# STATE OF UTTAR PRADESH v. JAIL SUPERINTENDENT (ROPAR) & Ors

- **Citation:** [2021] 2 S.C.R. 863
- **Court:** Supreme Court of India
- **Decided:** 2021-03-26
- **Bench:** Ashok Bhushan, R. Subhash Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-uttar-pradesh-v-jail-superintendent-ropar-ors-34938
- **Pages:** 33

## Headnote

Constitution of India/ Code of Criminal Procedure, 1973: Art.
32/s.406 - Petition u/Art. 32 read with s. 406 - Maintainability of -
On facts, various criminal cases filed against sitting MLA from Mau
District, UP - Ten criminal cases pending trial against him,
transferred to Special Court and accused lodged in District Jail,
Banda, UP, pursuant to order of Special Judge - Meanwhile case
registered against accused in District Mohali, Punjab u/ss. 386 and
506 IPC - Pursuant to the issuance of production warrant,
Superintendent of District Jail, Banda, UP, without permission from
the Court of Special Judge (MPs/MLAs), Allahabad gave custody
of the accused to the Judicial Magistrate, Mohali, Punjab -
Thereafter, on passing of remand order, accused lodged in District
Jail, Roopnagar, Punjab, and since then, he is continuing in the
said jail - For last two years, number of warrants issued for
production of accused before the various Courts in UP but Jail
Authorities, Roopnagar, Punjab refused to give custody on the
pretext that the accused was unwell - Writ Petition u/Art. 32 rw s.
406 by State of UP seeking directions to the State of Punjab and
Judicial Magistrate, Mohali, Punjab, to transfer the criminal
proceedings and trial in the criminal case pending before the
Judicial Magistrate, Mohali, to the Court of Special Judge (MP/
MLA), Allahabad, UP, and directions to Jail Superintendent,
Roopnagar and State of Punjab to handover the custody of the
accused from Roopnagar Jail, District Ropar, Punjab to District
Jail Banda, UP - Held: The State, being a prosecuting agency in
the Criminal Administration, is vitally interested in such
administration, as such, the State is considered as a "party interested"
within the meaning of Sub-Section (2) of s. 406 and petition u/s.
406 is maintainable - However, relief sought for transfer of the
case is not granted, since in the criminal case on the file of Police
Station Mathaur, District Mohali, Punjab, no final report is filed by
[2021] 2 S.C.R. 863
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the Police and it is at the stage of investigation and as such, s. 406
Cr.P.C. cannot be pressed into service - As regards, the transfer
from one prison to another, a convict or an undertrial prisoner,
who disobeys the law of the land, cannot oppose his transfer from
one prison to another - Courts are not to be a helpless bystander,
when the rule of law is being challenged with impunity - Arms of
law are long enough to remedy the situation - In such situations,
this Court can exercise power u/Art. 142 to order transfer of prisoner
from one prison to another, thus, issuance of directions to the Jail
Superintendent Roopnagar and State of Punjab, to handover
custody of the accused to the State of UP, within a period of two
weeks, so as to lodge him in District Jail, Banda in UP where the
Jail Authorities would extend the necessary medical facilities to
accused.
Code of Criminal Procedure, 1973: s. 406 - Power under -
Words "party interested" - Interpretation of - Held: s. 406 confers
power on this Court to transfer of cases and appeals on the
application filed by the Attorney-General of India or by a party
interested - In the criminal administration system, State is the
prosecuting agency, working for and on behalf of the people of the
State, as such the State can be said to be a party interested within
the meaning of s. 406(2) of the Code - Words "party interested"
are of a wide import and, thus, have to be interpreted by giving a
wider meaning - Statute must be interpreted to advance the cause
of the Statute and not to defeat the same - Interpretation of statutes.
Partly allowing the writ petition and dismissing the transfer
petitions, the Court
HELD: 1.1 The instant petition, filed under Article 32 of
the Constitution of India / Section 406 of the Code of Criminal
Procedure, 1973, is held to be maintainable under Section 406 of
the Code. The relief, sought for transfer of the case-trans

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STATE OF UTTAR PRADESH
v.
JAIL SUPERINTENDENT (ROPAR) & Ors.
(Writ Petition (Criminal) No. 409 of 2020)
MARCH 26, 2021
[ASHOK BHUSHAN AND R. SUBHASH REDDY, JJ.]
Constitution of India/ Code of Criminal Procedure, 1973: Art.
