# THE STATE OF MAHARASHTRA & ORS. ETC.ETC v. SAEED SOHAIL SHEIKH ETC. ETC

- **Citation:** [2012] 11 S.C.R. 916
- **Court:** Supreme Court of India
- **Decided:** 2012-11-02
- **Case number:** Criminal Appeal Nos.1735-1739 of 2012
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-maharashtra-ors-etc-etc-v-saeed-sohail-sheikh-etc-etc-28215
- **Pages:** 35

## Headnote

[2012] 11 S.C.R. 916
A
THE STATE OF MAHARASHTRA & ORS. ETC.ETC.
B
v.
SAEED SOHAIL SHEIKH ETC. ETC.
(Criminal Appeal Nos.1735-1739 of 2012)
NOVEMBER 2, 2012
rr.s. THAKUR AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
Prisoners Act, 1900 - s.29 - Transfer of prisoners -
C When envisaged - Held: Transfer in terms of sub-section (1)
of s.29 is permissible only in distinct situations covered by
clauses (a) to (d) - The provision does not deal with undertrial
prisoners who do not answer the description given therein -
Transfer under sub-section (2) of s.29 is also permissible only
o if it relates to prisoners confined in circumstances indicated
in sub-section (1) of s.29.
Code of Criminal Procedure, 1973 - ss.167 and 309 -
Transfer of prisoner with permission of the court under whose
warrant the undertrial had been remanded to custody- Power
E exercisable by the court while permitting or refusing transfer
- Nature of the power - Held: Is Judicial' and not 'ministerial'
- 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
F 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
- Thus any order of transfer passed in any such proceedings
can be nothing but a judicial order or at least a quasi-judicial
G one - In the instant case, inasmuch as the trial court appears
to have treated the matter to be administrative and
accordingly permitted the transfer without issuing notice to the
under-trials or passing an appropriate order in the matter, it
H
916
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED 917
SOHAIL SHEIKH ETC. ETC.
committed a mistake - Communication received from the A
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 B
in declaring the transfer of respondent- undertrials to be void
and directing their re-transfer back to Bombay jail.
Custodial torture - Report submitted by Sessions Judge
- Consequent direction issued by High Court to the
Government to hold inquiry against those responsible for C
using excessive force against the undertrial prisoners and for
dereliction of duty by jail doctors - Challenge to - Held: Said
direction of the High Court was issued entirely on the basis
of the report submitted by the Sessions Judge - However, that
report besides being preliminary was flawed in many respects D
including the fact that the same did not comply with the basic
requirement of a fair opportunity of hearing being given to
those likely to be affected - It was at any rate not for the High
Court to record a final and authoritative finding that the force
used by the jail authorities was excessive or that it was used E
for any extraneous purpose - It was a matter that could be
determined only after a proper inquiry was conducted and an
opportunity afforded to those who were accused of using such
excessive force or abusing the power vested in them -
Consequential directions issued by the High Court in directing
F
the State Government to initiate disciplinary inquiry against
all the officers involved in the incident were, therefore,
premature - Government directed to treat the report submitted
by the Sessions Judge as a preliminary inquiry and take a
considered decision whether or not any further inquiry,
G
investigation or proceedings needs to be conducted against
those allegedly responsible for using excessive force against
fhe under-trials.
The instant appeals were filed by the State of H
918
SUPREME COURT REPORTS
[2012] 11 S.C.R.
A Maharashtra and senior officers in the Department of
Prisons, Government of Maharashtra against

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[2012] 11 S.C.R. 916
A
THE STATE OF MAHARASHTRA & ORS. ETC.ETC.
B
v.
SAEED SOHAIL SHEIKH ETC. ETC.
(Criminal Appeal Nos.1735-1739 of 2012)
NOVEMBER 2, 2012
rr.s. THAKUR AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
Prisoners Act, 1900 - s.29 - Transfer of prisoners -
C When envisaged - Held: Transfer in terms of sub-section (1)
of s.29 is permissible only in distinct situations covered by
clauses (a) to (d) - The provision does not deal with undertrial
prisoners who do not answer the description given therein -
Transfer under sub-section (2) of s.29 is also permissible only
o if it relates to prisoners confined in circumstances indicated
in sub-section (1) of s.29.
