Dismissed

Mohd. Izabul Shaikh v. the State of Maharashtra and Ors.

Bombay HC24 Aug 2010WP/1607/2010

Case brief

AI extract

What is this about?

The High Court rejected the petitioner's request to be transferred to a prison in Jharkhand for humanitarian reasons. The court held that transfer is barred while an appeal against conviction and sentence is pending, consistent with non-statutory rules and the Transfer of Prisoners Act, 1950.

What did the court decide?

Request for temporary transfer to Dhumka Central Prison denied and petition disposed of.

Mohd. Izabul Shaikh Vs the State of Maharashtra and Ors. — Service and Employment | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO.1607 OF 2010

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Mohammad Izabul Shaikh, Presently serving sentence of life imprisonment at Kolhapur Central Prison as Convict Prisoner No.C4137 ......Petitioner Versus 1. The State of Maharashtra. 2. The Inspector General of Prison, Maharashtra State, Pune. 3. The Superintendent, Kolhapur Central Prison. .....Respondents. Mr.Shekhar S. Bhise for the petitioner. Mr.J.P. Yagnik, APP for the State. CORAM : A.M. Khanwilkar, & U.D. Salvi, JJ. DATE : 24^th August 2010.

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P.C. :

Heard counsel for the petitioner as well as learned APP. The relief claimed in this petition through jail is that the petitioner be temporarily shifted to Central Prison of Dhumka, District Sahibganj, State Jharkhand for two months on humanitarian consideration, so that he can meet his family members. It is not in dispute that the petitioner has filed an appeal against the order of conviction and sentence which is still pending before this Court. In such a situation, the question of considering his request for transfer to jail in another State cannot be countenanced. That is the norm provided in the nonstatutory Rules, to which our attention has been invited by the learned APP. Clause (3) of the said Rules provide that no prisoner shall be transferred under reciprocal arrangements till his appeal period is over, and if he has filed an appeal till the appeal is decided. In view of this norm specified in the nonstatutory Rules, the request made by the petitioner cannot be accepted.

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The learned counsel for the petitioner however has invited our attention to the Transfer of Prisoners Act, 1950. According to him, no such restriction is placed in the said statute. On the other hand, Section 3 of the Act of 1950 postulates that where any person is confined in a prison in a State undergoing specified sentence, the Government of that State may with the consent of the Government of another State, by order, provide for the removal of the prisoner from that prison to any prison in another State. The

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provision would apply where the sentence imposed by the Trial Court against the accused attains finality and he is undergoing the said sentence in prison in another State. One of the circumstances provided for in Clause (a) of Section 3, is of person undergoing the death sentence. If the argument of the petitioner is to be accepted, the appeal filed in another State can never proceed in the absence of accused, who is transferred to prison of another State. So long as the appeal against the order of conviction and sentence is not disposed of and is pending before the superior Court, the request for transfer to another prison outside the State cannot be accepted, which position is restated in the nonstatutory Rules. Accordingly, this petition is disposed of.

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The Court expresses word of gratitude for the able assistance given by the learned amicus curiae in espousing the cause of the petitioner. Copy of this order be forwarded to the petitioner, who is in jail forthwith.

Mohd. Izabul Shaikh v. the State of Maharashtra and Ors.

Case brief

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Mohd. Izabul Shaikh v. the State of Maharashtra and Ors.

Case brief

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