Dismissed

Kamruddin Chand Mohammed Nagori v. State of Gujarat

Gujarat HC24 Aug 2018SCR.A/3913/2017

Case brief

AI extract

What is this about?

Convicts facing the Ahmedabad serial bomb blast trial challenged orders permitting their transfer from Sabarmati Central Jail to Indore Central Jail to serve life sentences. The court held the transfer complied with the Indore CBI court's order, that evidence recorded by video conferencing is valid, and dismissed the petitions.

What did the court decide?

Liberty granted to the writ-applicants to challenge the order of the Special Judge, Indore before the appropriate forum in accordance with law.

Kamruddin Chand Mohammed Nagori Vs State of Gujarat — Criminal Trial and Appeal | Gujarat HC (2018)

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R/SCR.A/3835/2017 CAV JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CRIMINAL APPLICATION NO. 3835 of 2017

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With

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R/SPECIAL CRIMINAL APPLICATION NO. 3913 of 2017

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE J.B.PARDIWALA

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1	Whether Reporters of Local Papers may be allowed to see the judgment ?	YES
2	To be referred to the Reporter or not ?	NO
3	Whether their Lordships wish to see the fair copy of the judgment ?	NO
4	Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?	NO

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SIBLI @ SABIT S/O ABDUL KARIM MUSLIM

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Versus

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STATE OF GUJARAT

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Appearance:

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D.D. PATHAN(5923) for the PETITIONER(s) No. 1,2,3,4,5,6 MR S M VATSA(6000) for the PETITIONER(s) No. 1,2,3,4,5,6 MR VD PARGHI(568) for the RESPONDENT(s) No. 4

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MR DHARMESH DEVNANI, APP (2) for the RESPONDENT(s) No. 1 RULE SERVED(64) for the RESPONDENT(s) No. 2,3

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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

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Date : 24/08/2018 COMMON CAV JUDGMENT

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Since the issues raised in both the captioned writ-applications are the same, those were heard analogously and are being disposed of by

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this common judgment and order.

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The Special Criminal Application No.3835 of 2017 is treated as the lead matter.

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By this writ-application under Article 226 of the Constitution of India, the writ-applicants – convict accused persons have prayed for the following reliefs:-

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6(I) To admit and allow this application.

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(II) To quash and set aside the following impugned orders passed by Ld. Special Designated Judge, Special Court for speedy trial of Serial Bomb Blast Cases, City Civil and Sessions Court, Ahmedabad, Gujarat:-

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(a) Order dated 19/04/2017 passed below Exh.6323 and (b) Order dated 4/05/2017 passed below Exh.6384.

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INTERIM PRAYER

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(III) During the pendency of the final hearing of the present Application:

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(a) Be pleased to stay the execution of the impugned order dated 4/05/2017 passed below Exh.6384 and

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(b) Direct the Superintendent, Sbarmati Central Jail, Ahmedabad not to transfer the petitioners from Sabarmati Central Jail to Indore Central Jail.

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(IV) Be pleased to pass such other order as deemed fit in the interest of justice.

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The case of the writ-applicants in their own words as pleaded in the writ-application is as under:-

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4.1 The above-named petitioners are the Original Accused at Sr. Nos.11, 12, 13, 59, 60 & 61 as per the Order of framing of Charge in the S.C. No.38/2009 pending before Ld. Sessions Court, City Civil and Sessions Court, Ahmedabad and are presently lodged at Sabarmati Central Jail. The petitioners, along with other co-accused persons, are under-

