THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO.10166 OF 2010 DATED: 5th July 2010. BETWEEN: KATARI ANURADHA .. PETITIONER AND THE GOVT. OF A.P., REP. BY ITS HOME SECRETARY HOME DEPARTMENT SECRETARIAT, HYDERABAD AND OTHERS .. RESPONDENTS THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO.10166 OF 2010 ORDER: 1. This Writ Petition has been filed by the petitioner-Katari Anuradha with a prayer to issue a Writ of Mandamus declaring the action of the Superintendent of Police, Chittoor in obtaining the order from District and Sessions Judge, Chittoor in Dis.No.7651/2009, dated 19.10.2009 in shifting petitioner’s husband Katari Mohan who is an accused in S.C.Nos.14 of 2009 and 83 of 2009 on the file of Ist Additional District Judge and in P.R.C.No.50 of 2008 on the file of IV Additional Junior Civil Judge, Chittoor from Sub-Jail, Grade-II, Chittoor to Central Prison, Kadapa as illegal, arbitrary and against the provisions of the Prisoners Act, 1900 and A.P. Prisons Rules and violative of Article 21and 22 of the Constitution of India. 2. Katari Mohan, is the husband of the petitioner. He has been arrayed as one of the accused in two cases triable by a court of session. A letter came to be addressed by the District Sub-Jail Officer, Chittoor. On 24.3.2008 to the Chief Judicial Magistrate, Chittoor seeking transfer of remand prisoners, who are six in number connected with Crime No.145 of 2007 of I Town Police Station, Chittoor under sections 324, 307, 326, 302 IPC and sections 3 and 5 of Explosive Substances Act r/w sec.120(B) of IPC from Sub-Jail, Grade II, Chittoor to Central Prison, Kadapa. Katari Mohan who is the husband of the petitioner herein is one of the under trial prisoners in Crime No.145 of 2007. The learned Chief Judicial Magistrate, Chittoor, after hearing the Additional Public Prosecutor and learned counsel appearing for the remand prisoners viz., Katari Mohan, Chittu @ Chandrasekhar etc. proceeded to dismiss the application on the ground that the Chief Judicial Magistrate has no jurisdiction to transfer the under trial prisoner from Sub-Jail, Grade-II, Chittoor to Central Prison, Kadapa. For better appreciation, I may refer to paragraphs 20 and 21 of the order passed by the Chief Judicial Magistrate, Chittoor, which read as under: “ 20. It is pertinent to mention that admittedly Cr.No.145 of 2007 of I town Police Station, Chittoor is pending on the file of IV Additional Judicial Magistrate of First Class, Chittoor. The offences noted in the letter against the prisoners are punishable under Sec.324, 307, 326, 302 IPC and Sec.3 and 5 of Explosive Substances Act r/w 120-B of IPC. Therefore, the letter wherein the transfer of prisoners from Chittoor jail to Central Prison, Kadapa is sought for is not disclosing, the pending of any proceedings in respect of the above said crime before the Chief Judicial Magistrate except the present proceedings. 21. The learned Additional Public Prosecutor further argued that the Chief Judicial Magistrate is having control over the Magistrates of Chittoor and the prisoners are in judicial custody. Therefore, this Court has got powers to transfer the prisoners from one jail to another. The above said argument of the learned Additional Public Prosecutor cannot be accepted. In my considered view, it is for the Additional Public Prosecutor to mention the powers of the Chief Judicial Magistrate to order transfer the prisoners from one prison to another prison. Without quoting such provision of law it cannot be presumed or inferred that the Chief Judicial Magistrate is having power to order transfer or prisoners from one prison to another prison.” 3. Thereafter, the Superintendent of Police, Chittoor addressed a letter dated 19-10-2009 requesting the transfer of under trial prisoners in Crime No.15 of 2007 of I Town Police Station, Chittoor, Crime No.146 of 2007 of I Town Police Station, Chittoor, Crime No.14 of 2006 of Thirumani Police Station, Chittoor from Sub-Jail, Grade II, Chittoor to any of the Central Prisons in the State. The Superintendent of Police, Chittoor has set out various crimes registered against the remand prisoners and also the circumstances under which the transfer of remand prisoners are sought to be shifted. The District & Sessions Judge, Chittoor entertained the request of the Superintendent of Police, Chittoor and issued proceeding dated 19.10.2009 permitting the Superintendent of Police, Chittoor for shifting the under trial prisoners including Katari Mohan, husband of the petitioner herein to Central Prison, Kadapa. However, a direction has been issued to the Superintendent of Police, Chittoor to ensure their production for every adjournment before the respective courts with proper escort. The said proceeding issued by the District & Sessions Judge, Chittoor is under challenge in this writ petition. 