# Sagar Malik v. State of U.P. & Ors

- **Citation:** (2015) 2 ILRA 709
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-05-01
- **Case number:** Criminal Misc. Writ Petition No. 10050 of 2015
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sagar-malik-v-state-of-u-p-ors-43285
- **Pages:** 6

## Headnote

Constitution of India, Art.-226-Petitioner a
gang
leader-continue
in
jail-state
government exercising power u/s 268 in
terms of Section 417 (I) Cr.P.C.-issued
direction
transferring
petitioner
from
Muzaffar Nagar to district jail Varanasibefore passing impugned transfer orderfollowing principle of natural justice-only
reason disclosed that his uncle and other
family members are confined in same jail at
Muzaffar Nagar-can not be basis-order
impugned not suffer from any infirmity
requires no interference-rather petitioner at
Varanasi having video conferencing systemhaving full choice of engagement of
lawyers-no prejudice going to causedpetition dismissed.
Held: Para-18
In our opinion, the Magistrate has only
given
a
permission
for
transfer
to
another Jail and the reasons given are
710
 INDIAN LAW REPORTS ALLAHABAD SERIES
the existence of an eminent possibility of
a gang war. Apart from this, the
petitioner in his objection had only taken
a plea that since his uncle and relatives
are lodged in the same Jail, he should
not be transferred. No other plea has
been taken in the said objection. Thus,
principles of natural justice have been
complied with and the petitioner had
filed an objection which has been
noticed where after the impugned order
has
been
passed
by
the
learned
Magistrate. Merely because the relatives
of the petitioner are lodged in the same
Jail, the same cannot be a ground to
refuse transfer and, therefore, the order
of the Magistrate does not suffer from
any infirmity or perversity calling for an
interference. The said order has now
been already executed with the issuance
of a Government Order on 26.2.2015
which has not been challenged. In the
aforesaid
circumstances,
when
the
principles of natural justice have been
complied with and sufficient reasons
have
been
indicated
in
the
order
permitting transfer, we do not find any
good ground to interfere with the same
at least at this stage.
Case Law discussed:
(2012) 13 SCC 192; AIR 1991 SC 746; W.P.
No. 6719(M/B) of 2002; 1991 JIC 95.

## Text

2 All] Sagar Malik Vs. State of U.P. & Ors.
709
of on 2.12.2014 with the liberty to the
petitioner
to
make
a
representation/application
before
the
Collector/District Magistrate Sant Kabir
Nagar.
Pursuant
thereto,
the
representation was filed. The Collector
has rejected the petitioners' application on
the ground that after the death of the
original lessee, the period of lease has
come to an end and stand cancelled and
the heirs and legal representatives cannot
inherit the same.
6. This type of controversy has earlier
came up before this Court in the writ
petition no. 5536 of 2005 (Mohan Lal Vs.
State of U.P.and others) decided on
9.2.2005, wherein this Court has held that
the fishery lease is inheritable. Not only in
that case, but in another Writ (C) No. 7322
of 2014 (Smt. Sonmati Vs. State of U.P. and
others), this Court has held that fishery lease
is inheritable. In view of the law laid down
by this Court in the aforesaid cases, I am of
the opinion that the Collector has erred in
rejecting the petitioners' application holding
that the petitioners have no right to perform
fishery right on the strength of the earlier
lease executed in favour of their mother.
The question as to whether the petitioners
are the sons of the original lessee or not, this
is a question of fact and that can be
examined by the District Magistrate but so
far as their inheritable right is concerned,
that cannot be denied in view of the law laid
down by this Court in the case of Mohan
Lal and Smt.Sonmati (supra).
7. In view of foregoing discussions,
the writ petition succeeds and is allowed.
