Mla From Mau District, Up v. Jail Superintendent (ropar) & Ors.

R. SUBHASH REDDY, J. (Writ Petition (Crl.) No. 409 of 2020) This Writ Petition is filed under Article 32 of the Constitution of India, read with Section 406 of the Code of Criminal Procedure , 1973 (Cr.P.C.) by the State of Uttar Pradesh, seeking Writ of Mandamus, seeking appropriate directions, directing the respondent-State of Punjab STATE OF UTTAR PRADESH v. JAIL SUPERINTENDENT (ROPAR) and the Learned Judicial Magistrate-I, Mohali, State of Punjab, to transfer the criminal proceedings and trial in the Case Crime No.05 of 2019, titled as State of Punjab v. Mukhtar Ansari, pending before the Judicial Magistrate-I, Mohali, State of Punjab, to the Court of S pecial Judge (MP/MLA), Allahabad, Uttar Pradesh and with a further dire ction to the Respondent Nos.1 and 2 to handover the custody of the accused / 3rd Respondent from Roopnagar Jail, District Ropar, Punjab to District Jail Banda, Uttar Pradesh. 2. The case of the petitioner-State, as averred in the Writ Petition, is as follows: I. The 3rd Respondent herein, is sitting MLA from District Mau in the State of Uttar Pradesh. It is the case of the petitio ner-State that large number of criminal cases have been registered against the accused / Respondent No.3, namely Mohd. Mukhtar Ansari in various Districts of the State of Uttar Pradesh in the past. Further, in addition to the same, there are presently ten criminal cases pending trial aga inst him. In pursuance of the directions, issued by this Court in Writ Petition (Civil) No.699/2016, titled as Ashwini Kumar Upadhyay & Ors. v. Union of India & Ors. , vide orders dated 10.09.2020 and 16.09.2020, all the pending criminal cases against the MPs and MLAs, pending in various Courts, have been transferred to the Special Court, constit uted to deal with the cases of MPs and MLAs. The ten criminal cases, w hich are pending trial against the accused / 3 rd Respondent, were transferred from various Districts to the Special Court and pursuant to th e order passed by the Special Court, the accused / 3rd Respondent was lodged in District Jail, Banda, Uttar Pradesh, so as to be produced be fore the Court, as and when required. Thereafter, every effort is made to fast track the cases and some cases have reached the stage of arguments. II. It is the case of the petitioner-State that in view of the conspiracy, hatched by the accused / 3 rd Respondent, a Case in Crime No.05 of 2019 is registered against the 3rd Respondent for the offences punishable under Sections 386 & 506 of the IPC on the file of Police Station Mathaur, District Mohali, State of Punjab. The said crime is registered based on an anonymous call, allegedly made by one Ms. Rizwana Bano. Pursuant to registration of Crime No.05 of 2019 in Police Station Mohali, Punjab, on 19.01.2019, the Judicial Magistrate-I, Mohali, Punj ab issued a production warrant under Section 267 of Cr.P.C., and in execution of the same, Senior Superintendent of District Jail, Banda, Utta r Pradesh, 871 without seeking permission from the Special Court (MPs /MLAs), Allahabad gave custody of the accused / 3rd Respondent to the Judicial Magistrate, Mohali, State of Punjab. Pursuant to a remand order, made by the Judicial Magistrate-I, Mohali, Punjab, 3rd Respondent is lodged in Roopnagar Jail, State of Punjab. III. It is stated that the action taken by the Jail Su perintendent, District Jail, Banda, Uttar Pradesh was in violation of Section 267(2) of Cr.P.C. and consequently, a departmental inquiry is initiated against him and the same is pending. IV. It is alleged that the Judicial Magistrate-I, Mohali, Punjab, instead of sending the accused / 3rd Respondent back to the District Jail, Banda, Uttar Pradesh, after he was produced in the Court, sent him to the District Jail, Roopnagar, Punjab on 24.01.2019 and since then, he is continuing in the same Jail. It is stated that neither the Charge-sheet has been filed nor the 3rd Respondent applied for default bail, as contemplated under Section 167(2) of Cr.P.C. V. It is the case of the petitioner that the accused / 3rd Respondent is making every effort to continue in the Jail at Punjab. Though, from the last two years, number of warrants have been issued to bring the accused / 3rd respondent from Roopnagar Jail, District Ropar, Punjab for production before the various Courts in the State of Uttar Pradesh, all efforts made by the Police were futile as every time the Jail Aut horities refused to give custody on the pretext that the accused was unwell. The medical reports dated 17.08.2019, 27.08.2019, 29.08.2019, 02.09.2019, 04.09.2019, 08.09.2019, 11.09.2019, 13.09.2019, 20.09.2019, 26.09.2019, 27.09.2019, 29.09.2019 and 02.10.2019 were prepared showing that the accused / 3rd respondent was unwell. Though the medical reports do not rev eal any serious ailments except ailments like diabetes, skin allergy, hypertension, backache, etc., but custody of the 3rd Respondent is denied on such health grounds. VI. It is alleged that though the State has made every effort to produce the accused / 3rd Respondent before various Courts in the State of Uttar Pradesh, where his appearance is required, it could not produce the 3rd Respondent as he was denied custody by the Jail Authorities a t Punjab and as such, production warrants are not being executed on one pretext or the other. VII. Precisely, it is the case of the petitioner that the accused / 3rd Respondent is making every effort to continue his incarceration outside STATE OF UTTAR PRADESH v. JAIL SUPERINTENDENT (ROPAR) [R. SUBHASH REDDY, J.] the State of Uttar Pradesh (in Punjab) and is avoiding his presence in the Special Court and other Courts, where number of criminal cases have come up for appearance/trial/arguments. 3. Counter Affidavit is filed on behalf of the Superintend ent of District Jail, Roopnagar, Punjab (1st Respondent) and the State of Punjab (2nd Respondent). While denying various allegations, made in the Writ Petition, the case of the Respondent Nos.1 & 2 is as under: I.The Writ Petition, as filed under Article 32 of the Constitution of India read with Section 406 of the Code of Criminal Procedure, 1973 is not maintainable, inasmuch as there is no infringement of fundamental rights of the petitioner-State of Uttar Pradesh and further, the Writ Petition is also not maintainable under Section 406 of Cr.P.C. It is stated under Section 406 of Cr.P.C. the transfer petition is maintainable only on the application, made by the Attorney-General of India or by a party interested, as such, the petitioner-State of Uttar Pradesh cannot maintain a petition, as filed, seeking transfer of Case No.05 of 2019, pe nding before the Judicial Magistrate-I, Mohali, State of Punjab to any other Court in the State of Uttar Pradesh. II. The accused / 3rd Respondent is presently confined in District Jail, Roopnagar, Punjab in connection with the FIR No.05 of 2019 dated 08.01.2019 under Sections 386 and 506 of IPC, Police Station Mathaur, District SAS Nagar (Mohali), State of Punjab. Learned Magistrate has issued production warrants under Section 267 of the Cr.P.C. and in view of the said warrants, the accused was taken into custody from District Jail, Banda, State of Uttar Pradesh on 22.01.2019 and is presently lodged in District Jail, Roopnagar, Punjab, pursuant to a remand order, passed by the Judicial Magistrate-I, Mohali, State of Punjab in the aforesaid case on 24.01.2019. III. It is stated that the said case is registered in v iew of the complaint of Mr. Umang Jindal, C.E.O., Homeland Hights, Moha li, Punjab, where