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CASE NO.:

Appeal (crl.) 1129 of 2004

PETITIONER:

Kalyan Chandra Sarkar

RESPONDENT:

Rajesh Ranjan @ Pappu Yadav & Anr.

DATE OF JUDGMENT: 14/02/2005

BENCH:

N.Santosh Hegde & S.B.Sinha

JUDGMENT:

J U D G M E N T

CRIMINAL MISCELLANEOUS PETITION NO. 10422 OF 2004

IN

CRIMINAL APPEAL NO. 1129 OF 2004

SANTOSH HEGDE, J.

The respondent herein Rajesh Ranjan @ Pappu Yadav was

in judicial custody. Pursuant to the cancellation of bail by this

Court, he was charged for offences punishable under Section 302

read with Section 120B of the IPC and was to be kept in Adarsh

Jail, Beur, Patna.

When he was supposedly in such judicial custody this Court

noticed from Media report that on 4th of May, 2004 he was found

addressing an election meeting in a place called Madhepura.

Noticing the same, a report was called for from the concerned

authorities to apprise this Court on what authority the respondent

was found in Madhepura on that day and how he was permitted to

address a public meeting.

The reports were received from Home Secretary, State of

Bihar, the Investigating Agency (CBI) and the Presiding Officer,

Fast Track Sessions Court, Madhepura.

The above reports showed that Fast Track Sessions Court,

Madhepura in a pending trial before it had issued a production

warrant and pursuant to the said warrant respondent was taken to

Madhepura. Report also stated that the said day was declared as

holiday, therefore, he was produced before the Jurisdictional

Magistrate and was remanded back to custody. The reports did

not, however, indicate on what basis the respondent was permitted

to address a political meeting while he was still under custody. The

averment in the report filed by the CBI shows that the respondent

in collusion with the police authorities accompanying him to

Madhepura addressed a public meeting and the escort

accompanying him took him to various places which the

respondent wanted to visit beyond the scope of the production

warrant.

The correctness of the issue of the production warrant by

Fast Track Court has been directed by us to be investigated by the

District & Sessions Judge, Madhepura and the report of the said

Judge as well as the explanation given by the Presiding Officer,

Fast Track Court is under consideration of this Court and it is not

necessary to deal with the same at this stage. Suffice it to note that

the respondent had misused the authority of the production

warrant issued by the Madhepura Fast Track Court.

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During the above inquiry, we also came to know that

pursuant to the order of this Court canceling his bail on 12th of

March, 2004, we had directed the respondent to be taken into

custody but in effect the respondent was never taken to the Jail.

When he was arrested after the cancellation of bail and taken to

Patna very surprisingly an urgent Medical Board was constituted to

examine the respondent which immediately on its constitution

and examination of the respondent directed that the respondent

required medical treatment at Patna Medical College, hence,

directed his stay in the said medical college. Though Patna

Medical College Hospital has a separate prisoner cell for their

treatment, under the special orders of Doctor concerned and the

Superintendent of the hospital, petitioner was accommodated in a

special ward. The accommodation provided was not only for the

respondent but also for his personal staff and others whose

presence with respondent was unauthorised. Reply filed by the

Superintendent of Patna Medical College and the concerned

Doctor who advised his being kept in a special ward is full of

contradiction as to why and who ordered his treatment in a special

ward. A separate inquiry is being conducted by this Court in this

regard but for the present it will suffice to note that the

respondent has sufficient clout or enormous influence for reasons

whatever it may be with the administration and staff of the Patna

Medical College who are prepared to go out of the way to help the

respondent from being kept in the confines of a Jail and in

providing unauthorised facilities to the respondent.

On coming to know of these illegal facilities granted to the

respondent this Court directed his transfer to Beur Jail and to

provide him treatment, if need be, in the prisoner's cell there.

In the normal course one would have expected an accused

whose bail has been cancelled and who was intending to make an

application for grant of bail to behave in a manner not to give any

room for the prosecution to contend that he has been misusing the

facilities available to him in law while he is in Jail. But it seems, it

is not the attitude of the respondent.