Code of Criminal Procedure, 1973 - ss.167 and 309 -
Transfer of prisoner with permission of the court under whose
warrant the undertrial had been remanded to custody- Power
E exercisable by the court while permitting or refusing transfer
- Nature of the power - Held: Is Judicial' and not 'ministerial'
- 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
F 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
- Thus any order of transfer passed in any such proceedings
can be nothing but a judicial order or at least a quasi-judicial
G one - In the instant case, inasmuch as the trial court appears
to have treated the matter to be administrative and
accordingly permitted the transfer without issuing notice to the
under-trials or passing an appropriate order in the matter, it
H
916
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED 917
SOHAIL SHEIKH ETC. ETC.
committed a mistake - Communication received from the A
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 B
in declaring the transfer of respondent- undertrials to be void
and directing their re-transfer back to Bombay jail.
Custodial torture - Report submitted by Sessions Judge
- Consequent direction issued by High Court to the
Government to hold inquiry against those responsible for C
using excessive force against the undertrial prisoners and for
dereliction of duty by jail doctors - Challenge to - Held: Said
direction of the High Court was issued entirely on the basis
of the report submitted by the Sessions Judge - However, that
report besides being preliminary was flawed in many respects D
including the fact that the same did not comply with the basic
requirement of a fair opportunity of hearing being given to
those likely to be affected - It was at any rate not for the High
Court to record a final and authoritative finding that the force
used by the jail authorities was excessive or that it was used E
for any extraneous purpose - It was a matter that could be
determined only after a proper inquiry was conducted and an
opportunity afforded to those who were accused of using such
excessive force or abusing the power vested in them -
Consequential directions issued by the High Court in directing
F
the State Government to initiate disciplinary inquiry against
all the officers involved in the incident were, therefore,
premature - Government directed to treat the report submitted
by the Sessions Judge as a preliminary inquiry and take a
considered decision whether or not any further inquiry,
G
investigation or proceedings needs to be conducted against
those allegedly responsible for using excessive force against
fhe under-trials.
The instant appeals were filed by the State of H
918
SUPREME COURT REPORTS
[2012] 11 S.C.R.
A Maharashtra and senior officers in the Department of
Prisons, Government of Maharashtra against a common
judgment passed by the High Court whereby a batch of
criminal wri_t petitions filed by the respondents were
allowed, transfer of the respondents-prisoners from
B Arthur Road Jail in Bombay to three other jails in the
State of Mahanishtra held to be illegal and the appellants
directed to transfer the prisoners back to the jail at
Bombay.
Earlier, in the writ petitions filed by the respondents
C before the Higtii Court, allegations regarding use of
excessive force and inhuman treatment were made
against the jaH officials including the Superintendent of
the Central Jail. The respondents alleged that the use of
force was without any provocation and justification apart
D from being inspired by reasons extraneous to the need
for maintaining peace and order within the jail. The nature ·
of the allegations made in the writ petitions was found by
the High Court to be sufficient to call for an inquiry into
the violent incident. This inquiry was assigned to a
E Sessions Judge who came to the conclusion on the basis
of the medical records of the injured that the use of force
by the jail authorities was excessive and further that the
injured were not given medical aid and they were not
properly examined by the doctors from the Bombay
F Central Police.
On a consideration of the report received from the
Sessions Judge, the High Court found it necessary to
direct the Government to hold a departmental inquiry
against the officials who had used excessive force in
G bringing the situation in the jail under control. The High
Court found that the order transferring the respondentsundertrial prisoners from Bombay Central Jail to other
jails in the State was illegal and unacceptable inasmuch
H as the request for transfer had been dealt with at an
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED919
SOHAIL SHEIKH ETC. ETC.
· administrative level without affording an opportunity to A
the undertrials to oppose the same. The High Court
rejected the contention urged on behalf of the appellants
that Section 29 of the Prisoners Act, 1900 empowers the
State Government or.the Inspector General of Prisons to
transfer the undertrials. The power to transfer the B
undertrials was, according to the High Court, exercisable
only by the Court under whose orders the prisoners were
remanded to judicial custody in a given jail and that
inasmuch as the court concerned had faltered in taking
appropriate action on the request for transfer by treating c
the request to be only an administrative matter, the
sanction for transfer of the undertrials to other jails was
vitiated.
Partly allowing the appeals, the Court
HELD:1.1. Removal of any prisoner under Section 29
of the Prisoners Act, 1900 is envisaged only at the
instance of the State Government in cases where the
prisoner is under a sentence of death or under or in lieu
D
of a sentence of·imprisonment or transportation or is E
undergoing in default of payment of fine or imprisonment
in default of security for keeping the peace or for
maintaining good behaviour. Transfer in terms of subsection (1) of Section 29 is thus permissible only in
distinct situations covered by clauses (a) to (d). The F
provision does not, it is manifest, deal with undertrial
prisoners who do not answer the description given
therein. [Para 20) (935-A-C]
1.2. Though sub-section (2) of section 29 no doubt
empowers the Inspector General of Prisons to direct a G
transfer but what is important is that any such transfer
is of a prisoner who is confined in circumstances
mentioned in sub-section (1) of Section 29. That is evident
from the use of words "any prisoner confined as
aforesaid in a prison". The expression leaves no manner H
920
SUPREME COURT REPORTS
[2012] 11 S.C.R.