The impugned order dated 21.1.2015
passed by the Collector/Zila Aadhikari,
Sant Kabir Nagar in Misc. Case No. 8
(Ravindra and others Vs. Shoba Devi and
others) is hereby quashed with the
direction to pass a fresh order in this regard
in accordance with law looking into the order
passed in this petition and earlier decisions of
this Court
as
mentioned hereinabove
expeditiously but not later than two months
from the date of filing of certified copy of the
order of this Court.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.05.2015
BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE MRS. VIJAY LAKSHMI, J.
Criminal Misc. Writ Petition No. 10050 of 2015
Sagar Malik
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Ms. Zia Naz Zaidi, Sri Rajul Bhargava
Counsel for the Respondents:
A.G.A.
Constitution of India, Art.-226-Petitioner a
gang
leader-continue
in
jail-state
government exercising power u/s 268 in
terms of Section 417 (I) Cr.P.C.-issued
direction
transferring
petitioner
from
Muzaffar Nagar to district jail Varanasibefore passing impugned transfer orderfollowing principle of natural justice-only
reason disclosed that his uncle and other
family members are confined in same jail at
Muzaffar Nagar-can not be basis-order
impugned not suffer from any infirmity
requires no interference-rather petitioner at
Varanasi having video conferencing systemhaving full choice of engagement of
lawyers-no prejudice going to causedpetition dismissed.
Held: Para-18
In our opinion, the Magistrate has only
given
a
permission
for
transfer
to
another Jail and the reasons given are
710
 INDIAN LAW REPORTS ALLAHABAD SERIES
the existence of an eminent possibility of
a gang war. Apart from this, the
petitioner in his objection had only taken
a plea that since his uncle and relatives
are lodged in the same Jail, he should
not be transferred. No other plea has
been taken in the said objection. Thus,
principles of natural justice have been
complied with and the petitioner had
filed an objection which has been
noticed where after the impugned order
has
been
passed
by
the
learned
Magistrate. Merely because the relatives
of the petitioner are lodged in the same
Jail, the same cannot be a ground to
refuse transfer and, therefore, the order
of the Magistrate does not suffer from
any infirmity or perversity calling for an
interference. The said order has now
been already executed with the issuance
of a Government Order on 26.2.2015
which has not been challenged. In the
aforesaid
circumstances,
when
the
principles of natural justice have been
complied with and sufficient reasons
have
been
indicated
in
the
order
permitting transfer, we do not find any
good ground to interfere with the same
at least at this stage.
Case Law discussed:
(2012) 13 SCC 192; AIR 1991 SC 746; W.P.
No. 6719(M/B) of 2002; 1991 JIC 95.
(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)
1. This petition questions the order
of the Chief Judicial Magistrate dated
25.2.2015 whereby the learned Magistrate
has passed an order granting permission
to transfer the petitioner to some other Jail
from the District Jail at Muzaffarnagar
where he had been detained.
2.

Learned
A.G.A.
for
the
respondent - State Sri Nitin Sharma had
been called upon to obtain instructions as
well in the matter. A written instructions
signed by the Superintendent of Jail,
Muzaffarnagar, dated 27.4.2015 has been
placed before the Court.
3.
The petitioner was arrested on
16.2.2015 in the circumstances as indicated in
the F.I.R. It appears that one Vikky Tyagi, an
alleged gang leader, had gone to attend his
case in the Court of Xth Addl. District Judge,
Muzaffarnagar, on 16.2.2015 when he was
attacked by several persons including the
petitioner, who allegedly fired shots leaving
him dead in the court premises. It is in this
background that the petitioner is alleged to
have indulged into a gang war as Vikky Tyagi
himself is narrated to be one of the leaders of
the gang and came to be taken into custody.
4. This background led to the moving
of an application by the Superintendent of
Jail for transferring the petitioner to some
other Jail and it is this application, which has
been disposed of as a misc. application by
the order impugned dated 25.2.2015. The
Court has recorded that after receipt of the
said application, the same was served on the
petitioner calling upon him to give a reply to
the same by 21.2.2015. The petitioner
admitted having received the said application
on 20.2.2015 and thereafter moved an
application on 21.2.2015 itself in the shape
of an objection, a certified copy whereof is
Annexure No.3 to the writ petition, wherein
the petitioner has stated that the petitioner's
uncle and other relatives are already detained
in Muzaffarnagar Jail and, therefore, he is
safe with his family members hence he
should not be transferred to any other Jail.
