MLA FROM MAU DISTRICT, UP versus JAIL SUPERINTENDENT (ROPAR) & ORS. on 26 March 2021

[2021] 2 S.C.R. 863

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 MauDistrict, 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 caseregistered against accused in District Mohali, Punjab u/ss. 386 and506 IPC – Pursuant to the issuance of production warrant,Superintendent of District Jail, Banda, UP, without permission fromthe Court of Special Judge (MPs/MLAs), Allahabad gave custodyof the accused to the Judicial Magistrate, Mohali, Punjab –Thereafter, on passing of remand order, accused lodged in DistrictJail, Roopnagar, Punjab, and since then, he is continuing in thesaid jail – For last two years, number of warrants issued forproduction of accused before the various Courts in UP but JailAuthorities, Roopnagar, Punjab refused to give custody on thepretext that the accused was unwell – Writ Petition u/Art. 32 rw s.406 by State of UP seeking directions to the State of Punjab andJudicial Magistrate, Mohali, Punjab, to transfer the criminalproceedings and trial in the criminal case pending before theJudicial 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 theaccused from Roopnagar Jail, District Ropar, Punjab to DistrictJail Banda, UP – Held: The State, being a prosecuting agency inthe Criminal Administration, is vitally interested in suchadministration, 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 thecase is not granted, since in the criminal case on the file of PoliceStation Mathaur, District Mohali, Punjab, no final report is filed by

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Athe Police and it is at the stage of investigation and as such, s. 406Cr.P.C. cannot be pressed into service – As regards, the transferfrom one prison to another, a convict or an undertrial prisoner,who disobeys the law of the land, cannot oppose his transfer fromone prison to another – Courts are not to be a helpless bystander,when the rule of law is being challenged with impunity – Arms ofBlaw are long enough to remedy the situation – In such situations,this Court can exercise power u/Art. 142 to order transfer of prisonerfrom one prison to another, thus, issuance of directions to the JailSuperintendent Roopnagar and State of Punjab, to handovercustody of the accused to the State of UP, within a period of twoCweeks, so as to lodge him in District Jail, Banda in UP where theJail Authorities would extend the necessary medical facilities toaccused.

Code of Criminal Procedure, 1973: s. 406 – Power under –Words “party interested” – Interpretation of – Held: s. 406 confersDpower on this Court to transfer of cases and appeals on theapplication filed by the Attorney-General of India or by a partyinterested – In the criminal administration system, State is theprosecuting agency, working for and on behalf of the people of theState, as such the State can be said to be a party interested withinthe meaning of s. 406(2) of the Code – Words “party interested”Eare of a wide import and, thus, have to be interpreted by giving awider meaning – Statute must be interpreted to advance the causeof the Statute and not to defeat the same – Interpretation of statutes.

Partly allowing the writ petition and dismissing the transferpetitions, the CourtF

Conclusion

HELD: 1.1 The instant petition, filed under Article 32 ofthe Constitution of India / Section 406 of the Code of CriminalProcedure, 1973, is held to be maintainable under Section 406 ofthe Code. The relief, sought for transfer of the case-transfer thecriminal proceedings and trial in the criminal case pending againstGthe 3[rd] Respondent-sitting MLA from Mau District, UP, beforethe Judicial Magistrate, Mohali, to the Court of Special Judge(MP/MLA), Allahabad, UP is not granted, inasmuch as the casein Crime No.05 of 2019, on the file of Police Station Mathaur,District Mohali, Punjab, is at the stage of investigation, as such, H

Section 406 of the Cr.P.C. cannot be pressed into service. At thesame time, in exercise of power under Article 142 of theConstitution of India, directions are issued directing theRespondent no. 1 - Jail Superintendent, Roopnagar andRespondent no. 2 - State of Punjab , to handover custody of the3[rd] Respondent to the State of Uttar Pradesh, within the stipulatedperiod so as to lodge him in District Jail, Banda in the State ofUttar Pradesh. It is open for the Special Court, constituted forMPs/MLAs at Allahabad to continue him either in the DistrictJail 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 facilitiesto the 3[rd] Respondent. It is made clear that if any specialtytreatment is required to the 3[rd] Respondent, the JailSuperintendent of District Jail, Banda, Uttar Pradesh shall takenecessary steps to extend such medical care also, by followingthe Jail Manual. [Para 28][894-C-H; 895-A]

1.2 From a plain reading of Section 406 of the Code ofCriminal Procedure, 1973, it is clear that power is conferred onthis Court to transfer of cases and appeals on the applicationfiled by the Attorney-General of India or by a party interested.The submission that the petitioner-State is not a party interestedcannot be accepted. It is well said that a crime against an individualis to be considered as a crime against a State and public, at large.In the criminal administration system, State is the prosecutingagency, working for and on behalf of the people of the State. It isto be noticed that “party interested” has not been defined underthe Code of Criminal Procedure, 1973. The words “partyinterested” are of a wide import and, therefore, have to beinterpreted by giving a wider meaning. The words such as“aggrieved party”, “party to the proceedings” and “partyinterested” are used in various Statutes. If the words used are tothe effect “party to the proceedings” or “party to a case”, it canbe given a restricted meaning. In such cases, the intention of thelegislature is clear to give restricted meaning. But, at the sametime, the words used as “party interested”, which are not definedunder the Code of Criminal Procedure, have to be given a wider ABC

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Ameaning. As a prosecuting agency in the Criminal Administration,the State can be said to be a party interested within the meaningof Section 406(2) of the Code. It is a well settled principle of lawthat the Statute must be interpreted to advance the cause of theStatute and not to defeat the same. The petitioner-State, being aprosecuting agency in the Criminal Administration, is vitallyBinterested in such administration, as such, the State is consideredas a “party interested” within the meaning of Sub-Section (2) ofSection 406 of the Code. This petition, as filed under section 406of the Code of Criminal Procedure, is maintainable at the instanceof the State. It is not necessary to decide the issue as toCmaintainability of this petition under Article 32 of the Constitutionof 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 fileDof Police Station Mathaur, District Mohali, State of Punjab is stillat the stage of investigation and in absence of filing of FinalReport, no case is made out by the petitioner, seeking transferunder Section 406 of the Code of Criminal Procedure, which reliefis sought for in the writ petition. [Para 21][886-E-F]

ERam Chander Singh Sagar (DR.) v. State of Tamil Nadu1978 (2) SCC 35: [1978] 2 SCR 604 - referred to.

1.4 It is evidently a fit case to invoke our power under Article142 of the Constitution of India for grant of relief to the extent,as sought for, under Para-26(B) of the petition, to order transferFof the custody of the 3[rd] Respondent from Roopnagar Jail, DistrictRopar, Punjab to District Jail, Banda, Uttar Pradesh. It is not indispute that with regard to the cases and status, which arepending trial before the Special Judge, MPs/MLAs, Allahabad, aperusal of the chart which is furnished by the petitioner, indicatesGthat the 3[rd] Respondent is involved in various cases of attempt tomurder, murder, cheating, conspiracy, etc., apart from offencesunder Gangsters Act. The said cases, as mentioned by thepetitioner, number in Ten, are at various stages of trial. Further,the petitioner has furnished the cases, where warrants were issued H

