MUKHTAR ANSARI TRANSFER CASE JUDGMENT

STATE OF UTTAR PRADESH

V.

JAIL SUPERINTENDENT (ROPAR) AND ORS

Transfer Petition (Criminal) NO.104-114 of 2021 dated 26 March,2021

Bench: Ashok Bhushan and R. Shubhash Reddy, JJ.

Facts: 

A Writ Petition was 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 a writ of Mandamus. It sought appropriate directions for the respondent-State of Punjab to transfer the criminal proceedings and trial in 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. It sought the custody of the accused from Roopnagar Jail, District Ropar, Punjab to District Jail Banda, Uttar Pradesh.

The accused is sitting MLA from District Mau in the State of Uttar Pradesh. The petitioner-State case that a large number of criminal cases have been registered against the accused in 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 in Ashwini Kumar Upadhyay&Ors. v. Union of India, 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 MPs and MLAs cases. According to the order passed, the ten criminal cases, which are pending trial against the accused, were transferred from various Districts to the Special Court. The accused was lodged in District Jail, Banda, Uttar Pradesh, to be produced before the Court, as and when required. After that, every effort is made to fast track the cases; some cases have reached the stage of arguments. The petitioner-State case that given the conspiracy hatched by the accused, a Case in Crime No.05 of 2019 is registered against him 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 made by one Ms RizwanaBano. According to the registration of Crime No.05 of 2019 in Police Station Mohali, Punjab, the Judicial Magistrate-I, Mohali, Punjab, issued a production warrant under Section 267 of Cr. PC. In the execution of the same, Senior Superintendent of District Jail, Banda, Uttar Pradesh, without seeking permission from the Special Court (MPs/MLAs), Allahabad gave custody of the accused to the Judicial Magistrate, Mohali, State of Punjab. According to a remand order made by the Judicial Magistrate-I, Mohali, Punjab, the accused is lodged in Roopnagar Jail, State of Punjab.

The action taken by the Jail Superintendent, District Jail, Banda, Uttar Pradesh, violated Section 267(2) of Cr. PC. Consequently, a departmental inquiry is initiated against him, and the same is pending. The Judicial Magistrate-I, Mohali, Punjab, instead of sending the accused back to the District Jail, Banda, Uttar Pradesh, sent him to the Court after he was produced in the Court District Jail, Roopnagar, Punjab, and since then, he is continuing in the same Jail. Neither the Charge-sheet has been filed nor the accused applied for default bail, as contemplated under Section 167(2) of Cr.P.C. The accused is making every effort to continue in Jail in Punjab. Though from the last two years, several warrants have been issued to bring the accused 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. However, the medical reports do not reveal any severe ailments. Due to the Jail Authorities’ denial of custody in Punjab, production warrants against the accused are not being executed on one pretext or the other. Precisely, it is alleged that the accused is making every effort to continue his incarceration outside the State of Uttar Pradesh (in Punjab) and avoids his presence in the Special Court and other courts several criminal cases have come up for appearance/trial/arguments.

Issue: Whether this writ petition filed by the State of Uttar Pradesh under Article 32 of the Constitution of India read with Section 406 of the Indian Penal Code is maintainable or not? 

Held: The Court held that this petition, as filed under section 406 of the Code of Criminal Procedure, is maintainable. This petition is filed under Article 32 of the Constitution of India read with Section 406 of the Code of Criminal Procedure. Chapter XXXI of the Code of Criminal Procedure, 1973 is a chapter dealing with the Transfer of Criminal Cases. Section 406 of the Code of Criminal Procedure, 1973 deals with the Supreme Court’s power to transfer cases and appeals.

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 cases and appeals on the application filed by the Attorney-General of India or by a party interested.

The Court held that the petitioner-State is a party interested as per Section 406 of CrPC. It is said – a crime against an individual is a crime against a State and the public at large. In the criminal administration system, State is the prosecuting agency, working for and on behalf of the people. The phrase “party interested” has not been defined under the Code of Criminal Procedure, 1973. The words “party interested” are of a comprehensive import and, therefore, have to be interpreted by giving a broader meaning. The terms 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.

As a prosecuting agency in the Criminal Administration, the State can be said to be a party interested within the meaning of Section 406(2) of the Code of Criminal Procedure, 1973. It is a well-settled principle of law that the Statute must be interpreted to advance the cause of the Statute and not to defeat the same. The petitioner-State, being a prosecuting agency in the Criminal Administration, is vitally interested in such administration; as such, we believe that the State is considered a “party interested” within the meaning of Sub-Section (2) of Section 406 of the Code. 

