power exercisable by the
court while permitting or refusing transfer is ‘judicial’ and
not ‘ministerial’ as contended by Mr. Naphade. Exercise of
ministerial power is out of place in situations where quality
of life or the liberty of a citizen is affected, no matter
he/she is under a sentence of imprisonment or is facing a
criminal charge in an on-going trial. That transfer of an
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 is settled
Applying the above principles to the case at hand and
keeping in view the fact that any order that the Court may
make on a request for transfer of a prisoner is bound to
affect him prejudicially, we cannot but hold that it is
obligatory for the Court to apply its mind fairly and
objectively to the circumstances in which the transfer is
being prayed for and take a considered view having regard
to the objections which the prisoner may have to offer.
There is in that process of determination and decisionmaking an implicit duty to act fairly, objectively or in other
words to act judicially. It follows that any order of transfer
passed in any such proceedings can be nothing but a
judicial order or at least a quasi-judicial one. Inasmuch as
the trial court appears to have treated the matter to be
administrative and accordingly permitted the transfer
without issuing notice to the under-trials or passing an
appropriate order in the matter, it committed a mistake. A
communication received from the prison authorities was
dealt with and disposed of at an administrative level by
sending a communication in reply without due and proper
consideration and without passing a considered judicial
order which alone could justify a transfer in the case. Such
being the position the High Court was right in declaring the
transfer to be void and directing the re-transfer of the
undertrials to Bombay jail.
In a country governed by the rule of law police
excesses whether inside or outside the jail cannot be
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
punished.
REPORTABLE
IN THE SUPREME COURT OF INDIA
The State of Maharashtra & Ors. etc.etc. …Appellants
Versus
Saeed Sohail Sheikh etc. etc. …Respondents
Decided on;2-11 2012
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 21
st
July, 2009 passed by a
Division Bench of the High Court of Judicature at Bombay
whereby a batch of criminal writ petitions filed by the
1Parespondents 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
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 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.
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 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 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 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.
5. In response to the request aforementioned the Special
Judge passed an order dated 26
th
March, 2004, inter alia,
stating that:
It is true that Honourable Supreme Court has
granted 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 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 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.
7. On 22
nd
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 28
th
June, 2008 at 9.00 a.m. An announcement
was then made requesting thirty-two undertrial prisoners to
gather near Lal 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 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
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 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 the jail and force
reasonable enough to bring the situation under control used
for that purpose. The appellants contend that because of
5P
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