it is alleged that there was a call f rom Mobile No.6390407709, demanding ransom of Rs.10 crores. As per the information, the accused / 3rd Respondent has called him on 07.01.2019, as such, the case was registered and he was taken into custody in connection with the said case. Further, it is stated that the accused / 3rd Respondent Mohd. Mukhtar Ansari was also figured as an accus ed in case FIR No.252 dated 26.11.2014 for the offences punishable under 873 Section 302 read with 34 of IPC, on the file of P.S. Morinda and in connection with the said case, he is not yet arrested. IV. It is stated that as per the jail records, 14 other c ases are pending against the accused / 3rd Respondent in different Courts in the State of Uttar Pradesh and out of the said cases, in 06 cases, the concerned Trial Courts have permitted the accused / 3 rd Respondent to appear through video conferencing and the accused / 3rd Respondent is already appearing in those cases. The details of case s against the accused/3rd Respondent, pending in the State of Uttar Pradesh are given in tabular form. Further, it is stated that vide order dated 10.02.2020, the Presiding Officer, Special Court MPs/MLAs, Allahabad, Uttar Pradesh had desired to verify the report sent by the Jail Authoritie s, and had directed the Additional Chief Secretary, Home Affairs, State of Punjab to constitute a committee of three doctors to evaluate the ailments of the accused / 3rd Respondent. Pursuant to the same, a committee of doctors was constituted and medical report was submitted vide letter dated 27.02.2020. Further, it is stated that the accused / 3rd Respondent / under- trial prisoner Mohd. Mukhtar Ansari, had been undergoing treatment at the jail hospital and at other secondary and tertiary hospitals, from time to time, since his date of admission to District Jail, Roopnagar, Punjab i.e. 24.01.2019. Details of medical examinations (date-wise) are furnished in a tabular form. V. It is stated that in view of the aforesaid reasons, the accused / 3rd Respondent could not be handed over to the petitioner-State of Uttar Pradesh due to the specific advice of medical authorities / medical board / specialists, from time to time, and in view of the legal obligations on the answering respondent, as per Section 269 of Code of Criminal Procedure, 1973. While denying the allegation of conspiracy, it is stated that accused / 3rd Respondent is lodged in Roopnagar Jail, State of Punjab, pursuant to a case registered in Crime no.05 of 2019. VI. It is stated that as per the record, available in the office of the deponent, neither chargesheet has been submitted nor the accused / 3rd Respondent has applied for bail. While denying that the deponent is bound to follow provisions under Section 269 of Cr.P.C., it is stated that in view of the medical conditions of the accused / 3rd Respondent, he could not be handed over to the petitioner-State of Uttar Pradesh. With the aforesaid pleas, in the counter affidavit, Respondent Nos.1 and 2 prayed for dismissal of the Writ Petition. STATE OF UTTAR PRADESH v. JAIL SUPERINTENDENT (ROPAR) [R. SUBHASH REDDY, J.] 4. A separate counter affidavit is filed by the acc used / 3 rd respondent Mohd. Mukhtar Ansari. While denying the various allegations made in the Writ Petition, the case, as averred in the counter affidavit, is as under: I.The accused / Respondent No.3 is a sitting MLA from MAU Constituency from Bahujan Samaj Party (BSP). On account of his long political career, the ruling party in the State of Ut tar Pradesh, has acrimonious political rivalry against him. There were several attempts on his life by the person inimically deposed against him, in view of political affiliations, including Shri Brijesh Singh, who is currently a sitting MLA from Ruling Party). The accused / 3rd Respondent has been in jail since 25.10.2005 i.e. over 15 years and is himself desirous of early and expeditious disposal of trial in pending cases. He has been taken into custody in connection with the case, registered in Crime No.05 of 2019 in Police Station Mathaur, District Mohali, State of Punjab and pursuant to a remand order, passed by the learned Judicial Magistrat e, he is remanded and presently lodged in Jail at Roopnagar in the State of Punjab on 08.01.2019. He has won last three elections from jail, which goes to show the support of the people in eastern Uttar Pradesh to wards him. Out of the pending ten cases, referred in the Writ Petition, he is already granted permission to appear through video conferencing by t he Trial Court in nine cases and he is appearing regularly. For the remaining one case i.e. S.T. No.22 of 2005 (i.e. at Serial No.05 of the table at Page- D), the application for permission to appear through video conferencing is pending before the Special Court (MP/MLA). The status of e ach of the cases, in the tabular form, is shown, and it is stated that he is regularly appearing through video conferencing in trials in the State of Uttar Pradesh. II. With reference to the allegations made in the Writ Petition, it is stated that the Writ Petition, as filed, is not maintainable, in asmuch as the rights, guaranteed under Articles 14 and 21 of the Constitutio n of India, are to ‘persons’ as against actions of the ‘State’ , as such, the State of Uttar Pradesh cannot invoke the writ jurisdiction under Article 32 of the Constitution of India. As he is continuously participating in the pending cases in the State of Uttar Pradesh, the petitioner-State cannot seek relief, as sought in the Writ Petition. III. While referring to the provision under Section 406 of Cr.P.C., it is stated that the said application can be maintained only at the instance 875 of the Attorney-General Of India or a party interested, a s such, the present petitioner-State of Uttar Pradesh cannot be consi dered as a party interested, so as to invoke power under Section 406 of Cr.P.C . The Petitioner has suppressed various orders passed by the compete nt Court in the State of Uttar Pradesh, granting permission to the accused / 3rd Respondent to appear through video conferencing, and sought relief, as such, the same is to be rejected on the said grounds also. IV. It is stated that the accused / 3 rd Respondent is appearing through video conferencing in all the cases, pending in the State of Uttar Pradesh, even after after his incarceration in the jail at Punjab. He, himself, is interested in an expeditious trial through video conferencing so that all the false cases, filed against him, could be brought to an end. V. While referring to his appearance through video conferencing, it is stated that three of the cases, where he has appeared through video conferencing, are already acquitted. He is also permitted to appear through video conferencing in new cases, lodged against him. VI. With regard to his medical conditions, it is stated that h e is around 65 years old and is suffering from diseases like high blood pressure, diabetes and also has undergone angiography. In view of his medi cal conditions, the doctors and medical board, had advised him to t ake complete rest for several months, which is also appr oved by PGI, Chandigarh. VII. While referring to his political background, it is stated that he has come from a respectable family and in view of political rivalry, there have been several attempts on his life on multiple occasions. The counter affidavit has referred to certain instances, where attacks were made on him on 15.07.2001 & 13.01.2014. It is, further, stated that there is a political rivalry between Shri Brijesh Singh and th e 