A of doubt that a transfer under sub-section (2) is also
permissible only if it relates to prisoners who were
confined in circumstances indicated in sub-section (1) of
Section 29. The respondents in the present case were
undertrials who could not have been transferred In tenns
B of the orders of the Inspector General of Prisons under
Section 29. [Para 21) [935-D·FJ
c
Whether undertrials can be transferred to any prison with
the permission of the court under whose orders he has
been committed to the prison
2.1. Section 167(2) CrPC empowers the Magistrate to
whom an accused is forwarded whether or not he has
jurisdiction to try the case to authorize his detention in
such custody as the Magistrate deems fit for a tenn not
D exceeding 15 days in the whole. Section 309 CrPC, inter
a/ia, empowers the court after taking cognizance of an
offence or commencement of the trial to remand the
accused in custody in cases where the court finds it
necessary to postpone the commencement of trial or
E inquiry.The rationale underlying both these provisions is
that the continued detention of the prisoner in jail during
the trial or inquiry is legal and valid only under the
authority of the Court/Magistrate before whom the
accused is produced or before whom he is being tried.
F An undertrial remains in custody by reasons of such
order of remand passed by the concerned court and
such remand is by a warrant addressed to the authority
who is to hold him in custody. The remand orders are
invariably addressed to the Superintendents of jails
G where the undertrials are detained till their production
before the court on the date fixed for that purpose. The
prison where the undertrial is detained is thus a prison
identified by the competent court either in terms of
Section 167 or Section 309 CrPC. It is axiomatic that
transfer of the prisoner from any such place of detention
H
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED 921
SOHAIL SHEIKH ETC. ETC.
would be permissible only with the permission of the A
court under whose vtarrant the undertrial has been
remanded to custody. [Paras 24, 25] [936-G-H; 937-A;
938-C-G]
2.2. The power exercisable by the court while 8
permitting or refusing transfer is 'judicial' and not
'ministerial'. 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 onC
going trial. Transfer of an undertrial to a distant prison
may adversely affect his right to defend himself but also
isolate him from the society of his ·friends and relations.
[Para 27] [939-B-D]
·
·
2.3. Any order that the Court may make on a request D
for transfer of a prisoner is bound to affect him
prejudicially. It is thus 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 E
the prisoner may have to offer. There is in that process
of determination and decision-making an implicit ditty 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 F
a quasi-judicial one. In the instant case, inasmuch as the
trial court appears tb have treated the matter to be
administrative and accordingly permitted the transfer
without issuing notice to the under-trials or passing an
appropriate order in thl;'I matter, it committed a mistake. G
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
H
922
SUPREME COURT REPORTS
[2012) 11 S.C.R.
A case. Such being the position the High Court was right
in declaring the transfer to be void and directing the retransfer of the undertrials to Bombay jail. [Para 39) [947C-G]
8
Sunil Batra v. Delhi Administration AIR 1980 SC 1579:
1980 (2) SCR 557 - relied on.
Province of Bombay v. Khusaldas Advani AIR 1950 SC
222: 1950 SCR 621; ; State of Orissa v. Dr. Binapani Dei
AIR 1967 SC 1269: 1967 SCR 625; A.K. Kraipak v. Union
C of India (1969) 2 sec 262: 1970 (1) SCR 457; Mohinder
Singh Gill. v. Chief Election Commission (1978) 1 SCC 405:
1978 (2) SCR 272; Jamal Uddin Ahmad v. Abu Saleh
Najmuddin (2003) 4 SCC 257: 2003 (2) SCR 473 - referred
to.
D
The King v. The Electricity Commissioner [1924) 1 K.B.
171 and The King v. London County Council [1931) 2 K.B.
215 - referred to.
Judicial Review (Thomson Sweet & Maxwell, 6th Edition,
E 2007) by Prof. De Smith and Black's Law Dictionary -
referred to.