He is alleged to have moved another
application on 23.2.2015 praying for time to
give a further reply and also to file
documents with regard to his juvenility.
5. Learned Counsel for the petitioner
Ms. Zaidi and Mr. Rajul Bhargava have
urged that without giving any further
2 All] Sagar Malik Vs. State of U.P. & Ors.
711
opportunity, the impugned order was
passed and, therefore, the same is in
violation of principles of natural justice.
6. The court below has recorded that
several other accused of the gang of Vikrant
alias Vikky Tyagi are lodged in the same
Jail and there is every likelihood of a
serious gang war. The petitioner himself has
disclosed his age to be about 19 years and,
therefore, it is not necessary at this stage to
consider any plea of juvenility. It has further
been recorded that in the aforesaid
background if the petitioner is transferred to
some other Jail, then no prejudice will be
caused and rather it would be in the interest
of the petitioner and his security.
7.
The Court further recorded that in
view of the Apex Court decision in the case
of State of Maharashtra and others Vs. Saeed
Sohail Sheikh and others, (2012) 13 SCC
192, opportunity has been given to the
petitioner who has filed his objection and, as
such, natural justice having been complied
with, permission was granted to transfer the
petitioner to some other Jail. Directions were
issued to take ample security measures and
medical care of the petitioner while doing so.
8. It is this impugned order, which has
been challenged contending that the order is in
violation of principles of natural justice as no
further time had been granted and secondly it
violates the fundamental rights of the
petitioner for which reliance has been placed
on the decision in the case of Francis Coralie
Mullin Vs. Administrator for the Union
Territory of Delhi, AIR 1991 SC 746 and the
decision in the case of State of Maharashtra
and others Vs. Saeed Sohail Sheikh and others
(supra).
9. The contention of the learned
Counsel for the petitioner is that the
petitioner would not be able to meet his
relatives or engage a Counsel of his
choice if transferred to a far off Jail as the
petitioner has now been sent to a Jail at
Varanasi almost 800 kms. away and,
therefore, if transfer is necessary, he may
be shifted to a Jail in some nearby district.
10. The written instructions that
have been produced by the learned
A.G.A. are extracted here under:-
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vijk/kh fodzkUr mQZ foDdh dh U;k;ky; ifjlj esa
xksyh ekjdj gR;k dj nh x;h FkhA foDdh R;kxh ds
dsl- ds dbZ cUnh ftyk dkjkxkj] eqtQ~Qjuxj esa
fu:) gS] muds }kjk lkxj efyd ds lkFk dksbZ
vfiz; ?kVuk ?kfVr dh tk ldrh FkhA bl dkj.k
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dkjkxkj ls vU;= tuin dh dkjkxkj ij
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ekuuh;
U;k;ky;
eq[;
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712
 INDIAN LAW REPORTS ALLAHABAD SERIES
eqtQQjuxj ls vuqefr iznku fd;s tkus gsrq
vuqjks/k fd;k x;kA
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nh x;h rFkk fnukad & 21-02-2015 dks ekuuh;
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ftls Hkh ekuuh; U;k;ky; dks fnukad & 21-02-15 dks
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dh lqfo/kk miyC/k gS] LFkkukUrfjr djus gsrq fnukad
& 23-02-15 dks ftyk eftLVsz~V eqtQQjuxj ls
dk;Zokgh djus gsrq vuqjks/k fd;k x;kA
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ds ek/;e ls ftyk eftLVs~zsV] eqtQQjuxj dks izkIr
gqvkA ftyk eftLVsz~ }kjk vkns'k fnukad & 26-02-15
dks dkjkxkj ij Hkstk x;kA
7 'kklu dk vkns'k izkIr gksus ij cUnh dks
iw.kZ lqj{kk O;oLFkk esa fnukad & 26-02-15 dks ftyk
dkjkxkj okjk.klh LFkkukUrfjr dj fn;k x;kA
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okjk.klh LfkkukUrj.k ekuuh; U;k;ky; eq[; U;kf;d
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o 'kklukns'k ds vuqikyu esa fd;k x;k gSA
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11. A perusal thereof clearly indicates
about the possibility of a gang war in the
Jail at Muzaffarnagar. This fact has also
been noticed by the Court. It has also been
noticed that the petitioner was given an
opportunity to file an objection as indicated
above.