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trial prisoners of Sessions Case No.38 of 2009 which is tried before Ld. Special Designated Judge, Special Court for Speedy Trial of Serial Bomb Blast Cases, City Civil and Sessions Court, Ahmedabad, Gujarat (Hereinafter referred to as the 'Ld. Trial Court') The said sessions case arises out of offences registered vide a total of 35 FIRs separately registered at various police-stations for the incidents of bomb-blasts on 26/07/2008 in Ahmedabad and plantation-cum-recovery of bombblast devices at various places in Surat. The Ld. Trial Court was pleased to consolidate the sessions cases registered pursuant to the committal of multiple chargesheet and supplementary chargesheet with Sessions Case No.38 of 2009 and framed charges vide Exh.32 dated 11/01/2010 and modify the same vide Exh.122 dated 15/02/2010. The charges were framed against the present petitioners as well as other co-accused persons for commission of various offences punishable u/Ss.120B, 121(A), 124(A), 153(A)(1)(b), 302, 307, 465, 471, 212 of Indian Penal Code 1860; Sections 3, 5, 6, 7 of Explosive Substance Act 1908; Section 10, 13, 16, 18, 19, 20, 23, 38, 39, 40 of Unlawful Activity Prevention Act 1967 and Section 25(1)B, A, 27 of Arms Act 1959 and Section 65, 66 of Information Technology Act 2000. Till date, over 890 witnesses have been examined. The witnesses can be broadly categorized as the complainant, injured witnesses, treatment and post-mortem-doctors, recovery and some discovery panchas, FSL officers, executive magistrates, officers in relation to sanctions, some police witnesses and public witnesses. However, crucial witnesses are likely to be examined in the near future.

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4.2 On 19/04/2017, the Ld. Trial Court, after hearing Ld. Assistant Special Public Prosecutor, was pleased to pass an order below letter dated 15/04/2017 (Exh.6323) written by the Respondent-Authority

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whereby the said Authority sought permission for the transfer of the Petitioners and other co-accused from Sabarmati Central Jail to Indore Central Jail, Madhya Pradesh as the petitioners (and others) they had been sentenced to 'life-imprisonment' by the order of conviction dated 27/02/2017. The Ld. Trial Court accepted that Rule971, Chapter-XXIX of the Bombay Jail Manual, 1955 along with resolutions passed by the Respondent-State and the re-classification in respect of lodging in various central-jails etc. situated in the Respondent-State is applicable in the present facts and allowed the Respondent-authority to undertake necessary steps for transferring petitioners and other co-accused from Sabarmati Central Jail to Indore Central Jail.

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4.3 On 04/05/2017, the Ld. Trial Court was pleased to allow a letter dated 4/05/2017 (Exh.-6384) addressed by the Superintendent, Sabarmati Central Jail wherein the jail-authorities had requested that the present petitioners and 4 other co-accused could not be lodged at Sabarmati Central Jail in view of Rule-971, Chapter-XXIX of the Bombay Jail Manual, 1955 along with resolutions passed by the Respondent-State as they had been sentenced to 'life-imprisonment' by the said order of conviction dated 27/02/2017. Hence, the Ld. Trial Court was pleased to allow the jail-transfer of the present petitioners and 4 others jail from Sabarmati Central Jail to Indore Central Jail, Madhya Pradesh.

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4.4 The brief facts necessitating the present petition is as hereunder:-

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(A) On 26/07/2008 and immediately thereafter, a total of 35 FIRs separately registered at various police-stations for the incidents of bomb-blasts on 26/07/2008 in Ahmedabad and plantation-cum-

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recovery of bomb-blast devices at various places in Surat.

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(B) On 11/01/2010 and 15/02/2010, the Ld. Trial Court was pleased to frame charges vide Exh.-32 and modify the same videExh.-122 in Sessions Case No.38 of 2009 for commission of various offences punishable u/Ss.120B, 121(A), 124(A), 153(A)(1)(b), 302, 307, 465, 468, 471, 212 of Indian Penal Code 1860; Sections-3, 5, 6, 7 of Explosive Substance Act, 1908; Sections-10, 13, 16, 18, 19, 20, 23, 38, 39, 40 of Unlawful Activity Prevention Act 1967 and Sections25(a)B,A, 27 of Arms Act 1959 and Sections-65, 66 of Information Technology Act 2000. As the case of the prosecution is of a common conspiracy, hence a number of the sessions cases registered pursuant to the filing of numerous chargesheets and supplementary chargesheets were consolidated by way of a speaking order passed by the Ld. Trial Court.