Whether the High Court was justified in directing the
Government to hold an inquirv against those responsible
F for using excessive force (against the undertrlal
prisoners) and for dereliction of duty by the medical
officer liail doctors)
3.1. The said direction of the High Court was issued
entirely on the basis of the report submitted by the
G Sessions Judge. That report besides being preliminary
is flawed in many respects including the fact that the
same does not comply with the basic requirement of a
fair opportunity of hearing being given to those likely to
be affected. It is true that the statements of some of the
H jail officials have also been recorded in the course of the
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED 923
SOHAIL SHEIKH ETC. ETC.
inquiry but that is not enough. Those indicted in the A
report were entitled to an opportunity to cross-examine
those who alleged misconduct against them. Not only
that the Sessions Judge has not named the officers
responsible for the alleged use of excessive force which
was essential for any follow up or further action in the B
matter. So, also the report clearly states the officials
concerned have not been allowed to examine any
witness although a request was made by them to do so.
Such being the position, some of the observations made
by the High Court that give an impression as though the c
misdemeanour of the jail officers had been proved, do
not appear to be justified. [Para 40, 41] [948-B-E-G-H]
3.2. It was at any rate not for the High Court to record
a final and authoritative finding that the force used by the
jail authorities was excessive or that it was used for any D
extraneous purpose. It was a matter that could be
determined only after a proper inquiry was conducted
and an opportunity afforded to those who were accused
of using such excessive force or abusing the power
vested in them. Consequential directions issued by the E
High Court in directing the State Government to initiate
disciplinary inquiry against all the officers involved in the
incident were, therefore, premature. This is because the
question whether any disciplinary inquiry needs to be
instituted against the jail officials would depend upon the F
outcome of a proper investigation into the incident and
not a preliminary enquiry in which the Investigating
Officer, apart from statements of the respondents, makes
use of information discreetly collected from the jail
inmates. The report of the Sessions Judge could in the G
circumstances provide no more than a prima facie basis
for the Government to consider whether any further
investigation into the incident was required to be
conducted either for disciplinary action or for launching
prosecution of those found guilty. Beyond that the H
924
SUPREME COURT REPORTS
(2012] 11 S.C.R.
A preliminary report could not serve any other purpose.
[Para 41] [948-G-H; 949-A-D]
3.3. In a country governed by the rule of law police
excesses whether inside or outside the jail cannot be
8 countenanced in the name of maintaining discipline or
dealing with anti-national elements. Accountability is one
of the facets of the rule of law. If anyone is found to have
acted in breach of law or abused his position while
exercising powers that must be exercised only within the
parameters of law, the breach and the abuse can be
C punished. That is especially .so when the abuse is alleged
to have been committed under the cover of authority
exercised by people in uniform. Any such action is also
open to critical scrutiny and examination by the Courts.
Having said that one cannot ignore the fact that the
D country today faces challenges and threats from extremist
elements operating from within and outside India. Those
dealing with such elements have at times to pay a heavy
price by sacrificing their lives in the discharge of their
duties. The glory of the constitutional democracy that this
E country has adopted, however, is that whatever be the
challenges posed by such dark forces, the country's
commitment to the Rule of Law remains steadfast. Courts
in this country have protected and would continue to
protect the ideals of the rights of the citizen being
F inviolable except in accordance with the procedure
established by law. [Para 42] [949-E-H; 950-A-B]
3.4. The Government shall treat the report submitted
by the Sessions Judge as a preliminary inquiry and take
G a considered decision whether or not any further inquiry,
investigation or proceedings against those allegedly
responsible for using excessive force while restoring
discipline in the Central Jail at Bombay on 26th June, 2008
needs to be conducted. [Para 43] [950-C-D]
H
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED 925
SOHAIL SHEIKH ETC. ETC.
Case Law Reference:
1980 (2) SCR 557
relied on
Para 27
1950 SCR 621
referred to
Paras 30, 31,
33
1924 1 K.B. 171
referred to
Para 31
1931 2 K.B. 215
referred to
Para 32
1967 SCR 625
referred to
Para 35
1910 (1) SCR 457
referred to
Para 36
1978 (2) SCR 272
referred to
Para 37
2003 (2) SCR 473
referred to
Para 38
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 1735-1739 of 2012.
From the Judgment & Order dated 21.7.2009 of the High
Court of Judicature at Bombay in Criminal Writ Petition No.
1377 of 2008, Criminal Application No. 50 of 2009 in Criminal
Writ Petition No. 1377 of 2008, Criminal Writ Petition No. 1496
of 2008, Criminal Writ Petition No. 1773 of 2008 and Criminal
Writ Petition No. 2746 of 2008.
A
B
c
D
E
Shekhar Naphade, Amrender Saran, Arun R Pednekar,
Sanjay Kharde, Asha Gopalan Nair, Abhay Kumar, Upendra F
Pratap Singh, Rutwik Panda, Nilofar Qureshi for the Appearing
Parties .
. The Judgment of the Court was delivered by
T.S. THAKUR, J. 1. Leave granted.