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 m embers of the ruling party in the State of Uttar Pradesh and it is alleged that the political opponents of the petitioner were exerting pressure through various State Agencies to ensure that there was a constant interference in the case of the respondent and hanging threats to his life. Referring to certain complaints filed by him to various authorities, it is stated that in view of the undue harassment, being caused to the members of his family, his family members were constrained to move out of the State of Uttar Pradesh on account of the malicious prosecutions being carried out. STATE OF UTTAR PRADESH v. JAIL SUPERINTENDENT (ROPAR) [R. SUBHASH REDDY, J.] VIII. It is stated that in view of the apprehension in the mi nd of the accused / 3 rd Respondent, he has also sought transfer of his cases from the State of Uttar Pradesh and stated that every possib le attempt is made to inconvenience him. IX. It is stated that in view of the threat to his life, as he is already permitted to appear through video conferencing by the competent Court, there is no reason to seek transfer, as prayed for. Further, in view of the threat to his life in all the trials, he is allowed to appear throug h video conferencing and further, in view of the ailments, which he is suffering, there is no merit in the Writ Petition filed by the petitioner-State to seek transfer as prayed for. It is stated that he himsel f is interested in expeditious disposal of the cases and every attempt is made by him for expeditious disposal of cases registered against him. With the aforesaid averments in the counter affidav it, 3 rd Respondent prayed for dismissal of writ petition. 6. We have heard Mr. Tushar Mehta, learned Solicitor General , appearing for the petitioner and Shri Dushyant Dave, learned senior counsel, appearing for Respondents 1 & 2; and Shri Mukul Rohatgi, learned senior counsel, appearing for the 3rd Respondent. 7. Shri Tushar Mehta, learned senior counsel, has contended that accused no.3 is involved in several cases, where serious char ges of murder, extortion, cheating, fraud and offences under Gangsters Act, etc., are pending trial and all the cases are transferre d to the Special Court, constituted by the High Court of Allahabad, to try the c ases of MPs/MLAs. The learned Special Judge has ordered to i ncarcerate respondent no.3 in District Jail, Banda ,Uttar Pradesh so that Respondent No.3 could be produced before the Court on every date in each c ase and trials be concluded expeditiously. It is submitted that in connection with the case in Crime No.05 of 2019, registered for offences punishable under Sections 386 and 506 of the IPC on the file of Police S tation Mathaur, District Mohali in the State of Punjab, the Judicial Magistrate- I, Mohali issued Production Warrant under Section 267 of Code of Criminal Procedure and in view of the same, the Senior Superintendent of District Jail, Banda, Uttar Pradesh, without any approval / order from the Court of Special Judge (MPs/MLAs), Allahabad, gave custody of the 3rd Respondent, and the same was in utter disregard to the provision under Section 267(2) of the Code of Criminal Procedure. It is submitted that learned Judicial Magistrate-I, Mohali, instead of sending back respondent No.3 to District Jail, Banda in Uttar Pradesh, sent him to 877 District Jail, Roopnagar, Punjab on 24.01.2019. It is submitted that large number of warrants have been issued by the Special Judge (MPs/MLAs) Court and several Courts in the State of Uttar Pradesh t o bring 3 rd Respondent from District Jail, Roopnagar, Punjab, but all ef forts for securing the custody of 3rd Respondent proved futile for the reason that every time the Jail Superintendent refused to give custody of th e 3 rd Respondent on the ground of ill health of the 3rd Respondent. The reports of ill health do not indicate any severe ailment and only to avoid to give his custody to the petitioner-State of Uttar Pradesh, such r eports are prepared. 8. It is submitted that the Writ Petition, filed by the State, is certainly maintainable under Article 32 of the Constitution of India, for the reason that the administration of Criminal Justice is bestowed upon the State on behalf of the victims of crime and also, on the premise that a crime against a citizen is a crime against the State. To maintai n the petition under Article 32 of the Constitution of India, learned counsel pla ced reliance 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 only under Article 32 of the Constitution of India, but the same is filed under Section 406 of Code of Criminal Procedure. It is contended th at the word “Party Interested”, used in Section 406 (2) of the Code of Criminal Procedure, is to be interpreted widely by giving wide connotation. It is submitted that the words “Party Interested” are of a wide import, therefore, wider meaning is to be given to include the State also as much as purpose of Criminal Justice Administration is to preserve and protect the rule of law. To support his arguments, learned counsel placed reliance on the judgments of this Court in the case of K. Anbazhagan v. Superintendent of Police & Ors. 2. 9. It is, further, submitted that in any event, this Court may invoke powers under Article 142 of the Constitution of India for doing complete justice, inasmuch as several cases involving the 3 rd Respondent, with serious charges, are under trial in the State of Uttar Prade sh. 10. It is, further, submitted that accused / Respondent no.3 is also operating his illegal activities in the State of Uttar Pradesh from the Jail in Punjab, inasmuch as on 05.04.2020, FIR No.04 of 2020 is registered in Police Station Dakshin Tola, Mau, Uttar Pradesh for the offences under Sections 419, 420, 467, 468, 471, 120-B of the IPC and Section 7 1 2016(7)SCC 1 2 2004 (3) SCC 767 STATE OF UTTAR PRADESH v. JAIL SUPERINTENDENT (ROPAR) [R. SUBHASH REDDY, J.] of the Arms Act. It is submitted that the alleged medic al ailments, mentioned in the counter affidavits, are not of serious nature. Further, it is submitted that the ailments shown in the medical r eports by the respondents are not new, he was having such ailments since the year 2008, and the same is evident from the medical certificate issued from the Superintendent, District Jail, Gazipur. It is submitted that the transfer of 3rd Respondent is imperative from District Jail, Roopnagar, State of Punjab to District Jail, Banda, Uttar Pradesh and the appearance through video conferencing would not serve the purpose, in view of the fact that the attendance could not be secured at several times in the past. Resultantly, there is abnormal delay in the trials, pending in Special Court in Uttar Pradesh. The alleged threat of the 3 rd Respondent to his life is also unsustainable and cannot be a ground for not handing over custody of the 3 rd Respondent. The rivalry with another accused namely Shri Brijesh Singh is without any substance, inasmuch as Shri Brijesh Singh is also lodged in the Jail of Uttar Pradesh, since past more than 10 years. Further, the 3rd Respondent had been safely lodged in the District Jail, Banda, Uttar Pradesh from the last more than fifteen years and he wa s duly provided the required medical care. 11. Shri Dushyant Dave, learned senior counsel, appearing for Respondent Nos. 1 & 2, at the outset, has contended that the petition, as filed by the State of Uttar Pradesh under Article 32 of the Constitution of India read with Section 406 of the Code of Criminal Procedure, 1973, is not maintainable. It is submitted that the sole objective of Article 32 of the Constitution of India is for enforcement of funda mental rights, guaranteed under Part-III of the Constitution of India, as such, the petitioner, being a State, cannot agitate violation of fundamental rights, guaranteed under Part-III of the Constitution of India. Learne d senior counsel, to support his contention, relied on judgment of this Court in A.P. Christian Medical Educational Society v. Govt. of A.P.3 and judgment in the case of Ujjam Bai v. State of Uttar Pradesh 4 and judgment in the case of State Trading Corporation of India Ltd. v. Commercial Tax Officer 5 and judgment in the case of Coffee Board Bangalore v. Jt. Commercial Tax Officer Madras 6. 