In
paragraph
No.4
of
the
instructions, it has been categorically stated
that the facility of Video Conferencing has
to be made available and, as such, he has
been transferred to Varanasi where such
facilities are available.
12. What is more revealing is that
the State government has issued a
Government Order on 26.2.2015 for
transferring
the
petitioner
from
Muzaffarnagar to Varanasi Jail. To our
mind, this power has been exercised in
terms of Section 417 (1) of the Criminal
Procedure Code, extracted herein below:-
"417. Power to appoint place of
imprisonment.--(1)
Except
when
otherwise provided by any law for the
time being in force, the State Government
may direct in what place any person liable
to be imprisoned or committed to custody
under this Code shall be confined."
13. The Uttar Pradesh Jail Manual
provides for a complete procedure for
lodging of prisoners and their transfer
from one prison to another. For this, one
has to turn to the Prisoners Act, 1900 and
the U.P. Jail Manual.
14. Sri A.K. Sand, learned A.G.A.,
has provided assistance to the Court by
pointing out the Decision Bench in the
case of Raghuraj Pratap Singh alias Raja
Bhayya and another Vs. State of U.P. and
others, Writ Petition No.6719 (M/B) of
2002, decided on 11.12.2002 that took
stock of a previous Division Bench
judgment in the case of Balram Singh
Yadav Vs. State of U.P. and others, 1991
JIC 95, and extensively dealt with the
provisions under the Prisons Act and the
Prisoners Act read with the provisions of
U.P. Jail Manual to point out that
2 All] Sagar Malik Vs. State of U.P. & Ors.
713
paragraph No.8 of Chapter II of the U.P. Jail
Manual lays down the powers indicating
lodging of under trials and specially to para
409-A of the said Manual which extends the
applicability of all rules in the Jail Manuals
to under trial prisoners as in the case of
convicts. The Court then went on to discuss
paras 137 and 138 of the Jail Manual relating
to transfer and held that the power so
exercised for transfer from one prison to
another is well within the competence of the
authorities empowered to do so. The power,
therefore, vests with the State Government to
transfer and such power appears to have been
exercised
with
the
passing
of
the
Government Order dated 26.2.2015.
15. The provision that empowers
that courts to issue directions to the
officer-in-charge of a prison is Section
267 of the Cr.P.C. under Chapter XXII
thereof, but at the same time Section 268
Cr.P.C.
again
empowers
the
State
Government to refuse removal of a
prisoner
subject
to
the
conditions
enumerated in sub Section (2) thereof.
Apart from this, it is the judgment in State
of Maharashtra Vs. Saeed Sohail Sheikh
(supra) that spells out the necessity of the
courts granting permission for such
transfer.
16. The petitioner has nowhere
challenged the said order dated 26.2.2015
passed by the State Government and as
indicated in the instructions received from
the
State
Government.
The
Court/Magistrate concerned has only
granted permission but the place of
imprisonment has been fixed by the State
Government in exercise of such powers.
17. In the absence of any challenge
to the order of the State Government, the
only question remains as to whether the
permission granted by the Court is
justified or not.