by the Courts in various crimes, registered in the Districts ofMau, etc., and when the police went to seek custody, the 1[st]respondent had refused to handover the custody on medicalgrounds. The reasons for non- production are mentioned in atabular form. During the period from 14.02.2019 to 14.02.2020,custody is denied to the police of Uttar Pradesh by the 1[st]Respondent on twenty six occasions. A perusal of the reasonsfor not giving custody shows that it is mainly on the medicalgrounds referring to diabetes mellitus, skin allergy, hypertension,backache, throat infection, etc. Though, it is the case of thepetitioner, that the very registration of crime in Crime no.05 of2019 on the file of Police Station Mathaur, District Mohali, Punjabis a part of conspiracy at the instance of the 3[rd] Respondent so asto continue in the jail at Punjab, by protracting the trials, whichare pending in the Special Court and to deny his presence invarious other crimes, registered against him for completing theinvestigation. No finding is recorded on such allegation ofconspiracy at this stage, but, at the same time, this Court issatisfied that the custody is denied to the Police of Uttar Pradeshat every time on trivial grounds under guise of medical groundsby mentioning ordinary diseases like diabetes mellitus, skinallergy, hypertension, backache, throat infection, etc. In additionto the same, it gives any amount of suspicion on the conduct ofthe 3[rd] Respondent in not even applying for grant of default bail,for not filing Final Report (Charge-sheet) by the Police, PoliceStation Mathaur, District Mohali, Punjab within the statutoryperiod. Though, it is the case of the 3[rd] Respondent, opposingthe relief sought for, on the ground that he is permitted in majorityof the cases to appear by video conferencing, but the same, byitself, is no ground to oppose the relief sought for. Though, theearlier cases were pending in various Sessions Courts and onlyto fast track the cases, Special Court is constituted for trial ofcases of MPs/MLAs in the year 2018 by the State of UttarPradesh. On such constitution, all the cases where the 3[rd]Respondent is involved for serious offences under IPC andGangsters Act, were transferred to the Special Court and all arepending trial at various stages. Pursuant to the orders of theSpecial Court, only the 3[rd] Respondent was kept in jail at Banda ABC

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Ain the State of Uttar Pradesh, so as to order his presence, as andwhen required. Therefore, a convict or an undertrial prisoner,who disobeys the law of the land, cannot oppose his transfer fromone prison to another, be a convict or an undertrial prisoner,Courts are not to be a helpless bystander, when the rule of law isbeing challenged with impunity. In such situations, this CourtBcan exercise power under Article 142 of the Constitution of Indiato order transfer of prisoner from one prison to another. Though,there is a separate enactment called The Transfer of PrisonersAct, 1950, which permits transfer of a prisoner from one State toanother by the Government, but, the same is circumscribed underCSection 3 of the Act, as such, the claim of the petitioner will notfit into the same. Even then this Court, in exercise of power underArticle 142, can consider for transfer of the prisoner in thecircumstances, as pleaded by the petitioner. The arms of law arelong enough to remedy the situation. If there are any medicalailments to the petitioner, every care shall be taken by the JailDAuthorities but, at the same time, on the spacious plea of ill healthby referring to minor ailments, the accused / 3[rd] Respondentcannot 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]E1 SCR 945 – relied on.

Union of India v. V. Sriharan 2016 (7) SCC 1 : [2015]14 SCR 613; A.P. Christian Medical EducationalSociety v. Govt. of A.P. 1986 (2) SCC 667 : [1986] 2 SCR 749; Ujjam Bai v. State of Uttar Pradesh [1963]F1 SCR 778; State Trading Corporation of India Ltd. v.Commercial Tax Officer [1964] 4 SCR 99 ; CoffeeBoard Bangalore v. Jt. Commercial Tax Officer Madras1969 (3) SCC 349 : [1970] 3 SCR 147; A.B. BhaskaraRao v. CBI 2011 (10) SCC 259 : [2011] 12 SCR 718;GState of Haryana v. Sumitra Devi 2004 (12) SCC 322 :[2003] 5 Suppl. SCR 351; Saihba Ali v. State ofMaharashtra 2003 (7) SCC 250; Kalyan ChandraSarkar v. Rajesh Ranjan alias Pappu Yadav & Anr. 2005(3) SCC 284 – referred to.

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CRIMINAL ORIGINAL JURISDICTION: Writ Petition(Criminal) No.409 of 2020

(Under Article 32 of the Constitution of India)

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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. RanjeetaRohatgi, Ms. Neha Sangwan, Ms. Samten Doma, Advs. for the appearingparties.

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The Judgment of the Court was delivered by

R. SUBHASH REDDY, J.

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(Writ Petition (Crl.) No. 409 of 2020)

This Writ Petition is filed under Article 32 of the Constitution ofIndia, 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 H

Aand the Learned Judicial Magistrate-I, Mohali, State of Punjab, to transferthe criminal proceedings and trial in the Case Crime No.05 of 2019,titled as State of Punjab v. Mukhtar Ansari, pending before the JudicialMagistrate-I, Mohali, State of Punjab, to the Court of Special Judge(MP/MLA), Allahabad, Uttar Pradesh and with a further direction tothe Respondent Nos.1 and 2 to handover the custody of the accused /B3[rd] Respondent from Roopnagar Jail, District Ropar, Punjab to DistrictJail Banda, Uttar Pradesh.

2. The case of the petitioner-State, as averred in the Writ Petition,is as follows:

CI. The 3[rd] Respondent herein, is sitting MLA from District Mau inthe State of Uttar Pradesh. It is the case of the petitioner-State thatlarge number of criminal cases have been registered against the accused/ Respondent No.3, namely Mohd. Mukhtar Ansari in various Districtsof the State of Uttar Pradesh in the past. Further, in addition to the same,there are presently ten criminal cases pending trial against him. InDpursuance of the directions, issued by this Court in Writ Petition (Civil)No.699/2016, titled as Ashwini Kumar Upadhyay & Ors. v. Union ofIndia & Ors., vide orders dated 10.09.2020 and 16.09.2020, all thepending criminal cases against the MPs and MLAs, pending in variousCourts, have been transferred to the Special Court, constituted to dealEwith the cases of MPs and MLAs. The ten criminal cases, which arepending trial against the accused / 3[rd] Respondent, were transferredfrom various Districts to the Special Court and pursuant to the orderpassed by the Special Court, the accused / 3[rd] Respondent was lodged inDistrict Jail, Banda, Uttar Pradesh, so as to be produced before theCourt, as and when required. Thereafter, every effort is made to fastFtrack 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 / 3[rd] Respondent, a Case in Crime No.05 of2019 is registered against the 3[rd] Respondent for the offences punishableunder Sections 386 & 506 of the IPC on the file of Police Station Mathaur,GDistrict Mohali, State of Punjab. The said crime is registered based onan anonymous call, allegedly made by one Ms. Rizwana Bano. Pursuantto registration of Crime No.05 of 2019 in Police Station Mohali, Punjab,on 19.01.2019, the Judicial Magistrate-I, Mohali, Punjab issued aproduction warrant under Section 267 of Cr.P.C., and in execution of thesame, Senior Superintendent of District Jail, Banda, Uttar Pradesh,H

without seeking permission from the Special Court (MPs/MLAs),Allahabad gave custody of the accused / 3[rd] Respondent to the JudicialMagistrate, Mohali, State of Punjab. Pursuant to a remand order, madeby the Judicial Magistrate-I, Mohali, Punjab, 3[rd] Respondent is lodged inRoopnagar 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) ofCr.P.C. and consequently, a departmental inquiry is initiated against himand the same is pending.

IV. It is alleged that the Judicial Magistrate-I, Mohali, Punjab,instead of sending the accused / 3[rd] Respondent back to the District Jail,Banda, Uttar Pradesh, after he was produced in the Court, sent him tothe District Jail, Roopnagar, Punjab on 24.01.2019 and since then, he iscontinuing in the same Jail. It is stated that neither the Charge-sheet hasbeen filed nor the 3[rd] Respondent applied for default bail, as contemplatedunder Section 167(2) of Cr.P.C.

