LexTHE STATE OF MAHARASHTRA & ORS. ETC.ETC. versus SAEED SOHAIL SHEIKH ETC. ETC.
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[2012] 11 S.C.R. 916 A THE STATE OF MAHARASHTRA & ORS. ETC.ETC. B v. SAEED SOHAIL SHEIKH ETC. ETC. (Criminal Appeal Nos.1735-1739 of 2012) NOVEMBER 2, 2012 rr.s. THAKUR AND FAKKIR MOHAMED IBRAHIM KALIFULLA, JJ.] Prisoners Act, 1900 - s.29 - Transfer of prisoners - C When envisaged - Held: Transfer in terms of sub-section (1) of s.29 is permissible only in distinct situations covered by clauses (a) to (d) - The provision does not deal with undertrial prisoners who do not answer the description given therein - Transfer under sub-section (2) of s.29 is also permissible only o if it relates to prisoners confined in circumstances indicated in sub-section (1) of s.29. Code of Criminal Procedure, 1973 - ss.167 and 309 - Transfer of prisoner with permission of the court under whose warrant the undertrial had been remanded to custody- Power E exercisable by the court while permitting or refusing transfer - Nature of the power - Held: Is Judicial' and not 'ministerial' - It is obligatory for the Court to apply its mind fairly and objectively to the circumstances in which the transfer is being prayed for and take a considered view having regard to the F objections which the prisoner may have to offer - There is in that process of determination and decision-making an implicit duty to act fairly, objectively or in other words to act judicially - Thus any order of transfer passed in any such proceedings can be nothing but a judicial order or at least a quasi-judicial G one - In the instant case, inasmuch as the trial court appears to have treated the matter to be administrative and accordingly permitted the transfer without issuing notice to the under-trials or passing an appropriate order in the matter, it H 916 STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED 917 SOHAIL SHEIKH ETC. ETC. committed a mistake - Communication received from the A prison authorities was dealt with and disposed of at an administrative level by sending a communication in reply without due and proper consideration and without passing a considered judicial order which alone could justify a transfer in the case - Such being the position the High Court was right B in declaring the transfer of respondent- undertrials to be void and directing their re-transfer back to Bombay jail. Custodial torture - Report submitted by Sessions Judge - Consequent direction issued by High Court to the Government to hold inquiry against those responsible for C using excessive force against the undertrial prisoners and for dereliction of duty by jail doctors - Challenge to - Held: Said direction of the High Court was issued entirely on the basis of the report submitted by the Sessions Judge - However, that report besides being preliminary was flawed in many respects D including the fact that the same did not comply with the basic requirement of a fair opportunity of hearing being given to those likely to be affected - 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 E 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 F the State Government to initiate disciplinary inquiry against all the officers involved in the incident were, therefore, premature - Government directed to treat the report submitted by the Sessions Judge as a preliminary inquiry and take a considered decision whether or not any further inquiry, G investigation or proceedings needs to be conducted against those allegedly responsible for using excessive force against fhe under-trials. The instant appeals were filed by the State of H 918 SUPREME COURT REPORTS [2012] 11 S.C.R. A Maharashtra and senior officers in the Department of Prisons, Government of Maharashtra against a common judgment passed by the High Court whereby a batch of criminal wri_t petitions filed by the respondents were allowed, transfer of the respondents-prisoners from B Arthur Road Jail in Bombay to three other jails in the State of Mahanishtra held to be illegal and the appellants directed to transfer the prisoners back to the jail at Bombay. Earlier, in the writ petitions filed by the respondents C before th
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