State is a "party interested" U/s.406(2) Cr.P.C who is entitled to seek transfer of a case: SC

It is difficult to accept the submissions of the respondents to say that the petitioner-State is not a party interested. 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 petitioner-State, being a prosecuting agency in the Criminal Administration, is vitally interested in such administration, as such, we are of the view that the State is considered as a “party interested” within the meaning of Sub-Section (2) of Section 406 of the Code (Para.18).

STATE OF UTTAR PRADESH V. JAIL SUPERINTENDENT (ROPAR) &Ors.

CRIMINAL ORIGINAL JURISDICTIONWRIT PETITION (CRIMINAL) NO.409 OF 2020

Decided on March 26th, 2021

The present case was decided by a division bench of the Supreme Court consisting of Justice Ashok Bhushan and Justice R. Subhash Reddy.

This Writ Petition is filed under Article 32 of the Constitution of India, read with Section 406 of the Code of Criminal Procedure, 1973 (Cr.P.C.) by the State of Uttar Pradesh, seeking Writ of Mandamus seeking appropriate directions, directing the respondent-State of Punjab and the Learned Judicial Magistrate-I, MohaliNo.409 of 2020, etc. State of Punjab, to transfer the criminal proceedings and trial in the Case Crime No.05 of 2019, titled as State of Punjab v. Mukhtar Ansari, pending before the Judicial Magistrate-I, Mohali, State of Punjab, to the Court of Special Judge (MP/MLA), Allahabad, Uttar Pradesh and with a further direction to the RespondentNos.1 and 2 to handover the custody of the accused / 3rd Respondent from Roopnagar Jail, District Ropar, Punjab to District Jail Banda, Uttar Pradesh.

On the plea that whether it is a fit case to invoke power under Article 142 of the Constitution of India or not, it was not disputed that with regard to the cases and status, which are pending trial before the Special Judge, MPs/MLAs, Allahabad, Ansari s involved in various cases of attempt to murder, murder, cheating, conspiracy, etc., apart from offences under Gangsters Act. The said cases are various stages of trial.

Further, the custody is denied to the police of Uttar Pradesh by the 1st 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. This gives an amount of suspicion on the conduct of Ansari in not even applying for grant of default bail, for not filing Final Report (Charge-sheet) by the Police, Police Station, Punjab within the statutory period.

The Apex Court found that though, it is the case of Ansari 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.

To maintain the petition under Article 32 of the Constitution of India, learned counsel placed reliance on the judgment in case of Union of India v. V. Sriharan. Further, it is submitted that in any event, the petition is filed not only under Article32 of the Constitution of India, but the same is filed under Section 406 of Code of Criminal Procedure. It is contended that the word “Party Interested”, used in Section 406 (2) of the Code of Criminal Procedure, is to be interpreted widely by giving wide connotation. It is submitted that the words “Party Interested” are of a wide import, therefore, wider meaning is to be given to include the State also as much as purpose of Criminal Justice Administration is to preserve and protect the rule of law. [Para 8]

It is submitted that the alleged medical ailments, mentioned in the counter affidavits, are not of serious nature. Further, it is submitted that the ailments shown in the medical reports by the respondents are not new, he was having such ailments since the year 2008, and the same is evident from the medical certificate issued from the Superintendent, District Jail, Gazipur. Further, the 3rd Respondent had been safely lodged in the District Jail, Banda, Uttar Pradesh from the last more than fifteen years and he was duly provided the required medical care. [Para 10]

By referring to reasons indicated in the above chart, it is the case of the petitioner that the reasons assigned for not giving the custody are not true and only at the instance of the 3rd Respondent, by referring to minor ailments such as diabetes mellitus, skin allergy, hypertension, backache, throat infection, etc. the Uttar Pradesh Police has denied the custody, only to protract the trials, which are pending in Special Court constituted for trial of MPs/MLAs in Allahabad. [Para 15]

It is difficult to accept the submissions of the respondents to say that the petitioner-State is not a party interested. 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 petitioner-State, being a prosecuting agency in the Criminal Administration, is vitally interested in such administration, as such, we are of the view that the State is considered as a “party interested” within the meaning of Sub-Section (2) of Section 406 of the Code. The judgment of this Court in the case of K. Anbazhagan v. Superintendent of Police &Ors. also supports the case of the petitioner-State to accept the said plea that they are party interested within the meaning of Section 406(2) of the Code of Criminal Procedure. Thus, we hold that this petition, as filed under section 406 of the Code of Criminal Procedure, is maintainable. [para 18]

Earlier, the Apex Court in the case of State of UP vs Jai Superintendent and Ors, observed that fallacious plea of the accused that he does not want to come to Uttar Pradesh as his life is under threat, is contrary to the plea of the State of Punjab, which contends that the accused is unable to travel due to medical reasons.

It is also noted that in the case of A.B. Bhaskara Rao v. CBI and in the case of State of Haryana v. Sumitra Devi, this Court has held that in exercise of power under Article 142 of the Constitution of India, no order can be passed, which shall run contrary to the statute or statutory rules.

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, and we are 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, 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. [Para 25]

Therefore, in our opinion, 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.[Para 25]

Accordingly, the Bench of Justice Ashok Bhushan directed that Mukhtar Ansari be handed over to the custody of UP within 2 weeks. It is said that Ansari shall be lodged in Banda Jail and Jail Superintendent of Banda Jail will extend medical facilities. It is also directed that if any specialty treatment is required to the Ansari, the Jail Superintendent of District Jail, Banda, shall take necessary steps to extend such medical care also, by following the Jail Manual.

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Keerthana R