TMI Blog2005 (2) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 he is entitled to the same in law. His conduct during his custody in Tihar Jail will specially be monitored and if necessary be reported to this Court. However, the respondent shall be entitled to the bene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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. 3. The reports were received from Home Secretary, State of Bihar, the Investigating Agency (CBI) and the Presiding Officer, Fast Track Sessions Court, Madhepura. 4. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfer to Beur Jail and to provide him treatment, if need be, in the prisoner's cell there. 8. 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. 9. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 15. 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. 16. 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. 17. The material on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant statutes having not been declared unconstitutional, the Respondent was bound to abide by such statutory rules. 22. In D. Bhuvan Mohan Patnaik and Ors. v. State of Andhra Pradesh and Ors. 1975CriLJ556, 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. 23. 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 na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 26. 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 v. Union of India [1998]2SCR795 but it is useful to note the following : 48... Indeed, these constitutional powers cannot in any way, he 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. 27. 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. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cordingly. 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. 29. Despite some criticisms at some quarters as regard the correctness of the decision in Union Carbide (supra), we may notice that in Mohd. Anis v. Union of India, MANU/SC/0901/1994 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. 30. In State of Karnataka v. State of Andhra Pradesh and Ors. AIR2001SC1560, this Court held: 60...It 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... 31. In State of West Bengal v. Sampat Lal 1985CriLJ516, this Court held: ...In our considered opinion, Section 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 pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union of India and Ors., (2001) 2 SCC 186 ; and, Deb Narayan Shyam v. State of West Bengal (2005)2SCC286 ]. 38. In criminal cases, the Court in Anil Rai v. State of Bihar, 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. 1999CriLJ4287 . 39. Finally, as observed from the decisions in Vishaka v. State of Rajasthan MANU/SC/0786/1997 : AIR1997SC3011 and Vineet Narain v. Union of India MANU/SC/0827/1998 : 1998CriLJ1208, directions issued by this Court under Article 142 form the law of the land in the absence of any substantive law covering that field. Such directions fill the vacuum until the legislature enacts substantive law. 40. In Zahira Habibullah Sheikh and Anr. v. State of Gujarat and Ors. MANU/SC/0489/2004 : 2004CriLJ2855, 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. 41. Shri Jain also contended that this Court has no jurisdiction to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent can be transferred to any one of those Jails. 44. 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 he is entitled to the same in law. His conduct during his custody in Tihar Jail will specially be monitored and if necessary be reported to this Court. However, the respondent shall be entitled to the benefit of the visit of his ..... X X X X Extracts X X X X X X X X Extracts X X X X
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