NUSRAT PARVEEN Vs. STATE OF DELHI AND OTHERS

JUDGEMENT

(1.) Through the medium of this petition, the petitioner seeks following relief:

(2.) The case set up by petitioner is that petitioner's husband, namely, Mohammad Ayub Mir S/o Ghulam Ahmad Mir R/o Sadarbal, Hazratbal, Srinagar, was on routine business trip to Delhi in the month of June 2002, when he was arrested by Central Vigilance Agencies at Delhi and a case FIR no.34/2002 Police Station Special Cell (S.B.) under Section 3/20/22 POTA was registered against him. Petitioner's husband was convicted on 06.04.2004 sentenced on 07.04.2004, to undergo life imprisonment. Petitioner's husband preferred an appeal against the judgment of conviction and sentence passed by Additional Sessions Court (Designated POTA Court) Delhi, which, however, was dismissed by the High Court of Delhi. It is submitted that convict Mohammad Ayub Mir has been lodged in Central Jail Tihar, New Delhi and that family of convict including petitioner could arrange for his proper defence during his trial or during the appeal. It is contended that family of convict could have interview with him due to financial and practical difficulties. Mother of convict could even meet her son due to financial restraints and while being ailing, she passed away. It is averred that the convict has three unmarried daughters, besides wife - petitioner herein. It is claimed that family is financially in a position to visit the convict in Tihar Jail, New Delhi, because the same is expensive and the family cannot afford the same and therefore the family is deprived of an interview with their father. It is further contended respondents in law are required to transfer the convict from a jail outside the State, to a jail within the State for serving the remaining sentence and that presence of convict would afford petitioner and daughters of convict to see in the jail and have interview with him. According to petitioner, the State of J &K has legislated as Jail Manual for superintendence and management of jails in J &K State and in terms of the said Jail Manual respondent no.4 is empowered to shift convict from Central Jail Tihar, New Delhi, to Central Jail, Srinagar, or any other jail in the State to serve the remaining sentence. It is maintained that law of the land has discarded and disfavours the retributive theory of punishment and convicts are considered to be lacking in mental efficiency and that they are victims of circumstances and unfavourable atmosphere and sympathy and kind treatment and upkeep of convicts is considered to be object of this theory of punishment to enable the convict to turn up to be a good citizen in future. It is submitted that in case convict is transferred from Tihar Jail New Delhi to Srinagar Jail, the ends of justice would be served by affording a chance to his innocent family to meet him and thereby the mental agony of the family would be minimised.

(3.) Respondents 3 &4 have filed the reply, in which they insist that convict, