Shifting Of Under-Trial Prisoners Can’t Be At The Whim & Fancy Of Prosecution; Magistrates Must Apply Their Mind When Such Orders Are Sought: Karnataka HC

The Karnataka High Court observed that the shifting of under-trial prisoners cannot be at the whim and fancy of prosecution and hence, the Magistrates must apply their mind when such orders are sought.

The Court observed thus in a writ petition preferred against the order of the Additional Chief Judicial Magistrate, directing the transfer of an under-trial prisoner from Bangalore Central Prison to Belagavi.

A Single Bench of Justice M. Nagaprasanna remarked, “Placing an under-trial prisoner in an Andheri Cell is unknown to law, unless grave circumstance ensue. Shifting of under-trial prisoners cannot be at the whim and fancy of the prosecution and such orders when sought, the learned Magistrates ought to apply their mind. If shifting had to be at all done, it could be shifting of accused No.2, Darshan, as he who was in the scene, in the company of others, with a coffee sipping and cigarette.”

The Bench added that, once the accused is housed in a jurisdictional prison, as an under-trial, to shift him to any other prison there must be a cogent reason, and such orders of shifting must bear application of mind.

Advocate B.J. Hitesh Gowda appeared on behalf of the petitioner while State Public Prosecutor (SPP) B.A. Belliappa appeared on behalf of the respondents.

Brief Facts -

The petitioner/accused was arrested in June 2024 and was remanded to judicial custody in a murder case along with others. The Chief Superintendent, Central Prison – Bangalore, submitted a requisition to the Magistrate to transfer all the accused persons to different prisons in the Karnataka State. The reason given was that, on the print electronic media, photographs of one of the accused sitting along with a rowdy, Wilsongarden Naga, appeared, in which he is said to be consuming tea, holding a cigarette.

On the ground that the photograph would demoralize witnesses and would provide room for suspicion in the eyes of general public on differential treatment being given to Darshan, the under-trial prisoners were sought to be transferred. The petitioner was not in the scene. The petitioner then learning that the Magistrate has directed his transfer, approached the High Court.

The High Court in the above regard, said, “The prescription indicates that the petitioner is in an Andheri Cell. The learned State Public Prosecutor seeks to defend the action by submitting that the name of the Cell is Andheri. It is rather surprising that instead of a number given to the cell, name is given and it is ‘Andheri’. The submission to say the least, is preposterous, as the pictures where the petitioner is housed show it to be No.12. Therefore, the lurking doubt of the wife who visited the petitioner appears to be correct, that he was placed in an Andheri Cell. The petitioner is still an under-trial prisoner.”

The Court noted that the petitioner who is away in some cell is penalized for the act of accused No.2 and it is not that the prisoner, can choose the prison.

“The Apex Court considers an identical act of the concerned Court in shifting prisoners and holds that shifting of prisoners is neither an administrative act nor ministerial act, it is either a judicial order or a quasi-judicial order”, it observed.

The Court further said that the impugned order was passed without giving any opportunity to the petitioner, the under-trial prisoner to file his objections, if any, nor the order impugned does bear even a semblance of application of mind.

“The unmistakable inference that can be drawn from what the Apex Court has elucidated and such elucidation being pitted to the facts of the case, is unsustainability of the order of shifting of the petitioner/accused No.14 from Bangalore, Central Prison to Belagavi, Central Prison, as it is done without any basis as there was no allegation against the petitioner that he had indulged in certain acts making himself the reason for such transfer, and is in violation of the principles laid down by the Apex Court in the case of SAEED SOHAIL (supra)”, it added.

The Court remarked that the axe that needed to be fallen on accused No.2, stretched to the petitioner as well, though he was far away from his company. It also noted that there was no independent reason to shift the petitioner particularly to an Andheri Cell, and the allegations appear to be correct.

“It has, therefore, undoubtedly affected the right of the under-trial prisoner and requires to be reversed. The Apex Court in the afore-quoted judgment holds that in such cases, the under-trial prisoner who is shifted, should be directed to be re-shifted. I deem it appropriate to follow suit, which would mean that the order of shifting of the petitioner from Bangalore Central Prison to Belagavi Central Prison, being rendered unsustainable and as a consequence of such un-sustainability, a direction to re-shift the petitioner to Bangalore Central Prison”, it concluded.

Accordingly, the High Court allowed the writ petition, quashed the impugned order, directed that the petitioner be shifted back to the Bangalore Central Prison forthwith.

Cause Title- Pradosh S. Rao v. The State of Karnataka & Ors. (Neutral Citation: 2024:KHC:41152)

Appearance:

Petitioner: Advocates B.J. Hitesh Gowda, Aditya D., and Santosh V.

Respondents: SPP B.A. Belliappa and Addl. SPP B.N. Jagadeesha.

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