# Ram Shlok Pandey v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 249
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-01-15
- **Case number:** Misc. Single No. 7677 of 2014
- **Bench:** Vishnu Chandra Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-shlok-pandey-v-state-of-u-p-ors-43288
- **Pages:** 4

## Headnote

Constitution of India, Art.-226-Transfer
of prisoner from one jail to another-by
administrative order held illegal-only the
Magistrate can pass such order u/s 309
Cr.P.C.-after affording opportunity of
hearing-order quashed.
Held: Para-11
Admittedly, in the case in hand, before
passing the order impugned, opportunity of
being heard before considering the request
made by the jail authority has not been
given to the present petitioner. Therefore,
the order impugned cannot be allowed to
sustain and is liable to be set aside.
Case Law discussed:
2012 Law Suit (SC) 741.

## Text

1 All]
 Ram Shlok Pandey Vs. State of U.P. & Ors.
249
September, 2013, whereby the petitioner
has been summoned to face trial under
sections 355, 409 504 and 506 IPC. are
quashed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.01.2015
BEFORE
THE HON'BLE VISHNU CHANDRA GUPTA, J.
Misc. Single No. 7677 of 2014
Ram Shlok Pandey
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Rakesh Pathak
Counsel for the Respondents:
Govt. Advocate
Constitution of India, Art.-226-Transfer
of prisoner from one jail to another-by
administrative order held illegal-only the
Magistrate can pass such order u/s 309
Cr.P.C.-after affording opportunity of
hearing-order quashed.
Held: Para-11
Admittedly, in the case in hand, before
passing the order impugned, opportunity of
being heard before considering the request
made by the jail authority has not been
given to the present petitioner. Therefore,
the order impugned cannot be allowed to
sustain and is liable to be set aside.
Case Law discussed:
2012 Law Suit (SC) 741.
(Delivered by Hon'ble Vishnu Chandra
Gupta, J.)
1. Heard Shri Rakesh Pathak,
learned counsel for the petitioner and the
learned AGA.
2. By means of the present petition,
the petitioner, who is under trial prisoner
has prayed for issuing a writ in the nature
of certiorari quashing the impugned order
dated 28.11.2014 passed by the Chief
Judicial Magistrate, Pratapgarh, whereby
permission has been granted to transfer
the petitioner alongwith three under trial
prisoners from District Jail, Pratapgarh to
District Jail, Raebareli on the basis of
allegations
made
in
letter
dated
24.11.2014 of Superintendent, District
Jail, Pratapgarh, and further prayed for
issuance of writ in the nature of
mandamus commanding the opposite
parties directing them that the petitioner
may be kept in District Jail, Pratapgarh
during his judicial custody in relation to
case crime no. 264 of 214 under sections
147,148,149,307 and 302 IPC P.S. Aaspur
Devsara, District Pratapgarh.
3.
The letter dated 24.11.2014 of
Superintendent, District Jail, Pratapgarh
transpires that petitioner Ram Shlok Pandey
and other under trial prisoners are detained in
District Jail, Pratapgarh relating to case crime
no.
264
of
2014
under
sections
147,148,149,307 and 302 IPC P.S. Aaspur
Devsara, District Pratapgarh. The present
petitioner alongwith three other associates
Ram Kailash Yadav, Brajesh Yadav and
Kallu Dubey are most indisciplined and hard
core criminal of the district. They create
hurdle in administrative work. Some of the
persons of rival group of them are also
detained in District jail, Pratapgarh. There is
only one circle in the jail which is used by all
prisoners for taking out meal, water and
treatment etc. Though the aforesaid prisoners
are kept in separate Baracks for the purpose
of
their
security,
but
there
remains
apprehension of some mis-happening when
they come in circle. It has been brought to
the notice of the jail authority that lives of the
250
 INDIAN LAW REPORTS ALLAHABAD SERIES
aforesaid under trial prisoners are in danger
from their rival groups who are also detained
in jail. Therefore, if the aforesaid prisoners
are allowed to remain in District Jail,
Pratapgarh, any untoward incident or
violence would occur, by which security,
discipline and peace of jail may be disturbed.
Hence a request has been made to the Chief
Judicial Magistrate, Pratapgarh for transfer of
the aforesaid prisoners from this Jail to
another jail.
4. By means of impugned order the
Chief Judicial Magistrate, after satisfying
with the report submitted with regard to
conduct and behaviour of the aforesaid
prisoners and also the aforesaid letter
permitted the Superintendent, District Jail,
Pratapgarh to transfer the petitioner and
his associates, who are under trial
prisoners from District Jail, Pratapgarh to
District Jail, Raebareli.
5. It has been contended by the learned
counsel for the petitioner that under trial
prisoners cannot be transferred from one jail
to another jail except in accordance with
order passed by the judicial authority under
whose orders they are detained in judicial
custody in particular jail. It is further
contended that jail authority has no
jurisdiction to transfer the under trial
prisoners on administrative ground. It is
further submitted that in case of transfer of
the under trial prisoners before passing the
order of transfer an opportunity of hearing
should have been provided to the under trial
prisoners and if no such hearing is provided
to them, the order of transfer would be
vitiated as held in State of Maharastra Vs.
Mohd. Saeed Sohail Sheikh reported in 2012
Law Suit (SC) 741.
6. On the strength of the aforesaid
authority, it has been submitted by the
learned counsel for the petitioner that in
this case before passing impugned order
no opportunity of hearing has been
provided to the petitioner. Hence the
impugned order is violative of principles
of natural justice and cannot be allowed to
sustain.
7. Per contra, learned AGA
submitted that there is no statutory
provision to give any hearing before
permitting transfer of accused to a
particular judicial custody. He referred the
provisions of sections 167 and 309
Cr.P.C. to this effect. It is further
submitted that it is the choice of
Magistrate or the court under whose
orders, the under trial prisoner has been
lodged in judicial custody. The under trial
prisoner has no right to remain in
particular judicial custody of his own
choice. It is further contended that