32/s.406 - Petition u/Art. 32 read with s. 406 - Maintainability of -
On facts, various criminal cases filed against sitting MLA from Mau
District, UP - Ten criminal cases pending trial against him,
transferred to Special Court and accused lodged in District Jail,
Banda, UP, pursuant to order of Special Judge - Meanwhile case
registered against accused in District Mohali, Punjab u/ss. 386 and
506 IPC - Pursuant to the issuance of production warrant,
Superintendent of District Jail, Banda, UP, without permission from
the Court of Special Judge (MPs/MLAs), Allahabad gave custody
of the accused to the Judicial Magistrate, Mohali, Punjab -
Thereafter, on passing of remand order, accused lodged in District
Jail, Roopnagar, Punjab, and since then, he is continuing in the
said jail - For last two years, number of warrants issued for
production of accused before the various Courts in UP but Jail
Authorities, Roopnagar, Punjab refused to give custody on the
pretext that the accused was unwell - Writ Petition u/Art. 32 rw s.
406 by State of UP seeking directions to the State of Punjab and
Judicial Magistrate, Mohali, Punjab, to transfer the criminal
proceedings and trial in the criminal case pending before the
Judicial Magistrate, Mohali, to the Court of Special Judge (MP/
MLA), Allahabad, UP, and directions to Jail Superintendent,
Roopnagar and State of Punjab to handover the custody of the
accused from Roopnagar Jail, District Ropar, Punjab to District
Jail Banda, UP - Held: The State, being a prosecuting agency in
the Criminal Administration, is vitally interested in such
administration, as such, the State is considered as a "party interested"
within the meaning of Sub-Section (2) of s. 406 and petition u/s.
406 is maintainable - However, relief sought for transfer of the
case is not granted, since in the criminal case on the file of Police
Station Mathaur, District Mohali, Punjab, no final report is filed by
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the Police and it is at the stage of investigation and as such, s. 406
Cr.P.C. cannot be pressed into service - As regards, the transfer
from one prison to another, a convict or an undertrial prisoner,
who disobeys the law of the land, cannot oppose his transfer from
one prison to another - Courts are not to be a helpless bystander,
when the rule of law is being challenged with impunity - Arms of
law are long enough to remedy the situation - In such situations,
this Court can exercise power u/Art. 142 to order transfer of prisoner
from one prison to another, thus, issuance of directions to the Jail
Superintendent Roopnagar and State of Punjab, to handover
custody of the accused to the State of UP, within a period of two
weeks, so as to lodge him in District Jail, Banda in UP where the
Jail Authorities would extend the necessary medical facilities to
accused.
Code of Criminal Procedure, 1973: s. 406 - Power under -
Words "party interested" - Interpretation of - Held: s. 406 confers
power on this Court to transfer of cases and appeals on the
application filed by the Attorney-General of India or by a party
interested - In the criminal administration system, State is the
prosecuting agency, working for and on behalf of the people of the
State, as such the State can be said to be a party interested within
the meaning of s. 406(2) of the Code - Words "party interested"
are of a wide import and, thus, have to be interpreted by giving a
wider meaning - Statute must be interpreted to advance the cause
of the Statute and not to defeat the same - Interpretation of statutes.
Partly allowing the writ petition and dismissing the transfer
petitions, the Court
HELD: 1.1 The instant petition, filed under Article 32 of
the Constitution of India / Section 406 of the Code of Criminal
Procedure, 1973, is held to be maintainable under Section 406 of
the Code. The relief, sought for transfer of the case-transfer the
criminal proceedings and trial in the criminal case pending against
the 3rd Respondent-sitting MLA from Mau District, UP, before
the Judicial Magistrate, Mohali, to the Court of Special Judge
(MP/MLA), Allahabad, UP is not granted, inasmuch as the case
in Crime No.05 of 2019, on the file of Police Station Mathaur,
District Mohali, Punjab, is at the stage of investigation, as such,
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Section 406 of the Cr.P.C. cannot be pressed into service. At the
same time, in exercise of power under Article 142 of the
Constitution of India, directions are issued directing the
Respondent no. 1 - Jail Superintendent, Roopnagar and
Respondent no. 2 - State of Punjab , to handover custody of the
3rd Respondent to the State of Uttar Pradesh, within the stipulated
period so as to lodge him in District Jail, Banda in the State of
Uttar Pradesh. It is open for the Special Court, constituted for
MPs/MLAs at Allahabad to continue him either in the District
Jail at Banda or shift to any other Jail in the State of Uttar Pradesh,
if any need arises. The Superintendent of Jail, District Jail Banda,
Uttar Pradesh is directed to extend the necessary medical facilities
to the 3rd Respondent. It is made clear that if any specialty
treatment is required to the 3rd Respondent, the Jail
Superintendent of District Jail, Banda, Uttar Pradesh shall take
necessary steps to extend such medical care also, by following
the Jail Manual. [Para 28][894-C-H; 895-A]
1.2 From a plain reading of Section 406 of the Code of
Criminal Procedure, 1973, it is clear that power is conferred on
this Court to transfer of cases and appeals on the application
filed by the Attorney-General of India or by a party interested.