Immediately after cancellation of bail by this Court

respondent had moved a fresh application before the High Court

for grant of bail which came to be allowed by the order of the High

Court dated 21st September, 2004 and pursuant to the said order of

bail the respondent came to be released from Jail. The said order

of the High Court granting bail was challenged before this Court

by the complainant and the Investigating Agency (CBI) but what

happened in between is worth noticing, on 26th of September,

2004 when the respondent was out of Jail because of the bail

granted by the High Court, he instead of getting himself treated

for the ailment which is complaining of, it is alleged that he was

hosting a party for his co-prisoners in the Jail late in the night of

that day. While the authorities in the reports submitted pursuant to

the directions issued by this Court did not admit that a party was

given by the accused on 26th of September, 2004 they did admit

that between 9.30 p.m. to 10.00 p.m. on that night the respondent

did unauthorisedly visit the Jail contrary to all restrictions on the

entry to Jail under the Jail manual. A complaint in regard to this

unauthorised entry of the respondent to the prohibited areas of

Jail premises is registered and based on the direction issued by

the High Court of Patna an investigation is going on in this regard

and some of the Jail authorities have been transferred.

On 1-10-2004 this Court while entertaining appeal of the

complainant against the grant of bail by High Court directed the

respondent to surrender to custody forthwith. Consequent to which

he was taken back to custody.

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It has also come on record that while in judicial custody the

respondent was using cell phone which was seized from him and

he was closely interacting with hard core criminals who were

undergoing Jail sentence or are under trial prisoners.

The Respondent No. 1 while was in judicial custody has been

accused of hatching a conspiracy to murder one Dimple Mehta in

relation whereto a First Information Report being Purnea Sadar P.S.

Case No. 159/2004 has been lodged on 28.9.2004 under Section

302/120B/34 of the IPC and Section 27 of the Arms Act.

It appears from the order sheet dated 25.2.2003 of the Court

of Addl. Session Judge \026 XI, Patna that the informant Shri Kalyan

Chandra Sarkar had been given the threat by veteran criminals and,

thus, the Senior S.P. of Patna as well as S.P. was directed to make

proper security arrangement for him and his family members.

Paragraph 3.12 of the report submitted by the Central Bureau

of Investigation in response to this court's order dated 2nd December,

2004 is as under:

"3.12 Investigation further reveals that Shri Dipak

Kumar Singh, IAS, the Inspector-General of Prisons

had on November 1, 2004, forwarded a Report of the

Special Branch dated October 30, 2004 that Shri

Rajesh Ranjan @ Pappu Yadav was meeting several

visitors in the Administrative Block of Beur Jail (not

the specified meeting place for visitors to the Jail) and

more significantly, that several such visitors, who

entered the Jail under the pretext of meeting him (Shri

Pappu Yadav) were actually meeting other dreaded

hard-core criminals lodged in the Jail. The Inspector-

General of Prisons had also urged the Jain

Superintendent to allow interviews with prisoners in

strict accordance with the provisions of the Jail

Manual."

It is now beyond any controversy that such visits by a large

number of persons inside the jail is in violation of the provisions of

the Bihar Jail Manual and in particular Rules 623, 626-628 thereof.

Even upon his election as a Member of Parliament from Madhepura

constituency he was not entitled to have such visitors having regard

to Special Rules for Division I Prisoners, Rule 1000 which permits

interviews only once every fortnight and Rule 1001 which debars

political matters being included in the conversation. These rules

also stand violated.

Thus, the material recorded hereinabove shows that the

respondent has absolutely no respect for rule of law nor he is in any

manner afraid of the consequences of his unlawful acts. This is clear

from the fact that some of the acts of the respondent recorded

hereinabove have been committed even when his application for

grant of bail is pending.

The material on record also shows that the Jail authorities at

Beur are not in a position to control the illegal activities of this

respondent for whatever reasons it may be.

Shri R.K. Jain, learned senior counsel appearing for the

respondent submitted that no fault can be found with the respondent

for his having been found in Madhepura because he was

summoned by a court. But in our opinion, that by itself would not

absolve the conduct of the respondent in addressing a political

meeting. Even the fact that the respondent entered the Jail on 26th

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of September, 2004 when he was out on bail contrary to law, cannot

be denied by the respondent. Since, a criminal complaint in this

regard is pending consideration. He could not also deny the fact that

on 1st of December, 2004 large number of unauthorized persons

were found visiting him in the prohibited area of the Jail but his

answer to this was that the respondent being an elected member of

the Parliament, he had every right to interact with his supporters and

if there is any law contrary to such interaction by an elected

representative the same should be declared ultra vires. He also

submitted being a member of Parliament he belongs to a superior

category of prisoner, therefore, the normal rules of Jail manual in

regard to right of visitation does not apply to him. These

submissions of the learned counsel are not supported by any law, on

the contrary has remained to be an argument without any basis.

