Court No. - 29
Case :- CRIMINAL MISC. WRIT PETITION No. - 2500 of 2018 Petitioner :- Raju Pahalwan @ Raju Yadav Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Jai Singh Yadav Counsel for Respondent :- G.A.
Hon'ble Govind Mathur,J. Hon'ble Rajiv Lochan Mehrotra,J.
Heard learned counsel for the petitioner, learned AGA for the respondents-State and perused the record.
The petitioner is facing trial for the offence under Sections 147, 148, 302, 120B / 34 IPC and 7 Criminal Law Amendment Act before the Court of learned Sessions Judge, Allahabad.
During the course of trial, he was lodged in judicial custody at Central Jail Naini, Allahabad. By an order dated 09.06.2017, he was transferred to District Jail, Mirzapur. An application was preferred by him before learned trial Court on 17.08.2017 with a prayer to relodge him at Central Jail at Naini, Allahabad. Learned trial Court while considering the application under communication dated NIL (annexure- 2) asked the Superintendent Central Jail Naini to inform as to whether any permission was sought from the trial Court or not before transferring the petitioner from Central Jail, Naini, to District Jail, Mirzapur. The information aforesaid was sought by citing a judgment of Hon'ble Supreme Court in the State of Maharashtra Vs. Saeed Sohail Sheikh reported in AIR (2013) Supreme Court 168.
The Senior Superintendent Central Jail, Naini, Allahabad while responding the letter dated 11.10.2017 conveyed that the accused was transferred in the administrative exigency and prior to that permission from the trial Court was not obtained being not necessary under provisions of the Uttar Pradesh Jail Manual.
After considering the communication aforesaid learned trial Court disposed of the application under an order dated 28.10.2017 by holding that the trial Court is not a competent Authority to examine correctness of the order transferring the petitioner from Central Jail, Naini to District Jail, Mirzapur. While disposing of the application, it was left open to challenge the order of transfer before the competent Judicial Forum.
In the instant petition for writ, a challenge is given to the order dated 09.06.2017 transferring the petitioner from Central Jail, Naini to District Jail, Mirzapur by relying upon a Division Bench judgment of this Court in Criminal Misc. Writ Petition No. 7030 of 2015 (Sunder Bhati Vs. State of U.P. And 6 Others). In the writ petition aforesaid, Division Bench of this Court held that in light of the law laid down by the Apex Court in State of Maharashtra Vs. Saeed Sohail Sheikh (supra), a prisioner could not have been transferred from one prison to other without having permission from the trial Court.
While opposing the writ petition argument advanced on behalf of the respondent-State and it is other functioneries is that as per provisions of Regulation 409 of the Uttar Pradesh Jail Manual an undertrial stands on same pedestal as to a convict in a relation to transfer from one prison to other. It is asserted that in the case of Sunder Bhati Vs. State of U.P. And 6 Others (supra), this aspect though was referred in the judgment but not examined. It is also brought to our notice that the Apex Court has already stated the effect and operation of the directions given under the judgment referred above.
In addition whatever stated above learned Additional Government Advocate however states that the judgment given by the Division Bench in the Case of Sunder Bhati Vs. State of U.P. And 6 Others (supra) is having no application in the instant matter as the police report has already been filed and, therefore the provisions of sub-Section (2) of Section 167 Cr.P.C. are having no application.
Learned counsel appearing on behalf of the petitioner does not dispute this fact. Pertinent to mention here that even in the case of Sunder Bhati Vs. State of U.P. And 6 Others (supra), a Division Bench noticed that prior permission of the Court concerned is required as per provisions of sub-Section 2 of Section 167 Cr.P.C. It is a position admitted that in the case in hand, investigation has been completed, a police report has already been filed charges have been framed and trial too has been commenced. In such circumstance there is no application of the provisions of sub-Section (2) of Section 167 Cr.P.C., as such, in the instant matter the law laid down by Division Bench of this Court in the case of Sunder Bhati Vs. State of U.P. And 6 Others (supra) is having no application. So far as the judgment of Hon'ble Supreme Court in the case of State of Maharashtra Vs. Saeed Sohail Sheikh (supra) is concerned that is also not having application in the instant matter as in the case aforesaid, there was no provision like Regulation 409 that keeps an undertrial as well as a convict on the same pedestal so far as their transfer from one prison to other is concerned.
In view whatever stated as above, the writ petition having no force hence the same is dismissed.
Order Date :- 23.2.2018 Rameez
.
(Rajiv Lochan Mehrotra,J.) (Govind Mathur,J.)