The submission that the petitioner-State is not a party interested
cannot be accepted. It is well said that 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
STATE OF UTTAR PRADESH v. JAIL SUPERINTENDENT (ROPAR)
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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. 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, the State is considered
as a "party interested" within the meaning of Sub-Section (2) of
Section 406 of the Code. This petition, as filed under section 406
of the Code of Criminal Procedure, is maintainable at the instance
of the State. It is not necessary to decide the issue as to
maintainability of this petition under Article 32 of the Constitution
of India. [Para 18, 19][884-F-H; 885-A-D, E-F]
K. Anbazhagan v. Superintendent of Police & Ors. 2004
(3) SCC 76 7: [2003] 5 Suppl. SCR 610 - relied on.
1.3 As the investigation in crime no.05 of 2019 on the file
of Police Station Mathaur, District Mohali, State of Punjab is still
at the stage of investigation and in absence of filing of Final
Report, 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 the writ petition. [Para 21][886-E-F]
Ram Chander Singh Sagar (DR.) v. State of Tamil Nadu
1978 (2) SCC 35: [1978] 2 SCR 604 - referred to.
1.4 It is evidently a fit case to invoke our power under Article
142 of the Constitution of India for grant of relief to the extent,
as sought for, under Para-26(B) of the petition, to order transfer
of the custody of the 3rd Respondent from Roopnagar Jail, District
Ropar, Punjab to District Jail, Banda, Uttar Pradesh. It is not in
dispute that with regard to the cases and status, which are
pending trial before the Special Judge, MPs/MLAs, Allahabad, a
perusal of the chart which is furnished by the petitioner, indicates
that the 3rd Respondent is involved in various cases of attempt to
murder, murder, cheating, conspiracy, etc., apart from offences
under Gangsters Act. The said cases, as mentioned by the
petitioner, number in Ten, are at various stages of trial. Further,
the petitioner has furnished the cases, where warrants were issued
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by the Courts in various crimes, registered in the Districts of
Mau, etc., and when the police went to seek custody, the 1st
respondent had refused to handover the custody on medical
grounds. The reasons for non- production are mentioned in a
tabular form. During the period from 14.02.2019 to 14.02.2020,
custody is denied to the police of Uttar Pradesh by the 1st
Respondent 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. No finding is recorded on such allegation of
conspiracy at this stage, but, at the same time, this Court is
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
the 3rd Respondent 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
STATE OF UTTAR PRADESH v. JAIL SUPERINTENDENT (ROPAR)
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in the State of Uttar Pradesh, so as to order his presence, as and
when required. Therefore, 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, 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, the accused / 3rd Respondent
cannot oppose the relief, as sought for in the writ petition.
[Para 25][889-B-H; 890-A-G]
Asha Ranjan v. State of Bihar 2017 (4) SCC 397: [2017]
1 SCR 945 - relied on.
Union of India v. V. Sriharan 2016 (7) SCC 1 : [2015]
14 SCR 613; A.P. Christian Medical Educational
Society v. Govt. of A.P. 1986 (2) SCC 667 : [1986] 2
 SCR 749; Ujjam Bai v. State of Uttar Pradesh [1963]
1 SCR 778; State Trading Corporation of India Ltd. v.
Commercial Tax Officer [1964] 4 SCR 99 ; Coffee
Board Bangalore v. Jt. Commercial Tax Officer Madras
1969 (3) SCC 349 : [1970] 3 SCR 147; A.B. Bhaskara
Rao v. CBI 2011 (10) SCC 259 : [2011] 12 SCR 718;
State of Haryana v. Sumitra Devi 2004 (12) SCC 322 :
[2003] 5 Suppl. SCR 351; Saihba Ali v. State of
Maharashtra 2003 (7) SCC 250; Kalyan Chandra
Sarkar v. Rajesh Ranjan alias Pappu Yadav & Anr. 2005
(3) SCC 284 - referred to.
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Case law reference
[2015] 14 SCR 613
referred to
Para 8
[1986] 2 SCR 749
referred to
Para 11
[1963] 1 SCR 778
referred to
Para 11
[1964] 4 SCR 99
referred to
Para 11
[1970] 3 SCR 147
referred to
Para 11
[2003] 5 Suppl. SCR 610
relied on
Para 18
[1978] 2 SCR 604
referred to
Para 20, 21
[2011] 12 SCR 718
referred to
Para 25
[2003] 5 Suppl. SCR 351
referred to
Para 25
(2003) 7 SCC 250
referred to
Para 25
(2005) 3 SCC 284
referred to
Para 25
[2017] 1 SCR 945
relied on
Para 27
CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Criminal) No.409 of 2020
(Under Article 32 of the Constitution of India)
With
Transfer Petition (Criminal) No. 104-114 of 2021
Tushar Mehta, SG, Mukul Rohatgi, V.K. Shukla, Dushyant Dave,
Sr. Advs., Ms. Garima Prashad, Kanu Agrawal, Sanjay Agrawal, Ms.