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(C) Till date, over 890 witnesses have been examined either in the physical presence of the present petitioners at Sabarmati Central Jail or by way of Video-conference facility available at the Sabarmati Central Jail. However, when evidence of formal nature or not directly connecting the present petitioner has been recorded in their absence, that too on very few occasions as the petitioners were facing trial in different states, in variably an exemption application has been tendered on their behalf on each such occasion so as not to delay the trial. The witnesses which have been examined till now can be broadly categorized as the complainant, injured witnesses, treatment and postmortem-doctors, recovery and some discovery panchas, FSL officers, executive magistrates, officers in relation to sanctions, some police witnesses and few public witnesses.

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(D) Between 27/02/2009 to 25/11/2009, the petitioners were arrested by the National Investigating Agency in connection with R.C. No.04/2010/NIA/DLI which after committal got registered as Sessions Case No.2/2011, Special Court for NIA cases, Ernakulam, Kerala.

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(E) On 27/02/2017, the petitioners as well as other co-accused who were held as guilty in the Sessions Case No.132 of 2010 arising out of 1^st C.R. No.120 of 2008, Peethampura Police Station, District: Dhar, M.P. by the Ld. C.B.I. Court, 4^th Additional and District Sessions Court, Indore, Madhya Pradesh and were sentenced to Life Imprisonment.

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(F) On 19/04/2017, the Ld. Trial Court, after hearing Ld. Assistant Special Public Prosecutor, was pleased to pass an order below letter dated 15/04/2017 (Exh.-6323 written by the Respondent-Authority whereby the said Authority sought permission for the transfer of the petitioners and other co-accused from Sabarmati Central Jail to Indore Central Jail, Madhya Pradesh as the petitioners (and others) they had been sentenced to 'life-imprisonment' by the order of conviction dated 27/02/2017. The Ld. Trial Court accepted that Rule971, Chapter-XXIX of the Bombay Jail Manual, 1955 along with resolutions passed by the Respondent-State and the re-classification in respect of lodging in various central-jails etc. situated in the Respondent-State is applicable in the present facts and allowed the Respondent-Authority to undertake necessary steps for transferring petitioners and other co-accused from Sabarmati Central Jail to Indore Central Jail._

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(G) On 19/04/2017, the Ld. Trial Court, on a separate application dated

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19/04/2017 (Exh.-6331) of Ld. Assistant Special Public Prosecutor, was pleased to stay its order passed below Exh.-6323. Ld. Asst. Sp.P.P. had submitted vide Exh.6331 that order passed below Exh.6323 was passed without hearing the Respondent-State and more particularly as the video-conference link between Sabarmati Central Jail and Indore Central Jail is not yet functional. Ld. Assistant Special Public Prosecutor had attached a letter dated 19/04/2017 of the Respondent-Authority wherein it was declared that the work is going on for establishing a video-conference link between Sabarmati Central Jail and Indore Central Jail.

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(H) On 04/05/2017, the Ld. Trial Court was pleased to pass the impugned order below Exh.6384 and ordered transfer of the petitioners and some other co-accused persons in view of Rule-971, Chapter-XXIX of the Bombay Jail Manual, 1955 along with resolutions passed by the Respondent-State as they had been sentenced to 'life-imprisonment' by the said order of conviction dated 27/02/2017. The Ld. Trial Court while passing the aforesaid order below Exh.6384 has recorded that”......Both the Ld. Advocates are present.” Thus, the Ld. Trial Court was pleased to allow the jailtransfer of the present petitioners and 4 other jail from Sabarmati Central Jail to Indore Central Jail, Madhya Pradesh.