The learned counsel then seriously contended a transfer of the

respondent from Beur Jail would violate his fundamental right as

declared by this Court in the case of Sunil Batra (II) vs. Delhi

Administration (1980 (3) SCC 488), Francis Coralie Mullin vs.

Administratrator, Union Territory of Delhi & Ors. (1981(1) SCC

608) & Inder Singh & Anr. vs. The State (Delhi Administration)

(1978 (4) SCC 161).

We have perused the above judgments which have been

delivered on the facts of those cases.

The fundamental right of an undertrial prisoner under Article

21 of the Constitution is not absolute. His right of visitations as also

other rights are provided in the Jail Manual. The Respondent as an

undertrial prisoner was bound to maintain the internal discipline of

the jail. Such a fundamental right is circumscribed by the prison

manual and other relevant statutes imposing reasonable restrictions

on such right. The provisions of the Bihar Jail Manual or other

relevant statutes having not been declared unconstitutional, the

Respondent was bound to abide by such statutory rules.

In D. Bhuvan Mohan Patnaik and Others Vs. State of Andhra

Pradesh and Others [(1975) 3 SCC 185], this Court observed that a

convict has no right to dictate whether guards ought to be posted to

prevent escape of prisoners as the same causes no interference with

the personal liberty or their lawful preoccupations.

Therefore, in our opinion, a convict or an undertrial who

disobeys the law of the land, cannot contend that it is not permissible

to transfer him from one jail to another because the Jail Manual does

not provide for it. If the factual situation requires the transfer of a

prisoner from one prison to another; be he a convict or an undertrial.

Courts are not to be a helpless bystander when the rule of law is

being challenged with impunity. The arms of law are long enough to

remedy the situation even by transferring a prisoner from one prison

to another, that is by assuming that the concerned Jail Manual does

not provide such a transfer. In our opinion, the argument of the

learned counsel, as noted above, undermines the authority and

majesty of law. The facts narrated hereinabove clearly show that

the respondent has time and again flouted the law even while he

was in custody and sometimes even when he was on bail. We must

note herein with all seriousness that the authorities manning the

Beur jail and the concerned doctors of the Patna Medical College

Hospital, for their own reasons, either willingly or otherwise, have

enabled the respondent to flout the law. In this process, we think the

concerned authorities, especially the authorities at the Beur Central

Jail, Patna, are not in a position to control the illegal activities of the

respondent. Therefore, it is imperative that the respondent be

transferred outside Bihar.

The matter relating to inter-state transfer of prisoners is

governed by the Prisoners Act. Section 3 of the said Act reads, thus:

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"(1) "prison" means any jail or place used permanently or

temporarily under the general or special orders of a State

Government for the detention of prisoners, and includes

all lands and buildings appurtenant thereto, but does not

include \026

(a) any place for the confinement of prisoners who

are exclusively in the custody of the police

(b) any place specially appointed by the State

Government under Section 541 of the Code of Criminal

Procedure, 1882; or

(c) any place which has been declared by the State

Government, by general or special order, to be a

subsidiary jail;"

A bare perusal of the aforementioned provision would clearly

go to show that there does not exist any provision for transfer of an

under-trial prisoner. The prayer for inter-State transfer of a detenu

came up for consideration before this Court in David Patrick Ward

and Another Vs. Union of India and Others [(1992) 4 SCC 154]

where in a preventive detention matter the petitioner therein was

lodged in Naini Jail at Allahabad. The petitioner made a prayer for

his transfer to Tihar Jail, Delhi inter alia on the ground that the

Consular Officers had the right to visit a national of the sending

State who is in prison or under detention in terms of Article 36 of

the Vienna Convention on Consular Relations. The authorities of

the Naini Jail having indicated that whenever visits are desired by

the officers of the British Consular Relations proper arrangement

therefor would be made, this Court refused to concede to the said

request. But, this decision is a pointer to the fact that in an

appropriate case, such request can also be made by an undertrial

prisoner or a detenue and there being no statutory provisions

contrary thereto, this Court in exercise of its jurisdiction under

Article 142 of the Constitution of India may issue necessary

direction.

