Madhya Pradesh High Court
Shri Haji Abdul Razzak vs The State Of Madhya Pradesh on 7 May, 2025
Author: Vishal Dhagat
Bench: Vishal Dhagat
NEUTRAL CITATION NO. 2025:MPHC-JBP:21963 1 WP-37391-2024 IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VISHAL DHAGAT ON THE 7 th OF MAY, 2025 WRIT PETITION No. 37391 of 2024 SHRI HAJI ABDUL RAZZAK Versus THE STATE OF MADHYA PRADESH AND OTHERS Appearance: Shri Mohammad Ali - Senior Advocate with Shri Sharik Akeel Farooqui - Advocate for the petitioner. Shri Bramha Datt Singh - Deputy Advocate General for the State. Law Laid Down - (i) The State's power to make rules flows form Section 59 of Act of 1894. Rules 791 to 795 of the M.P. Prisons Rules, 1968 do not distinguish between undertrial and convicted prisoners. Section 59(22) relates to transfer of prisoners nearing sentence completion; Section 59(23) concerns criminal lunatics. There is no provision under Section 59 empowering the State to frame rules for transfer of under trial prisoners. Rules 791 to 795 do not confer authority on the State Government to transfer under trial prisoners. (ii) Sections 167, 309 and 417 of the Code of Criminal Procedure must be read harmoniously. Section 417 provides for State Government's power to direct in what place any prisoner is liable to be imprisoned or committed to custody under this Code. Said power is qualified by words except when otherwise provided by any law time being in force. If Court directs custody in a particular prison then power under Section 417 of the Cr.P.C. is not available to State Government. .............................................................................................................................................. ORDER
Petitioner has filed this petition under Article 226 of the Constitution
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of India challenging order dated 19.11.2024 contained in Annexure-P/28 by
which petitioner was transferred from Netaji Subhas Chandra Bose Central
Jail Jabalpur to Central Jail Bhopal.
2. Learned Senior Counsel appearing for petitioner submitted that
order is malafide and arbitrary in nature. Petitioner is placed under judicial
custody by order of Court. Removing prisoner outside the territorial
jurisdiction of trial Court violates Sections 187 and 232 BNSS 2023 and
Article 14 and 21 of Constitution of India. No reason is assigned in passing
of impugned order. Action is drastic in nature, therefore, adequate
Justification ought to have been given in the order. Impugned order dated
19.11.2024 was supplied to petitioner in Court room during course of
argument on admission on 05.12.2024. It is submitted that said
communication of order of transfer is as ex post facto, hence, illegal. Such
an order is not conceived under Regulation 791 of MP Prison Rules 1968,
Section 26 of Prisons Act, 1894 and Section 29 of Prisoners Act
1900. Petitioner was remanded in judicial custody by C.J.M. Jabalpur in FIR
No.249/2024. Impugned order was not communicated to petitioner or his
relatives and he was shifted to Central Jail Bhopal. Petitioner is being
deprived of right to raise objection against his transfer. Senior counsel
appearing for petitioner has relied upon the judgment passed by Apex Court
in case of State of Maharashtra and other Vs. Saeed Sohail Sheikh reported
in (2012) 13 SCC 192 . Placing reliance upon paragraph No.19, 20 and 23, it
is submitted that transfer of prisoner in terms of Section 29(1) of the
Prisoners Act of 1900 is permissible only in distinct situation covered by
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clause A to D thereof. Said provision does not deal with under trial prisoner.
Transfer of an under trial prisoner is also not permissible under Section 29(2)
of Act of 1900. Section 29(2) empowers Inspector General of Prisons to
direct a transfer but such transfer of a prisoner who is confined in
circumstances mentioned in Section 29(1) of the Act of 1900. Respondent
could not have transferred under trial prisoner in terms of order of Inspector
General of prison under Section 29 of the Prisoners Act 1900. As per
rational of provision of Sections 167 and 309 of Cr.P.C., continue detention
of prisoner in jail during trial or injury is legal and valid only under authority
of Court, prison where under trial is detained, is a prison identify by the
competent Court either in terms of Sections 167 or 309 of the Cr.P.C. In
these circumstances, transfer of a prisoner from any such place of detention
will be permissible only with the permission of the Court under whose
warrant the under trial has been remanded to custody. Power to exercise by
Court permitting or refusing transfer of an under trial prisoner is judicial in
nature and not ministerial. Exercise of ministerial power is out of place in
situations where quality of life or liberty of citizen is affected. Transfer of
prisoner to distant place may affect him adversely. On strength of aforesaid
judgment and argument, learned Senior Counsel appearing for petitioner
submitted that order of transfer dated 19.11.2020 contained in Annexure-
P/28 is bad in law and deserves to be set aside. He further submitted that
wife of petitioner is suffering from Cancer and she has to visit prison at
Bhopal to meet her husband. It is very difficult for her to go to Bhopal for
meeting her husband. Right of under trial prisoner to meet his wife and
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relatives is also jeopardized due to said transfer. Further, petitioner is
adversely affected in defending his case.