V. It is the case of the petitioner that the accused / 3[rd] Respondentis making every effort to continue in the Jail at Punjab. Though, from thelast two years, number of warrants have been issued to bring the accused/ 3[rd] respondent from Roopnagar Jail, District Ropar, Punjab for productionbefore the various Courts in the State of Uttar Pradesh, all efforts madeby the Police were futile as every time the Jail Authorities refused togive custody on the pretext that the accused was unwell. The medicalreports 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 /3[rd] respondent was unwell. Though the medical reports do not revealany serious ailments except ailments like diabetes, skin allergy,hypertension, backache, etc., but custody of the 3[rd] Respondent is deniedon such health grounds.

VI. It is alleged that though the State has made every effort toproduce the accused / 3[rd] Respondent before various Courts in the Stateof Uttar Pradesh, where his appearance is required, it could not producethe 3[rd] Respondent as he was denied custody by the Jail Authorities atPunjab and as such, production warrants are not being executed on onepretext or the other.

VII. Precisely, it is the case of the petitioner that the accused / 3[rd]Respondent is making every effort to continue his incarceration outside A

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Athe State of Uttar Pradesh (in Punjab) and is avoiding his presence inthe Special Court and other Courts, where number of criminal caseshave come up for appearance/trial/arguments.

3. Counter Affidavit is filed on behalf of the Superintendent ofDistrict Jail, Roopnagar, Punjab (1[st] Respondent) and the State of PunjabB(2[nd] Respondent). While denying various allegations, made in the WritPetition, the case of the Respondent Nos.1 & 2 is as under:

I.The Writ Petition, as filed under Article 32 of the Constitution ofIndia read with Section 406 of the Code of Criminal Procedure, 1973 isnot maintainable, inasmuch as there is no infringement of fundamentalCrights of the petitioner-State of Uttar Pradesh and further, the Writ Petitionis also not maintainable under Section 406 of Cr.P.C. It is stated underSection 406 of Cr.P.C. the transfer petition is maintainable only on theapplication, made by the Attorney-General of India or by a partyinterested, as such, the petitioner-State of Uttar Pradesh cannot maintaina petition, as filed, seeking transfer of Case No.05 of 2019, pendingDbefore the Judicial Magistrate-I, Mohali, State of Punjab to any otherCourt in the State of Uttar Pradesh.

II. The accused / 3[rd] Respondent is presently confined in DistrictJail, Roopnagar, Punjab in connection with the FIR No.05 of 2019 dated08.01.2019 under Sections 386 and 506 of IPC, Police Station Mathaur,EDistrict SAS Nagar (Mohali), State of Punjab. Learned Magistrate hasissued production warrants under Section 267 of the Cr.P.C. and in viewof the said warrants, the accused was taken into custody from DistrictJail, Banda, State of Uttar Pradesh on 22.01.2019 and is presently lodgedin District Jail, Roopnagar, Punjab, pursuant to a remand order, passedFby the Judicial Magistrate-I, Mohali, State of Punjab in the aforesaidcase on 24.01.2019.

III. It is stated that the said case is registered in view of thecomplaint of Mr. Umang Jindal, C.E.O., Homeland Hights, Mohali,Punjab, where it is alleged that there was a call from MobileGNo.[REDACTED], demanding ransom of Rs.10 crores. As per theinformation, the accused / 3[rd] Respondent has called him on 07.01.2019,as such, the case was registered and he was taken into custody inconnection with the said case. Further, it is stated that the accused / 3[rd]Respondent Mohd. Mukhtar Ansari was also figured as an accused incase FIR No.252 dated 26.11.2014 for the offences punishable underH

Section 302 read with 34 of IPC, on the file of P.S. Morinda and inconnection with the said case, he is not yet arrested.

IV. It is stated that as per the jail records, 14 other cases arepending against the accused / 3[rd] Respondent in different Courts in theState of Uttar Pradesh and out of the said cases, in 06 cases, theconcerned Trial Courts have permitted the accused / 3[rd] Respondent toappear through video conferencing and the accused / 3[rd] Respondent isalready appearing in those cases. The details of cases against theaccused/3[rd] Respondent, pending in the State of Uttar Pradesh are givenin tabular form. Further, it is stated that vide order dated 10.02.2020, thePresiding Officer, Special Court MPs/MLAs, Allahabad, Uttar Pradeshhad desired to verify the report sent by the Jail Authorities, and haddirected the Additional Chief Secretary, Home Affairs, State of Punjabto constitute a committee of three doctors to evaluate the ailments of theaccused / 3[rd] Respondent. Pursuant to the same, a committee of doctorswas constituted and medical report was submitted vide letter dated27.02.2020. Further, it is stated that the accused / 3[rd] Respondent / under-trial prisoner Mohd. Mukhtar Ansari, had been undergoing treatment atthe jail hospital and at other secondary and tertiary hospitals, from timeto time, since his date of admission to District Jail, Roopnagar, Punjabi.e. 24.01.2019. Details of medical examinations (date-wise) are furnishedin a tabular form.

V. It is stated that in view of the aforesaid reasons, the accused /3[rd] Respondent could not be handed over to the petitioner-State of UttarPradesh due to the specific advice of medical authorities / medical board/ specialists, from time to time, and in view of the legal obligations on theanswering respondent, as per Section 269 of Code of Criminal Procedure,1973. While denying the allegation of conspiracy, it is stated that accused/ 3[rd] Respondent is lodged in Roopnagar Jail, State of Punjab, pursuantto a case registered in Crime no.05 of 2019.

VI. It is stated that as per the record, available in the office of thedeponent, neither chargesheet has been submitted nor the accused / 3[rd]Respondent has applied for bail. While denying that the deponent is boundto follow provisions under Section 269 of Cr.P.C., it is stated that in viewof the medical conditions of the accused / 3[rd] Respondent, he could notbe handed over to the petitioner-State of Uttar Pradesh.

With the aforesaid pleas, in the counter affidavit, Respondent Nos.1and 2 prayed for dismissal of the Writ Petition.

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A4. A separate counter affidavit is filed by the accused / 3[rd]respondent Mohd. Mukhtar Ansari. While denying the various allegationsmade in the Writ Petition, the case, as averred in the counter affidavit, isas under:

I.The accused / Respondent No.3 is a sitting MLA from MAUBConstituency from Bahujan Samaj Party (BSP). On account of his longpolitical career, the ruling party in the State of Uttar Pradesh, hasacrimonious political rivalry against him. There were several attemptson his life by the person inimically deposed against him, in view of politicalaffiliations, including Shri Brijesh Singh, who is currently a sitting MLAfrom Ruling Party). The accused / 3[rd] Respondent has been in jail sinceC25.10.2005 i.e. over 15 years and is himself desirous of early andexpeditious disposal of trial in pending cases. He has been taken intocustody in connection with the case, registered in Crime No.05 of 2019in Police Station Mathaur, District Mohali, State of Punjab and pursuantto a remand order, passed by the learned Judicial Magistrate, he isDremanded and presently lodged in Jail at Roopnagar in the State of Punjabon 08.01.2019. He has won last three elections from jail, which goes toshow the support of the people in eastern Uttar Pradesh towards him.Out of the pending ten cases, referred in the Writ Petition, he is alreadygranted permission to appear through video conferencing by the TrialCourt in nine cases and he is appearing regularly. For the remaining oneEcase i.e. S.T. No.22 of 2005 (i.e. at Serial No.05 of the table at Page-D), the application for permission to appear through video conferencingis pending before the Special Court (MP/MLA). The status of each ofthe cases, in the tabular form, is shown, and it is stated that he is regularlyappearing through video conferencing in trials in the State of UttarFPradesh.

II. With reference to the allegations made in the Writ Petition, it isstated that the Writ Petition, as filed, is not maintainable, inasmuch asthe rights, guaranteed under Articles 14 and 21 of the Constitution ofIndia, are to ‘persons’ as against actions of the ‘State’, as such, theGState of Uttar Pradesh cannot invoke the writ jurisdiction under Article32 of the Constitution of India. As he is continuously participating in thepending cases in the State of Uttar Pradesh, the petitioner-State cannotseek relief, as sought in the Writ Petition.

