Jammu), May-01-2023:- The Jammu & Kashmir and Ladakh High Court ruled that the power to transfer an undertrial prisoner from one jail to another only vests with the Magistrate or the Court.
Justice Mohammad Akram Chowdhary hold that the court or magistrate is the ultimate authority to shift an undertrail prisoner after it has remanded the detenue to a certain prison, and jail authorities cannot have a say in this. Referring to the Prison Manual 2022-for the superintendence and management of prisons in the Union Territory of Jammu and Kashmir read with Prisoners Act, 1900, a bench comprising of Justice M A Chowdhary observed that the transfer of an undertrial can be done by a judicial order in this regard passed by a court. 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,” bench observed.
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. The Undertrail who is facing a trial for a case registered at Police Station Uri, Baramulla under various sections of the Narcotic Drugs and Psychotropic Substances Act (NDPS), has been in judicial custody since his arrest in July 2017,. He was removed from Sub Jail, Baramulla to District Jail, Poonch on the grounds that 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.After considering the contentions of the petitioner the bench observed that the widowed mother of the undertrail would visit him as and when needed while he was lodged in Baramulla jail but later he was 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 and accordingly the petitioner 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.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 and merely saying that he had been an undisciplined prisoner does not warrant to his transfer to a distant place.
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.
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.JNF