G
2. These appeals have been filed by the State of
Maharashtra and senior officers in the Department of Prisons,
Government of Maharashtra against a common judgment and
order dated 21st July, 2009 passed by a Division Bench of the H
926
SUPREME COURT REPORTS
[2012] 11 S.C.R.
A
High Court of Judicature at Bombay whereby a batch of criminal
writ petitions filed by the respondents have been allowed,
transfer of the respondents-prisoners from Arthur Road Jail in
Bombay to three other jails in the State of Maharashtra held to
be illegal and the appellants directed to transfer the prisoners
B back to the jail at Bombay. The High Court has expressed the
view that jail authorities having used force against undertrial
prisoners for no fault of theirs and since such force was used
for extraneous reasons and was excessive, the Chief Secretary
of the State of Maharashtra shall initiate a disciplinary inquiry
C against all those involved in the incident. The High Court has
further held that if need be in addition to departmental inquiry,
criminal action be also taken against the concerned officers
including an inquiry into the conduct of the jail doctors for
dereliction of their duty and alleged fudging of the records.
D
3. The factual matrix relating to the transfer of the prisoners
from Bombay Central Prison to other prisons in the State and
use of force causing injuries to some of them has been set out
in the order passed by the High Court at some length. We need
not, therefore, recount the same over again except to the extent
E it is necessary to do so for the disposal of these appeals.
4. Superintendent of the Bombay Central Prison appears
to have addressed a letter to the Special Judge under The
Maharashtra Control of Organised Crime Act, 1999 (hereinafter
F
referred to as the MCOC Act) requesting for permission to
transfer accused persons in three different Bombay blast cases
being MCOC cases No.16/2006, 21/2006 and 23/2006. The
request for transfer was proceeded on two distinct grounds
namely (i) that against a capacity of 840 prisoners, the Bombay
G jail had as many as 2500 prisoners housed in it resulting in
over-crowding and consequent problems of management in the
jail and (ii) that proceedings in the on-going cases in question
had been stayed with the result that the presence of the
accused persons involved in the said cases was no longer
required in the near future.
H
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED 927
SOHAIL SHEIKH ETC. ETC. [T.S. THAKUR, J.)
5. In response to the request aforementioned the Special A
Judge passed an order dated 26th March, 2004, inter alia,
stating that:
'xxxxxxxx
It is true that Honourable Supreme Court has granted B
stay to entire further proceedings of above referred cases
and therefore, presence of accused is no more required
in near future. It is total domain of Jail Authorities to
transfer accused to other jails due to scarcity of premises
or for security purpose. As the presence of accused is not C
required immediately, you are at liberty to take action of
transfer of above referred accused to other jails as per
rules and regulations."
6. Administrative approval for the transfer of 37 undertrial 0
prisoners involved in the above three cases was also obtained
from the Inspector General of Prisons who directed the
Superintendent, Bombay Central Prison, to keep in mind the
criminal background of the prisoners while allocating them to
different jails in the State.
E
7. On 22nd June, 2008 the jail authorities appear to have
sent a requisition for an escort to the police headquarters which
police escort was provided and reached the jail premises on
28th June, 2008 at 9.00 a.m. An announeement was then made
requesting thirty-two undertrial prisoners to gather near Lal
F
Gate in the prison premises out of whom seven prisoners were
transferred to Ratnagiri Special Jail around 11.40 a.m. The
other nineteen undertrials were said to be sitting outside while
two other undertrial prisoners named Kamal Ahmad Vakil
Ansari and Dr. Tanveer Mohd. Ibrahim Ansari refused to leave G
their cell to join the escort party despite persuasions by the jail
authorities. The case of the appellants is that these undertrial
prisoners refused to listen to the jail authorities and started
abusing and misbehaving with the jail officials including Mrs.
Swati Madhav Sathe, the Jail Superintendent. Not only that, the H
928
SUPREME COURT REPORTS
(2012) 11 S.C.R.
A undertrial prisoners started shouting anti-national and
provocative slogans. After hearing these slogans from the high
security cell, 21 undertrial prisoners who had gathered near the
Lal Gate also started giving similar slogans and charged
towards the jail officials, Wardens and watchmen and started
B assaulting them with bricks and stones. The version of the
appellants is that these 21 undertrial prisoners also tried to
approach the High Security Cell and tried to open its gate while
they continued shouting slogans. Apprehending that the
situation may go out of hand, the alarm bell was sounded in
c the jail and force reasonable enough to bring the situation under
control used for that purpose. The appellants contend that
because of the assault by the undertrial prisoners, the jail
guards and prison officers sustained injuries.