3. Learned Government Advocate appearing for the State submitted
that a detailed order has been passed by this Court on 01.04.2025 and
Government Advocate was directed to produce material on basis of which
petitioner was transferred. Looking into the material is for purposes that
order is not arbitrary and malifide in nature. It has also been held that
prisoners can be transferred by Inspector General Prisons under Regulation-
791. Ongoing through order dated 01.04.2025 passed by this Court, it is
found that many legal questions of law which were raised at the time of final
hearing were not raised when case was argued on 01.04.2025 and further
Court did not examine the issue whether a prisoner can be transferred by
ministerial order when he is sent to prison by judicial order of Court.
Government Advocate for State tried to distinguish the case of Saeed Sohail
Sheikh (supra) from the present case. It is submitted that facts in the case of
Saeed Sohail Sheikh (supra) were entirely different. Reliance is also placed
on the judgment passed by High Court of Jammu and Kashmir reported in
(2021) SCC Online J & K 469. It is submitted that custody of accused during
course of investigation and before competent Court take cognizance is
regulated by Sections 57 and 167 of the Cr.P.C. An arrested person cannot
be kept in police custody for more than 24 hours and he is to be produced
before the Court. Court exercising its power under Section 167 can grant
police remand for a term not exceeding 15 days in a whole. Beyond period
of 15 days, Magistrate can direct custody otherwise then in police custody.
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No Magistrate shall authorized such detention for total period exceeding 90
days where investigation relates to offence punishable with death,
imprisonment for life or imprisonment for a term not less than 10 years and
60 days when investigation relates to other offenses. So far as custody of
under trial prisoner is concerned same is dealt with in Section 309 of the
Cr.P.C. when cognizance is taken and trial commences. Court may by a
warrant remand the accused into custody. Language of Section 309 does not
suggest that Magistrate has to remand accused produced before him during
course of inquiry or trial to a particular jail. Powers is with State
Government under Section 417 of the Cr.P.C. which directs in what place
person is liable to be imprisoned or committed to custody under the Court.
Sections 167, 309, 417 of the Code are to be read conjointly. Conjoint
reading makes it clear that under trial or convict does not have any right to
dictate his choice of prison nor Court is obligated to nominate a jail or
prison. Section 29 of Prisons Act is left to State Government. Section 29
does not deal with under trial. Further, Jail Manual in State of Madhya
Pradesh gives power to Inspector General Prison for transfer and transfer has
been exercised validly by State Government. Supreme Court in case of
Saeed Sohail Sheikh (supra) considered Jail Manual of Maharashtra in
which there was no specific provision regarding transfer of under trial from
one prison to another within the State. In these circumstances, Supreme
Court has passed judgment placing reliance on Section 29 of Prisons Act.
Reliance placed by petitioner on judgment Saeed Sohail Sheikh (supra) is
misplaced, therefore, petition deserves to be dismissed.
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4. Heard the counsel for the parties.
5. Learned counsel appearing for the petitioner has placed heavy
reliance on judgment passed by Apex Court in case of Saeed Sohail Sheikh
(supra). In said case Apex Court has held that transfer of petitioner in terms
of Section 29(1) of Act of 1900 is permissible only in distinct situation
covered by Clause-A to D thereof. Said provision does not deal with under
trial prisoners who do not answer description given therein. Transfer of
under trial prisoner is not permissible under Section 29(2) of the Act of
1900. Section 29(2) empowers Inspector General, Prison to direct transfer of
prisoner who is confined in circumstances mentioned in Section 29(1) of the
said Act. Under trial prisoner will not be covered under Section 29 of the
Act and Inspector General, Prison cannot transfer under trial prisoner under
Section 29(2) under Prisoners Act, 1900. Further, Sections 167 and 309 of
the Cr.P.C. lay down that detention of a person in jail is legal and valid only
under authority of Court/Magistrate before whom accused is produced or
tried. Transfer of a prisoner to another prison is permissible with permission
of Court under whose warrant under trial has been remanded to custody.