Astha Deep, Ms. Parul Shukla, Ms. Devanshi Popat, Ms. Ranjeeta
Rohatgi, Ms. Neha Sangwan, Ms. Samten Doma, Advs. for the appearing
parties.
The Judgment of the Court was delivered by
R. SUBHASH REDDY, J.
(Writ Petition (Crl.) No. 409 of 2020)
This Writ Petition is filed under Article 32 of the Constitution of
India, read with Section 406 of the Code of Criminal Procedure, 1973
(Cr.P.C.) by the State of Uttar Pradesh, seeking Writ of Mandamus,
seeking appropriate directions, directing the respondent-State of Punjab
STATE OF UTTAR PRADESH v. JAIL SUPERINTENDENT (ROPAR)
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and the Learned Judicial Magistrate-I, Mohali, State of Punjab, to transfer
the criminal proceedings and trial in the Case Crime No.05 of 2019,
titled as State of Punjab v. Mukhtar Ansari, pending before the Judicial
Magistrate-I, Mohali, State of Punjab, to the Court of Special Judge
(MP/MLA), Allahabad, Uttar Pradesh and with a further direction to
the Respondent Nos.1 and 2 to handover the custody of the accused /
3rd Respondent from Roopnagar Jail, District Ropar, Punjab to District
Jail Banda, Uttar Pradesh.
2. The case of the petitioner-State, as averred in the Writ Petition,
is as follows:
I. The 3rd Respondent herein, is sitting MLA from District Mau in
the State of Uttar Pradesh. It is the case of the petitioner-State that
large number of criminal cases have been registered against the accused
/ Respondent No.3, namely Mohd. 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. In
pursuance of the directions, issued by this Court in Writ Petition (Civil)
No.699/2016, titled as Ashwini Kumar Upadhyay & Ors. v. Union of
India & Ors., vide orders dated 10.09.2020 and 16.09.2020, all the
pending criminal cases against the MPs and MLAs, pending in various
Courts, have been transferred to the Special Court, constituted to deal
with the cases of MPs and MLAs. The ten criminal cases, which are
pending trial against the accused / 3rd Respondent, were transferred
from various Districts to the Special Court and pursuant to the order
passed by the Special Court, the accused / 3rd Respondent was lodged in
District Jail, Banda, Uttar Pradesh, so as to be produced before the
Court, as and when required. Thereafter, every effort is made to fast
track the cases and some cases have reached the stage of arguments.
II. It is the case of the petitioner-State that in view of the conspiracy,
hatched by the accused / 3rd Respondent, a Case in Crime No.05 of
2019 is registered against the 3rd Respondent for the offences punishable
under Sections 386 & 506 of the IPC on the file of Police Station Mathaur,
District Mohali, State of Punjab. The said crime is registered based on
an anonymous call, allegedly made by one Ms. Rizwana Bano. Pursuant
to registration of Crime No.05 of 2019 in Police Station Mohali, Punjab,
on 19.01.2019, the Judicial Magistrate-I, Mohali, Punjab issued a
production warrant under Section 267 of Cr.P.C., and in execution of the
same, Senior Superintendent of District Jail, Banda, Uttar Pradesh,
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without seeking permission from the Special Court (MPs/MLAs),
Allahabad gave custody of the accused / 3rd Respondent to the Judicial
Magistrate, Mohali, State of Punjab. Pursuant to a remand order, made
by the Judicial Magistrate-I, Mohali, Punjab, 3rd Respondent is lodged in
Roopnagar Jail, State of Punjab.
III. It is stated that the action taken by the Jail Superintendent,
District Jail, Banda, Uttar Pradesh was in violation of Section 267(2) of
Cr.P.C. and consequently, a departmental inquiry is initiated against him
and the same is pending.
IV. It is alleged that the Judicial Magistrate-I, Mohali, Punjab,
instead of sending the accused / 3rd Respondent back to the District Jail,
Banda, Uttar Pradesh, after he was produced in the Court, sent him to
the District Jail, Roopnagar, Punjab on 24.01.2019 and since then, he is
continuing in the same Jail. It is stated that neither the Charge-sheet has
been filed nor the 3rd Respondent applied for default bail, as contemplated
under Section 167(2) of Cr.P.C.
