Mla From Mau District, Up vs Jail Superintendent (Ropar) & Ors.

406 is maintainable – However, relief sought for transfer of the case is not granted, since in the criminal case on the file of Police Station Mathaur, District Mohali, Punjab, no final report is filed by the Police and it is at the stage of investigation and as such, s. 406 Cr.P.C. cannot be pressed into service – As regards, the transfer from one prison to another, a convict or an undertrial prisoner, who disobeys the law of the land, cannot oppose his transfer from one prison to another – Courts are not to be a helpless bystander, when the rule of law is being challenged with impunity – Arms of law are long enough to remedy the situation – In such situations, this Court can exercise power u/Art. 142 to order transfer of prisoner from one prison to another, thus, issuance of directions to the Jail Superintendent Roopnagar and State of Punjab, to handover custody of the accused to the State of UP, within a period of two weeks, so as to lodge him in District Jail, Banda in UP where the Jail Authorities would extend the necessary medical facilities to accused.

Code of Criminal Procedure, 1973: s. 406 – Power under – Words “party interested” – Interpretation of – Held: s. 406 confers power on this Court to transfer of cases and appeals on the application filed by the Attorney-General of India or by a party interested – In the criminal administration system, State is the prosecuting agency, working for and on behalf of the people of the State, as such the State can be said to be a party interested within the meaning of s. 406(2) of the Code – Words “party interested” are of a wide import and, thus, have to be interpreted by giving a wider meaning – Statute must be interpreted to advance the cause of the Statute and not to defeat the same – Interpretation of statutes. Partly allowing the writ petition and dismissing the transfer petitions, the Court

HELD: 1.1 The instant petition, filed under Article 32 of the Constitution of India / Section 406 of the Code of Criminal Procedure, 1973, is held to be maintainable under Section 406 of the Code. The relief, sought for transfer of the case-transfer the criminal proceedings and trial in the criminal case pending against the 3rd Respondent-sitting MLA from Mau District, UP, before the Judicial Magistrate, Mohali, to the Court of Special Judge (MP/MLA), Allahabad, UP is not granted, inasmuch as the case in Crime No.05 of 2019, on the file of Police Station Mathaur, District Mohali, Punjab, is at the stage of investigation, as such, Section 406 of the Cr.P.C. cannot be pressed into service. At the same time, in exercise of power under Article 142 of the Constitution of India, directions are issued directing the Respondent no. 1 - Jail Superintendent, Roopnagar and Respondent no. 2 - State of Punjab , to handover custody of the 3rd Respondent to the State of Uttar Pradesh, within the stipulated period so as to lodge him in District Jail, Banda in the State of Uttar Pradesh. It is open for the Special Court, constituted for MPs/MLAs at Allahabad to continue him either in the District Jail at Banda or shift to any other Jail in the State of Uttar Pradesh, if any need arises. The Superintendent of Jail, District Jail Banda, Uttar Pradesh is directed to extend the necessary medical facilities to the 3 rd Respondent. It is made clear that if any specialty treatment is required to the 3 rd Respondent, the Jail Superintendent of District Jail, Banda, Uttar Pradesh shall take necessary steps to extend such medical care also, by following the Jail Manual. [Para 28][894-C-H; 895-A]

1.2 From a plain reading of Section 406 of the Code of Criminal Procedure, 1973, it is clear that power is conferred on this Court to transfer of cases and appeals on the application filed by the Attorney-General of India or by a party interested. The submission that the petitioner-State is not a party interested cannot be accepted. It is well said that a crime against an individual is to be considered as a crime against a State and public, at large. In the criminal administration system, State is the prosecuting agency, working for and on behalf of the people of the State. It is to be noticed that “party interested” has not been defined under the Code of Criminal Procedure, 1973. The words “party interested” are of a wide import and, therefore, have to be interpreted by giving a wider meaning. The words such as “aggrieved party”, “party to the proceedings” and “party interested” are used in various Statutes. If the words used are to the effect “party to the proceedings” or “party to a case”, it can be given a restricted meaning. In such cases, the intention of the legislature is clear to give restricted meaning. But, at the same time, the words used as “party interested”, which are not defined under the Code of Criminal Procedure, have to be given a wider meaning. As a prosecuting agency in the Criminal Administration, the State can be said to be a party interested within the meaning of Section 406(2) of the Code. It is a well settled principle of law that the Statute must be interpreted to advance the cause of the Statute and not to defeat the same. The petitioner-State, being a prosecuting agency in the Criminal Administration, is vitally interested in such administration, as such, the State is considered as a “party interested” within the meaning of Sub-Section (2) of Section 406 of the Code. This petition, as filed under section 406 of the Code of Criminal Procedure, is maintainable at the instance of the State. It is not necessary to decide the issue as to maintainability of this petition under Article 32 of the Constitution of India. [Para 18, 19][884-F-H; 885-A-D, E-F] K. Anbazhagan v. Superintendent of Police & Ors. 2004

(3) SCC 76 7: [2003] 5 Suppl. SCR 610 - relied on.

1.3 As the investigation in crime no.05 of 2019 on the file of Police Station Mathaur, District Mohali, State of Punjab is still at the stage of investigation and in absence of filing of Final Report, no case is made out by the petitioner, seeking transfer under Section 406 of the Code of Criminal Procedure, which relief is sought for in the writ petition. [Para 21][886-E-F] Ram Chander Singh Sagar (DR.) v. State of Tamil Nadu 1978 (2) SCC 35: [1978] 2 SCR 604 - referred to.