judgment cited hereinabove relates to a
convicted person and shall not extend
help to the petitioner.
8. It is not in dispute that under trial
prisoners cannot be transferred from one
jail to another jail under administrative
order of jail authority. They could only be
transferred under the order of judicial
authority under whose order they are
detained in particular judicial custody.
9. Now, the question remains for
consideration before this Court whether
judicial authority while passing the order
transferring the under trial prisoners is
under
any
obligation
to
give
an
opportunity of being heard to them before
their transfer to another jail. This question
has been dealt with elaborately in the case
of Saeed Sohail Sheikh (Supra), relevant
paragraphs 27 and 39 of which are
reproduced herebelow:-
1 All]
 Ram Shlok Pandey Vs. State of U.P. & Ors.
251
"27.The forensic debate at the Bar was
all about the nature of the power exercisable
by the court while permitting or refusing
transfer. We have, however, no hesitation in
holding that the power exercisable by the
court while permitting or refusing transfer is
'judicial' and not 'ministerial' as contended by
Mr. Naphade. Exercise of ministerial power
is out of place in situations where quality of
life or the liberty of a citizen is affected, no
matter he/she is under a sentence of
imprisonment or is facing a criminal charge
in an on-going trial.
That transfer of an under trial to a
distant prison may adversely affect his right
to defend himself but also isolate him from
the society of his friends and relations is
settled by the decision of this Court in Sunil
Batra v. Delhi Administration AIR 1980
SC1579, where this Court observed: "48.
Inflictions may take many protean forms,
apart from physical assaults.
Pushing the prisoner into a solitary cell,
denial of a necessary amenity, and, more
dreadful sometimes, transfer to a distant
prison where visits or society of friends or
relations may be snapped, allotment of
degrading labour, assigning him to a
desperate or tough gang and the like, may be
punitive in effect. Every such affliction or
abridgment is an infraction of liberty or life
in its wider sense and cannot be sustained
unless Article 21 is satisfied.
There must be a corrective legal
procedure,
fair
and
reasonable
and
effective.
Such
infraction
will
be
arbitrary, under Article 14 if it is
dependent
on
unguided
discretion,
unreasonable, under Article 19 if it is
irremediable
and
unappealable,
and
unfair, under Article 21 if it violates
natural justice. The string of guidelines in
Batra set out in the first judgment, which
we adopt, provides for a hearing at some
stages, a review by a superior, and early
judicial
consideration
so
that
the
proceedings may not hop from Caesar to
Caesar. We direct strict compliance with
those norms and institutional provisions
for that purpose."
............................................................
..........
"36. Applying the above principles to
the case at hand and keeping in view the fact
that any order that the Court may make on a
request for transfer of a prisoner is bound to
affect him prejudicially, we cannot but hold
that it is obligatory for the Court to apply its
mind
fairly
and
objectively
to
the
circumstances in which the transfer is being
prayed for and take a considered view having
regard to the objections which the prisoner
may have to offer. There is in that process of
determination
and
decision-making
an
implicit duty to act fairly, objectively or in
other words to act judicially.
It follows that any order of transfer
passed in any such proceedings can be
nothing but a judicial order or at least a
quasi-judicial one. Inasmuch as the trial court
appears to have treated the matter to be
administrative and accordingly permitted the
transfer without issuing notice to the undertrials or passing an appropriate order in the
matter, it committed a mistake.
A communication received from the
prison authorities was dealt with and disposed
of at an administrative level by sending a
communication in reply without due and
proper consideration and without passing a
considered judicial order which alone could
justify a transfer in the case. Such being the
position the High Court was right in declaring
the transfer to be void and directing the retransfer of the under trials to Bombay jail. It is
common ground that the stay of the
proceedings in three trials pending against the
respondents has been vacated by this Court.
Appearance of the under trials would,
therefore, be required in connection with the
252
 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings pending against them for which
purpose they have already been transferred
back to the Arthur Road Jail in Bombay.
Nothing further, in that view, needs to be done
by this Court in that regard at this stage."
10. Perusal of the aforesaid
paragraphs cited hereinabove leaves no
room to doubt that before passing the
order impugned an opportunity of being
heard should have been given to the
petitioner who is an under trial prisoner.
Since it has not been done , the order
impugned would be vitiated.
11.
Admittedly, in the case in hand,
before
passing
the
order
impugned,
opportunity
of
being
heard
before
considering the request made by the jail
authority has not been given to the present
petitioner. Therefore, the order impugned
cannot be allowed to sustain and is liable to
be set aside.
12. The petitioner, if has not yet
been transferred back to District Jail,
Pratapgarh, he shall again be admitted to
District Jail, Pratapgarh. The order to this
effect if necessary be obtained. The Chief
Judicial Magistrate, Pratapgarh to pass the
order in this regard.
13. However, it is provided that if the
jail authorities are still intending the transfer
of the petitioner from District Jail, Pratapgarh
for any valid reason, he may approach the
competent judicial authority under whose
order the petitioner is detained in judicial
custody and in such situation the competent
judicial authority will pass order after giving
an opportunity of being heard to the
petitioner, in accordance with law.
14. In view of what has been
discussed above, the writ petition is
allowed. The order impugned dated
28.11.2014 passed by the Chief Judicial
Magistrate, Pratapgarh is hereby set aside.
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