18. In our opinion, the Magistrate
has only given a permission for transfer to
another Jail and the reasons given are the
existence of an eminent possibility of a
gang war. Apart from this, the petitioner
in his objection had only taken a plea that
since his uncle and relatives are lodged in
the same Jail, he should not be
transferred. No other plea has been taken
in the said objection. Thus, principles of
natural justice have been complied with
and the petitioner had filed an objection
which has been noticed where after the
impugned order has been passed by the
learned Magistrate. Merely because the
relatives of the petitioner are lodged in the
same Jail, the same cannot be a ground to
refuse transfer and, therefore, the order of
the Magistrate does not suffer from any
infirmity or perversity calling for an
interference. The said order has now been
already executed with the issuance of a
Government Order on 26.2.2015 which
has not been challenged. In the aforesaid
circumstances, when the principles of
natural justice have been complied with
and sufficient reasons have been indicated
in the order permitting transfer, we do not
find any good ground to interfere with the
same at least at this stage.
19. Now one of the grounds which
has been additionally argued before us is
about the distance of the transferred
prison
namely
to
Varanasi
which
according to the petitioner will not only
cause inconvenience but would also
violate his fundamental rights. Having
given our anxious consideration the
background in which the petitioner has
been shifted cannot be ignored. Secondly,
the system of Video Conferencing is
714
 INDIAN LAW REPORTS ALLAHABAD SERIES
already
available
at
Varanasi
and,
therefore, the question of any long
journey
being
undertaken
by
the
petitioner at this stage affecting his rights
does not arise. To the contrary at
Muzaffarnagar his rival gang is also
lodged in the same Jail which itself is an
impending danger. Thirdly, the question
of engaging a Counsel of his choice at this
stage cannot be an impediment and would
not violate any of his fundamental rights
inasmuch as the petitioner is not being
prohibited from engaging any Counsel of
his choice. The transfer to a far off Jail
can also be countenanced with the fact
that the district of Varanasi itself has a
large number of lawyers practising on the
criminal side, who can cater to and give
proper advice in such a case. After all
whenever a litigant enters the portals of a
Court, he has to opt and choose a lawyer
as it cannot be supposed that all litigants
have retainer lawyers from before. The
choice of lawyers does not get limited nor
does their engagement get prohibited. The
petitioner is well within the State of U.P.
This argument even otherwise would not
be available to the petitioner inasmuch as
the learned Counsel have time and again
stated that they do not oppose the transfer
of the petitioner to any nearby district.
Thus, this plea also does not in any way
help the petitioner in assailing the
impugned order as he would still have to
engage a lawyer whenever required.
20. Consequently, the shifting of the
petitioner is in his own interest and for the
time being does not prejudice his cause
occasioning any miscarriage of justice or
failure of justice. The order passed by the
Magistrate, therefore, has to be upheld.
21. The issue of interference with
such orders has also been dealt with by a
Division Bench in the case of State of
U.P. through Principal Secretary (Prison),
U.P., Lucknow Vs. Fast Track Court
No.2, Maharajganj, and others, 2008 (63)
ACC 317, that has followed the ratio in
the case of Kalyan Chandra Sarkar Vs.
Rajesh Ranjan alias Pappu Yadav and
another, (2005) 3 SCC 284.
22. It goes without saying that if and
when any necessity arises or in such
circumstances exists that may indicate the
re-transfer of the petitioner from one Jail
to another, it would be open to the
competent authority to exercise such
powers in accordance with law which
may be necessary on the basis of material
on record.
23. In view of the aforesaid reasons
and the circumstances of the case, we do
not find any fundamental rights of the
petitioner being violated so as to cause
interference inasmuch as the Court had
applied it's mind fairly and objectively
and after giving an opportunity to the
petitioner.
Paragraph
No.35
of
the
judgment in the case of State of
Maharashtra and others Vs. Saeed Sohail
Sheikh and others (supra) is the ratio of
the said judgment and which appears to
have
been
complied
with
by
the
Magistrate while passing the order which
has now taken the shape
of the
Government
Order
dated
26.2.2015
whereupon
the
petitioner
has
been
transferred to Varanasi.
24. Consequently, there is no merit
in the writ petition. The writ petition is
dismissed.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.04.2015