V. It is the case of the petitioner that the accused / 3rd Respondent
is making every effort to continue in the Jail at Punjab. Though, from the
last two years, number of warrants have been issued to bring the accused
/ 3rd respondent from Roopnagar Jail, District Ropar, Punjab for production
before the various Courts in the State of Uttar Pradesh, all efforts made
by the Police were futile as every time the Jail Authorities refused to
give custody on the pretext that the accused was unwell. The medical
reports dated 17.08.2019, 27.08.2019, 29.08.2019, 02.09.2019, 04.09.2019,
08.09.2019, 11.09.2019, 13.09.2019, 20.09.2019, 26.09.2019, 27.09.2019,
29.09.2019 and 02.10.2019 were prepared showing that the accused /
3rd respondent was unwell. Though the medical reports do not reveal
any serious ailments except ailments like diabetes, skin allergy,
hypertension, backache, etc., but custody of the 3rd Respondent is denied
on such health grounds.
VI. It is alleged that though the State has made every effort to
produce the accused / 3rd Respondent before various Courts in the State
of Uttar Pradesh, where his appearance is required, it could not produce
the 3rd Respondent as he was denied custody by the Jail Authorities at
Punjab and as such, production warrants are not being executed on one
pretext or the other.
VII. Precisely, it is the case of the petitioner that the accused / 3rd
Respondent is making every effort to continue his incarceration outside
STATE OF UTTAR PRADESH v. JAIL SUPERINTENDENT (ROPAR)
[R. SUBHASH REDDY, J.]
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the State of Uttar Pradesh (in Punjab) and is avoiding his presence in
the Special Court and other Courts, where number of criminal cases
have come up for appearance/trial/arguments.
3. Counter Affidavit is filed on behalf of the Superintendent of
District Jail, Roopnagar, Punjab (1st Respondent) and the State of Punjab
(2nd Respondent). While denying various allegations, made in the Writ
Petition, the case of the Respondent Nos.1 & 2 is as under:
I.The Writ Petition, as filed under Article 32 of the Constitution of
India read with Section 406 of the Code of Criminal Procedure, 1973 is
not maintainable, inasmuch as there is no infringement of fundamental
rights of the petitioner-State of Uttar Pradesh and further, the Writ Petition
is also not maintainable under Section 406 of Cr.P.C. It is stated under
Section 406 of Cr.P.C. the transfer petition is maintainable only on the
application, made by the Attorney-General of India or by a party
interested, as such, the petitioner-State of Uttar Pradesh cannot maintain
a petition, as filed, seeking transfer of Case No.05 of 2019, pending
before the Judicial Magistrate-I, Mohali, State of Punjab to any other
Court in the State of Uttar Pradesh.
II. The accused / 3rd Respondent is presently confined in District
Jail, Roopnagar, Punjab in connection with the FIR No.05 of 2019 dated
08.01.2019 under Sections 386 and 506 of IPC, Police Station Mathaur,
District SAS Nagar (Mohali), State of Punjab. Learned Magistrate has
issued production warrants under Section 267 of the Cr.P.C. and in view
of the said warrants, the accused was taken into custody from District
Jail, Banda, State of Uttar Pradesh on 22.01.2019 and is presently lodged
in District Jail, Roopnagar, Punjab, pursuant to a remand order, passed
by the Judicial Magistrate-I, Mohali, State of Punjab in the aforesaid
case on 24.01.2019.
III. It is stated that the said case is registered in view of the
complaint of Mr. Umang Jindal, C.E.O., Homeland Hights, Mohali,
Punjab, where it is alleged that there was a call from Mobile
No.6390407709, demanding ransom of Rs.10 crores. As per the
information, the accused / 3rd Respondent has called him on 07.01.2019,
as such, the case was registered and he was taken into custody in
connection with the said case. Further, it is stated that the accused / 3rd
Respondent Mohd. Mukhtar Ansari was also figured as an accused in
case FIR No.252 dated 26.11.2014 for the offences punishable under
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Section 302 read with 34 of IPC, on the file of P.S. Morinda and in
connection with the said case, he is not yet arrested.
IV. It is stated that as per the jail records, 14 other cases are
pending against the accused / 3rd Respondent in different Courts in the
State of Uttar Pradesh and out of the said cases, in 06 cases, the
concerned Trial Courts have permitted the accused / 3rd Respondent to
appear through video conferencing and the accused / 3rd Respondent is
already appearing in those cases. The details of cases against the
accused/3rd Respondent, pending in the State of Uttar Pradesh are given
in tabular form. Further, it is stated that vide order dated 10.02.2020, the
Presiding Officer, Special Court MPs/MLAs, Allahabad, Uttar Pradesh
had desired to verify the report sent by the Jail Authorities, and had
directed the Additional Chief Secretary, Home Affairs, State of Punjab
to constitute a committee of three doctors to evaluate the ailments of the
accused / 3rd Respondent. Pursuant to the same, a committee of doctors
was constituted and medical report was submitted vide letter dated
27.02.2020. Further, it is stated that the accused / 3rd Respondent / undertrial prisoner Mohd. Mukhtar Ansari, had been undergoing treatment at
the jail hospital and at other secondary and tertiary hospitals, from time
to time, since his date of admission to District Jail, Roopnagar, Punjab
i.e. 24.01.2019. Details of medical examinations (date-wise) are furnished
in a tabular form.