12. Further submissions of the learned senior counsel are that as the case is at investigation stage, as such, the petitioner is virtually seeking 3 1986(2)SCC 667 4 1963(1)SCR 778 5 1964(4)SCR 99 6 1969(3)SCC 349 879 transfer of investigation from one police station to another in the country and the same is impermissible. To support this contentio n, reliance is also placed on the judgment of this Court in the case of Ram Chander Singh Sagar (DR.) v. State of Tamil Nadu 7. Further, by referring to Section 406 of the Cr.P.C., it is submitted by the learned senior counsel that this Court’s power to act under this Section is confined t o cases, where the application is filed by the Attorney-General of India or by a Party Interested. It is submitted that in absence of any such application by the Attorney-General of India or Party Interested, petitio ner-State cannot seek transfer even under Section 406 of the Cr.P.C. Lastly, it is submitted that the petitioner also cannot seek invoking of Article 142 of the Constitution of India by this Court, inasmuch as no direction can be issued, which will run contrary to the substantive statutory provisions. 13. Shri Mukul Rohatgi, learned senior counsel, appearing for the 3rd Respondent has contended that the writ petition, as filed by the petitioner-State of Uttar Pradesh is not maintainable, ina smuch as the petitioner-State cannot complain violation of any fundamental rights, as guaranteed under Part-III of the Constitution of India. It is s ubmitted that none of the victims/complainants have approached this Court seeking the relief, in absence of which, the petitioner-State is not entitled for the relief, as sought for. It is submitted that the fair trial, guaranteed under Article 21 of the Constitution of India, is meant to protect the interest of accused and the witnesses and it is not open for the State to allege that fair trial requires custodial presence of the accused/3 rd Respondent. Further, referring to provisions under Section 406 of the Code of Criminal Procedure, it is also submitted that only in cases where a pplication is filed by the Attorney-General of India or by a Party Intere sted, this Court can act under Section 406 of Cr.P.C., but not at the instance of the State. It is submitted that the powers under Article 32 of the Constitution of India also cannot be utilised to take away a citizen’s fundamental rights. 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 through video conferencing in cases mentioned by the petitioner, as such, there is no impediment for proceeding with the trials. It is sub mitted that in view of the political rivalry and serious threats to th e 3rd Respondent, this Court may not grant any relief, as prayed for. It is submitted that not only the 3rd Respondent, all the family members of the 3 rd Respondent 7 1978(2)SCC 35 STATE OF UTTAR PRADESH v. JAIL SUPERINTENDENT (ROPAR) [R. SUBHASH REDDY, J.] are harassed by registering false cases. Lastly, it is submitted that the 3rd Respondent may be permitted to continue to appear through video conferencing in all the trials, which are pending trial in the State of Uttar Pradesh and this Writ Petition, which is devoid of merits, be dismissed. 14. We have considered submissions made by the learned counsels on both the sides and perused the material available on record. 15. The 3rd Respondent/accused is sitting MLA in the State of Uttar Pradesh. It is the case of the petitioner-State that, he is involved in several cases where serious charges are framed against him, and several such cases were transferred to Special Court, constituted to try the cases of MPs/MLAs in Allahabad. It is specifically stated in the petition that in order to fast track the cases, after creation of Special Court for tr ial of cases of MPs/MLAs in the year 2018, all the cases were cons olidated by the High Court of Allahabad. The 3 rd Respondent was lodged in District Jail, Banda, Uttar Pradesh, pursuant to order of the learned Special Judge. The cases which are at the stage of trial, as stated in the writ petition, by indicating the status of the case is giv en in a tabular form which reads as under: Sl. No. P.S./District CASE No. SECTIONS STATUS OF CASE 1. South Tola, Mau 399/2010, S.T. No.130/2010 302, 307, 120 &, 34 IPC 25/27 Arms Act & 7 CLA Argument 2. South Tola, Mau 891/2010 S.T. No. 6200002/2012 3(1) U.P. Gangster Act Framing of Charges 3. Mohammadabad, Ghazipur 1182/2009 S.T. No.10/2010 307, 506, 120B IPC Evidence 4. Mohammadabad, Ghazipur 1051/2007 S.T. No. 6200090/2012 3(1) Gangster Act Evidence 5. Mohammadabad, Ghazipur 263/1990 S.T. No.22/2005 420, 467, 468, 120B IPC 7/13 Prevention of Corruption Act Framing of Charges 6. Bhelupur, Varanasi 377/1997 S.T. No.3541/2011 506 IPC (Rs.1.25 crore extortion case) Framing of Charges 7. Chetganj, Varanasi 229/1991 S.T. No.265/2007 147, 148, 149, 302 IPC For Evidence 8. Karanda, Ghazipur 482/2010 S.T. No.557/2012 3(1) Gangster Act Evidence 9. Kotwali, Ghazipur 192/1996 S.T. No. 620007/2012 3(1) Gangster Act Evidence 10. Tarwa, Azamgarh 20/2014 S.T. No. 6200195/2018 302, 307, 147, 148, 149, 120B, 506 IPC & 7 CLA Framing of Charges 881 When the aforesaid cases were in trial, it appears, a case is registered in Crime No.05 of 2019 in Police Station Mathaur, District Mohali, State of Punjab, under Sections 386 & 506 of the IPC. The concerned Judicial Magistrate issued a production warrant under Section 267 of the Cr.P.C., and it is stated that pursuant to the same, he was released from the custody by the Superintendent of District Jail, Banda, Uttar Pradesh without any counter signature / permission from the Court of Special Judge (MPs/MLAs), Allahabad. Thereafter, he was produced before the Judicial Magistrate-I, Mohali, State of P unjab and was remanded 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 from 14.02.2019 to 14.02.2020, large number of warrants have been issued for production of the 3 rd Respondent, who is lodged in District Jail Roopnagar, Punjab to produce before the various Courts in the State of Uttar Pradesh, but, efforts made by Uttar Pradesh Police to secure the custody of the 3rd Respondent were futile inasmuch as, every time Jail Authorities of Roopnagar Jail, Punjab refused to give cust ody on the pretext that the accused was unwell. It appears that various medical reports are made basis to deny the custody to the Uttar Pradesh Police. It is the specific case of the petitioner that number of warrants issued against the 3rd Respondent in connection with the crimes registered in various Police Stations in Uttar Pradesh during the period from 14.02.2019 to 14.02.2020 could not be executed as the Jail Authorities of Roopnagar Jail, Punjab have refused to give custody on the ground that the accused / 3 rd Respondent is not medically fit. Date of issuing of warra nts in connection with several cases in