While it is true that this Court in exercise of its jurisdiction

under Article 142 of the Constitution would not pass any order

which would amount to supplanting substantive law applicable to

the case or ignoring express statutory provisions dealing with the

subject as has been held in Supreme Court Bar Association Vs.

Union of India [(1998) 4 SCC 409] but it is useful to note the

following :

"48\005Indeed, these constitutional powers cannot, in any

way, be controlled by any statutory provisions but at the

same time these powers are not meant to be exercised

when their exercise may come directly in conflict with

what has been expressly provided for in a statute dealing

expressly with the subject."

It may therefore be understood that, the plenary powers of

this Court under Article 142 of the Constitution are inherent in the

Court and are complementary to those powers which are specifically

conferred on the Court by various statutes though are not limited by

those statutes. These powers also exist independent of the statutes

with a view to do complete justice between the parties\005and are in

the nature of supplementary powers\005[and] may be put on a

different and perhaps even wider footing than ordinary inherent

powers of a court to prevent injustice. The advantage that is derived

from a constitutional provision couched in such a wide compass is

that it prevents 'clogging or obstruction of the stream of justice.

[See Supreme Court Bar Association (supra)]

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In Union Carbide Corporation Vs. Union of India [(1991) 4

SCC 584], a Constitution Bench of this Court stated the law thus :

83. \005Prohibitions or limitations or provisions contained

in ordinary laws cannot, ipso facto, act as prohibitions or

limitations on the constitutional powers under Article

142. Such prohibitions or limitations in the statutes might

embody and reflect the scheme of a particular law, taking

into account the nature and status of the authority or the

court on which conferment of powers \027 limited in some

appropriate way \027 is contemplated. The limitations may

not necessarily reflect or be based on any fundamental

considerations of public policy. Sri Sorabjee, learned

Attorney General, referring to Garg case18, said that

limitation on the powers under Article 142 arising from

"inconsistency with express statutory provisions of

substantive law" must really mean and be understood as

some express prohibition contained in any substantive

statutory law. He suggested that if the expression

'prohibition' is read in place of 'provision' that would

perhaps convey the appropriate idea. But we think that

such prohibition should also be shown to be based on

some underlying fundamental and general issues of

public policy and not merely incidental to a particular

statutory scheme or pattern. It will again be wholly

incorrect to say that powers under Article 142 are subject

to such express statutory prohibitions. That would

convey the idea that statutory provisions override a

constitutional provision. Perhaps, the proper way of

expressing the idea is that in exercising powers under

Article 142 and in assessing the needs of "complete

justice" of a cause or matter, the apex Court will take

note of the express prohibitions in any substantive

statutory provision based on some fundamental principles

of public policy and regulate the exercise of its power

and discretion accordingly. The proposition does not

relate to the powers of the Court under Article 142, but

only to what is or is not 'complete justice' of a cause or

matter and in the ultimate analysis of the propriety of the

exercise of the power. No question of lack of jurisdiction

or of nullity can arise."

Despite some criticisms at some quarters as regard the

correctness of the decision in Union Carbide (supra), we may notice

that in Mohd. Anis Vs. Union of India [(1994) Supp 1 SCC 145] it

was held that the power of the Supreme Court under Article 142 (1)

cannot be diluted by Section 6 of the Delhi Special Police

Establishment Act, 1946.

In State of Karnataka Vs. State of Andhra Pradesh and Ors.

[(2000) 9 SCC 572], this Court held:

"60\005It is also true that Article 142 confers wide powers

on this Court to do complete justice between the parties

and the Court can pass any order or issue any direction

that may be necessary\005"

In State of West Bengal Vs. Sampat Lal [(1985) 2 SCR 256],

this Court held:

"\005In our considered opinion, s. 6 of the Act does not

apply when the Court gives a direction to the CBI to

conduct an investigation and counsel for the parties

rightly did not dispute this position. In this view\005"

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Article 142 vests the Supreme Court with a repository of

discretionary power that can be wielded in appropriate

circumstances to deliver "complete" justice in a given case. Only

Bangladesh (Article 104) and Nepal (Article 88(2)) include similar

provisions in their Constitutions.