Power to be exercised for transfer of prisoner is judicial and not ministerial.
Transfer of ministerial power for transfer of a prisoner is out of place as
quality of life and liberty of citizen is affected. It is immaterial where
prisoner is under sentence of imprisonment or is under trial prisoner.
Transfer of an under trial prisoner to a distant prison may adversely affect his
right to defend himself and also isolate from society and his friends and
relatives.
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6. On strength of said judgment, counsel for petitioner argued that
ministerial power could not have been exercised by Inspector General,
Prison for transfer of petitioner. Jail authority ought to have filed an
application before Court seeking permission of transfer. Ministerial order is
without sanction of law and, therefore, same is to be quashed.
7. Section 29 of the Prisons Act, 1900 is quoted as under:-
“Section 29. Removal of prisoners [Substituted by Act 1 of
1903, Section 3 and Sch.II, for Section 29.
(1)The [State Government] may, by general or special
order, provide for the removal of any prisoner confined in a
person-
(a) under sentence of death, or
(b) under, or in lieu of, a sentence of imprisonment or
transportation, or
(c) in default of payment of a fine, or
(d) in default of giving security for keeping the peace or for
maintaining good behavior, to any other prison in [the State [- – –
] [Substituted by A.O. 1937.].]
(2) Subject to the orders, and under the control, of the State
Government, the Inspector-General of Prisons may, in like
manner, provide for the removal of any prisoner confined as
aforesaid in a prison in the State to any other prison in the
[State] [Substituted by A.O. 1937.] [- – -] [Certain words omitted
by A.O. 1937.].”
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8. Apex Court in case of Saeed Sohail Sheikh (supra) considering
Section 29 of Prisons Act, 1900 held that transfer of prisoner by ministerial
order can be made if conditions mentioned in Section 29 are satisfied.
Provision under Section 29(1) is only in respect of convicted prisoners. No
provision is mentioned in Section 29 in respect of under trial prisoners.
Further, reliance is placed on Sections 167 and 309 of the Cr.P.C. which
makes it clear that under trial prisoner is sent to prison by order of Court.
Considering aforesaid, Apex Court in case of Saeed Sohail Sheikh (Supra)
held that transfer of a prison is permissible only with permission of Court.
Prisons Act, 1894 is amended in its application in India. In Definition clause
of Section 3 of Act of 1894, “criminal prisoner” means a prisoner duly
committed to custody under writ, warrant or order of any Court or authority
exercising criminal jurisdiction, or by order of Court-martial and “convicted
criminal prisoner” is defined as “criminal prisoner” under sentence of Court
or Court-martial. “Criminal Prisoner” is under trial accused and “convicted
criminal prisoner” is accused held to be guilty by judgment.
9. Section 26 of said Act has been considered by Apex Court in case
o f Saeed Sohail Sheikh (Supra) and it was held that said provision only
oblige prison authority to have prisoner whether convict or under trial
medically examined before their removal. Said Section does not unable
prison authority to transfer of a prisoner from one prison to another.
10. Madhya Pradesh Prisons Rules, 1968 was enacted by State
Legislature under MP Prisons Rules, 1968. Rule 791 provides for transfer of
prisoners under the order of Director General of Prisons and Correctional
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Services. Relevant Rules 791, 792, 793, 794 and 795 are reproduced as
under:-
िनयम 791. [कै दय का महािनदे शक जेल एवं सुधारा मक
सेवाएं] के आदे श के अधीन अ तरण (Transfer of prisoners under
order of Director General of Prisons and Correctional Services)-
(एक जेल से दस
ू र जेल म बं दय के िन निल खत मामल म अ तरण
{िमहािनदे शक जेल एवं सुधारा मक सेवाएं} ारा रा य सरकार के
आदे श तथा िनयं ण के अ यधीन रहते हुए कया जाएगा –
(a) कै दय का उनके वा य के हे तु अ तरण।
(b) अ यािधक जमाव कम करने के िलए कै दय का अ तरण।
(c) िस दोष आ फसर , भंगी, रसोईया आ द के प म कसी
अ य जेल म काय कसे के िलए कै दय का अ तरण।
(d) कोई वशेष यापार िसखलाने के िलए कै दयो का अ तरण।
(e) युवा कै दय का सुधार व ालय या नरिसंहपुर बो टल सं था
म अ तरण।