various crimes in Police Stations of Uttar Pradesh; and reasons for non-production are also stated i n the petition, in a tabular form, which reads as under: DATE OF ISSUE OF B- WARRANT DUE DATE FOR THE ACCUSED TO APPEAR S.T. NO. / CASE CRIME NO./P.S. REASON FOR NON-PRODUCTION 14.02.2019 21.02.2019 130/10 399/10 South Tola, Mau Court informed that accused not medically fit. Unwell 07.03.2019 08.03.2019 130/10 399/10 South Tola, Mau Court informed that accused not medically fit. Unwell 28.03.2019 30.03.2019 130/10 399/10 South Tola, Mau Court informed that accused not medically fit. Unwell STATE OF UTTAR PRADESH v. JAIL SUPERINTENDENT (ROPAR) [R. SUBHASH REDDY, J.] DATE OF ISSUE OF B- WARRANT DUE DATE FOR THE ACCUSED TO APPEAR S.T. NO. / CASE CRIME NO./P.S. REASON FOR NON-PRODUCTION 10.04.2019 11.04.2019 130/10 399/10 South Tola, Mau Court informed that accused not medically fit. Unwell 29.04.2019 30.04.2019 130/10 399/10 South Tola, Mau Court informed that accused not medically fit. Unwell 22.06.2019 24.06.2019 130/10 399/10 South Tola, Mau Court informed that accused not medically fit. Unwell 27.06.2019(sic) 28.06.2019 130/10 399/10 South Tola, Mau Court informed that accused not medically fit. Unwell 04.07.2019 05.07.2019 130/10 399/10 South Tola, Mau Court informed that accused not medically fit. Unwell 20.07.2019 22.07.2019 130/10 399/10 South Tola, Mau Court informed that accused not medically fit. Unwell 23.07.2019 26.07.2019 130/10 399/10 South Tola, Mau Accused suffering from diabetes mellitus, PIVD, Skin allergy, Hypertension. 17.07.2019 22.07.2019 130/10 399/10 South Tola, Mau Accused having high grade fever, sore throat, backache & chest pain. 27.07.2019 30.07.2019 130/10 399/10 South Tola, Mau Accused suffering from diabetes mellitus, PIVD, Skin allergy, Hypertension, severe backache, high grade fever, sore throat, backache,chest pain 30.07.2019 01.08.2019 130/10 399/10 South Tola, Mau Accused got slip in bathroom and suffering from injury on his back and unable to walk 02.08.2019 05.08.2019 130/10 399/10 South Tola, Mau Accused suffering from Diabetes mellitus, PIVD, Skin allergy, Hypertension, needs bedrest till 25.08.19. 05.08.2019 08.08.2019 130/10 399/10 South Tola, Mau Court informed that accused not medically fit. Unwell 10.08.2019 25.08.2019 130/10 399/10 South Tola, Mau Accused not medically fit. 17.08.2019 25.08.2019 130/10 399/10 Accused not medically fit. 27.08.2019 02.10.2019 130/10 399/12 Accused not medically fit. 02.10.2019 12.10.2019 130/10 399/14 Accused examined by Board of Doctors (sic) at Civil Hospital Roopnagar. Prescribed medication and strict bed rest from 03.10.19 to 02.01.2020. Difficulty bearing weight on legs. 883 By referring to reasons indicated in the above chart, it is the case of the petitioner that the reasons assigned for not giving the custody are not true and only at the instance of the 3 rd Respondent, by referring to minor ailments such as diabetes mellitus, skin allergy, hype rtension, backache, throat infection, etc. the Uttar Pradesh Police has denied the custody, only to protract the trials, which are pending in Special Court constituted for trial of MPs/MLAs in Allahabad. It is specifically pleaded by the petitioner-State that though crime No.05 of 2019 was registered on 08.01.2019 by the Police Station Mathaur, District Mohali, State of Punjab, no Final Report is submitted by completing the investigation within the statutory period, even then, the 3 rd Respondent has not chosen to apply for grant of bail, so as to avoid his appearance in various cases in the State of Uttar Pradesh. 16. On the other hand, respondent-State as well as t he 3 rd Respondent is contesting the maintainability of this petition, filed under Article 32 of the Constitution of India and Section 406 of the Code of Criminal Procedure. It is submitted that the petitioner, be ing a State, cannot complain of violation of any fundamental rights, guaranteed under Part-III of the Constitution of India, so as to seek reli ef by filing the petition under Article 32 of the Constitution of India. So also is the case of the respondents that this petition also is not maintainable under Section 406 of the Code of Criminal Procedure. It is the case of the respondents that power under Section 406 of Cr.P.C. is conferred on th is Court to transfer cases and appeals, only in the event of an applicat ion by the Attorney-General of India or by a party interested. DATE OF ISSUE OF B- WARRANT DUE DATE FOR THE ACCUSED TO APPEAR S.T. NO. / CASE CRIME NO./P.S. REASON FOR NON-PRODUCTION 12.10.2019 22.10.2019 130/10 399/15 Accused not medically fit and advised bed rest. 26.10.2019 04.11.2019 130/10 399/15 Accused not medically fit and advised bed rest. 01.11.2019 02.01.2020 130/10 399/16 Accused not medically fit and advised bed rest. 03.01.2020 13.01.2020 3541/12 377/98 Accused not medically fit and advised bed rest. 27.01.2020 07.02.2020 3541/12 377/99 Accused having severe backache. Advised bedrest w.e.f. 21.01.2020 to 20.04.2020 07.02.2020 10.02.2020 3541/12 377/99 Accused advised three months bed rest by Neurology, PGIMER Chandigarh 14.02.2020 17.02.2020 3541/12 377/100 Accused advised bedrest w.e.f. 21.01.2020 to 20.04.2020 by Neurology, PGIMER STATE OF UTTAR PRADESH v. JAIL SUPERINTENDENT (ROPAR) [R. SUBHASH REDDY, J.] 17. 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 Transfer of Criminal Cases. Section 406 of the Code of Criminal Procedure, 1973 reads as under: “406.Power of Supreme Court to transfer cases and appeals.– (1) Whenever it is made to appear to the Supreme Court t hat an order under this section is expedient for the ends of justice, it may direct that any particular case or appeal be transf erred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another Hi gh Court. (2) The Supreme Court may act under this section only on the application of the Attorney-General of India or of a party interested, and every such application shall be mad e by motion, which shall, except when the applicant is the Attorney- General of India or the Advocate-General of the Stat e, be supported by affidavit or affirmation. (3) Where any application for the exercise of the p owers conferred by this section is dismissed, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider appropriate in the circumstances of the case. ” 18. From a plain reading of the aforesaid Section 406 of the Code of Criminal Procedure, 1973, it is clear that power is conferred on this Court to transfer of cases and appeals on the application fil ed by the Attorney-General of India or by a party interested. Accord ing to the learned senior counsels, appearing for the respondents, the peti tioner- State cannot be termed as a “party interested”. It is diff icult to accept the submissions of the respondents to say that the petitioner-State is not a party interested. It is well said that a crime against an individual is to be considered as a crime against a State and public, at l arge. In the criminal administration system, State is the prosecuting agency, working for and on behalf of the people of the State. It is to be noticed that “party interested” has not been defined under the Code of Criminal Procedure, 885 1973. The words “party interested” are of a wide import and, therefore, have to be interpreted by giving a wider meaning. The words such as “aggrieved party”, “party to the proceedings” and “party interested” are used in various Statutes. If the words used are to the effect “party to the proceedings” or “party to a case”, it can be given a restricted meaning. In such cases, the intention of the legislature is clear to giv e restricted meaning. But, at the same time, the words used as “party inte rested”, which are not defined under the Code of Criminal Procedure, have to be given a wider meaning. As a prosecuting agency in th e 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 are of the view that the State is considered as a “party interested” within the meaning of Sub-Section (2) of Section 406 of the Code. The judgment of 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 said plea that they are party interested within the meaning of Section 406(2) of the Code of Criminal Procedure. Thus, we hold that this petition, as filed under section 406 of the Code of Criminal Procedure, is maintainable. 