Allowed

Gangya Alias Gangadhar Santaram Shinde, v. the State of Karnataka through

Karnataka HC8 Nov 2023CRL.P/102276/2023

Case brief

AI extract

What is this about?

This court allowed a criminal petition filed under Section 482 CrPC to quash a prison transfer order. The court held that the lower court erred in shifting under-trial prisoners without affording them an opportunity to file objections, violating the principles laid down by the Supreme Court.

What did the court decide?

Order dated 12.04.2023 set aside; petitioners ordered to be re-transferred to Central Prison, Belagavi forthwith; lower court directed to give opportunity to hearing before passing fresh orders.

Gangya Alias Gangadhar Santaram Shinde, Vs the State of Karnataka through — Karnataka HC (2023) — LawSathi Research

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1 - NC: 2023:KHC-D:13065 CRL.P No. 102276 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 08^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL PETITION NO.102276 OF 2023

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BETWEEN:

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GANGYA @ GANGADHAR SANTARAM SHINDE, AGE. 37 YEARS,

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VINAYAK BASAVARAJ HADAGINAL, AGE. 40 YEARS, OCC. NIL,

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VITHAL PARASHURAM PAWAR, AGE. 39 YEARS, OCC. NIL,

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VINOD S/O CHANDRU HOSAMANI, AGE. 37 YEARS, OCC. NIL,

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VIJAYALAKSHMI M KANKUPPI Digitally signed by VIJAYALAKSHMI M KANKUPPI Date: 2023.11.10 11:50:03 +0530

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KIRAN S/O VIJAYA DODANNAVAR, AGE. 37 YEARS, OCC. NIL,

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RAVI S/O BHIMASHI CHONNANVAR, AGE. 35 YEARS, OCC. NIL,

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KEDARI S/O BASAVANNE JADHAV, AGE. 40 YEARS, OCC. NIL,

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SUNIL S/O MALLIKARJUN MURAKIBHAVI, AGE. 39 YEARS, OCC. NIL,

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SANTOSH @ SANTU S/O PANDURANG CHIGADOLLI,

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AGE. 37 YEARS, OCC. NIL,

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2 - NC: 2023:KHC-D:13065 CRL.P No. 102276 of 2023

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DATTATREYA @ RAJU S/O BASAVANNE JADHAV, AGE. 30 YEARS, OCC. NIL,

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ALL R/O GOKAK, DIST. BELAGAVI.

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… PETITIONERS

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(BY SRI. SHIVAKUMAR S, BADAWADAGI, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA THROUGH THE DIRECTOR GENERAL OF POLICE NRUPAGUNGA ROAD (PRISON), BENGALURU-560001, R/BY STATE PUBLIC PROSECUTOR, HIGH COURT DHARWAD.

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THE SUPERINTENDENT OF POLICE, CENRAL JAIL, HINDALAGA, BELAGAVI-590001.

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… RESPONDENTS

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(BY SRI. P.N. HATTI, HCGP)

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THIS CRIMINAL PETITION IS FILED U/SEC.482 OF CR.P.C. SEEKING TO SET ASIDE THE ORDER DATED 12.04.2023 PASSED BY THE COURT BELOW IN SPL. CASE NO. 202/2020 AND CONSEQUENTLY TO REJECT THE REQUISITION OF 2^ND RESPONDENT FOR SHIFTING AND DIRECTING THE 2^ND RESPONDENT HEREIN TO RE-SHIFT THE PETITIONERS WHO HAVE BEEN SHIFTED ALREADY PURSUANT TO THE IMPUGNED ORDER, IN THE INTERST OF JUSTICE AND EQUITY.

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THIS PETITION IS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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NC: 2023:KHC-D:13065 CRL.P No. 102276 of 2023

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ORDER

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This petition is filed under Section 482 of Code of Criminal Procedure (hereinafter referred as ‘Cr.P.C’ for brevity) praying to set-aside the order dated 12.04.2023 passed in Special Case No.202/2020 and consequently reject the requisition of respondent No.2 for shifting and direct the 2^nd respondent to re-shift the petitioners who have been shifted already pursuant to the impugned order.

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Heard learned counsel for the petitioners and

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learned High Court Government Pleader appearing for respondent Nos.1 and 2.

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The petitioners are under-trial prisoners and they are in judicial custody in Special case No.202/2020 facing trial for the offences punishable under Sections 143, 147, 148, 302, 504, 506, 120B read with Section 149 of Indian Penal Code (hereinafter referred as ‘I.P.C’ for brevity), Sections 3 (2) (V) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989,

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NC: 2023:KHC-D:13065 CRL.P No. 102276 of 2023

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Sections 25(1) (a) of Indian Arms Act and Sections 3 and 4 of The Karnataka Control Of Organized Crimes Acts, 2000. The petitioners were lodged in Central Prison, Belagavi. Respondent No.2 sent an E-mail dated 11.04.2023 to Prl. District and Sessions Court Belagavi. The said Email has been put up before learned Prl. District and Sessions Judge, Belagavi and on the basis of said Email, a Special Case No.202/2020 was taken on board Suo-motu and the impugned order dated 12.04.2023 came to be passed for transferring the petitioners to Central Prison at Ballari and Kalburgi. Aggrieved by the said order, the petitioners are before this Court.

