MOHAMMAD IZABUL SHAIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard counsel for the petitioner as well as learned APP. The relief claimed in this petition through jail is that the petitioner be temporarily shifted to Central Prison of Dhumka, District Sahibganj, State Jharkhand for two months on humanitarian consideration, so that he can meet his family members. It is not in dispute that the petitioner has filed an appeal against the order of conviction and sentence which is still pending before this Court. In such a situation, the question of considering his request for transfer to jail in another State cannot be countenanced. That is the norm provided in the nonstatutory Rules, to which our attention has been invited by the learned APP. Clause (3) of the said Rules provide that no prisoner shall be transferred under reciprocal arrangements till his appeal period is over, and if he has filed an appeal till the appeal is decided. In view of this norm specified in the nonstatutory Rules, the request made by the petitioner cannot be accepted.

(2.) The learned counsel for the petitioner however has invited our attention to the Transfer of Prisoners Act, 1950. According to him, no such restriction is placed in the said statute. On the other hand, Section 3 of the Act of 1950 postulates that where any person is confined in a prison in a State undergoing specified sentence, the Government of that State may with the consent of the Government of another State, by order, provide for the removal of the prisoner from that prison to any prison in another State. The provision would apply where the sentence imposed by the Trial Court against the accused attains finality and he is undergoing the said sentence in prison in another State. One of the circumstances provided for in Clause (a) of Section 3, is of person undergoing the death sentence. If the argument of the petitioner is to be accepted, the appeal filed in another State can never proceed in the absence of accused, who is transferred to prison of another State. So long as the appeal against the order of conviction and sentence is not disposed of and is pending before the superior Court, the request for transfer to another prison outside the State cannot be accepted, which position is restated in the nonstatutory Rules. Accordingly, this petition is disposed of.

(3.) The Court expresses word of gratitude for the able assistance given by the learned amicus curiae in espousing the cause of the petitioner. Copy of this order be forwarded to the petitioner, who is in jail forthwith.