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(I) On 18/05/2017, the wife of petitioner no.2 had gone for a routine jail-visit wherein a copy of the letter dated 08/05/2017 captioned “Request not to transfer us to MP jail due to apprehension of fake encounters and miscarriage of justice” was faxed by the Petitioner No.2 to the Ld. Trial Court was given wherein the Ld. Trial Court was urged not to transfer the petitioners to Indore Central Jail and a specific grievance was raised that their trial at Indore has been

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conducted largely in their absence which resulted in complete noncommunication with the lawyers at Indore which has resulted in unfair-trial and miscarriage of justice and that their transfer to Indore will further compound the injustice as crucial witnesses are being examined in the trial before the Ld. Trial Court at Ahmedabad. On the same day, an application to take the matter on board along with an application for taking inspection of the records and proceedings of Sessions Case No.38/2009 was moved and the same was allowed by the Ld. Trial Court and inspection of the records and proceedings was permitted on 19/05/2017.

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(J) On 19/05/2017, after making the inspection of the records and proceedings of Sessions Case No.38/2009, another an application to take the matter of Sessions Case No.38/2009 on board along with a pursis was submitted as the next date for further proceeding with S.C. No.38/2009 has been fixed on 31/05/2017. The Ld. Trial Court was pleased to record the pursis after hearing the Ld. Assistant Special P.P. The said pursis specifically declared as hereinbelow”

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“Para-3... ...It was found that the last order below Exhibit-6384 by the transfer of Safar Nagori as well as 9 others was made bears no endorsement of the undersigned or any advocate appearing for any one of the accused persons sought to be transfer from Sabarmati Central Jail to Indore Central Jail. Thereafter the Roznama of that day, i.e.,4/05/2017 was also perused and the same bears the fact that the present undersigned was not heard during the hearing of Exhibit-6384. … ...”

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4.5 The petitioners most humbly and respectfully state that they are compelled to approach this Hon'ble Court under Articles 226 and 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code, 1973 (the “CrPC”) and by way of the present petition and are desirous of seeking quashing of the impugned orders dated

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19/04/2017 below Exh.6323 and order dated 4/05/2017 below Exh.-6384 passed by Ld. Trial Court whereby the petitioners and some other co-accused persons are sought to be transferred from Sabarmati Central Jail to Indore Central Jail on the following amongst other grounds that may be urged at the time of final hearing.

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The impugned order passed by the Designated Judge below Exh.6323 is as under:-

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ORDER BELOW EXH.6323

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1. Read the application along with Jail Manual Chapter 29 with annexure. Heard.

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2. The Court has gone through the Resolution of Hon'ble the Government of Gujarat dated 09.06.2014 and 08.07.2014, accordingly.

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3. The prosecution has moved the present application to transfer nine prisoners of the present case to Indore, State – M.P., because Hon'ble CBI 4^th Additional District & Sessions Court, Indore, M.P., has convicted the said accused in a Sessions Case No.132/2010 and therefore the said accused cannot be kept herein Ahmedabad Jail, as per the said Manual proviso and the resolution of Hon'ble the Government of Gujarat. Hence, application deserves to be allowed, as prayed for with the following order:

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O R D E R

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➢ The application Exh.:6323 is hereby allowed as prayed for. ➢ Order be intimated to Superintendent, Central Jail, Ahmedabad for necessary action.

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➢ No order as to costs.

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Pronounced in the open court today on this 19^th day of April, 2017.

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(Pankajkumar Chandrakant Raval) Date:19-04-2017 Designated Judge Special Court for conducting Speedy Trial of Serial Bomb-Blast Cases, Ahmedabad, Gujarat. (Code No.:GJ00402)

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According to Mr. Vatsa, the learned counsel appearing for the writ-applicants, the following questions of law fall for the determination of this Court.

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(A) Whether the transfer of the applicants from the State of Gujarat to the State of Madhya Pradesh is arbitrary particularly when some applicants were brought from other jails where they were serving their previous convictions and this violates the fundamental right to nondiscriminatory treatment?