1.4 It is evidently a fit case to invoke our power under Article

142 of the Constitution of India for grant of relief to the extent, as sought for, under Para-26(B) of the petition, to order transfer of the custody of the 3rd Respondent from Roopnagar Jail, District Ropar, Punjab to District Jail, Banda, Uttar Pradesh. It is not in dispute that with regard to the cases and status, which are pending trial before the Special Judge, MPs/MLAs, Allahabad, a perusal of the chart which is furnished by the petitioner, indicates that the 3rd Respondent is involved in various cases of attempt to murder, murder, cheating, conspiracy, etc., apart from offences under Gangsters Act. The said cases, as mentioned by the petitioner, number in Ten, are at various stages of trial. Further, the petitioner has furnished the cases, where warrants were issued by the Courts in various crimes, registered in the Districts of Mau, etc., and when the police went to seek custody, the 1 st respondent had refused to handover the custody on medical grounds. The reasons for non- production are mentioned in a tabular form. During the period from 14.02.2019 to 14.02.2020, custody is denied to the police of Uttar Pradesh by the 1 st Respondent on twenty six occasions. A perusal of the reasons for not giving custody shows that it is mainly on the medical grounds referring to diabetes mellitus, skin allergy, hypertension, backache, throat infection, etc. Though, it is the case of the petitioner, that the very registration of crime in Crime no.05 of 2019 on the file of Police Station Mathaur, District Mohali, Punjab is a part of conspiracy at the instance of the 3rd Respondent so as to continue in the jail at Punjab, by protracting the trials, which are pending in the Special Court and to deny his presence in various other crimes, registered against him for completing the investigation. No finding is recorded on such allegation of conspiracy at this stage, but, at the same time, this Court is satisfied that the custody is denied to the Police of Uttar Pradesh at every time on trivial grounds under guise of medical grounds by mentioning ordinary diseases like diabetes mellitus, skin allergy, hypertension, backache, throat infection, etc. In addition to the same, it gives any amount of suspicion on the conduct of the 3rd Respondent in not even applying for grant of default bail, for not filing Final Report (Charge-sheet) by the Police, Police Station Mathaur, District Mohali, Punjab within the statutory period. Though, it is the case of the 3rd Respondent, opposing the relief sought for, on the ground that he is permitted in majority of the cases to appear by video conferencing, but the same, by itself, is no ground to oppose the relief sought for. Though, the earlier cases were pending in various Sessions Courts and only to fast track the cases, Special Court is constituted for trial of cases of MPs/MLAs in the year 2018 by the State of Uttar Pradesh. On such constitution, all the cases where the 3 rd Respondent is involved for serious offences under IPC and Gangsters Act, were transferred to the Special Court and all are pending trial at various stages. Pursuant to the orders of the Special Court, only the 3rd Respondent was kept in jail at Banda in the State of Uttar Pradesh, so as to order his presence, as and when required. Therefore, a convict or an undertrial prisoner, who disobeys the law of the land, cannot oppose his transfer from one prison to another, be a convict or an undertrial prisoner, Courts are not to be a helpless bystander, when the rule of law is being challenged with impunity. In such situations, this Court can exercise power under Article 142 of the Constitution of India to order transfer of prisoner from one prison to another. Though, there is a separate enactment called The Transfer of Prisoners Act, 1950, which permits transfer of a prisoner from one State to another by the Government, but, the same is circumscribed under Section 3 of the Act, as such, the claim of the petitioner will not fit into the same. Even then this Court, in exercise of power under Article 142, can consider for transfer of the prisoner in the circumstances, as pleaded by the petitioner. The arms of law are long enough to remedy the situation. If there are any medical ailments to the petitioner, every care shall be taken by the Jail Authorities but, at the same time, on the spacious plea of ill health by referring to minor ailments, the accused / 3 rd Respondent cannot oppose the relief, as sought for in the writ petition. [Para 25][889-B-H; 890-A-G]

Asha Ranjan v. State of Bihar 2017 (4) SCC 397: [2017]

1 SCR 945 – relied on.

Union of India v. V. Sriharan 2016 (7) SCC 1 : [2015]

14 SCR 613; A.P. Christian Medical Educational Society v. Govt. of A.P. 1986 (2) SCC 667 : [1986] 2 SCR 749; Ujjam Bai v. State of Uttar Pradesh [1963]

1 SCR 778; State Trading Corporation of India Ltd. v. Commercial Tax Officer [1964] 4 SCR 99 ; Coffee Board Bangalore v. Jt. Commercial Tax Officer Madras 1969 (3) SCC 349 : [1970] 3 SCR 147; A.B. Bhaskara Rao v. CBI 2011 (10) SCC 259 : [2011] 12 SCR 718; State of Haryana v. Sumitra Devi 2004 (12) SCC 322 : [2003] 5 Suppl. SCR 351; Saihba Ali v. State of Maharashtra 2003 (7) SCC 250; Kalyan Chandra

Sarkar v. Rajesh Ranjan alias Pappu Yadav & Anr. 2005

(3) SCC 284 – referred to.