V. It is stated that in view of the aforesaid reasons, the accused /
3rd Respondent could not be handed over to the petitioner-State of Uttar
Pradesh due to the specific advice of medical authorities / medical board
/ specialists, from time to time, and in view of the legal obligations on the
answering respondent, as per Section 269 of Code of Criminal Procedure,
1973. While denying the allegation of conspiracy, it is stated that accused
/ 3rd Respondent is lodged in Roopnagar Jail, State of Punjab, pursuant
to a case registered in Crime no.05 of 2019.
VI. It is stated that as per the record, available in the office of the
deponent, neither chargesheet has been submitted nor the accused / 3rd
Respondent has applied for bail. While denying that the deponent is bound
to follow provisions under Section 269 of Cr.P.C., it is stated that in view
of the medical conditions of the accused / 3rd Respondent, he could not
be handed over to the petitioner-State of Uttar Pradesh.
With the aforesaid pleas, in the counter affidavit, Respondent Nos.1
and 2 prayed for dismissal of the Writ Petition.
STATE OF UTTAR PRADESH v. JAIL SUPERINTENDENT (ROPAR)
[R. SUBHASH REDDY, J.]
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4. A separate counter affidavit is filed by the accused / 3rd
respondent Mohd. Mukhtar Ansari. While denying the various allegations
made in the Writ Petition, the case, as averred in the counter affidavit, is
as under:
I.The accused / Respondent No.3 is a sitting MLA from MAU
Constituency from Bahujan Samaj Party (BSP). On account of his long
political career, the ruling party in the State of Uttar Pradesh, has
acrimonious political rivalry against him. There were several attempts
on his life by the person inimically deposed against him, in view of political
affiliations, including Shri Brijesh Singh, who is currently a sitting MLA
from Ruling Party). The accused / 3rd Respondent has been in jail since
25.10.2005 i.e. over 15 years and is himself desirous of early and
expeditious disposal of trial in pending cases. He has been taken into
custody in connection with the case, registered in Crime No.05 of 2019
in Police Station Mathaur, District Mohali, State of Punjab and pursuant
to a remand order, passed by the learned Judicial Magistrate, he is
remanded and presently lodged in Jail at Roopnagar in the State of Punjab
on 08.01.2019. He has won last three elections from jail, which goes to
show the support of the people in eastern Uttar Pradesh towards him.
Out of the pending ten cases, referred in the Writ Petition, he is already
granted permission to appear through video conferencing by the Trial
Court in nine cases and he is appearing regularly. For the remaining one
case i.e. S.T. No.22 of 2005 (i.e. at Serial No.05 of the table at PageD), the application for permission to appear through video conferencing
is pending before the Special Court (MP/MLA). The status of each of
the cases, in the tabular form, is shown, and it is stated that he is regularly
appearing through video conferencing in trials in the State of Uttar
Pradesh.
II. With reference to the allegations made in the Writ Petition, it is
stated that the Writ Petition, as filed, is not maintainable, inasmuch as
the rights, guaranteed under Articles 14 and 21 of the Constitution of
India, are to 'persons' as against actions of the 'State', as such, the
State of Uttar Pradesh cannot invoke the writ jurisdiction under Article
32 of the Constitution of India. As he is continuously participating in the
pending cases in the State of Uttar Pradesh, the petitioner-State cannot
seek relief, as sought in the Writ Petition.
III. While referring to the provision under Section 406 of Cr.P.C.,
it is stated that the said application can be maintained only at the instance
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of the Attorney-General Of India or a party interested, as such, the
present petitioner-State of Uttar Pradesh cannot be considered as a
party interested, so as to invoke power under Section 406 of Cr.P.C.
The Petitioner has suppressed various orders passed by the competent
Court in the State of Uttar Pradesh, granting permission to the accused
/ 3rd Respondent to appear through video conferencing, and sought relief,
as such, the same is to be rejected on the said grounds also.
IV. It is stated that the accused / 3rd Respondent is appearing
through video conferencing in all the cases, pending in the State of Uttar
Pradesh, even after after his incarceration in the jail at Punjab. He,
himself, is interested in an expeditious trial through video conferencing
so that all the false cases, filed against him, could be brought to an end.