III. While referring to the provision under Section 406 of Cr.P.C.,Hit is stated that the said application can be maintained only at the instance of the Attorney-General Of India or a party interested, as such, thepresent petitioner-State of Uttar Pradesh cannot be considered as aparty interested, so as to invoke power under Section 406 of Cr.P.C.The Petitioner has suppressed various orders passed by the competentCourt in the State of Uttar Pradesh, granting permission to the accused/ 3[rd] 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 / 3[rd] Respondent is appearingthrough video conferencing in all the cases, pending in the State of UttarPradesh, even after after his incarceration in the jail at Punjab. He,himself, is interested in an expeditious trial through video conferencingso 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 videoconferencing, are already acquitted. He is also permitted to appearthrough video conferencing in new cases, lodged against him.

VI. With regard to his medical conditions, it is stated that he isaround 65 years old and is suffering from diseases like high blood pressure,diabetes and also has undergone angiography. In view of his medicalconditions, the doctors and medical board, had advised him to takecomplete rest for several months, which is also approved by PGI,Chandigarh.

VII. While referring to his political background, it is stated that hehas come from a respectable family and in view of political rivalry, therehave been several attempts on his life on multiple occasions. The counteraffidavit has referred to certain instances, where attacks were made onhim on 15.07.2001 & 13.01.2014. It is, further, stated that there is apolitical rivalry between Shri Brijesh Singh and the accused / 3[rd]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 membersof the ruling party in the State of Uttar Pradesh and it is alleged that thepolitical opponents of the petitioner were exerting pressure throughvarious State Agencies to ensure that there was a constant interferencein the case of the respondent and hanging threats to his life. Referring tocertain complaints filed by him to various authorities, it is stated that inview of the undue harassment, being caused to the members of his family,his family members were constrained to move out of the State of UttarPradesh on account of the malicious prosecutions being carried out.

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AVIII. It is stated that in view of the apprehension in the mind ofthe accused / 3[rd] Respondent, he has also sought transfer of his casesfrom the State of Uttar Pradesh and stated that every possible attemptis made to inconvenience him.

IX. It is stated that in view of the threat to his life, as he is alreadyBpermitted to appear through video conferencing by the competent Court,there is no reason to seek transfer, as prayed for. Further, in view of thethreat to his life in all the trials, he is allowed to appear through videoconferencing 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 seektransfer as prayed for. It is stated that he himself is interested inCexpeditious disposal of the cases and every attempt is made by him forexpeditious disposal of cases registered against him.

With the aforesaid averments in the counter affidavit, 3[rd]Respondent prayed for dismissal of writ petition.

6. We have heard Mr. Tushar Mehta, learned Solicitor General,Dappearing for the petitioner and Shri Dushyant Dave, learned seniorcounsel, appearing for Respondents 1 & 2; and Shri Mukul Rohatgi,learned senior counsel, appearing for the 3[rd] Respondent.

7. Shri Tushar Mehta, learned senior counsel, has contended thataccused no.3 is involved in several cases, where serious charges ofmurder, extortion, cheating, fraud and offences under Gangsters Act,Eetc., are pending trial and all the cases are transferred to the SpecialCourt, constituted by the High Court of Allahabad, to try the cases ofMPs/MLAs. The learned Special Judge has ordered to incarceraterespondent no.3 in District Jail, Banda ,Uttar Pradesh so that RespondentNo.3 could be produced before the Court on every date in each caseFand trials be concluded expeditiously. It is submitted that in connectionwith the case in Crime No.05 of 2019, registered for offences punishableunder Sections 386 and 506 of the IPC on the file of Police StationMathaur, District Mohali in the State of Punjab, the Judicial Magistrate-I, Mohali issued Production Warrant under Section 267 of Code ofCriminal Procedure and in view of the same, the Senior SuperintendentGof District Jail, Banda, Uttar Pradesh, without any approval / order fromthe Court of Special Judge (MPs/MLAs), Allahabad, gave custody ofthe 3[rd] Respondent, and the same was in utter disregard to the provisionunder Section 267(2) of the Code of Criminal Procedure. It is submittedthat learned Judicial Magistrate-I, Mohali, instead of sending backHrespondent No.3 to District Jail, Banda in Uttar Pradesh, sent him to District Jail, Roopnagar, Punjab on 24.01.2019. It is submitted that largenumber of warrants have been issued by the Special Judge (MPs/MLAs)Court and several Courts in the State of Uttar Pradesh to bring 3[rd]Respondent from District Jail, Roopnagar, Punjab, but all efforts forsecuring the custody of 3[rd] Respondent proved futile for the reason thatevery time the Jail Superintendent refused to give custody of the 3[rd]Respondent on the ground of ill health of the 3[rd] Respondent. The reportsof ill health do not indicate any severe ailment and only to avoid to givehis custody to the petitioner-State of Uttar Pradesh, such reports areprepared.

8. It is submitted that the Writ Petition, filed by the State, is certainlymaintainable under Article 32 of the Constitution of India, for the reasonthat the administration of Criminal Justice is bestowed upon the State onbehalf of the victims of crime and also, on the premise that a crimeagainst a citizen is a crime against the State. To maintain the petitionunder Article 32 of the Constitution of India, learned counsel placedreliance on the judgment in case of Union of India v. V. Sriharan[1].Further, it is submitted that in any event, the petition is filed not onlyunder Article 32 of the Constitution of India, but the same is filed underSection 406 of Code of Criminal Procedure. It is contended that theword “Party Interested”, used in Section 406 (2) of the Code of CriminalProcedure, is to be interpreted widely by giving wide connotation. It issubmitted that the words “Party Interested” are of a wide import,therefore, wider meaning is to be given to include the State also as muchas purpose of Criminal Justice Administration is to preserve and protectthe rule of law. To support his arguments, learned counsel placed relianceon 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 invokepowers under Article 142 of the Constitution of India for doing completejustice, inasmuch as several cases involving the 3[rd] Respondent, withserious charges, are under trial in the State of Uttar Pradesh.

10. It is, further, submitted that accused / Respondent no.3 is alsooperating his illegal activities in the State of Uttar Pradesh from the Jailin Punjab, inasmuch as on 05.04.2020, FIR No.04 of 2020 is registeredin Police Station Dakshin Tola, Mau, Uttar Pradesh for the offencesunder Sections 419, 420, 467, 468, 471, 120-B of the IPC and Section 7

1 2016(7)SCC 1

2 2004 (3) SCC 767

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Aof the Arms Act. It is submitted that the alleged medical ailments,mentioned in the counter affidavits, are not of serious nature. Further, itis submitted that the ailments shown in the medical reports by therespondents are not new, he was having such ailments since the year2008, and the same is evident from the medical certificate issued fromthe Superintendent, District Jail, Gazipur. It is submitted that the transferBof 3[rd] Respondent is imperative from District Jail, Roopnagar, State ofPunjab to District Jail, Banda, Uttar Pradesh and the appearance throughvideo conferencing would not serve the purpose, in view of the fact thatthe attendance could not be secured at several times in the past.Resultantly, there is abnormal delay in the trials, pending in Special CourtCin Uttar Pradesh. The alleged threat of the 3[rd] Respondent to his life isalso unsustainable and cannot be a ground for not handing over custodyof the 3[rd] Respondent. The rivalry with another accused namely ShriBrijesh Singh is without any substance, inasmuch as Shri Brijesh Singhis also lodged in the Jail of Uttar Pradesh, since past more than 10 years.Further, the 3[rd] Respondent had been safely lodged in the District Jail,DBanda, Uttar Pradesh from the last more than fifteen years and he wasduly provided the required medical care.11. Shri Dushyant Dave, learned senior counsel, appearing forRespondent Nos. 1 & 2, at the outset, has contended that the petition, asfiled by the State of Uttar Pradesh under Article 32 of the ConstitutionEof 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 ofthe Constitution of India is for enforcement of fundamental rights,guaranteed under Part-III of the Constitution of India, as such, thepetitioner, being a State, cannot agitate violation of fundamental rights,guaranteed under Part-III of the Constitution of India. Learned seniorFcounsel, to support his contention, relied on judgment of this Court inA.P. Christian Medical Educational Society v. Govt. of A.P.[3]andjudgment in the case of Ujjam Bai v. State of Uttar Pradesh[4]andjudgment in the case of State Trading Corporation of India Ltd. v.Commercial Tax Officer[5]and judgment in the case of Coffee BoardGBangalore v. Jt. Commercial Tax Officer Madras[6].