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(B) Whether the transfer of the Applicants from the State of Gujarat to State of Madhya Pradesh only on the ground that the said Applicants are required to serve the sentence of conviction in the State of Madhya Pradesh despite an on-going trial in the State of Gujarat is in total violation of all the statutory provisions?

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(C) Whether the requirement of arrest as stipulated in the warrant of sentence can be read dehors the provision of S.418(2) of the Cr.P.C. particularly when the convict is already in formal custody and confinement Sabarmati Central Jail, Ahmedabad?

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(D)Whether the Applicants being convicted by the Ld. Trial Court, Indore are undergoing 'imprisonment' as defined under Section 53 of the I.P.C. and hence would fall within the category of prisoners which are covered by Section 3 of the Transfer of Prisoner's Act, 1950?

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(E) Whether the power of such an inter-state transfer of convict-prisoners be exercised contrary to the provisions of Transfer of Prisoner's Act, 1950 in absence of any prior consultation between the IG-Prison, Gujarat State and ICPrison, Madhya Pradhesh as well as without even bothering to ascertain the wishes of any of the applicants?

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(F) Whether the Notification dated 28/09/2011, 09/06/2014 and 8/07/2014 issued by the Home Department of the State of Gujarat for classification of prisoners over-ride the specific statutory provisions which occupy the field of interstate transfer of convict-prisoners and whether they permit the inter-state transfer of convict-prisoners who are otherwise facing trial in the State of Gujarat?

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(G)Whether the transfer of the Applicants from State of Gujarat to State of Madhya Pradesh also violates the right to effective legal-representation which is intrinsic to fair trial and creates an avoidable 'disability' which is contrary to letter and spirit of the Directive Principles of State Policy as enshrined in Article 39A of the Constitution of India?

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An affidavit-in-reply has been filed on behalf of the respondent no.4, duly affirmed by one Dinesh Nargawe, S/o. Shri B.S. Nargawe, the Superintendent, Central Jail, Bhopal, State of Madhya Pradesh, interalia stating as under:-

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“I, Dinesh Nargawe, S/o. Shri B.S. Nargawe, Superintendent, Central Jail, Bhopal, State – Madhya Pradesh, Aged- 40 years, Gender-Male, the respondent no.4 herein, do hereby solemnly affirm

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and state on solemn affirmation:

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1. I state that I have read a copy of the petition and I am therefore, well conversant with the facts and circumstances of the case, hence I am competent to swear this affidavit-in-reply. I say and submit that I am filing the present affidavit in reply only with a view to oppose the admission of the present petition and I reserve my right to file further detailed affidavits in reply, if required.

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2. At the outset, I deny all the averments, allegations, statements and submissions made by the petition save and except those which are specifically admitted here-in-after. At present I am not dealing with the affidavit in reply para-wise and reserve my right to file further detailed para-wise affidavit as and when required.

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3. At the outset, I say and submit that, the Ld. Trial Court was transferring the Judicial Custody of the petitioners from Sabarmati Central Jail to Indore Central Jail as per the provisions of S.3 of the Transfer of Prisoners Act, 1950. Therefore the respondent no.4 has no objection if the Hon'ble High Court may transfer the petitioner from Sabarmati Central Jail to Indore Central Jail. The respondent no.4 bound to execute the order passed by the Hon'ble Court as per the Transfer of Prisoners Act, 1950 or any other Act concerned.

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4. I say and submit that, regarding the transfer of prisoners, in the State of Madhya Pradesh, the M.P. Prisoners/ Transfer of Prisoners Detained in Prison Order, 1968 passed by the State Government of Madhya Pradesh and the respondent no.4 bound to it, therefore, the Hon'ble Court passed any order in this matter, the respondent no.4 has bound to execute the order passed by the Hon'ble Court.