V. While referring to his appearance through video conferencing,
it is stated that three of the cases, where he has appeared through video
conferencing, are already acquitted. He is also permitted to appear
through video conferencing in new cases, lodged against him.
VI. With regard to his medical conditions, it is stated that he is
around 65 years old and is suffering from diseases like high blood pressure,
diabetes and also has undergone angiography. In view of his medical
conditions, the doctors and medical board, had advised him to take
complete rest for several months, which is also approved by PGI,
Chandigarh.
VII. While referring to his political background, it is stated that he
has come from a respectable family and in view of political rivalry, there
have been several attempts on his life on multiple occasions. The counter
affidavit has referred to certain instances, where attacks were made on
him on 15.07.2001 & 13.01.2014. It is, further, stated that there is a
political rivalry between Shri Brijesh Singh and the accused / 3rd
Respondent, and the same is well known in the State of Uttar Pradesh.
It is, further, stated that there were open threats made by the members
of the ruling party in the State of Uttar Pradesh and it is alleged that the
political opponents of the petitioner were exerting pressure through
various State Agencies to ensure that there was a constant interference
in the case of the respondent and hanging threats to his life. Referring to
certain complaints filed by him to various authorities, it is stated that in
view of the undue harassment, being caused to the members of his family,
his family members were constrained to move out of the State of Uttar
Pradesh on account of the malicious prosecutions being carried out.
STATE OF UTTAR PRADESH v. JAIL SUPERINTENDENT (ROPAR)
[R. SUBHASH REDDY, J.]
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VIII. It is stated that in view of the apprehension in the mind of
the accused / 3rd Respondent, he has also sought transfer of his cases
from the State of Uttar Pradesh and stated that every possible attempt
is made to inconvenience him.
IX. It is stated that in view of the threat to his life, as he is already
permitted to appear through video conferencing by the competent Court,
there is no reason to seek transfer, as prayed for. Further, in view of the
threat to his life in all the trials, he is allowed to appear through video
conferencing and further, in view of the ailments, which he is suffering,
there is no merit in the Writ Petition filed by the petitioner-State to seek
transfer as prayed for. It is stated that he himself is interested in
expeditious disposal of the cases and every attempt is made by him for
expeditious disposal of cases registered against him.
With the aforesaid averments in the counter affidavit, 3rd
Respondent prayed for dismissal of writ petition.
6. We have heard Mr. Tushar Mehta, learned Solicitor General,
appearing for the petitioner and Shri Dushyant Dave, learned senior
counsel, appearing for Respondents 1 & 2; and Shri Mukul Rohatgi,
learned senior counsel, appearing for the 3rd Respondent.
7. Shri Tushar Mehta, learned senior counsel, has contended that
accused no.3 is involved in several cases, where serious charges of
murder, extortion, cheating, fraud and offences under Gangsters Act,
etc., are pending trial and all the cases are transferred to the Special
Court, constituted by the High Court of Allahabad, to try the cases of
MPs/MLAs. The learned Special Judge has ordered to incarcerate
respondent no.3 in District Jail, Banda ,Uttar Pradesh so that Respondent
No.3 could be produced before the Court on every date in each case
and trials be concluded expeditiously. It is submitted that in connection
with the case in Crime No.05 of 2019, registered for offences punishable
under Sections 386 and 506 of the IPC on the file of Police Station
Mathaur, District Mohali in the State of Punjab, the Judicial MagistrateI, Mohali issued Production Warrant under Section 267 of Code of
Criminal Procedure and in view of the same, the Senior Superintendent
of District Jail, Banda, Uttar Pradesh, without any approval / order from
the Court of Special Judge (MPs/MLAs), Allahabad, gave custody of
the 3rd Respondent, and the same was in utter disregard to the provision
under Section 267(2) of the Code of Criminal Procedure. It is submitted
that learned Judicial Magistrate-I, Mohali, instead of sending back
respondent No.3 to District Jail, Banda in Uttar Pradesh, sent him to
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District Jail, Roopnagar, Punjab on 24.01.2019. It is submitted that large
number of warrants have been issued by the Special Judge (MPs/MLAs)
Court and several Courts in the State of Uttar Pradesh to bring 3rd
Respondent from District Jail, Roopnagar, Punjab, but all efforts for
securing the custody of 3rd Respondent proved futile for the reason that
every time the Jail Superintendent refused to give custody of the 3rd
Respondent on the ground of ill health of the 3rd Respondent. The reports
of ill health do not indicate any severe ailment and only to avoid to give
his custody to the petitioner-State of Uttar Pradesh, such reports are
prepared.