12. Further submissions of the learned senior counsel are that asthe case is at investigation stage, as such, the petitioner is virtually seeking 3 1986(2)SCC 6674 1963(1)SCR 7785 1964(4)SCR 99H6 1969(3)SCC 349

transfer of investigation from one police station to another in the countryand the same is impermissible. To support this contention, reliance isalso placed on the judgment of this Court in the case of Ram ChanderSingh Sagar (DR.) v. State of Tamil Nadu[7]. Further, by referring toSection 406 of the Cr.P.C., it is submitted by the learned senior counselthat 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 aParty Interested. It is submitted that in absence of any such applicationby the Attorney-General of India or Party Interested, petitioner-Statecannot seek transfer even under Section 406 of the Cr.P.C. Lastly, it issubmitted that the petitioner also cannot seek invoking of Article 142 ofthe Constitution of India by this Court, inasmuch as no direction can beissued, which will run contrary to the substantive statutory provisions.

13. Shri Mukul Rohatgi, learned senior counsel, appearing for the3[rd] Respondent has contended that the writ petition, as filed by thepetitioner-State of Uttar Pradesh is not maintainable, inasmuch as thepetitioner-State cannot complain violation of any fundamental rights, asguaranteed under Part-III of the Constitution of India. It is submittedthat none of the victims/complainants have approached this Court seekingthe relief, in absence of which, the petitioner-State is not entitled for therelief, as sought for. It is submitted that the fair trial, guaranteed underArticle 21 of the Constitution of India, is meant to protect the interest ofaccused and the witnesses and it is not open for the State to allege thatfair trial requires custodial presence of the accused/3[rd] Respondent.Further, referring to provisions under Section 406 of the Code of CriminalProcedure, it is also submitted that only in cases where application isfiled by the Attorney-General of India or by a Party Interested, thisCourt can act under Section 406 of Cr.P.C., but not at the instance of theState. It is submitted that the powers under Article 32 of the Constitutionof India also cannot be utilised to take away a citizen’s fundamentalrights. It is submitted that Respondent No.3 is lodged in Jail since 2005,as such, no delay can be attributed to him for delaying the trials. Further,it is submitted that the 3[rd] Respondent is regularly appearing throughvideo conferencing in cases mentioned by the petitioner, as such, thereis no impediment for proceeding with the trials. It is submitted that inview of the political rivalry and serious threats to the 3[rd] Respondent,this Court may not grant any relief, as prayed for. It is submitted that notonly the 3[rd] Respondent, all the family members of the 3[rd] Respondent7 1978(2)SCC 35

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Aare harassed by registering false cases. Lastly, it is submitted that the 3[rd]Respondent may be permitted to continue to appear through videoconferencing in all the trials, which are pending trial in the State of UttarPradesh and this Writ Petition, which is devoid of merits, be dismissed.

14. We have considered submissions made by the learned counselsBon both the sides and perused the material available on record.

15. The 3[rd] Respondent/accused is sitting MLA in the State ofUttar Pradesh. It is the case of the petitioner-State that, he is involved inseveral cases where serious charges are framed against him, and severalsuch cases were transferred to Special Court, constituted to try the casesof MPs/MLAs in Allahabad. It is specifically stated in the petition that inCorder to fast track the cases, after creation of Special Court for trial ofcases of MPs/MLAs in the year 2018, all the cases were consolidatedby the High Court of Allahabad. The 3[rd] Respondent was lodged inDistrict Jail, Banda, Uttar Pradesh, pursuant to order of the learnedSpecial Judge. The cases which are at the stage of trial, as stated in theDwrit petition, by indicating the status of the case is given in a tabularform which reads as under:

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When the aforesaid cases were in trial, it appears, a case isregistered in Crime No.05 of 2019 in Police Station Mathaur, DistrictMohali, State of Punjab, under Sections 386 & 506 of the IPC. Theconcerned Judicial Magistrate issued a production warrant under Section267 of the Cr.P.C., and it is stated that pursuant to the same, he wasreleased from the custody by the Superintendent of District Jail, Banda,Uttar Pradesh without any counter signature / permission from the Courtof Special Judge (MPs/MLAs), Allahabad. Thereafter, he was producedbefore the Judicial Magistrate-I, Mohali, State of Punjab and wasremanded to District Jail, Roopnagar, Punjab on 24.01.2019, since then,he is continuing in the said jail. It is stated that during the period from14.02.2019 to 14.02.2020, large number of warrants have been issuedfor production of the 3[rd] Respondent, who is lodged in District JailRoopnagar, Punjab to produce before the various Courts in the State ofUttar Pradesh, but, efforts made by Uttar Pradesh Police to secure thecustody of the 3[rd] Respondent were futile inasmuch as, every time JailAuthorities of Roopnagar Jail, Punjab refused to give custody on thepretext that the accused was unwell. It appears that various medicalreports are made basis to deny the custody to the Uttar Pradesh Police.It is the specific case of the petitioner that number of warrants issuedagainst the 3[rd] Respondent in connection with the crimes registered invarious Police Stations in Uttar Pradesh during the period from 14.02.2019to 14.02.2020 could not be executed as the Jail Authorities of RoopnagarJail, Punjab have refused to give custody on the ground that the accused/ 3[rd] Respondent is not medically fit. Date of issuing of warrants inconnection with several cases in various crimes in Police Stations ofUttar Pradesh; and reasons for non-production are also stated in thepetition, in a tabular form, which reads as under:

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By referring to reasons indicated in the above chart, it is the caseof the petitioner that the reasons assigned for not giving the custody arenot true and only at the instance of the 3[rd] Respondent, by referring tominor ailments such as diabetes mellitus, skin allergy, hypertension,backache, throat infection, etc. the Uttar Pradesh Police has denied thecustody, only to protract the trials, which are pending in Special Courtconstituted for trial of MPs/MLAs in Allahabad. It is specifically pleadedby the petitioner-State that though crime No.05 of 2019 was registeredon 08.01.2019 by the Police Station Mathaur, District Mohali, State ofPunjab, no Final Report is submitted by completing the investigation withinthe statutory period, even then, the 3[rd] Respondent has not chosen toapply for grant of bail, so as to avoid his appearance in various cases inthe State of Uttar Pradesh.

16. On the other hand, respondent-State as well as the 3[rd]Respondent is contesting the maintainability of this petition, filed underArticle 32 of the Constitution of India and Section 406 of the Code ofCriminal Procedure. It is submitted that the petitioner, being a State,cannot complain of violation of any fundamental rights, guaranteed underPart-III of the Constitution of India, so as to seek relief by filing thepetition under Article 32 of the Constitution of India. So also is the caseof the respondents that this petition also is not maintainable under Section406 of the Code of Criminal Procedure. It is the case of the respondentsthat power under Section 406 of Cr.P.C. is conferred on this Court totransfer cases and appeals, only in the event of an application by theAttorney-General of India or by a party interested.

