THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT APPEAL No.529 of 2010 Dated:20.07.2010 Between: Katari Anuradha. …Appellant and The Government of Andhra Pradesh, Rep. Its Home Secretary, Home Department, Secretariat, Hyderabad, And others. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT APPEAL No.529 of 2010 JUDGMENT: (per Hon’ble Sri Justice V.V.S.Rao) The appellant is the wife of Katari Mohan, an under trial prisoner lodged in the Central Prison, Kadapa (hereafter called, the UT prisoner). The said UT prisoner is accused in two sessions cases, being S.C.Nos.83 of 2008 and 14 of 2009, on the file of the Court of the I Additional District and Sessions Judge. He is also accused in P.R.C.No.50 of 2008 on the file of the Court of the IV Additional Judicial Magistrate of First Class, Chittoor. The UT prisoner was lodged in Sub Jail, Grade II, Chittoor. The Superintendent of Sub Jail filed a letter before the Court of Chief Judicial Magistrate, Chittoor, seeking approval for the proposal to transfer the UT prisoner and six others from Sub Jail, Chittoor, to Central Prison, Kadapa. By an order dated 30.05.2008 the Chief Judicial Magistrate rejected the request for want of jurisdiction. The Superintendent of Police – third respondent herein, then addressed a communication, being C.No.701/SB/XI-CTR/2009, dated 19.10.2009, requesting the learned District and Sessions Judge, Chittoor, to pass orders for shifting of UT prisoner from Sub Jail, Chittoor, to any Central Prison. By proceedings, being Dis.No.7651/2009, dated 19.10.2009, the learned District Judge ordered shifting of the UT prisoner to Central Jail, Kadapa, directing the third respondent to ensure production of the said accused for every adjournment before the respective Courts with proper escort. Assailing the same, the appellant filed the writ petition contending that the District Judge is not vested with power to transfer the UT prisoners, that the order is violative of principles of natural justice, that there is no provision in the Prisoners Act, 1900, for transferring the UT prisoners from one jail to another, that the Andhra Pradesh Prisons Rules, 1979, framed under the Prisoners Act do not contemplate transfer of prisoner from one jail to another and that there is deep rooted rivalry between the UT prisoner and the local Member of Legislative Assembly (MLA) of Chittoor and there is a serious threat perception to the life of the accused. The writ petition was opposed by the third respondent contending that there are strong inputs that UT prisoner’s group and MLA’s group are contemplating to attack each other which might lead to gruesome situation in Chittoor Town, and that keeping in view the protection of life of both the UT prisoner and MLA it has become imperative to seek transfer from Sub Jail to Central Prison, Kadapa. The learned single Judge having considered the rival contentions dismissed the writ petition relying on the decision of the Supreme Court in Kalyan Chandra Sarkar v Rajesh Ranjan @ Pappu Yadav[1] as well as the circular issued by the High Court being circular Roc.No.37/80/86. Counsel for the appellant and the Government Pleader for Home made their submissions reiterating their respective contentions before the learned single Judge. The background of the case and the submissions would give rise to the point for consideration as to whether it is competent for the District Judge to permit the transfer of the UT prisoner from Sub Jail to Central Prison or from one jail to another jail. As per Section 3(2) of the Prisons Act, 1894: “criminal prisoner” means any prisoner duly committed to custody under the writ, warrant or order of any Court or authority exercising criminal jurisdiction, or by order of a Court-Marshal. As per Section 3(4) of the said Act: “civil prisoner” means any prisoner who is not a criminal prisoner. A “prison” means any jail or place used permanently or temporarily for the detention of prisoners, and includes all lands and buildings appurtenant thereto, but does not include any place which has been declared by the State Government to be a subsidiary jail (sub jail). In exercise of powers under Section 59 of the Prisons Act, the Government of Andhra Pradesh promulgated the Andhra Pradesh Prisons Rules, 1979 (the Rules). Rule 9 of the Rules deals with the committal of prisoners to various jails according to classifications. Sub rule (4) thereof reads: “the remand or undertrial prisoners shall be committed to the Sub-Jails or District jails, or Central Prisons situated nearest to the committing Court”. Section 29 of the Prisoners Act empowers the State Government to order for removal of prisoner confined in a prison and subject to such orders the Inspector General of Prisons may provide for removal of any prisoner from one prison to another prison. The legal position is not disputed. The Counsel, however, would urge that as per Rule 9(4) of the Rules a UT prisoner should be lodged in any prison “situated nearest to the committing Court”. According to him if the accused being tried by the Sessions Judge, Chittoor, is lodged in the Central Prison, Kadapa, he has to attend every adjournment and during the transfer there is serious threat to his life. We have carefully considered the submissions and are convinced that Rule 9(4) is only directory and it is not mandatory. The use of the term “nearest to the committing Court” does not necessarily lead to an inference that UT prisoner should always be committed to the nearest Sub Jail with reference to the sessions Court. Further, the reliance placed on Section 29 of the Prisoners Act is of no avail. It entirely operates in a different situation and does not deal with under trial prisoners although for the purpose of Prisoners Act the defences of prisoner includes both a convict and an under trial prisoner. The plea that the District Judge has no jurisdiction cannot be accepted. After a person is arrested in connection with a cognizable offence, he/she has to be produced before the Magistrate and when the investigation is not completed expeditiously such accused could be sent to judicial custody. After the case is committed to sessions, an accused in a sessions case is deemed to be in the custody of the concerned Sessions Judge trying the case. Therefore, it shall become the duty of the Sessions Judge to protect the life of the UT prisoner and the Court is not divested of any power to pass such an order to transfer the UT prisoner from one jail to another jail so as to protect the life. In Pappu Yadav it was held as under. 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 prison to another, that is by assuming that the concerned Jail Manual does not provide such a transfer… Therefore, we are convinced that by issuing transfer order the learned District Judge has not committed any error. On this we are in agreement with the learned single Judge. The Writ Appeal for the above reasons is dismissed. __________________ (V.V.S.RAO, J) ______________________________ (RAMESH RANGANATHAN, J) 20.07.2010 vs [1] (2005) 3 SCC 284 = AIR 2005 SC 972 = 2005 (2) ALT (Crl.) 42 (SC)