Article 142 is an important constitutional power granted to

this Court to protect the citizens. In a given situation when laws are

found to be inadequate for the purpose of grant of relief, the Court

can exercise its jurisdiction under Article 142 of the Constitution of

India. In Ashok Kumar Gupta and Another v State of U.P. and

Others (1997) 5 SCC 201 at 250], this Court held :

"[t]he phrase "complete justice" engrafted in Article

142(1) is the word of width couched with elasticity to

meet myriad situations created by human ingenuity or

cause or result of operation of statute law or law declared

under Articles 32, 136 and 141 of the Constitution."

Taking into account the aforementioned legal-framework

surrounding the exercise of powers under Article 142, this Court in

Delhi Judicial Services Association Vs. State of Gujarat [(1991) 4

SCC 406 at p. 462] observed:

"50\005[t]he inherent power of this Court under Article

142 coupled with the plenary and residuary powers under

Articles 32 and 136 embraces power to quash criminal

proceedings pending before any court to do complete

justice in the matter before this Court."

Furthermore, in Ruchi Agarwal Vs. Amit Kumar Agrawal &

Ors. [2004 (8) Supreme 525], this Court ordered the quashing of an

FIR where there was the continuation of the criminal proceeding

"would be an abuse of the process of the court" [See also Mohd.

Shamim & Ors. v Smt. Nahid Begum and Anr. (2005) 1 SCALE 109

at p. 113]

In exercise of its powers under this Article, this Court in B.N.

Nagarajan and Others Vs. State of Mysore and others [AIR 1966 SC

1942] has also observed that it can grant relief to "appellants [who]

have not prosecuted their appeals" but who "in order to do complete

justice [\005] should also have the benefit of the judgment given by

[the Court]."

In Union of India and Others Vs. M. Bhaskar and Others

[(1996) 4 SCC 416 at p. 423], this Court has even interpreted the

constitutional provision to mean that benefits of a judgment, where

appropriate, can even be extended to all similarly placed persons

irrespective of whether they are party to the proceedings or not. [See

also E.S.P. Rajaram and Ors. v Union of India and Ors., (2001) 2

SCC 186 at p. 193; and, Deb Narayan Shyam v State of West

Bengal, 2004 (10) SCALE 124 at p.145].

In criminal cases, the Court in Anil Rai v State of

Bihar[(2001) 7 SCC 318 at p.342], albeit not expressly referring to

Article 142, has ruled that a non-appealing accused whose case was

identical to that of the appellants was also entitled to the benefit of

altered conviction and sentence. A similar ruling is discerned from

Dandu Lakshmi Reddy v State of A.P[(1999) 7 SCC 69 at p.76.].

Finally, as observed from the decisions in Vishaka v State of

Rajasthan [(1997) 6 SCC 241] and Vineet Narain v Union of India

[(1998) 1 SCC 226], directions issued by this Court under Article

142 form the law of the land in the absence of any substantive law

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covering that field. Such directions "fill the vacuum" until the

legislature enacts substantive law.

In Zahira Habibullah Sheikh and Another Vs. State of Gujarat

and Others [(2004) 5 SCC 353], this Court held that the power to

transfer a criminal trial from one State to another is within the

jurisdiction of this Court under Article 142 of the Constitution.

Shri Jain also contended that this Court has no jurisdiction to

initiate a suo moto action to transfer the respondent exercising the

power under Article 142 of the Constitution. Considering this

argument of the learned counsel, we notice that during his long

tenure in custody, the respondent has violated the law only two or

three times and that he is now a changed man, hence a further

opportunity should be given to him before we decide to transfer him

from Beur jail. Here, we may remind Mr. Jain that one of the

incidents leading to threatening of the I.G. (Prisons) took place

after we initiated this inquiry. In that background, we do not think

either the number or the gravity of violations committed by the

respondent would permit us to accede to such humanitarian plea.