(1) कसी वशेष कारण से अ य कै दय का अ तरण।
िनयम 792. कितपय कै दयो का अ तरण नह ं करना (Transfer
of certain prisoners not to be made)- कसी भी कैद के, जो आयु
बीमार या अंग शैिथ य के कारण मानूले क ठन, प र म करने म
असमथ हो या जसे सादा कारावास का द डादे श दया गया हो, वशा
प र थितय के अित र , अ तरण के िलए िसफा रश नह ं क जाएगी।
िनयम 793. सं ामक रोग के कारण कै दय का एक जेल से
दस
ू र जेल म अ तरण (Transfer of prisoners from one jail to
another on account of infectious disease)-एक जेल से दस
ू र जेल म
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तब तक कोई भी अ तरण नह ं कया जाएगा जब तक क दोन म से
कसी भी जेल म या सड़क के उस माग पर जस माग पर क कै दय क
चलना हो, है जा या अ य सं ामक रोग न फैला हो।
िनयम 794. जेल के अधी क ारा {महािनदे शक जेल एवं सुधारा मक सेवाएं} क मंजूर क या ा म कै दय का अ तरण
(Transfer of prisoners by superintendent of jails in anticipation
sanction of Director General of Prisons and Correctional
Services)- जनस (अटे डे स इन कोटस) ए ट, 1955 के अधीन
अ तरण से िभ न अ य सम त अ तरण के िलए व हत प
( मांक 106-107 बारह.जे.इ.) म एक नामाविल का उपयोग कया
जायगा। िनयम 791 के ख ड (क) के अधीन अ तरण जेल अधी क
ारा मंजूर क याशा म कया जा सकेगा जब क अिभिन य करने के
प ात ् यह अ याव यक समझा जाय क उस जेल म जसम क कै दय
को अ त रत करना ता वत हो, थान उपल ध है । ख ड (c) तथा (e)
के अधीन अ तरण समय-समय पर अपे त कए गए अनुसार कए जा
सकेगे। एक जेल से दस
ू र जेल म अ तरण क दवा म नामाविल (रोल)
उस जेल अधी अधी क को भेजी जानी चा हए, जसम क कैद
अ त रत कए जाने हो जो क अ तरणकता जेल को लौटाते समय उस
पर यह अिभिल खत कर क थान उपल ध है अथवा नह ं। नामाविल
अ ततः (महािनदे शक जेल एवं सुधारा मक सेवाएं) को सूचनाथ और
अ तरणकता जेल क वापस भेजी जाना चा हए।
िनयम 795. कै दयो या कु यात जेल तोड़ने वाले या हसंक
कृ ित के य य का अ य जेल म अ तरण (Transfer to another jail
of of prisoners or notorious jail breakers, or voilent characters)
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य द कु यात जेल तोड़ने वाले या हं सक कृ ित के अ य य कसी
जला या सहायक जेल म कारावािसत कए जाए या य द कोई जेल
आफ सर या सेवक एक मास से अिधक कालाविध के िलए कारावािसत
कया जाय या य द कसी जेल आफ सर का िनकट संबंधी या कोई
थानीय अ यािधक भावशाली य कारावािसत कया जाए तो ऐसे
कैद के अ तरण क से ‘महािनदे शक जेल एवं सुधारा मक सेवाएं)
को त काल सूचना द जानी चा हए।”
11. Under said rules classification of “under trial prisoner” and
“convicted prisoner” is not made. Transfer can be made in respect of both
the prisoners. MP Prisons Rules, 1968 is enacted under Section 59 of the
Prisons Act, 1894. In Section 59 of the Prisons Act 1894, it is specifically
provided on what subject Rules can be enacted by the State Government. 28
subjects were mentioned under Section 59 on which State Government can
enact the rules. Relevant topic which may relates to transfer of prisoner are
quoted as under:-
“59. Power to make rules-
***
(22) for regulating the transfer of prisoners whose term of
transportation or imprisonment is about to expire; subject,
however, to the consent of the State Government of any other
State to which a prisoner is to be transferred;
(23) for the treatment, transfer and disposal of criminal
lunatics or recovered criminal lunatics confined in prisons.”
12. Power to make rules flows from Section 59 of the Prisons Act,
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1894. Rules which have been enacted by State of Madhya Pradesh named as
M.P. Prisons Rules, 1968 have Rules 791, 792, 793, 794 and 795. Rule 791
is very generalistic in nature. It does not draw distinction between under trial
prisoner and convicted prisoner. On perusal of Rules 791 to 795, at first
sight, it appears that under trial prisoner can also be transferred under said
Rules but Section 59(22)(23) of Prisons Act, 1894 lays down subject over
which rules can be enacted by State Government. Section 59(22) regulates
transfer of prisoner whose term of transportation or imprisonment is about to
expire and Section 59(23) gives authority to enact rules in respect of
treatment, transfer and disposal of criminal lunatics or recovered criminal
lunatics confined in prison. Section 59(22) or 59(23) does not give any
power to frame rules of transfer in respect of under trial or convicted
prisoner. Since, there is no power with State to enact rules regarding under
trial prisoner conferred to it under Section 59, therefore, power granted
under Rule 791 to 795 could not be exercised in respect of under trial
prisoner.