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5. I say and submit that the respondent no.4 has no any opinion/reply given in the matter regarding the quashing and setting aside the impugned orders dated 19/04/2017 below Exh.6323 and 04/05/2017 below Exh.6384 passed by Ld. Special Designated Judge, Special Court for speedy trial of Serial Bomb Blast Cases, City Civil and Sessions Court, Ahmedabad.

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What is stated here-in-above is true to my knowledge, belief and information and I believe the same to be true and correct.

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Solemnly affirmed at Bhopal on 06^th this day of February, 2018.”

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An affidavit-in-reply has also been filed on behalf of the State of

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Gujarat, duly affirmed by Karamshibhai Prabhatbhai Desai, Deputy Superintendent of Jail, Sabarmati Central Jail, Ahmedabad, interalia stating as under:-

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“I, Karamshibhai Prabhatbhai Desai, Male, Aged about: 57 years, Occupation: Deputy Superintendent of Jail, having address at Sabarmati Central Jail, Ahmedabad, do hereby state on oath and solemn affirmation as under:-

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1. That the deponent undersigned is serving as Deputy Superintendent of Jal at Sabarmati Central Jail. Since the deponent is conversant with the facts and circumstances of the case, on behalf of the respondents he craves liberty to file the present affidavit.

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2. I humbly state and submit that I have gone through the memo of application and I have also perused the application along with its compilation. I humbly state and submit that only with a view to oppose and protest this application as well as grant of any relief in favour of the petitioners at this stage, without prejudice to future rights and contentions, I am filing this affidavit. Since for the limited purpose of opposing this application I am filing this affidavit, I seek liberty to reserve my rights to file a further or additional affidavit in case of necessity and therefore also, I am not dealing with memo of this application, annexures in detail and para-wise.

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3. Unless specifically admitted, the stand taken by the accused in the application and also the arguments which would be advanced by him are not admitted by me and I deny and refute the same.

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4. I humbly state and submit that the petitioners herein are the original accused and were firstly arrested by Pithampur Police Station, Madhya Pradesh in connection with the C.R. No.120/2008. In connection with that offence they were tried by the Special Court, CBI, 4^th Additional Sessions Judge, Indore (M.P.) in Sessions Case No.132/2010. By judgment and order dated 27.02.2017 the petitioners have been awarded Life Imprisonment for the offences punishable under Sections 122, 124(a), 153(a) of I.P.C. and also under Section 13(1)(a)(b), 13(2), 4(a)(1), 5(a) of the Explosives Substances Act and also under Sections 25(1)(a) of the Arms Act.

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5. The aforesaid petitioners had been brought to Ahmedabad Central Jail on the basis of the Transfer Warrant from outside Gujarat and have been lodged in Sabarmati Central Jail on different dates as Under-trial Prisoners.

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6. I further state and submit that thereafter, upon conviction the learned Special Court, CBI, 4^th Additional Sessions Judge, Indore (M.P.) issued a Conviction Warrant under section 383 of Cr.P.C., on Indore Central Jail, Madhya Pradesh so as to take the custody of the accused for the purpose of serving out the sentence imposed on them dated 27.02.2017. Deputy Jail Superintendent, Central Jail, Indore wrote a letter dated 27.02.2017 to the Central Jail, Sabarmati, Ahmedabad to comply with the requisitions of the said letter. The said letter was received by Ahmedabad Central Jail, Sabarmati on 09.03.2017 pursuant to which necessary permissions from the authorities as well as from the Hon'ble Court were taken. Thereafter, relying also on the Government Notification regarding classification of prisoners, the accused were transferred to the Indore Jail, Madhya Pradesh on 27.05.2017.

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7. I further state and submit that some of the present petitioners are also accused in C.R. No.I-24/2013 registered with Ranip Police Station for the offences punishable u/s.224, 120-B of I.P.C., Sections-42, 45 of the Prison Act. The said offences relate to digging of Tunnel – Surang with a view to escape from the jail custody, which was foiled. As on today, the said case is pending in the court of learned 11^th Metropolitan Magistrate, Ahmedabad. So, considering and taking into account the law and order situation and maintenance of administration of jail, the accused are required to be transferred to Indore Jail, Madhya Pradesh.

