Srinagar, Apr 29: The High Court of Jammu & Kashmir and Ladakh ruled that the power to direct transfer of an undertrial prisoner from one jail to another vests with the Magistrate/ Court which had remanded the detenue to a certain prison.
“…the power to remand or transfer of an undertrial prisoner from one jail to another is to be exercised by the Court by passing a judicial order, obviously after providing opportunity of being heard and that the change in the place of detention would be permissible only with the permission of the Court under whose warrant the undertrial has been remanded to custody,” the court said while allowing a prison transfer plea of an undertrial.
A plea filed by a widowed mother seeking transfer of her undertrial son, Nayeem Rasool, from district jail, Poonch to Central jail, Srinagar or any other jail close to his home to meet the ends of justice.
The petitioner is facing trial for a 2017 case registered at Police Station Uri, Baramulla under various sections of the Narcotic Drugs and Psychotropic Substances Act (NDPS).
The undertrial has been in judicial custody since his arrest in July 2017, and the trial is ongoing in the Court of 1st Additional Sessions Judge, Baramulla. The undertrial was previously lodged in Sub Jail, Baramulla, where his mother visited him as needed.
However, in March 2022, when the petitioner’s mother went to visit her son, she was informed that he had been moved to district Jail, Poonch, on the orders of HoD of Prisons.
A court of Justice M.A Chowdhary noted that the undertrial’s transfer has been ordered by the HoD of Prisons, having been authorized by the government of J&K, that the petitioner shall be removed to district jail, Poonch and its information was transmitted to the trial Court.
“In the considered opinion of this Court, in a case of an undertrial, who has already been remanded to custody by the trial court in the name of the Superintendent of a particular jail, can only be removed from that jail by seeking a judicial order from the trial court,” Justice Chowdhary said.
Underscoring that it will be difficult for a widowed mother to go to Poonch to meet her son, the court pointed out that petitioner, in this case, has been shifted from Sub Jail Baramulla to a distant prison which is at the farthest place in Jammu Division at Poonch.
“The petitioner’s family, in case they require to meet the petitioner as an undertrial in district jail, Poonch, have to travel all along from Kashmir to Jammu and then from Jammu to Poonch for almost two days,” the court said.
Regarding the contention of respondents that the petitioner has been removed from Sub Jail, Baramulla to District Jail, Poonch that he was not a disciplined prisoner and that he had misbehaved with the jail staff and created law and order situation in the jail, the court noted that the respondents have failed to place on record as to what were the jail offences that he committed and how he had been proceeded against.
“Merely saying that he had been an undisciplined prisoner creating difficulties for the jail staff shall not suffice in the matter, so as to warrant his transfer from district Baramulla to a distant place at Poonch,” Justice Chowdhary.
Allowing the plea, the court directed the respondents to shift the petitioner from district jail, Poonch and keep him in any other prison in Kashmir Division, preferably near his home, after seeking necessary orders on his behalf from the trial Court.