8. A report regarding the incident in question was
D submitted on 30th June, 2008 to the Deputy Inspector General
of Prison with a copy to the Principal Judge, City Sessions
Court, Greater Bombay, Registrar Special-Judge, under
MCOC Act apart from other officers in the prison hierarchy.
Such of the prisoners as had received injuries were forwarded
E to the jail medical officers who examined them and issued
medical certificates, regarding injuries sustained by them. The
appellants allege that there was no violation of any statutory
provision of law nor any other act of impropriety or illegality
committed by them.
F
9. In the writ petitions filed by the respondents before the
High Court, allegations regarding use of excessive force and
inhuman treatment were made against the jail officials including
the Superintendent of the Central Jail. The respondents alleged
G that the use of force was without any provocation and
justification apart from being inspired by reasons extraneous
to the need for maintaining peace and order within the jail. The
nature of the allegations made in the writ petitions was found
by the High Court to be sufficient to call for an inquiry into the
violent incident. This inquiry was assigned to the Sessions
H
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED 929
SOHAIL SHEIKH ETC. ETC. [T.S. THAKUR, J.]
Judge, Greater Bombay who was asked to report whether use
A
· of force by the jail authorities on 28th June, 2008 was excessive
and whether, force was used for any extraneous reasons other
than for maintaining discipline in terms of the Discipline Rules,
1963 of the Jail Manual. The Sessions Judge was also asked
to enquire into the circumstances in which the prisoners had
B
access to bricks and stones as claimed by jail authorities in
\the counter-affidavit filed before the High Court.
10. An inquiry pursuant to the directions of the High Court
was accordingly conducted by the learned Sessions Judge,
Greater Bombay in which the Sessions Judge recorded the
C
statements of the injured as also the jail officials besides some
other inmates of the jail. The report submitted by the Sessions
Judge concluded that the cause underlying the incident of 28th
June, 2008 was the resistance offered by Kamal Ahmad Vakil
Ansari and Dr. Tanveer Mohd. Ibrahim Ansari to their transfer D
from the prison. The Inquiry Officer observed:
" .... The inquiry revealed that Tanvir and Kamal had resisted ·
the jail staff on that day and they were not ready to go out
of the High Security Zone. Inquiry further revealed that the
E
jail staff was required to use force against them for taking
them out of the room, then from barrack and then from the
circle itself ....
F
Statements of prisoners sent to Kolhapur and Nagpur
jails and the statement of the jail staff if considered
together, are sufficient to infer that Tanvir and Kamal
offered maximum resistance to jail staff and they had
refused to come out of High Security Zone but they were G
. not taken out of their respective rooms and so there is no
convincing statement given by anybody in respect of other
two prisoners. It can be said that they were removed after
the main incident was over. If the exaggeration made by
other prisoners who were brought from Kolhapur jail is H
930
SUPREME COURT REPORTS
(2012] 11 S.C.R.
A
ignored, and the facts which can be called as commor.
from the statements given by the jail staff and the prisoners
are considered, it can be said that shouts of Tanvir who
was assaulted inside of High Security Zone were heard
by the prisoners who had gathered outside, in the open
B
space. Material is also sufficient to infer that Kamal came
out though without stick and he instigated the 20 prisoners
who were sitting outside in the open space."
11. The Inquiry Officer further found that the resistance
offered by Kamal Ahmad Vakil Ansari and Dr. Tanveer Mohd.
C Ibrahim Ansari required use of force against them but since
both of them started shouting slogans other prisoners who were
gathered outside in the open portion of the jail gate got agitated
and rushed towards the High Security Cell to see as to what
was happening. The Inquiry Officer held that hearing the antiD national slogans, the jail officers lost their calm and ordered use
of force leading to breach of disturbances within the jail. The
Inquiry Officer has specifically noted that the disturbances had
started on account of instigation given by Kamal Ansari arid
slogans shouted by him and that there were reasons for the jail
E authorities to bring the situation under control. The following
passage in the inquiry report is, in this regard, relevant:
F
G
H
There is possibility that after hearing the shouting of Tanvir
and after hearing from Kamal that Tanvir was being beaten
in High Security Zone and after hearing slogans given by
Tanvir, prisoners who had gathered outside became
disturbed. It can be said that they must have rushed
towards the High Security Zone to see as to what was
happening. There is a clear possibility that after hearing
of the slogans which were given against India, officers
outside became angry and then order was made to use
force. Aforesaid circumstances have created probability
that there was breach .of discipline in view of the Rules
framed under the Maharashtra Prison (Discipline) Rules
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED 931
SOHAIL SHEIKH ETC. ETC. [T.S. THAKUR, J.]
of 1963 and there was disturbance to some extent. I have
A
no hesitation to come to the conclusion that due to the
instigation given by Kamal arid slogans given by him,
disturbance was caused and there was reason for the jail
authority to order use of force. Force was used to bring
the situation under control. But it needs to be ascertained
B
as to whether there was excessive use of force or there
was some extraneous reason also for excess use of force
against these prisoners."
