CRM No. M-11095 of 2010 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CRM No. M-11095 of 2010 (O&M) Date of Decision : 14.01.2011 Jagbir .......... petitioner Versus State of Haryana & others ...... Respondents CORAM : HON'BLE Ms. JUSTICE RITU BAHRI Present : Mr. S.S. Kharab, Advocate (Amicus curiae) for the petitioner. Mr. Kshitij Sharma, A. A.G., Haryana. **** RITU BAHRI, J. Applicant Jagbir son of Sh. Ramphal, presently confined in Districit Jail, Rohtak as undertrial prisoner. He is permanent resident of Kasandi, District Sonepat. He is admitted in District Jail, Rolhtak since 15.12.2008 as an undertrial prisoner in case FIR No. 508 dated 12.12.2008 under Section 302, 307 IPC 30/54/59 Arms Act, Police Statioin City Sonepat. An application was made to Hon'ble the Chief Justice of Punjab & Haryana High Court requesting for transfer to Narnaul Jail as members of his oppoisite party were confined in District Jail, Robhtak. This application has been treated as Crl. Misc. No. 11095 of 2010. CRM No. M-11095 of 2010 -2- Notice was issued and Director General of Police (Prisons), Haryana was directed to submit his report regarding the averments made by the applicant, Jagbir in the petition. In the affidavit filed by Sh. Rakesh Malik, IPS, Director General of Prisons Haryana, the factual position has been explained by alleging that the petitioner is an accused in murder case of a gangster Sanjay Butania, which occurred in the premises of District Court, Sonepat on 12.12.2008. He has been kept in security cell with the permission of the learned District & Sessions Judge, Rohtak. Accused Jagbir Singh has submitted applications six times to the Superintendent, District Jail, Rohtak for transfer him from District Jail, Rohtak to District Jail Sonepat or Narnaul, but on the report of Superintendent District Jail, Sonepat, request of the accused has been declined by the learned District & Sessions Judge, Sonepat all the six times. In a case of transfer of a convict, Director General of Prisons, Haryana is empowered to transfer the convicts from one jail to another jail. Under Para 738 of Punjab Jail Manual, the cases of transferring of an undertrial are to be decided by the District & Sessions Judge of the District. As per report of the Superintendent, District Jail Rohtak, request of the petitioner for transferring him from District Jail Rohtak to Distinct Jail Narnaul was declined by the learned District & Sessions Judge, Sonepat on 25.4.2009. Thereafter, the petitioner requested two times for transferring him from District Jail Rohtak to CRM No. M-11095 of 2010 -3- District Jail Sonepat, and on both the occasions the learned District & Sessions Judge, Sonepat has declined his request vide orders dated 26.9.2009 & 19.12.2009. The petitioner requested two more times to transfer him from District Jail Rohtak to District Jail Narnaul and on both occasions the learned District & Sessions Judge, Sonepat has declined his requests vide orders dated 7.1.2010 and 13.4.2010, mentioning that there is considerable distance between Sonepat, where the case of the petitioner is pending, and Narnaul, where the inmate desires to be sent to, and it shall be very difficult for the security staff to transport him to such long distances on each date of hearing and the danger to his life shall also increase. The orders Annexures R-1 to R-5 have been annexed with the affidavit declining the request of the petitioner. The petitioner belongs to District Sonepat and if he is transferred to District Jail Sonepat he will be able to activate his gang and convey messages to his gang members easily through his visitors and his activities would be dangerous to the security of the jail and to the public at large. Reference has been made to a criminal Misc. No. 23248- M of 2009 titled as Parveen @ Kaptan Singh Vs. State of Haryana where in a similar situation the prayer made by the undertrial was declined for transfer from one jail to another. The Hon'ble High Court had held that the Jail authorities would be at liberty to house the prisoner in whichever jail it considered reasonable considering security of the jail, jail discipline and public interest. CRM No. M-11095 of 2010 -4- After filing of this affidavit, the petitioner had submitted that he will be sent to any other jail from Rohtak. The State was directed to look into the possibility of shifting the petitioner to any other Jail. In the affidavit of Sh. Rakesh Malik, IPS, Director General of Prisons, Haryana, filed in the Court, it has been mentioned that the petitioner in his application addressed to Hon'ble the Chief Justice has desired to transfer him to District Jail, Narnaul and if it is not possible he wants to remain confined in District Jail, Rohtak instead of other Jails as members of his rival groups are confined in other Jails of Haryana also. Annexure R-2 is copy of the application addressed to Hon'ble the Chief Justice of Punjab & Haryana High Court. In view of the factual position that it is only the District & Sessioins Judge, who could transfer the petitioner, the Director General of Prisons is not competent to transfer the petitioner, who is an undertrial, to any other jail. Heard learned counsel for the parties. Mr. S.S. Kharab, Amicus curiae has vehemently argued that the petitioner is undertrial, who is facing threat from gangsters, who are confined in the Rohtak Jail. His prayer for transfer should have been sympathetically considered. There are a number of undertrials, who are transported from one District to other district to attend Court proceedings. This ground for rejecting the application of the petitioner for transfer is not valid. CRM No. M-11095 of 2010 -5- There is no merit in this criminal Miscellaneous application, which is dismissed with no order as to costs. 14.01.2011 (RITU BAHRI) 'sp' JUDGE