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Learned counsel for the petitioners would contend that prior to considering the said requisition sent by the Chief Superintendent, Central Prison, Belagavi, no opportunity has been given to the petitioners to putforth their say in the matter. On that point, he placed reliance on the decision of Hon’ble Apex Court in the case of The State of Maharashtra and Ors Vs Saeed Sohail

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Sheikh reported in AIR 2013 SC 168. Placing reliance on paragraphs Nos.27 and 39 of the said decision, he contended that the petitioners should be given an opportunity to putforth their objections to the said request made by the Chief Superintendent, Central Prison, Belagavi, for transferring of under trial prisoners i.e,. petitioners. He further contended that if under trial prisoners are shifted, it will adversely effect their right to defend themselves. He submitted that now the trial is fixed by the Trial Court. With this, he prayed to allow the petition and prays for retransfer of the petitioners to Central Prison, Belagavi.

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Per contra , learned HCGP would contend that the grounds for seeking transfer of under trial prisoners i.e., petitioners are enumerated in the Email sent by respondent No.2. Considering the said grounds, learned Sessions/Special Judge has rightly passed an order shifting the petitioners from Central Prison, Belagavi to Central

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Prison, Ballari and Kalburgi. With this, he prayed to reject the petition.

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6. The petitioners are under trial prisoners facing

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trial in Special Case No.202/2020, pending on the file of Prl. District and Sessions Judge, Belagavi. Earlier, the investigating officer had sought for transfer of these petitioners from Central Prison, Belagavi to Central Prison, Ballari and Kalburgi. The said application has been considered by learned Sessions Judge after giving an opportunity to the Spl.P.P. and learned counsel appearing for the accused persons. Learned Sessions Judge rejected the application filed by investigating officer to shift the petitioners to Central Prison at Ballari and Kalburgi by his order dated 12.11.2020. Thereafter, the Chief Superintendent, Central Prison, Belagavi, sent an Email dated 11.04.2023 to Prl.District and Sessions Judge, Belagavi enumerating the reasons and praying for shifting

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the petitioners to Ballari and Kalburgi prison. Learned Sessions/Special Judge has suo-motu taken the case on

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board on 12.04.2023 on the basis of said Email received and passed impugned order giving liberty to respondent No.2 to transfer the petitioners to Central Prison at Ballari and Kalburgi. Learned counsel for the petitioners submits that by virtue of the said order, the petitioners have been shifted from Central Prison Belagavi to Central Prison at Ballari and Kalburgi. The case was not fixed on 12.04.2023. The said order dated 12.04.2023 has been passed in the absence of petitioners and without giving any opportunity to them to putforth their objections and hearing them.

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The Hon’ble Apex Court in the case of The State of Maharashtra and Ors Vs Saeed Sohail Sheikh (supra), has observed thus;

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“39. Applying the above principles to the case at hand and keeping in view the fact that any order that the Court may make on a request for transfer of a prisoner is bound to affect him prejudicially, we cannot but hold that it is obligatory for the Court to apply its mind fairly and objectively to the circumstances in which the transfer is being prayed for and take a considered view having

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regard to the objections which the prisoner may have to offer. There is in that process of determination and decision-making an implicit duty to act fairly, objectively or in other words to act judicially. It follows that any order of transfer passed in any such proceedings can be nothing but a judicial order or at least a quasi- judicial one. Inasmuch as the trial court appears to have treated the matter to be administrative and accordingly permitted the transfer without issuing notice to the under-trials or passing an appropriate order in the matter, it committed a mistake. A communication received from the prison authorities was dealt with and disposed of at an administrative level by sending a communication in reply without due and proper consideration and without passing a considered judicial order which alone could justify a transfer in the case. Such being the position the High Court was right in declaring the transfer to be void and directing the re-transfer of the undertrials to Bombay jail. It is common ground that the stay of the proceedings in three trials pending against the respondents has been vacated by this Court. Appearance of the undertrials would, therefore, be required in connection with the proceedings pending against them for which purpose they have already been transferred back to the Arthur Road Jail in Bombay. Nothing further, in that view, needs to be done by this Court in that regard at this stage.”

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In view of the above, learned Sessions/Special

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Judge ought to have been given an opportunity to the petitioners to putforth their objection and hearing before

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passing the order on the Email received from Chief Superintendent, Central Prison, Belagavi. Learned Sessions/Special Judge without affording any opportunity to the petitioners to putforth their objections and say, has passed the impugned order dated 12.04.2023. In view of the above, the said order dated 12.04.2023 requires to be quashed and petitioners are to be re-shifted to the Central Prison, Belagavi. In the result, the following;

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ORDER

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The Criminal petition is allowed.

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The order dated 12.04.2023 passed in Special Case

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No.202/2020 by the learned Prl. District and Sessions Judge, Belagavi is set-aside. The petitioners are ordered to be re-transferred to the Central Prison, Belagavi from respective prison to which they have been transferred, forthwith.

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The learned Prl. District and Sessions Judge, Belagavi has to give an opportunity to the petitioners to putforth

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their objections to the said Email sent by Chief Superintendent, Central Prison, Belagavi and after giving an opportunity of hearing, to pass orders on the said Email, in accordance with law.

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Sd/JUDGE

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AM CT:BCK List No.: 1 Sl No.: 21

Gangya Alias Gangadhar Santaram Shinde, v. the State of Karnataka through

Case brief

What is this about?

What did the court decide?

Gangya Alias Gangadhar Santaram Shinde, v. the State of Karnataka through

Case brief

What is this about?

What did the court decide?

What the court decided

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