time, in exercise of power under

Article 142 of the Constitution of India, we

issue directions, directing the Respondent

Nos.1 & 2, to handover custody of the 3rd

Respondent to the State of Uttar Pradesh,

within a period of two weeks from today, so

as to lodge him in District Jail, Banda in

the State of Uttar Pradesh.

                   iv.            It    is    open      for         the   Special           Court,

                                  constituted    for        MPs/MLAs      at    Allahabad          to

continue him either in the District Jail at

55
W.P.(Crl.) No.409 of 2020, etc.

Banda or shift to any other Jail in the

State of Uttar Pradesh, if any need arises.

v. There shall be a direction to the

Superintendent of Jail, District Jail Banda,

Uttar Pradesh to extend the necessary

medical facilities to the 3rd Respondent. It

is made clear that if any specialty

treatment is required to the 3rd Respondent,

the Jail Superintendent of District Jail,

Banda, Uttar Pradesh shall take necessary

steps to extend such medical care also, by

following the Jail Manual.

[Transfer Petition (Crl.) no.104-114 of 2021]

29. In view of the above order passed in Writ

Petition (Crl.) No.409 of 2020 and further, this Court has

already rejected the claim of the petitioner for transfer of

the cases, as such, we do not find any merit in these

Transfer Petitions, and the same are accordingly dismissed.

……………….J.

[Ashok Bhushan]

……………….J.

[R. Subhash Reddy]

New Delhi;

March 26, 2021

56



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