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8. I further state and submit that after 27.05.2017, ten witnesses are examined by Video Conference and thereafter, no prejudice is caused to the accused as witnesses can be examined through Video Conference, as held by the Hon'ble Apex Court.

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9. I further state and submit that even considering the Parole Furlough Rules, Appeal Rules, as well as Sentencing Rules of respective Madhya Pradesh State would apply to the convicted persons, accused who are already transferred, are not required to be brought back, unless their presence is sought by the Hon'ble Special Judge at Ahmedabad.”

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Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the writ-applicants are entitled to any of the reliefs prayed for in their writ-application.

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I take notice of the following:-

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All the writ-applicants – original accused persons, are the original accused of Indore case bearing Sessions Case No.132/2010.

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By transfer warrants all these accused persons were brought to Ahmedabad in connection with the Serial Bomb Blast cases at Ahmedabad and also plantation of bombs in the City of Surat.

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The Special Judge CBI, 4^th Additional Sessions Judge, Indore, MP by his judgment and order dated 27/02/2017 convicted all the accused persons.

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The Special Judge passed an order dated 27/02/2017 directing the S.P. Jail, Central Jail Indore to take them in his custody.

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The S.P. Indore Jail wrote a letter dated 27/02/2017 to the S.P. Sabarmati Jail to comply with the order (passed by the Special Judge, CBI, Indore, MP).

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As the trial is going on before the Special Judge, Sabarmati Jail, the Sabarmati Jail authorities filed an application Exh.6323 dated 15/04/2017.

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The Special Judge by order dated 19/04/2017 granted the same.

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On the same day i.e., on 19/04/2017 the Special P.P. Submitted a report to the Court contending inter alia that the arrangements for video conference in the jail

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premises was under process. An application was also submitted in that regard by the Special PP Exh.6331.

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Thereafter on 04.05.2017 a report was submitted by the jail authorities to the Special Judge Exh.6384 contending inter alia that the installation work was completed and request was made to vacate the stay.

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The Special Judge by his order was pleased to vacate the stay.

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Thus, for the due compliance of the order passed by the Special Judge CBI, Indore, MP and on passing of the order by the Special Judge, Ahmedabad all the writapplicants – accused were transferred to the Indore Jail on 27/02/2017.

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The direction to take the accused persons in custody was issued to the S.P. Jail Indore, MP by the Special Judge, Indore, MP. Thus, the main order is passed by the Special Judge, Indore, MP and therefore in compliance thereof the procedure was followed and the Special Judge Ahmedabad also passed an order for transfer of the accused to the Indore Jail. An order passed by the Special Judge, Indore, MP cannot be challenged before this Court.

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The Rules framed by the jail authorities would not be applicable to the Court. It would be applicable to the jail authorities and executives.

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After the transfer of the accused to the Indore Jail about 60 witnesses were examined by way of video conference. The evidence recorded by way of video conference is legal as held by the Supreme Court (i) in the case of Asha Ranjan v. State of Bihar, (2017) 4 SCC 397 – Para no.85 and 87. Thus, no prejudice could be said to have been caused to the accused persons.

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The Supreme Court in the case of Asha Ranjan (Supra) has observed in Paras-85, 86.1, 86.2, 86.3, 86.4, 86.5, 86.6, 86.7 and 87 as under:-

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“85. It is fruitful to note that in Dr. Praful B. Desai (supra) [(2003) 4 SCC 601] it has been clearly held that recording of evidence by way of video conferencing is valid in law.

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86.1 The right to fair trial is not singularly absolute, as is perceived, from the perspective of the accused. It takes in its ambit and sweep the right of the victim(s) and the society at large. These factors would collectively allude and constitute the Rule of Law, i.e., free and fair trial.