12. Having identified the cause of disturbances the Inquiry C
Officer next examined the question whether the force used by
the jail authorities was excessive and came to the conclusion
on the basis of the medical records of the injured namely,
Tanveer, Kamal, Ehatesham, Sayed Asif, Abdul Wahid, Mohd.
Zuber, Mushtaq Ahmed, Mohd. Zahid, Zameer Ahmad, Riyaz
Ahmed and Mohd. Mujaffar that the use of force by the jail
D
authorities was excessive. The Inquiry Officer further held that
the injured were not given medical aid. They were not properly
examined by the doctors from the Bombay Central Police.
Speaking about the conduct of the doctors in Bombay Central
Prison the Inquiry Officer observed:
E
"This conduct of the doctors of Mumbai Central Prison
speaks volume about the general approach of the jail
authority and the doctors working in the jail. It can be said
that the doctors helped the jail authority in falsifying
F
everything and screening illegal actions of the officers. It
is surprising for the jail authority also that when under
Chapter 11 of the Prison Act, action could have been
taken against the prisoners if they had committed prison
offence by assaulting officers, no record in that regard was
G
created and no such action was proposed. Instead of that,
jail authority hurriedly transferred the prisoners to other
jails."
13. On a consideration of the report received from the
Sessions Judge, the High Court found it necessary to direct the
H
932
SUPREME COURT REPORTS
(2012) 11 S.C.R.
A' Government to hold a departmental inquiry against the officials
who had used excessive force in bringing the situation in the
jail under control. The High Court found that the order
transferring the respondents-undertrial prisoners from Bombay
Central Jail to other jails in the State was illegal and
s unacceptable inasmuch as the request for transfer had been
dealt with at an administrative level without affording an
opportunity to the undertrials to oppose the same. The High
Court rejected the contention urged on behalf of the appellants
that Section 29 of the Prisoners Act, 1900 empowers the State
c Government or the Inspector General of Prisons to transfer the
undertrials. The power to transfer the undertrials was, according
to the High Court, exercisable only by the Court under whose
orders the prisoners were remanded to judicial custody in a
given jail. Inasmuch as the court concerned had faltered in
0 taking appropriate action on the request for transfer by treating
the request to be only an administrative matter, the sanction for
transfer of the undertrials to other jails was vitiated.
14. Appearing for the appellants Mr. Shekhar Naphade,
learned senior counsel, made a three-fold submission before
E us. Firstly, it was contended that the undertrial prisoners had
no enforceable right to demand that they should be detained
in a prison of their choice or to resist their transfer from one
jail to the other if the court under whose orders they were
remanded to such custody permitted such transfer. He argued
F that although Section 29(2) of the Prisoners Act, 1900 permitted
the Inspector General of Prisons to remove any prisoner from
one prison to another in the State even if that power was not
available qua undertrial prisoners, there was no impediment in
such removal after the court under whose orders the prisoners
G were committed to jail had permitted such a transfer.
H
15. Secondly, it was argued by Mr. Naphade, that the
power exercisable by the court in the matter of permitting or
refusing the transfer of a prisoner was ministerial in character
and that the prisoner had no right to demand a notice of any
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED 933
SOHAIL SHEIKH ETC. ETC. [T.S. THAKUR, J.]
such request nor an opportunity to oppose the same. It is a A
matter entirely between the jail authorities on the one hand and
the court concerned on the other in which the prisoner had no
locus standi to intervene.
16. Thirdly, it was argued by Mr. Naphade that the High
B
Court had fallen in a palpable error in holding that the use of
force by the jail authorities was excessive, which called for any
administrative or disciplinary action against those responsible
for using such excessive force. He contended that what would
constitute reasonable force to restore discipline and peace
within the jail depends largely upon the nature of the incident,
C
the extent of disturbances and the gravity of the consequences
. that would flow if force was not used to restore order. It was
not, according to Mr. Naphade possible to sit in judgment over
the decision of the jail authorities who were charged with
maintenance of discipline and peace within the jail and
D
determine whether force was rightly used and, if so, whether
or not the use of force was excessive.