4. The 3rd respondent filed counter affidavit. It is stated in the counter affidavit that a request has been made to the District & Sessions Judge, Chittoor for transferring the under trial prisoners from Sub-Jail, Grade II, Chittoor to any of the Central Prisons in the State in the interest of the under trial prisoners themselves. For better appreciation, I may refer to paragraphs 4 and 5 of the counter affidavit, which reads as under: “ 4. It is respectfully submitted that there are strong inputs that both the groups i.e., husband of the petitioner Mr.Katari Mohan on one side and the sitting MLA Sri.C.K.Jayachandra Reddy @ C.K.Babu on the other side are contemplating to attack each other which may lead to the gruesome situation in Chittoor town involving loss of lives, public and private properties. One of the accused in the said cases Mr.S.Chandrasekhar @ Chintu the planner and the kingpin of the attacks cited supra is on bail and moving in the borders of Karnataka and Tamilnadu to wreak vengeance on the life of the sitting MLA on the other hand the sitting MLA also contemplating to attack the under trial prisoner-the petitioner herein either in the prison or on his transit from prison to court and back in Chittoor. Keeping in view of the above facts and circumstances and in view of the sole interest or protecting the lives or both the under trial prisoner and the sitting MLA besides the safety and security of Chittoor Town citizens, it is imperative on the part of this respondent to file a petition before the Hon’ble Court for shifting of the under trial prisoner-petitioner herein from Grade-II Jail, Chittoor to any Central Prison. Accordingly, this respondent filed a requisition before the Hon’ble District and Sessions Judge, at Chittoor vide this office Proceedings C.No.701/SB/XI-CTR/2009 dated 19.10.2009 requesting to pass an order for shifting of the under trial prisoner the petitioner herein. Upon perusing the entire material on record, the District and Sessions Judge, at Chittoor vide proceedings Dis.No.7651/2009 dated 19.10.2009 ordered that the petitioner is to be shifted to Central Jail, Kadapa and further directed this respondent to ensure production of the accused for every adjournment before the respective courts with proper escort. The said impugned order is challenged in this writ petition. 5. It is pertinent to submit that there is no malafide intention on the part of this respondent to shift the petitioner under trial prisoner from Chittoorto Central Jail, Kadapa. Keeping in view the interest to protect the lives of both the under prisoner and the sitting MLA besides the safety and security of Chittoor Town citizens this respondent filed requisition before the Hon’ble District and Sessions Judge, Chittoor which is in accordance with law and legally valid.” 5. Heard learned counsel appearing for the petitioner and learned Government Pleader for Home on behalf of the respondents. 6. Learned counsel appearing for the petitioner submits that the Prisons Act or Rules do not empower either the Court or the Superintendent of Police for transferring the under trial prisoners from one jail to another. Learned counsel laid much emphasis on Rule 9 (4) of The A.P. Prisons Rules, which reads as under: “ 4. The remand or under trial prisoners shall be committed to the Sub-Jails or District Jails, or Central Prisons situated nearest to the committing Court.” Learned counsel also refers to The Prisoners Act, 1900 in support of his submission that there is no provision in The Prisoners Act, 1900 for shifting the under trial prisoners from one prison to another prison. By referring to Section 29 of The Prisoners Act, 1900, the learned counsel submits that it relates to only convicts and not under trial prisoners. 7. Learned Government Pleader for Home submits that the husband of the petitioner and Sri.C.K.Jayachandra Reddy @ C.K.Babu are arch rivals to each other in political field in Chittoor town and that there are cases and counter cases against each other. The husband of the petitioner Sri.K.Mohan is involved in two cases triable by the Sessions Court. He would also contend that Sub-Jail, Grade II, Chittoor has no sufficient force to meet the eventualities, in case of anything happens such as attack on the under trial prisoners in transit to the concerned courts and therefore the Superintendent of Police, Chittoor made a request to the District & Sessions Judge, Chittoor detailing the circumstances under which the husband of the petitioner and other under trial prisoners are required to be transferred to any of the Central Prisons in the State. Learned Government Pleader took me to the letter addressed by the Superintendent of Police, Chittoor to the District & Sessions Judge, Chittoor. 