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A17. This petition is filed under Article 32 of the Constitution ofIndia read with Section 406 of the Code of Criminal Procedure. ChapterXXXI of the Code of Criminal Procedure, 1973 is a chapter dealing withTransfer of Criminal Cases. Section 406 of the Code of CriminalProcedure, 1973 reads as under:B“406.Power of Supreme Court to transfer cases and appeals.–(1) Whenever it is made to appear to the Supreme Court thatan order under this section is expedient for the ends of justice,it may direct that any particular case or appeal be transferredfrom one High Court to another High Court or from a CriminalCourt subordinate to one High Court to another Criminal CourtCof equal or superior jurisdiction subordinate to another HighCourt.

(2) The Supreme Court may act under this section only on theapplication of the Attorney-General of India or of a partyinterested, and every such application shall be made byDmotion, which shall, except when the applicant is the Attorney-General of India or the Advocate-General of the State, besupported by affidavit or affirmation.

(3) Where any application for the exercise of the powersconferred by this section is dismissed, the Supreme Court may,Eif it is of opinion that the application was frivolous or vexatious,order the applicant to pay by way of compensation to anyperson who has opposed the application such sum notexceeding one thousand rupees as it may consider appropriatein the circumstances of the case.”F18. From a plain reading of the aforesaid Section 406 of the Codeof Criminal Procedure, 1973, it is clear that power is conferred on thisCourt to transfer of cases and appeals on the application filed by theAttorney-General of India or by a party interested. According to thelearned senior counsels, appearing for the respondents, the petitioner-State cannot be termed as a “party interested”. It is difficult to acceptGthe submissions of the respondents to say that the petitioner-State is nota party interested. It is well said that a crime against an individual is tobe considered as a crime against a State and public, at large. In thecriminal administration system, State is the prosecuting agency, workingfor and on behalf of the people of the State. It is to be noticed that “partyHinterested” 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” areused in various Statutes. If the words used are to the effect “party to theproceedings” or “party to a case”, it can be given a restricted meaning.In such cases, the intention of the legislature is clear to give restrictedmeaning. But, at the same time, the words used as “party interested”,which are not defined under the Code of Criminal Procedure, have to begiven a wider meaning. As a prosecuting agency in the CriminalAdministration, the State can be said to be a party interested within themeaning of Section 406(2) of the Code of Criminal Procedure, 1973. Itis a well settled principle of law that the Statute must be interpreted toadvance the cause of the Statute and not to defeat the same. Thepetitioner-State, being a prosecuting agency in the CriminalAdministration, is vitally interested in such administration, as such, weare of the view that the State is considered as a “party interested” withinthe meaning of Sub-Section (2) of Section 406 of the Code. The judgmentof this Court in the case of K. Anbazhagan v. Superintendent of Police& Ors.[2 ]also supports the case of the petitioner-State to accept the saidplea that they are party interested within the meaning of Section 406(2)of the Code of Criminal Procedure. Thus, we hold that this petition, asfiled under section 406 of the Code of Criminal Procedure, is maintainable.

19. Inasmuch as, we are of the view that this petition, as filedunder Section 406 of the Code of Criminal Procedure, is maintainable atthe instance of the State, it is not necessary for us to decide the issue asto maintainability of this petition under Article 32 of the Constitution ofIndia.

20. Nextly, we proceed to examine on the plea of the petitionerfor grant of reliefs, as prayed for in the Writ Petition. Reliefs, as soughtfor in the Writ Petition under Para-26(A) of the same, the petitioner isseeking directions, commanding the respondent-State and the JudicialMagistrate-I, Mohali, State of Punjab to transfer the criminal proceedingsand trial in the case no.05 of 2019, titled as State of Punjab v. MukhtarAnsari, pending before the Judicial Magistrate-I, Mohali. Further, underPara-26(B) of the Writ Petition, the petitioner is seeking directions,directing the Respondents 1 & 2, to hand over the custody of the 3[rd]Respondent from Roopnagar Jail, District Ropar, State of Punjab, so asto keep him in District Jail, Banda in the State of Uttar Pradesh. Opposingrelief sought for in the writ petition, while contesting on the maintainability, AB

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Ait is also the case of the respondents that as no case is registered so farin any competent Court of law and as a crime registered in case no.05of 2019 is at the stage of investigation, no relief can be granted in exerciseof power under Section 406 of the Code of Criminal Procedure, 1973.Learned counsel Shri Dushyant Dave, appearing for the respondents 1& 2, has placed reliance on the judgment in the case of Ram ChanderBSingh Sagar (DR.) v. State of Tamil Nadu[7]. In the aforesaid judgment,this Court has held that the Code of Criminal Procedure clothes thisCourt with power under Section 406 of the Code of Criminal Procedureto transfer a case or appeal from one High Court or a Court subordinateto one High Court to another High Court or to a Court subordinate thereto.CBut, it does not clothe this Court with the power to transfer at the stageof investigation.

21. Even, according to the case of the petitioner, that in crimeno.05 of 2019, registered on the file of Police Station Mathaur, DistrictMohali, State of Punjab, for offences punishable under Sections 386 andD506 of the IPC, no Final Report is filed by the Police and the case is atthe stage of investigation. A copy of FIR is placed on record in whichFIR number is mentioned as FIR No.05 and it was registered on08.01.2019. As the investigation in crime no.05 of 2019 on the file ofPolice Station Mathaur, District Mohali, State of Punjab is still at thestage of investigation and in absence of filing of Final Report, we are inEagreement with the submissions of the learned senior counsel, appearingfor the respondents that no case is made out by the petitioner, seekingtransfer under Section 406 of the Code of Criminal Procedure, whichrelief is sought for in Para-26(A) of the writ petition. The judgment ofthis Court in the case of Ram Chander Singh Sagar (DR.) v. State ofFTamil Nadu[7], relied on by Shri Dushyant Dave, learned senior counsel,appearing for the respondents, supports the case of the respondents.The relevant portion of the said judgment, reads as under:

“The Code of Criminal Procedure clothes this Court withpower under Section 406 to transfer a case or appeal fromGone High Court or a Court subordinate to one High Court toanother High Court or to a Court subordinate thereto. But itdoes not clothe this Court with the power to transferinvestigations from one police station to another in the countrysimply because the first information or a remand report isforwarded to a Court. The application before us stems from aH

misconception about the scope of Section 406. There is as yetno case pending before any Court as has been made clear inthe counter affidavit of the State of Tamil Nadu. In the lightof this counter affidavit, nothing can be done except to dismissthis petition.”

In view of the aforesaid reasoning of ours, no relief can begranted, as sought for under Para-26(A) of the writ petition, by thisCourt in exercise of power under Section 406 of the Code of CriminalProcedure, 1973.

22. At the same time, learned Solicitor General, Shri Tushar Mehta,appearing for the petitioner has submitted that if, at all, no relief is to begranted by this Court in exercise of power under Section 406 of theCode of Criminal Procedure, it is evidently a fit case to exercise powerunder Article 142 of the Constitution of India by this Court, having regardto the facts of the case, to do complete justice. It is submitted that morethan ten criminal cases involving the 3[rd] Respondent for serious offencesare at various stages of trial before the Special Court constituted for trialof cases of MPs/MLAs in the State of Uttar Pradesh. In spite of thesame, the custody of the 3[rd] Respondent is taken pursuant to one case,registered in the State of Punjab and presently and continuously, he islodged in the Roopnagar Jail in the State of Punjab since 24.01.2019. Itis submitted that apart from the aforesaid cases, which are pending trialin the Special Court constituted for trial of MPs/MLAs in Allahabad, invarious crimes, registered against the 3[rd] Respondent in several policestations in the State of Uttar Pradesh, warrants are returned andunexecuted for one reason or the other. It is submitted that by showingminor ailments, the custody of the 3[rd] Respondent is denied by the JailSuperintendent of Roopnagar Jail, District Ropar, Punjab. It is, further,submitted that though in the crime registered in Crime No.05 of 2019 onthe file of Police Station Mathaur, District Mohali, State of Punjab, whichis registered for offences punishable under Sections 386 & 506 of theIPC, there is no progress in the investigation and Final Report is notsubmitted yet, even then the 3[rd] Respondent has not even applied forgrant of default bail, as he is entitled to. It is submitted that the veryconduct of the 3[rd] Respondent indicates that he is trying to protract thetrials which are pending in Special Court for MPs/MLAs in the State ofUttar Pradesh and to avoid his appearance in other Courts, where hispresence is required.