13. Now it is to be seen whether transfer of petitioner to another jail is
without jurisdiction as respondent/State does not have any power under
Rules 791, 792, 793, 794 and 795 of the Prisons Rules, 1968.
14. Apex Court in its judgment of Saeed Sohail Sheikh (supra) held
that transfer of under trial prisoner is not permissible under Section 29(2) of
Prisons Act and continued detention of a prisoner in jail is during trial,
enquiry is legal and valid only under authority of Court/Magistrate before
whom the accused is produced. Place where any under trial prisoner is
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detained is a prison identified by competent Court in terms of Sections 167
and 309 of the Cr.P.C., therefore, transfer of prisoner from one jail to
another jail is permissible only with permission of Court. It has been argued
that Apex Court did not consider the provision under Section 417 of the
Cr.P.C., 1973. As per said provision, State Government may direct in what
place any prisoner is liable to imprisoned or committed to custody under this
Code. Section 417 of the Cr.P.C. is quoted as under:-
“417. Power to appoint place of imprisonment.
(1)Except when otherwise provided by any law for the time
being in force, the State Government may direct in what place any
person liable to be imprisoned or committed to custody under this
Code shall be confined.
(2)If any person liable to be imprisoned or committed to
custody under this Code is in confinement in a civil jail, the Court
or Magistrate ordering the imprisonment or committal may direct
that the person be removed to a criminal jail.
(3)When a person is removed to a criminal jail under sub-
section (2), he shall, on being released therefrom, be sent back to
the civil jail, unless either –
(a) three years have elapsed since he was removed to the
criminal jail, in which case he shall be deemed to have been
released from the civil jail under Section 58 of the Code of Civil
Procedure, 1908 (5 of 1908), or under Section 23 of the
Provincial Insolvency Act, 1920 (5 of 1920), as the case may be;
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or
(b) the Court which ordered his imprisonment in the civil
jail has certified to the officer in charge of the criminal jail that he
is entitled to be released under Section 58 of the Code of Civil
Procedure, 1908 (5 of 1908), or under Section 23 of the
Provincial Insolvency Act, 1920 (5 of 1920), as the case may be.”
15. Sections 167, 309 and 417 of the Cr.P.C. are to be read
harmoniously. Section 417 contains a rider on State Government which lays
down when power is to be exercised to transfer an under trial prisoner.
Words used in Section 417 of the Cr.P.C. is “if it has otherwise provided in
law”. Said words reflect that power can be exercised by State Government to
decide place of imprisonment of a prisoner, if there is no such direction or
order by Court under Section 167 or 309 of the Cr.P.C. In light of above,
State Government could only exercise power to transfer of an under trial
prisoner to another prison if there is no order by Court to place him in
custody in a particular jail.
16. Accordingly, petition is disposed off with following directions:-
(i) If Judicial Magistrate or trial Court exercising its power
under Sections 167 and 309 of the Cr.P.C. has given a direction to
commit petitioner in a particular prison i.e. Central Jail Jabalpur
then order passed by State Government transferring petitioner to
Central Jail, Bhopal is bad in law. Alternatively, if no order has
been passed by Judicial Magistrate or trial Court to commit
petitioner in a particular jail then order of transfer of petitioner toSignature Not Verified
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another jail by jail authority is legal and cannot be faulted with.
(ii) Petitioner will be at liberty to file an application before
Trial Court for transfer, if there is specific order of custody at
Central Jail, Jabalpur by trial Court.
(iii) In case, if there is specific order by trial Court for
custody of petitioner at Central Jail, Jabalpur then State
Government will also be at liberty to file an application before the
trial Court by placing all evidence before it that transfer of
petitioner is necessary. Trial Court will be at liberty to examine
the said material placed before it and pass order after giving
opportunity of hearing to petitioner.
17. With aforesaid direction, petition filed by petitioner, is disposed
off.
(VISHAL DHAGAT)
JUDGE
$A
Signature Not Verified
Signed by: SHABANA
ANSARI
Signing time: 26-05-2025
12:11:19