19. Inasmuch as, we are of the view that this petition, as filed under Section 406 of the Code of Criminal Procedure, is maintainable at the instance of the State, it is not necessary for us to decide the issue as to maintainability of this petition under Article 32 of the Constitution of India. 20. Nextly, we proceed to examine on the plea of the petiti oner for grant of reliefs, as prayed for in the Writ Petition. Reliefs, as sought for in the Writ Petition under Para-26(A) of the same, the petit ioner is seeking directions, commanding the respondent-State and the Jud icial Magistrate-I, Mohali, State of Punjab to transfer the criminal proceedings and trial in the case no.05 of 2019, titled as State of Punjab v. Mukhtar Ansari, pending before the Judicial Magistrate-I, Mohali. Further, under Para-26(B) of the Writ Petition, the petitioner is seeki ng 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 as to keep him in District Jail, Banda in the State of Uttar Pradesh. Opposing relief sought for in the writ petition, while contesting on the maintainability, STATE OF UTTAR PRADESH v. JAIL SUPERINTENDENT (ROPAR) [R. SUBHASH REDDY, J.] it is also the case of the respondents that as no case is registered so far in any competent Court of law and as a crime registered in ca se no.05 of 2019 is at the stage of investigation, no relief can be granted in exercise of 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 Chander Singh Sagar (DR.) v. State of Tamil Nadu7. In the aforesaid judgment, this Court has held that the Code of Criminal Procedure clothes t his Court with power under Section 406 of the Code of Criminal Procedure to transfer a case or appeal from one High Court or a Court subordinate to one High Court to another High Court or to a Court subordinate thereto. But, it does not clothe this Court with the power to transfer at the stage of investigation. 21. Even, according to the case of the petitioner, that in crim e 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 investigation. A copy of FIR is placed on rec ord in which FIR number is mentioned as FIR No.05 and it was reg istered on 08.01.2019. As the investigation in crime no.05 of 2019 on the file of Police Station Mathaur, District Mohali, State of Punjab i s still at the stage of investigation and in absence of filing of Final Report, we are in agreement with the submissions of the learned senior counsel, appearing for the respondents that no case is made out by the petit ioner, 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 judgment of this Court in the case of Ram Chander Singh Sagar (DR.) v. State of Tamil Nadu7, 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 with power under Section 406 to transfer a case or appeal fr om one High Court or a Court subordinate to one High Court to another High Court or to a Court subordinate thereto. But it does not clothe this Court with the power to transf er investigations from one police station to another in the country simply because the first information or a remand rep ort is forwarded to a Court. The application before us stems from a 887 misconception about the scope of Section 406. There is as yet no case pending before any Court as has been made clear i n the counter affidavit of the State of Tamil Nadu. In th e light of this counter affidavit, nothing can be done except to dismiss this petition.” In view of the aforesaid reasoning of ours, no relief ca n be granted, as sought for under Para-26(A) of the writ petition , by this Court in exercise of power under Section 406 of the Code of Criminal Procedure, 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 be granted by this Court in exercise of power under Section 406 of the Code of Criminal Procedure, it is evidently a fit case to exercise power under Article 142 of the Constitution of India by this Court, having regard to the facts of the case, to do complete justice. It is submitted that more than ten criminal cases involving the 3rd Respondent for serious offences are at various stages of trial before the Special Court constituted for trial of cases of MPs/MLAs in the State of Uttar Pradesh. In spite of the same, the custody of the 3 rd Respondent is taken pursuant to one case, registered in the State of Punjab and presently and contin uously, he is lodged in the Roopnagar Jail in the State of Punjab since 24.01.2019. It is submitted that apart from the aforesaid cases, which are pending trial in the Special Court constituted for trial of MPs/MLAs in Allahabad, in various crimes, registered against the 3 rd Respondent in several police stations in the State of Uttar Pradesh, warrants ar e returned and unexecuted for one reason or the other. It is submitted that by showing minor ailments, the custody of the 3rd Respondent is denied by the Jail Superintendent of Roopnagar Jail, District Ropar, Punjab. It is, further, submitted that though in the crime registered in Crime No.05 of 2019 on the file of Police Station Mathaur, District Mohali, State of Punjab, which is registered for offences punishable under Sections 386 & 506 of the IPC, there is no progress in the investigation and Final R eport is not submitted yet, even then the 3 rd Respondent has not even applied for grant of default bail, as he is entitled to. It is submitte d that the very conduct of the 3rd Respondent indicates that he is trying to protract the trials which are pending in Special Court for MPs/MLAs in the State of Uttar Pradesh and to avoid his appearance in other Courts, whe re his presence is required. STATE OF UTTAR PRADESH v. JAIL SUPERINTENDENT (ROPAR) [R. SUBHASH REDDY, J.] 23. Shri Dushyant Dave, learned senior counsel, appearing for Respondents 1 & 2 and Shri Mukul Rohatgi, learned senior c ounsel, appearing for the 3rd Respondent, strenuously contended that no case is made out for grant of any relief by this Court, invoking the power under Article 142 of the Constitution of India. It is submitted that though Article 142 of the Constitution of India gives wider power to this Court and not restricted by statutory enactments, however, this Court would not pass any order under Article 142 of the Constitution of India, whi ch would amount to supplanting the substantive law applicable or ig noring the statutory provisions dealing with the subject. In support of this argument, learned senior counsel, appearing for the respondents, relied on judgments of this Court in the case of A.B. Bhaskara Rao v. CBI8 and in the case of State of Haryana v. Sumitra Devi 9. 