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A23. Shri Dushyant Dave, learned senior counsel, appearing forRespondents 1 & 2 and Shri Mukul Rohatgi, learned senior counsel,appearing for the 3[rd] Respondent, strenuously contended that no case ismade out for grant of any relief by this Court, invoking the power underArticle 142 of the Constitution of India. It is submitted that though Article142 of the Constitution of India gives wider power to this Court and notBrestricted by statutory enactments, however, this Court would not passany order under Article 142 of the Constitution of India, which wouldamount to supplanting the substantive law applicable or ignoring thestatutory provisions dealing with the subject. In support of this argument,learned senior counsel, appearing for the respondents, relied on judgmentsCof this Court in the case of A.B. Bhaskara Rao v. CBI[8]and in the caseof State of Haryana v. Sumitra Devi[9].

24. Learned Solicitor General, Shri Tushar Mehta, appearing forthe petitioner-State, submitted that though all the cases were transferredto Special Court, constituted for trial of cases of MPs/MLAs, AllahabadDto fast track the same, continuation of the 3[rd] Respondent in jail, which isat far off place in a different State, has become an impediment to proceedwith the trials. It is submitted that in addition to the pending trials in theSpecial Court against the 3[rd] Respondent, the appearance of the 3[rd]Respondent is also necessary in connection with various other cases,where serious charges are leveled against the 3[rd] Respondent, whichEare at the stage of investigation in several police stations in the State ofUttar Pradesh and in spite of the same, warrants issued by the competentCourt are returned by Jail Superintendent of Roopnagar Jail, Punjab,every time by showing the ill health of the 3[rd] Respondent. To substantiatehis plea that it is a fit case to invoke power by this Court under ArticleF142 of the Constitution of India, Shri Tushar Mehta, learned SolicitorGeneral, appearing for the petitioner-State, has placed reliance onjudgments of this Court in the Case of Saihba Ali v. State ofMaharashtra[10], in the case of Kalyan Chandra Sarkar v. RajeshRanjan alias Pappu Yadav & Anr.[11]and in the case of Asha RanjanGv. State of Bihar[12].

8 2011 (10) SCC 2599 2004 (12) SCC 32210 2003 (7) SCC 25011 2005 (3) SCC 284H12 2017 (4) SCC 397

25. Having considered the submission of the learned SolicitorGeneral, appearing for the petitioner-State, as well as learned seniorcounsels, appearing for the respondents, on the plea that whether it is afit case to invoke power under Article 142 of the Constitution of India ornot, we have carefully considered the submissions and the material placedon record and we are of the considered view that it is evidently a fit caseto invoke our power under Article 142 of the Constitution of India forgrant of relief to the extent, as sought for, under Para-26(B) of the petition,to order transfer the custody of the 3[rd] Respondent from Roopnagar Jail,District Ropar, Punjab to District Jail, Banda, Uttar Pradesh. It is not indispute that with regard to the cases and status, which are pending trialbefore the Special Judge, MPs/MLAs, Allahabad, a perusal of the chartwhich is furnished by the petitioner, indicates that the 3[rd] Respondent isinvolved in various cases of attempt to murder, murder, cheating,conspiracy, etc., apart from offences under Gangsters Act. The saidcases, as mentioned by the petitioner, number in Ten, are various stagesof trial. Further, the petitioner has furnished the cases, where warrantswere issued by the Courts in various crimes, registered in the Districtsof Mau, etc., and when the police went to seek custody, the 1[st] respondenthad refused to handover the custody on medical grounds. The reasonsfor non-production are mentioned in a tabular form. During the periodfrom 14.02.2019 to 14.02.2020, custody is denied to the police of UttarPradesh by the 1[st] Respondent on twenty six occasions. A perusal of thereasons for not giving custody shows that it is mainly on the medicalgrounds 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 ofPolice Station Mathaur, District Mohali, Punjab is a part of conspiracy atthe instance of the 3[rd] Respondent so as to continue in the jail at Punjab,by protracting the trials, which are pending in the Special Court and todeny his presence in various other crimes, registered against him forcompleting the investigation. We do not wish to record any finding onsuch allegation of conspiracy at this stage, but, at the same time, we aresatisfied that the custody is denied to the Police of Uttar Pradesh atevery time on trivial grounds under guise of medical grounds by mentioningordinary diseases like diabetes mellitus, skin allergy, hypertension,backache, throat infection, etc. In addition to the same, it gives anyamount of suspicion on the conduct of the 3[rd] Respondent in not evenapplying for grant of default bail, for not filing Final Report (Charge- AB

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Asheet) by the Police, Police Station Mathaur, District Mohali, Punjabwithin the statutory period. Though, it is the case of the 3[rd] Respondent,opposing the relief sought for, on the ground that he is permitted in majorityof the cases to appear by video conferencing, but the same, by itself, isno ground to oppose the relief sought for. Though, the earlier caseswere pending in various Sessions Courts and only to fast track the cases,BSpecial Court is constituted for trial of cases of MPs/MLAs in the year2018 by the State of Uttar Pradesh. On such constitution, all the caseswhere the 3[rd] Respondent is involved for serious offences under IPCand Gangsters Act, were transferred to the Special Court and all arepending trial at various stages. Pursuant to the orders of the SpecialCCourt, only the 3[rd] Respondent was kept in jail at Banda in the State ofUttar Pradesh, so as to order his presence, as and when required.Therefore, in our opinion, a convict or an undertrial prisoner, who disobeysthe 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 helplessbystander, when the rule of law is being challenged with impunity. InDsuch situations, this Court can exercise power under Article 142 of theConstitution of India to order transfer of prisoner from one prison toanother. Though, there is a separate enactment called The Transfer ofPrisoners Act, 1950, which permits transfer of a prisoner from one State to another by the Government, but, the same is circumscribed underESection 3 of the Act, as such, the claim of the petitioner will not fit intothe same. Even then this Court, in exercise of power under Article 142of the Constitution of India, can consider for transfer of the prisoner inthe circumstances, as pleaded by the petitioner. The arms of law arelong enough to remedy the situation. If there are any medical ailments toFthe petitioner, every care shall be taken by the Jail Authorities but, at thesame time, on the spacious plea of ill health by referring to minor ailments,the accused / 3rd Respondent cannot oppose the relief, as sought for inthe writ petition. It is true that in the case of A.B. Bhaskara Rao v.CBI[8]and in the case of State of Haryana v. Sumitra Devi[9], this Courthas held that in exercise of power under Article 142 of the ConstitutionGof India, no order can be passed, which shall run contrary to the statuteor statutory rules. The transfer of a prisoner from one prison to anotherprison in different States is covered by the provisions of The Transfer ofPrisoners Act, 1950. Section 3 of the Act reads as “the Government ofthat State with the consent of the Government of any other State, byHorder, provide for removal of the prisoner from that prison to any

prison in the other State.” It is clear that there does not appear to beany provision for transfer of an under trial prisoner. There being nostatutory provision, covering the transfer of prisoner from one State toanother, having regard to the facts of the case on hand, this Court, certainlyin exercise of jurisdiction under Article 142 of the Constitution of India,may issue necessary directions in the given circumstances. The judgmentsrelied on by the learned counsels for the respondents, as referred above,would not render any support to their plea in this case. In the judgment inthe case of Saihba Ali v. State of Maharashtra[10], it is held that thisCourt can pass appropriate on the facts to do complete justice, even ifthe writ petition filed is not maintainable. Transfer of a prisoner fromone State to another State also fell for consideration by this Court, in thecase of Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav& Anr.[11], where this Court has held that power to transfer a prisoner ordetenu, either on his own motion or otherwise, can be ordered by thisCourt, in exercise of power under Article 142 of the Constitution ofIndia. Para 23, 24 & 25 of the said judgment, which are relevantparagraphs to this case, read as under:

