Courts can’t be helpless bystanders when prisoner opposes transfer from one prison to another; Read why Supreme Court transferred Mukhtar Ansari’s custody to Uttar Pradesh

Supreme Court:  Considering the various criminal cases filed against Bahujan Samaj Party MLA from MAU Constituency Mohd. Mukhtar Ansari in the State of Uttar Pradesh, the bench of Ashok Bhushan and R. Subhash Reddy*, JJ has directed that the custody of Ansari be transferred to District Jail, Banda, Uttar Pradesh from District Jail, Roopnagar, Punjab, where he is currently lodged in. This transfer has to take place within 2 weeks.

Background

A large number of criminal cases have been registered against 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. Hence, 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 and he was lodged in District Jail, Banda, Uttar Pradesh, pursuant to order of the learned Special Judge.

When the aforesaid cases were in trial, a case was registered against Ansari in 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 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 then, he is continuing in the said jail.

During the period from 14.02.2019 to 14.02.2020, large number of warrants have been issued for production of Ansari before the various Courts in the State of Uttar Pradesh, but, efforts made by Uttar Pradesh Police to secure the custody were futile as every time Jail Authorities of Roopnagar Jail, Punjab refused to give custody on the pretext that the accused was unwell.

Analysis

Is “State” a “Party-interested”?

The Court refused to accept the submission that the petitioner-State is not a party interested as 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 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.”

Transfer of criminal proceeding in case registered in Punjab to Uttar Pradesh

In Ram Chander Singh Sagar (DR.) v. State of Tamil Nadu, 1978 (2) SCC 35, it was held,

“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. (…) 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 the case registered in Punjab, no Final Report is filed by the Police and the case is at the stage of investigation, hence, 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.

Transfer from Punjab prison to Uttar Pradesh Prison

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.”

“There does not appear to be any provision for transfer of an undertrial 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.”

In the present case, Ansari is involved in various cases of attempt to murder, murder, cheating, conspiracy, etc., apart from offences under Gangsters Act. The said cases, 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 handover of the custody was refused on medical grounds 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.”

While the Court refused to record any finding on such allegation of conspiracy, it was 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 Ansari 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 3rd 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 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.

“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 time, on the spacious plea of ill health by referring to minor ailments, Ansari cannot oppose the relief, as sought for in the writ petition.”

[State of Uttar Pradesh v. Jail Superintendent (Ropar), 2021 SCC OnLine SC 265, decided on 26.03.2021]


*Judgment by Justice R. Subhash Reddy

Know Thy Judge| Justice R. Subhash Reddy

Appearances before the Court by

For Uttar Pradesh: Solicitor General Tushar Mehta

For Respondents 1 &2: Senior Advocate Dushyant Dave

For Mukhtar Ansari: Senior Advocate Mukul Rohatgi

 

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