The Court relied on the Supreme Court’s judgment in the case of K. Anbazhagan v. Superintendent of Police &Ors.[2004 (3) SCC 767] to hold that the petitioner-State are party interested within the meaning of Section 406(2) of the Code of Criminal Procedure. Therefore, the Court held that the petition, as filed under section 406 of the Code of Criminal Procedure, is maintainable. It wasn’t felt necessary to decide the issue as to the maintainability of this petition under Article 32 of the Constitution of India.

Issue: Whether it is a fit case to invoke the power under Section406 of the CrPCto command the State of Punjab and the Judicial Magistrate-I, Mohali, State of Punjab to transfer the criminal proceedings and trial in the case no.05 of 2019, pending before the Judicial Magistrate-I, Mohali?

The Court held that under crime no.05 of 2019, registered on the file of Police Station Mathaur, District Mohali, State of Punjab, for offences punishable under Sections 386 and 506 of the IPC, no Final Report is filed by the Police, and the case is at the stage of the investigation. Given the case’s status, no claim is made out by the petitioner, seeking transfer under Section 406 of the Code of Criminal Procedure, which relief is sought for in Para-26(A) of the writ petition. The Court relied on the judgment in the case of  RamChander Singh Sagar (DR.) v. State of Tamil Nadu[1978(2)SCC 35].It was held that the power under Section 406 to transfer a lawsuit or appeal from one High Court or another court does not clothe it with the ability to transfer investigations from one police station to another simply because the first information or a remand report is forwarded to a Court. Therefore, the Court held that no relief could be granted, as sought for, in the exercise of power under Section 406 of the Code of Criminal Procedure, 1973.

Issue:Whether it is a fit case to invoke the power under Article 142 of the Constitution of India to command the State of Punjab to hand over the custody of the accused  from Roopnagar Jail, District Ropar, so as to keep him in District Jail, Banda in the State of Uttar Pradesh?

Held: The Court held that it is 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 the custody of the accused from Roopnagar Jail, District Ropar, Punjab to District Jail, Banda, Uttar Pradesh. It is not in a dispute concerning the cases and status, which are pending trial before the Special Judge, MPs/MLAs, Allahabad. A perusal of the chart that the petitioner furnishes indicates that the accused is involved in various attempts to murder, murder, cheating, conspiracy, etc., apart from offences under the Gangsters Act. The said cases are pending at different stages of a trial. Further, the petitioner had furnished the cases where warrants were issued by the Courts in various crimes, registered in the Districts of Mau, etc. When the Police went to seek custody, the State of Punjab had refused to hand over the custody on medical grounds. 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 not giving custody shows that it is mainly on the medical grounds referring to diabetes mellitus, skin allergy, hypertension, backache, throat infection, etc. The Court refused to record any finding on such allegation of conspiracy at this stage. However, it was satisfied that the custody is denied to the Police of Uttar Pradesh on trivial grounds under the guise of medical grounds by mentioning common diseases like diabetes mellitus, skin allergy, hypertension, backache, throat infection, etc. In addition to the same, it gives any amount of suspicion on the accused’s conduct is not even applying for a grant of default bail, for not filing Final Report (Charge-sheet) by the Police, Police Station Mathaur, District Mohali, Punjab within the statutory period. The Court held that the appearance of the accused by video conferencing, by itself, is no ground to oppose the relief sought.

Therefore, the Court opined that 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 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 the transfer of a prisoner from one prison to another. Though there is a separate enactment called The Transfer of Prisoners Act, 1950, which permits the transfer of a prisoner from one State to another, the same is circumscribed under Section 3 of the Act. Even then, this Court, in the exercise of power under Article 142 of the Constitution of India, can consider for transfer of the prisoner in the circumstances, as pleaded by the petitioner. 

Suppose there are any medical ailments to the petitioner. In that case, every care shall be taken by the Jail Authorities, but, at the same time, on the specious plea of ill health by referring to minor ailments, the accused cannot oppose the relief, as sought for in the writ petition.

The Court relied on the case of A.B. Bhaskara Rao v. CBI[2011 (10) SCC 259] and State of Haryana v. Sumitra Devi [2004 (12) SCC 322], where this Court has held that in the exercise of power under Article 142 of the Constitution of India, no order can be passed, which shall run contrary to the Statute or statutory rules. The Court read Section 3 of The Transfer of Prisoners Act and held that it is clear that there does not appear to be any provision for the transfer of an undertrial prisoner. There being no statutory provision, covering the transfer of a prisoner from one State to another, having regard to the facts of the case on hand, this Court, certainly in the exercise of jurisdiction under Article 142 of the Constitution of India, may issue necessary directions in the given circumstances.