Reply To: Transfer of the prisoner

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State of Maharashtra & Ors. etc.etc. V. Saeed Sohail Sheikh Etc. Etc. (2013) 54 OCR (SC) 244


Section 167 and 309

Transfer of prisoners –Permissible only with the permission of the Court warranting remand to custody.
Reference may also be, at this stage made, to Section 309 of the Code which, inter alia,
empowers the court after taking cognizance of an offence or commencement of the trial to remand the
accused in custody in cases where the court finds it necessary to postpone the commencement of trial or inquiry. The rationale underlying both these provisions is that the continued detention of the prisoner in jail
during the trial or inquiry is legal and valid only under the authority of the Court/Magistrate before whom the
accused is produced or before whom he is being tried. An under trial remains in custody by reasons of such
order of remand passed by the concerned court and such remand is by a warrant addressed to the authority
who is to hold him in custody. The remand orders are invariably addressed to the Superintendents of jails
where the under trials are detained till their production before the court on the date fixed for that purpose.
The prison where the under trial is detained is thus a prison identified by the competent court either in terms
of Section 167 or Section 309 of the Code. It is axiomatic that transfer of the prisoner from any such place of
detention would be permissible only with the permission of the court under whose warrant the under trial has been remanded to custody.

Administration of justice – Judicial propriety – Judicial enquiry – Natural Justice –Principles stated

That leaves us with the only other aspect namely whether the High Court was justified in directing the
Government to hold an inquiry against those responsible for using excessive force and for dereliction of duty by the medical officer. As noticed earlier by us the said direction has been issued entirely on the basis of the report submitted by the Sessions Judge. That report besides being preliminary is flawed in many respects including the fact that the same does not comply with the basic requirement of a fair opportunity of hearing being given to those likely to be affected. It is true that the statements of some of the jail officials have also been recorded in the course of the inquiry but that is not enough. Those indicted in the report were entitled to an opportunity to cross-examine those who alleged misconduct against them. Not only that the Sessions Judge has not named the officers responsible for the alleged use of excessive force which was essential for
any follow up or further action in the matter. The Sessions Judge has observed:
“I am avoiding naming the officers of the jail against whom allegations of use of force
are made as I am expected to give findings only on the aforesaid five points and as
officers who took part in the action, officers who gave orders of or the officers who
did not oppose the action cannot be segregated.”

So, also the report clearly states the officials concerned have not been allowed to examine any
witness although a request was made by them to do so. Such being the position, some of the observations made by the High Court that give an impression as though the misdemeanor of the jail officers had been proved, do not appear to be justified. It was at any rate not for the High Court to record a final and authoritative finding that the force used by the jail authorities was excessive or that it was used for any extraneous purpose. It was a matter that could be determined only after a proper inquiry was conducted and an opportunity afforded to those who were accused of using such excessive force or abusing the power vested in them. Consequential directions issued by the High Court in directing the State Government to initiate disciplinary inquiry against all the officers involved in the incident were, therefore, premature. We say so because the question whether any disciplinary inquiry needs to be instituted against the jail officials would depend upon the outcome of a proper investigation into the incident and not a preliminary enquiry in which the Investigating Officer, apart from statements of the respondents, makes use of information discreetly collected from the jail inmates. The report of the Sessions Judge could in the circumstances provide no more than a prima facie basis for the Government to consider whether any further investigation into the incident was required to be conducted either for disciplinary action or for launching prosecution of those found guilty.

Beyond that the preliminary report could not in view of what we have said above serve any other purpose.