8. I have given my anxious consideration to the rival contentions of the parties. The Superintendent of Police, Chittoor detailed the crime registered against the husband of the writ petitioner and also against the opposite group. The letter indicates that there is a deep seated enmity between the husband of the petitioner and one C.K.Babu. Considering the gravity of the situation projected by the Superintendent of Police, Chittoor through his letter, the District & Sessions Judge, Chittoor exercised his discretion and issued proceedings transferring the husband of the petitioner along with some other under trial prisoners from Sub-Jail, Grade II, Chittoor to Central Prison, Kadapa. 9. The learned counsel appearing for the petitioner raised a legal issue that the Prisons Act as well as Rules do not provide for transfer of an under trial prisoner from one prison to another prison. He also placed reliance on the judgment of Supreme Court in KALYAN CHANDRA SARKAR V. RAJESH RANJAN @ PAPPU YADAV[1]. Much emphasis has been laid on paragraph 25 of the judgment, which reads as under: “ 25. A bare perusal of the aforementioned provision would clearly go to show that there does not exist any provision for transfer of an under trial prisoner. The prayer for inter-State transfer of a detenu came up for consideration before this Court in DAVID PATRICK WARD AND ANOTHER V. UNION OF INDIA AND OTHERS[2] where in a preventive detention matter the petitioner therein was lodged in Naini Jail at Allahabad. The petitioner made a prayer for his transfer to Tihar Jail, Delhi inter alia on the ground that the Consular Officers had the right to visit a national of the sending State who is in prison or under detention in terms of Article 36 of the Vienna Convention on Consular Relations. The authorities of the Naini Jail having indicated that whenever visits are desired by the officers of the British Consular Relations proper arrangement therefore would be made, the Court refused to concede to the said request. But, this decision is a pointer to the fact that in an appropriate case, such request can also be made by an under trial prisoner or a detenue and there being no statutory provisions contrary thereto, this Court in exercise of its jurisdiction under Article 142 of the Constitution of India may issue necessary direction.” 10. The letter addressed by the Superintendent of Police, Chittoor to the District & Sessions Judge, Chittoor projects deep-seated enmity between the husband of the petitioner and one C.K.Babu and also imminent life threat from each of them to the other. Though there is no specific provision in The Prisons Act or Rules, it does not take away the discretionary power of the Sessions Judge considering the gravity of the situation to order transfer of under trial prisoners from one prison to another prison. In the given facts and circumstances, the District & Sessions Judge has exercised his discretion properly and ordered for shifting of the husband of the petitioner along with some other under trial prisoners from Sub-Jail, Grade II, Chittoor to Central Prison, Kadapa. In that view of the matter, this is not a fit case to interfere with the order passed by the District & Sessions Judge in exercise of the power under Article 226 of the Constitution of India. 11. Learned counsel for the petitioner submits that two Sessions Cases are pending for the last two years and therefore necessary direction is required to be given to the Sessions Judge for disposal of the cases as expeditiously as possible. The request made by the learned counsel for the petitioner seems to be reasonable. Therefore the Sessions Judge, Chittoor is directed to give priority to the two Sessions Cases (S.C.No.14 of 2009 and S.C.No.83 of 2008) and see that they are disposed of as expeditiously as possible subject to the accused extending their cooperation. 12. Before parting with the case, learned counsel appearing for the petitioner submits that the husband of the petitioner is required to be lodged in Sub-Jail, Grade II, Chittoor during the pendency of the trial so as to enable him to give necessary instructions. Such is the situation, the husband of the petitioner herein is at liberty to make an application to the Sessions Judge, Chittoor for keeping him in Sub-Jail, Grade II, Chittoor during the period of examination of witnesses on behalf of the prosecution. In the event of such an application being made, the learned Sessions Judge has to consider the same and pass appropriate order. 13. With the above observations, this writ petition is dismissed. No costs. 5th July, 2010. ( B.Seshasayana Reddy,J ) tnb THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO.10166 OF 2010 DATED: 5th July, 2010. [1] 2005(2) ALT (CRL.) 42 (SC) [2] (1992) 4 SCC 154