24. Learned Solicitor General, Shri Tushar Mehta, appearing for the petitioner-State, submitted that though all the cases were transferred to Special Court, constituted for trial of cases of MPs/MLAs, Allahabad to fast track the same, continuation of the 3rd Respondent in jail, which is at far off place in a different State, has become an impediment to proceed with the trials. It is submitted that in addition to the pending trials in the Special 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, which are at the stage of investigation in several police stations in the State of Uttar Pradesh and in spite of the same, warrants issued by the competent Court are returned by Jail Superintendent of Roopnagar Jail , Punjab, every time by showing the ill health of the 3rd Respondent. To substantiate his plea that it is a fit case to invoke power by this Court under Article 142 of the Constitution of India, Shri Tushar Mehta, learned Solic itor General, appearing for the petitioner-State, has plac ed reliance on judgments of this Court in the Case of Saihba Ali v. State of Maharashtra 10, in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav & Anr. 11 and in the case of Asha Ranjan v. State of Bihar 12. 8 2011 (10) SCC 259 9 2004 (12) SCC 322 10 2003 (7) SCC 250 11 2005 (3) SCC 284 12 2017 (4) SCC 397 889 25. Having considered the submission of the learned Solicitor General, appearing for the petitioner-State, as well as l earned senior counsels, appearing for the respondents, on the plea that whether it is a fit case to invoke power under Article 142 of the Constitution of India or not, we have carefully considered the submissions and the material placed on record and we are of the considered view that it is evidently a fit case to invoke our power under Article 142 of the Constitution of India for grant of relief to the extent, as sought for, under Para-26(B) of the petition, to order transfer the custody of the 3rd Respondent from Roopnagar Jail, District Ropar, Punjab to District Jail, Banda, Uttar Pradesh. It is not in dispute that with regard to the cases and status, which are pending trial before the Special Judge, MPs/MLAs, Allahabad, a perusal of the chart which is furnished by the petitioner, indicates that the 3rd Respondent is involved in various cases of attempt to murder, murder , cheating, conspiracy, etc., apart from offences under Gangsters Act. The said cases, as mentioned by the petitioner, number in Ten, are various stages of trial. Further, the petitioner has furnished the cases, where warrants were issued by the Courts in various crimes, registered in the Districts of Mau, etc., and when the police went to seek custody, the 1st respondent had refused to handover the custody on medical grounds. The reasons for non-production are mentioned in a tabular form. During the period from 14.02.2019 to 14.02.2020, custody is denied to the police of Uttar Pradesh by the 1st Respondent on twenty six occasions. A perusal of the reasons for not giving custody shows that it is mainly on the me dical grounds referring to diabetes mellitus, skin allergy, hypertension, backache, throat infection, etc. Though, it is the case of the peti tioner, that the very registration of crime in Crime no.05 of 2019 on the file of Police Station Mathaur, District Mohali, Punjab is a part of conspiracy at the instance of the 3rd Respondent so as to continue in the jail at Punjab, by protracting the trials, which are pending in the Special Court and to deny his presence in various other crimes, registered agai nst him for completing the investigation. We do not wish to record any finding on such allegation of conspiracy at this stage, but, at the same time, we are satisfied that the custody is denied to the Police of Uttar Pradesh at every time on trivial grounds under guise of medical grounds by mentioning ordinary diseases like diabetes mellitus, skin allergy, h ypertension, backache, throat infection, etc. In addition to the same, it gi ves any amount of suspicion on the conduct of the 3 rd Respondent in not even applying for grant of default bail, for not filing Final Re port (Charge- STATE OF UTTAR PRADESH v. JAIL SUPERINTENDENT (ROPAR) [R. SUBHASH REDDY, J.] sheet) by the Police, Police Station Mathaur, District M ohali, Punjab within the statutory period. Though, it is the case of the 3rd Respondent, opposing the relief sought for, on the ground that he is permitted in majority of the cases to appear by video conferencing, but the same, by itself, is no ground to oppose the relief sought for. Though, the earlier cas es were pending in various Sessions Courts and only to fast track the cases, Special Court is constituted for trial of cases of MPs/MLAs in the year 2018 by the State of Uttar Pradesh. On such constitution, all t he cases where the 3 rd Respondent is involved for serious offences under IPC and Gangsters Act, were transferred to the Special Court and all are pending trial at various stages. Pursuant to the orders of t he Special Court, only the 3rd Respondent was kept in jail at Banda in the State of Uttar Pradesh, so as to order his presence, as and wh en required. Therefore, in our opinion, a convict or an undertrial prisoner, who disobeys the law of the land, cannot oppose his transfer from one prison to another, be a convict or an undertrial prisoner, Courts are not to be a helpless bystander, when the rule of law is being challenged with impunit y. In such situations, this Court can exercise power under Article 142 of the Constitution of India to order transfer of prisoner from one pri son to another. Though, there is a separate enactment called The Transf er of Prisoners Act, 1950, which permits transfer of a prisoner from one State to another by the Government, but, the same is circumscribed under Section 3 of the Act, as such, the claim of the petitioner will not fit into the same. Even then this Court, in exercise of power under Article 142 of the Constitution of India, can consider for transfer of the prisoner in the circumstances, as pleaded by the petitioner. The arms of law are long enough to remedy the situation. If there are any medical ailments to the petitioner, every care shall be taken by the Jail Authorities but, at the same time, on the spacious plea of ill health by referring to minor ailments, the accused / 3rd Respondent cannot oppose the relief, as sought for in the writ petition. It is true that in the case of A.B. Bhaskara Rao v. CBI8 and in the case of State of Haryana v. Sumitra Devi9, this Court has held that in 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 transfer of a prisoner from one prison to another prison in different States is covered by the provisions of The Transfer of Prisoners Act, 1950. Section 3 of the Act reads as “the Government of that State with the consent of the Government of any other S tate, by order, provide for removal of the prisoner from that p rison to any 891 prison in the other State.” It is clear that there does not appear to be any provision for transfer of an under trial prisoner. There being no statutory provision, covering the transfer of prisoner from one State to another, having regard to the facts of the case on hand, this Court, certainly in exercise of jurisdiction under Article 142 of the Constitution of India, may issue necessary directions in the given circumstances. The judgments relied 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 in the case of Saihba Ali v. State of Maharashtra 10, it is held that this Court can pass appropriate on the facts to do complete justi ce, even if the writ petition filed is not maintainable. Transfer of a prisoner from one State to another State also fell for consideration by this Court, in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav & Anr.11, where this Court has held that power to transfer a prisoner or detenu, either on his own motion or otherwise, can be ordered b y this Court, in