8. It is submitted that the Writ Petition, filed by the State, is certainly
maintainable under Article 32 of the Constitution of India, for the reason
that the administration of Criminal Justice is bestowed upon the State on
behalf of the victims of crime and also, on the premise that a crime
against a citizen is a crime against the State. To maintain the petition
under Article 32 of the Constitution of India, learned counsel placed
reliance on the judgment in case of Union of India v. V. Sriharan1.
Further, it is submitted that in any event, the petition is filed not only
under Article 32 of the Constitution of India, but the same is filed under
Section 406 of Code of Criminal Procedure. It is contended that the
word "Party Interested", used in Section 406 (2) of the Code of Criminal
Procedure, is to be interpreted widely by giving wide connotation. It is
submitted that the words "Party Interested" are of a wide import,
therefore, wider meaning is to be given to include the State also as much
as purpose of Criminal Justice Administration is to preserve and protect
the rule of law. To support his arguments, learned counsel placed reliance
on the judgments of this Court in the case of K. Anbazhagan v.
Superintendent of Police & Ors.2.
9. It is, further, submitted that in any event, this Court may invoke
powers under Article 142 of the Constitution of India for doing complete
justice, inasmuch as several cases involving the 3rd Respondent, with
serious charges, are under trial in the State of Uttar Pradesh.
10. It is, further, submitted that accused / Respondent no.3 is also
operating his illegal activities in the State of Uttar Pradesh from the Jail
in Punjab, inasmuch as on 05.04.2020, FIR No.04 of 2020 is registered
in Police Station Dakshin Tola, Mau, Uttar Pradesh for the offences
under Sections 419, 420, 467, 468, 471, 120-B of the IPC and Section 7
1 2016(7)SCC 1
2 2004 (3) SCC 767
STATE OF UTTAR PRADESH v. JAIL SUPERINTENDENT (ROPAR)
[R. SUBHASH REDDY, J.]
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of the Arms Act. It is submitted that the alleged medical ailments,
mentioned in the counter affidavits, are not of serious nature. Further, it
is submitted that the ailments shown in the medical reports by the
respondents are not new, he was having such ailments since the year
2008, and the same is evident from the medical certificate issued from
the Superintendent, District Jail, Gazipur. It is submitted that the transfer
of 3rd Respondent is imperative from District Jail, Roopnagar, State of
Punjab to District Jail, Banda, Uttar Pradesh and the appearance through
video conferencing would not serve the purpose, in view of the fact that
the attendance could not be secured at several times in the past.
Resultantly, there is abnormal delay in the trials, pending in Special Court
in Uttar Pradesh. The alleged threat of the 3rd Respondent to his life is
also unsustainable and cannot be a ground for not handing over custody
of the 3rd Respondent. The rivalry with another accused namely Shri
Brijesh Singh is without any substance, inasmuch as Shri Brijesh Singh
is also lodged in the Jail of Uttar Pradesh, since past more than 10 years.
Further, the 3rd Respondent had been safely lodged in the District Jail,
Banda, Uttar Pradesh from the last more than fifteen years and he was
duly provided the required medical care.
11. Shri Dushyant Dave, learned senior counsel, appearing for
Respondent Nos. 1 & 2, at the outset, has contended that the petition, as
filed by the State of Uttar Pradesh under Article 32 of the Constitution
of India read with Section 406 of the Code of Criminal Procedure, 1973,
is not maintainable. It is submitted that the sole objective of Article 32 of
the Constitution of India is for enforcement of fundamental rights,
guaranteed under Part-III of the Constitution of India, as such, the
petitioner, being a State, cannot agitate violation of fundamental rights,
guaranteed under Part-III of the Constitution of India. Learned senior
counsel, to support his contention, relied on judgment of this Court in
A.P. Christian Medical Educational Society v. Govt. of A.P.3 and
judgment in the case of Ujjam Bai v. State of Uttar Pradesh4 and
judgment in the case of State Trading Corporation of India Ltd. v.
Commercial Tax Officer5 and judgment in the case of Coffee Board
Bangalore v. Jt. Commercial Tax Officer Madras6.
12. Further submissions of the learned senior counsel are that as
the case is at investigation stage, as such, the petitioner is virtually seeking
3 1986(2)SCC 667
4 1963(1)SCR 778
5 1964(4)SCR 99
6 1969(3)SCC 349
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transfer of investigation from one police station to another in the country
and the same is impermissible. To support this contention, reliance is
also placed on the judgment of this Court in the case of Ram Chander
Singh Sagar (DR.) v. State of Tamil Nadu7. Further, by referring to
Section 406 of the Cr.P.C., it is submitted by the learned senior counsel
that this Court's power to act under this Section is confined to cases,
where the application is filed by the Attorney-General of India or by a
Party Interested. It is submitted that in absence of any such application
by the Attorney-General of India or Party Interested, petitioner-State
cannot seek transfer even under Section 406 of the Cr.P.C.