“……23.Therefore, in our opinion, a convict or an undertrialwho disobeys the law of the land, cannot contend that it is notpermissible to transfer him from one jail to another becausethe Jail Manual does not provide for it. If the factual situationrequires the transfer of a prisoner from one prison to anotherbe he a convict or an undertrial, courts are not to be a helplessbystander when the rule of law is being challenged withimpunity. The arms of law are long enough to remedy thesituation even by transferring a prisoner from one prison toanother, that is by assuming that the Jail Manual concerneddoes not provide such a transfer. In our opinion, the argumentof the learned counsel, as noted above, undermines theauthority and majesty of law. The facts narrated hereinaboveclearly show that the respondent has time and gain floutedthe law even while he was in custody and sometimes evenwhen he was on bail. We must note herein with all seriousnessthat the authorities manning Beur Jail and the doctorsconcerned of Patna Medical College Hospital, for their ownreasons, either willingly or otherwise, have enabled therespondent to flout the law. In this process, we think theauthorities concerned, especially the authorities at Beur AB

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ACentral Jail, Patna, are not in a position to control the illegalactivities of the respondent. Therefore, it is imperative thatthe respondent be transferred outside Bihar.

24[13]*. The matter relating to inter-State transfer of prisonersis governed by the Transfer of Prisoners Act, 1950. Section 3Bof the said Act reads thus:

‘3. Removal of prisoners from one State to another.–(1)Where any person is confined in a prison in a State,–

(a) under sentence of death, or

C(b) under, or in lieu of, a sentence ofimprisonment or transportation, or

(c) in default of payment of a fine, or

(d) in default of giving security for keeping the peaceor for maintaining good behaviour; Dthe Government of that State may, with the consent of theGovernment of any other State, by order, provide for theremoval of the prisoner from that prison to any prison in theother State.’

25. A bare perusal of the aforementioned provision wouldEclearly go to show that there does not exist any provision fortransfer of an undertrial prisoner. The prayer for inter-Statetransfer of a detenu came up for consideration before thisCourt in David Patrick Ward v. Union of India[14] where in apreventive detention matter the petitioner therein was lodgedFin Naini Jail at Allahabad. The petitioner made a prayer forhis transfer to Tihar Jail, Delhi inter alia on the ground thatthe Consular Officers had the right to visit a national of thesending State who is in prison or under detention in terms ofArticle 36 of the Vienna Convention on Consular Relations.The authorities of Naini Jail having indicated that wheneverGvisits are desired by the officers of the British ConsularRelations, proper arrangement therefor would be made, thisCourt refused to concede to the said request. But, this decision 13*Ed. Para 24 corrected vide Official Corrigendum No.F.3/Ed.B.J./25/2005 dated18-3-2005.H14 (1992) 4 SCC 154 : 1992 SCC (Cri) 814

is a pointer to the fact that in an appropriate case, such requestcan also be made by an undertrial prisoner or a detenu andthere being no statutory provisions contrary thereto, this Courtin exercise of its jurisdiction under Article 142 of theConstitution may issue necessary direction.”

26. The concept of fair trial and transfer of a prisoner from onejail to another jail is also considered elaborately by this Court in the caseof Asha Ranjan v. State of Bihar[12]. While analysing the concept of fairtrial as a facet of Article 21 of the Constitution of India, this Court heldthat it covers interest of the accused, prosecution and the victim. It is,further, held that victim may be a singular person who has suffered, butthe injury suffered by singular is likely to affect the community interest.The relevant paragraphs of the judgment covered by Paragraphs 86.4,86.5, 86.6 & 86.7 reads as under:

“…86.4. The weighing of balance between the twoperspectives in case of fair trial would depend uponthe facts and circumstances weighed on the scaleof constitutional norms and sensibility and largerpublic interest.

86.5. Section 3 of the 1950 Act does not create animpediment on the part of the Court to pass an orderof transfer of an accused or a convict from one jailin a State to another prison in another State becauseit creates a bar on the exercise of power on theexecutive only.

86.6. The Court in exercise of power under Article 142 ofthe Constitution cannot curtail the fundamentalrights of the citizens conferred under the Constitutionand pass orders in violation of substantive provisionswhich are based on fundamental policy principles,yet when a case of the present nature arises, it mayissue appropriate directions so that criminal trial isconducted in accordance with law. It is the obligationand duty of this Court to ensure free and fair trial.

86.7The submission that this Court in exercise of equityjurisdiction under Article 142 of the Constitutioncannot transfer the accused from Siwan Jail to any

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Aother jail in another State is unacceptable as thebasic premise of the said argument is erroneous,for while addressing the issue of fair trial, the Courtis not exercising any kind of jurisdiction in equity.”

27. In addition to the reasons which we have already assignedBabove, the case law, which is referred above by the learned SolicitorGeneral, appearing for the petitioner, also supports the case of thepetitioner for grant of relief to the extent as sought for in Para-26(B) ofthe writ petition.

28. For the aforesaid reasons, as indicated above, this Writ PetitionCis allowed in part with the following directions and observations:

i.This petition, filed under Article 32 of the Constitution ofIndia / Section 406 of the Code of Criminal Procedure, 1973,is held to be maintainable under Section 406 of the Code ofCriminal Procedure, 1973.

Dii.The relief, sought for transfer of the case, in terms of ofPara-26(A) of this petition is not granted, inasmuch as thecase in Crime No.05 of 2019, on the file of Police StationMathaur, District Mohali, Punjab, is at the stage ofinvestigation, as such, Section 406 of the Cr.P.C. cannot beEpressed into service.

iii.At the same time, in exercise of power under Article 142of the Constitution of India, we issue directions, directingthe Respondent Nos.1 & 2, to handover custody of the 3rdRespondent to the State of Uttar Pradesh, within a periodFof two weeks from today, so as to lodge him in District Jail,Banda in the State of Uttar Pradesh.

iv.It is open for the Special Court, constituted for MPs/MLAsat Allahabad to continue him either in the District Jail atBanda or shift to any other Jail in the State of Uttar Pradesh,if any need arises.G

v.There shall be a direction to the Superintendent of Jail,District Jail Banda, Uttar Pradesh to extend the necessarymedical facilities to the 3rd Respondent. It is made clearthat if any specialty treatment is required to the 3rdRespondent, the Jail Superintendent of District Jail, Banda,H

Uttar Pradesh shall take necessary steps to extend suchmedical care also, by following the Jail Manual.

[Transfer Petition (Crl.) no.104-114 of 2021]

29. In view of the above order passed in Writ Petition (Crl.) No.409of 2020 and further, this Court has already rejected the claim of thepetitioner for transfer of the cases, as such, we do not find any merit inthese Transfer Petitions, and the same are accordingly dismissed.

Nidhi Jain

Writ Petition partly allowed andTransfer Petitions dismissed.

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