exercise of power under Article 142 of the Constituti on of India. Para 23, 24 & 25 of the said judgment, which ar e relevant paragraphs to this case, read as under: “……23.Therefore, in our opinion, a convict or an undertrial who disobeys the law of the land, cannot contend that it is not permissible to transfer him from one jail to another because the Jail Manual does not provide for it. If the factual situation requires the transfer of a prisoner from one prison to another be he a convict or an undertrial, courts are not to be a helpless bystander when the rule of law is being challenged with impunity. The arms of law are long enough to remedy the situation even by transferring a prisoner from one priso n to another, that is by assuming that the Jail Manual concer ned does not provide such a transfer. In our opinion, the argument of the learned counsel, as noted above, undermines the authority and majesty of law. The facts narrated hereinabove clearly show that the respondent has time and gain flo uted the law even while he was in custody and sometimes ev en when he was on bail. We must note herein with all seriousness that the authorities manning Beur Jail and the doct ors concerned of Patna Medical College Hospital, for their own reasons, either willingly or otherwise, have enable d the respondent to flout the law. In this process, we th ink the authorities concerned, especially the authorities a t Beur STATE OF UTTAR PRADESH v. JAIL SUPERINTENDENT (ROPAR) [R. SUBHASH REDDY, J.] Central Jail, Patna, are not in a position to control the illegal activities of the respondent. Therefore, it is impera tive that the respondent be transferred outside Bihar. 2413*. The matter relating to inter-State transfer of pris oners is governed by the Transfer of Prisoners Act, 1950. Sect ion 3 of 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 (b) under, or in lieu of, a sentence of imprisonment or transportation, or (c) in default of payment of a fine, or (d) in default of giving security for keeping the peac e or for maintaining good behaviour; the Government of that State may, with the consent o f the Government of any other State, by order, provide fo r the removal of the prisoner from that prison to any prison in the other State.’ 25. A bare perusal of the aforementioned provision would clearly go to show that there does not exist any provis ion for transfer of an undertrial prisoner. The prayer for int er-State transfer of a detenu came up for consideration before this Court in David Patrick Ward v. Union of India 14 where in a preventive detention matter the petitioner therein wa s lodged in Naini Jail at Allahabad. The petitioner made a prayer f or his transfer to Tihar Jail, Delhi inter alia on the gr ound that the Consular Officers had the right to visit a national of the sending State who is in prison or under detention in ter ms of Article 36 of the Vienna Convention on Consular Rela tions. The authorities of Naini Jail having indicated that when ever visits are desired by the officers of the British C onsular Relations, proper arrangement therefor would be made, this Court 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 dated 18-3-2005. 14 (1992) 4 SCC 154 : 1992 SCC (Cri) 814 893 is a pointer to the fact that in an appropriate case, such request can also be made by an undertrial prisoner or a detenu and there being no statutory provisions contrary thereto, this Court in exercise of its jurisdiction under Article 142 o f the Constitution may issue necessary direction.” 26. The concept of fair trial and transfer of a prisoner f rom one jail to another jail is also considered elaborately by this Court in the case of Asha Ranjan v. State of Bihar12. While analysing the concept of fair trial as a facet of Article 21 of the Constitution of India, this Court held that it covers interest of the accused, prosecution and th e victim. It is, further, held that victim may be a singular person who has suffered, but the 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 two perspectives in case of fair trial would depend upon the facts and circumstances weighed on the scale of constitutional norms and sensibility and larger public interest. 86.5. Section 3 of the 1950 Act does not create an impediment on the part of the Court to pass an order of transfer of an accused or a convict from one jail in a State to another prison in another State because it creates a bar on the exercise of power on the executive only. 86.6. The Court in exercise of power under Article 142 of the Constitution cannot curtail the fundamental rights of the citizens conferred under the Constitution and pass orders in violation of substantive provisions which are based on fundamental policy principles, yet when a case of the present nature arises, it may issue appropriate directions so that criminal trial is conducted in accordance with law. It is the obligation and duty of this Court to ensure free and fair trial. 86.7 The submission that this Court in exercise of equit y jurisdiction under Article 142 of the Constitution cannot transfer the accused from Siwan Jail to any STATE OF UTTAR PRADESH v. JAIL SUPERINTENDENT (ROPAR) [R. SUBHASH REDDY, J.] other jail in another State is unacceptable as the basic premise of the said argument is erroneous, for while addressing the issue of fair trial, the Court is not exercising any kind of jurisdiction in equity.” 27. In addition to the reasons which we have already as signed above, the case law, which is referred above by the lea rned Solicitor General, appearing for the petitioner, also supports the case of the petitioner for grant of relief to the extent as sought for in Para-26(B) of the writ petition. 28. For the aforesaid reasons, as indicated above, this Writ Petition is allowed in part with the following directions and observations: i. This petition, filed under Article 32 of the Constitution of India / Section 406 of the Code of Criminal Procedure, 1973, is held to be maintainable under Section 406 of the Code of Criminal Procedure, 1973. ii. The relief, sought for transfer of the case, in terms of of Para-26(A) of this petition is not granted, inasmuch as the case in Crime No.05 of 2019, on the file of Police Station Mathaur, District Mohali, Punjab, is at the stage o f investigation, as such, Section 406 of the Cr.P.C. cannot be pressed into service. iii. At the same time, in exercise of power under Article 142 of the Constitution of India, we issue directions, directing the Respondent Nos.1 & 2, to handover custody of the 3rd Respondent to the State of Uttar Pradesh, within a period of 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/MLAs at Allahabad to continue him either in the District Jail at Banda or shift to any other Jail in the State of Uttar Pradesh, if any need arises. v. There shall be a direction to the Superintendent of Jail, District Jail Banda, Uttar Pradesh to extend the necessary medical facilities to the 3rd Respondent. It is made clear that if any specialty treatment is required to the 3rd Respondent, the Jail Superintendent of District Jail, Banda, 895 Uttar Pradesh shall take necessary steps to extend such medical 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.409 of 2020 and further, this Court has already rejected the claim of the petitioner for transfer of the cases, as such, we do not find any merit in these Transfer Petitions, and the same are accordingly dismissed. Nidhi Jain Writ Petition partly allowed and Transfer Petitions dismissed. STATE OF UTTAR PRADESH v. JAIL SUPERINTENDENT (ROPAR) [R. SUBHASH REDDY, J.]