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86.2 The fair trial which is constitutionally protected as a substantial right under Article 21 and also the statutory protection, does invite for consideration a sense of conflict with the interest of the victim(s) or the collective/interest of the society. When there is an intra-conflict in respect of the same fundamental right from the true perceptions, it is the obligation of the constitutional courts to weigh the balance in certain circumstances, the interest of the society as a whole, when it would promote and instill Rule of Law. A fair trial is not what the accused wants in the name of fair trial. Fair trial must soothe the ultimate justice which is sought individually, but is subservient and would not prevail when fair trial requires transfer of the criminal proceedings.

¶149

86.3 A wrongful act of an individual cannot derogate the right of fair trial as that interest is closer, especially in criminal trials, to the Rule of Law. An accused cannot be permitted to jettison the basic fundamentals of trial in the

¶150

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name of fair trial.

¶153

86.4 The weighing of balance between the two perspectives in case of fair trial would depend upon the facts and circumstances weighed on the scale of constitutional norms and sensibility and larger public interest.

¶154

86.5 Section 3 of the 1950 Act does not create an impediment on the part the court to pass an order of transfer of an accused or a convict from one jail in a State to another prison in another State because it creates a bar on the exercise of power on the executive only.

¶155

86.6 The Court in exercise of power under Article 142 of the Constitution cannot curtail the fundamental rights of the citizens conferred under the Constitution and pass orders in violation of substantive provisions which are based on fundamental policy principles, yet when a case of the present nature arises, it may issue appropriate directions so that criminal trial is conducted in accordance with law. It is the obligation and duty of this Court to ensure free and fair trial.

¶156

86.7 The submission that this Court in exercise of equity jurisdiction under Article 142 of the Constitution cannot transfer the accused from Siwan Jail to any other jail in another State is unacceptable as the basic premise of the said argument is erroneous, for while addressing the issue of fair trial, the Court is not exercising any kind of jurisdiction in equity.

¶157

87. In view of the aforesaid conclusions, we direct the State of Bihar to transfer the third respondent, M. Shahabuddin, from Siwan Jail, District Siwan to Tihar Jail, Delhi and hand over the prisoner to the competent officer of Tihar Jail after giving prior intimation for his transfer in Delhi. Needless to say, that the authorities escorting the third respondent from Siwan Jail to Tihar Jail would strictly follow the rules applicable to the transit prisoners and no special privilege shall be extended. The transfer shall take place within a week hence. Thereafter, the trial in respect of pending trials shall be conducted by video conferencing by the concerned trial court. The competent authority in Tihar Jail and the competent authority of the State of Bihar shall make all essential arrangements so that the accused and the witnesses would be available for the purpose of trial through video conferencing. A copy of this order shall forthwith be

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communicated to the Home Secretary, Government of Bihar, Superintendent of Siwan Jail and the Inspector General, Prisons, Tihar Jail, Delhi. All concerned are directed to act in aid of the aforesaid order as contemplated under Article 144 of the Constitution.”

¶161

The Government Notification dated 28/09/2011 is produced at Page No.74 and according to that notification only those accused persons who fall within the same and are covered, can be kept in the Ahmedabad jail. The present accused persons are original accused of Indore case and were brought to Ahmedabad by way of transfer warrants and therefore, they are not covered by the notification referred to above and cannot be kept in the State jail.

¶162

If the writ-applicants have any grievance to redress with regard to the order passed by the Special Judge, Indore, State of Madhya Pradesh, then it shall be open for them to challenge the same before the appropriate forum in accordance with law. However, no relief can be granted of the nature as prayed for in these petitions.

¶163

With the above liberty, both the writ-applications fail and are hereby rejected.

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(J.B.PARDIWALA, J)

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aruna

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Kamruddin Chand Mohammed Nagori v. State of Gujarat

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Kamruddin Chand Mohammed Nagori v. State of Gujarat

Case brief

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