17. ~r. Naphade also urged that the underlying cause of
the incident in the instant case was resistance put up by the
E
undertrials involved in heinous offences against the society
threatening the very sovereignty and integrity of the country. It
was not open to the concerned prisoners, argued Mr. Naphade
to resist their transfer from one jail to the other and to create a
situation in which the jail authorities found it difficult to effectuate
F
their transfer. It was also contended by Mr. Naphade that the ·
reports submitted by the Sessions Judge was at best a
preliminary fact finding report which has neither afforded an
opportunity to all concerned to defend themselves against the
insinuations or to examine witnesses in their defence. No such
G
report could, therefore, be made a basis by the High Court to
issue a mandamus to the State to institute disciplinary action
against the officials concerned as though the finding that the
use of force was excessive was unimpeachable and could
constitute a basis for any such direction.
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SUPREME COURT REPORTS
[2012] 11 S.C.R.
A
18. On behalf of the respondents Mr. Amrender Saran,
learned senior counsel, argued that the transfer of a prisoner
especially an undertrial from one prison to the other was not
inconsequential for the prisoner and could not, therefore, be
dealt with at a ministerial level. A prisoner was entitled to
B oppose the transfer especially if the same adversely affected
his defence. It was also contended that Section 29 did not
empower the Government or the Inspector General of Prisons
to direct transfer of undertrials. It was argued that while the
inquiry conducted by the Sessions Judge was not a substitute
c for a regular inquiry that may be conducted by the State, yet
the exercise undertaken by a senior officer like the Sessions
Judge under the orders of the High Court could furnish a prima
facie basis for the High Court to direct an appropriate
investigation into the case, and to initiate proceedings against
0 those who may be found guilty of any misconduct on the basis
of any such investigation.
19. Section 29 of the Prisoners Act, 1900 reads as under:
"29. Removal of prisoners-(1} The [State Government]
E
may, by general or special order, provide for the removal
of any prisoner confined in a prison-
(a} under sentence of death, or
{b) under, or in lieu of, a sentence of imprisonment or
F
transportation, or
G
{c) in default of payment of a fine, or
{d) in default of giving security for keeping the peace or
for maintaining good behaviour,
to any other prison in [the State]
(2) [Subject to the orders, and unPE!r the control of the
State Government, the Inspector-General of prisons may,
H
in like manner, provide for the removal of any prisoner
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED 935
SOHAIL SHEIKH ETC. ETC. [T.S. THAKUR, J.]
confined as aforesaid in a prison in the State to any other A
prison in the State]"
20. It is evident from a bare glance at the above provision
that removal of any prisoner under the same is envisaged only
at the instance of the State Government in cases where the
8
prisoner is under a sentence of death or under or in lieu of a
sentence of imprisonment or transportation or is undergoing in
default of payment of fine or imprisonment in default of security
for keeping the peace or for maintaining good behaviour.
Transfer in terms of sub-section (1) of Section 29 (supra) is thus
permissible only in distinct situations covered by clauses (a)
C
to (d) above. The provision does not, it is manifest, deal with
undertrial prisoners who do not answer the description given
therein.
21. Reliance upon sub-section (2) of Section 29, in support
D
of the contention that the transfer of an undertrial is permissible,
is also of no assistance to the appellants in our opinion. Subsection (2) no doubt empowers the Inspector General of Prisons
to direct a transfer but what is important is that any such transfer
is of a prisoner who is confined in circumstances mentioned
E
in sub-section (1) of Section 29. That is evident from the use
of words "any prisoner confined as aforesaid in a prison". The
expression leaves no manner of doubt that a transfer under subsection (2) is also permissible only if it relates to prisoners who
were confined in circumstances indicated in sub-section (1) of
F
Section 29. The respondents in the present case were
undertrials who could not have been transferred in terms of the
orders of the Inspector General of Prisons under Section 29
extracted above.
22. We may at this stage refer to Prison Act, 1894 to which · G
our attention was drawn by learned counsel for the appellants
in an attempt to show that the Government could direct transfer
of the undertrials from one prison to another. Reliance, in
particular, was placed upon the provisions of Section 26 of the
Ad which reads as under:
H
A
B
c
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SUPREME COURT REPORTS
[2012] 11 S.C.R.
"26. Removal and discharge of prisoners. - (1) All
prisoners, previously being removed to any other prison,
shall be examined by the Medical Officer.
(2) No prisoner shall be removed from one prison to
another unless the Medical Officer certifies that the prisoner
is free from any illness rendering him unfit for removal.
(3) No prisoner shall be discharged against his will from
prison, if labouring under any acute or dangerous
distemper, nor until, in the opinion of the Medical Officer,
such discharge is safe."
23. The above, does not, in our opinion, support the
contention that the Inspector General of Prisons could direct
removal of undertrial from one prison to other.