Learned counsel for the respondent contended that if the

respondent is transferred out of Bihar, it would defeat his right for a

fair trial in as much as he will not be in a position to attend the

proceedings and instruct his counsel effectively. He also contended

that respondent has a right in law to be present in the trail against

him. It was his further contention that sending the respondent from

Bihar would keep him away from his family which would be a

negation of his basic human right.

It is true in a normal trial the Criminal Procedure Code

requires the accused to be present at the trial but in the peculiar

circumstances of this case a procedure will have to be evolved it will

not be contrary to the rights given to an accused under the Criminal

Procedure Code but at the same time protest the administration of

justice. Therefore, as held by this Court in the case of State of

Maharashtra vs. Dr.Praful B.Desai, (2003 (4) SCC 601) and

Sakshi vs. Union of India & Ors. (2004 (5) SCC 518), we think the

above requirement of the Code could be made by directing the trial

by video conferencing facility. In our opinion, this is one of those

rare cases wherein a frequent visit from the place of detention to the

court of trial in Bihar would prejudice the security of both the

respondent and others involved in the case. Apart from being a

heavy burden on the State exchequer.. It is in this background the

CBI has submitted that the prisons at Chennai, Palayamkottai

Central Jail, Vellor Central Jail, Coimbatore Central Jail all in the

State of Tamilnadu and Mysore Central Jail in the State of

Karnataka has video conferencing facilities. Therefore the

respondent can be transferred to any one of those Jails.

While it is true that it is necessary in the interest of justice to

transfer the respondent out of State of Bihar, we are required to

keep in mind certain basic rights available to the respondent which

should not be denied by transferring the respondent to any one of

the Jail suggested by CBI. It will cause some hardship to the wife

and children of the respondent who we are told are normally

residents of Delhi. His wife being Member of Parliament and two

young children going to school in Delhi. Taking into consideration

the overall fact situation of the case, we think it appropriate that the

respondent be transferred to Tihar Jail at Delhi and we direct the

seniormost officer-in-charge of Tihar Jail to make such

arrangements as he thinks is necessary to prevent the reoccurrence

of the activities of the respondent of the nature referred to

hereinabove and shall allow no special privileges to him unless the

same is entitled in law. His conduct during his custody in Tihar Jail

will specially be monitored and if necessary be reported to this

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Court. However, the respondent shall be entitled to the benefit of

the visit of his family as provided for under the Jail manual of

Tihar. He shall also be entitled to such categorization and such

facilities available to him in law.

We also direct that the trial of the case in Patna shall continue

without the presence of the appellant by the court dispensing such

presence and to the extent possible shall be conducted with the aid

of video conferencing. However, in the event of the respondent

making any application for his transfer for sole purpose of being

present during the recording of the statement of any particular

witness same will be considered by the learned Sessions Judge on its

merit and if he thinks it appropriate, he may direct the authorities of

Tihar Jail to produce accused before him for that limited purpose.

This, however, will be in a rare and important situation only and if

such transfer order is made the respondent shall be taken from Tihar

Jail to the court concerned and if need be detained in appropriate

Jail at the place of trial and under the custody and charge of the

police to be specially deputed by the authorities of Tihar Jail who

shall bear in mind the factual situation in which the respondent has

been transferred from Patna to Delhi.

As stated above the respondent shall be entitled for the

visitation rights of his family members as provided under the Tihar

Jail manual. It shall be strictly followed and will be confined to

only such persons who are entitled for such visit.

In compliance of this order, we direct the State of Bihar to

transfer the respondent from Beur Jail, Patna to Tihar Jail, Delhi

and hand over the prisoner to the authorized officer by prior

intimation to Tihar Jail authorities of his arrival in Delhi. The

authorities escorting the respondent from Patna to Delhi shall

strictly follow the rules applicable to the transit prisoners and no

special privilege should be shown, any such act if proved, will be

taken serious note of. The respondent shall be transferred to Tihar

Jail from Patna within one week from the date of this order. A copy

of this order shall forthwith be communicated to the Home

Secretary, Government of Bihar, Superintendent of Beur Adarsh Jail

and the Inspector General, Prisons, Tihar Jail. We further direct all

authorities civil and judicial shall act in aid of this order of this

Court as contemplated under Article 144 of the Constitution of

India.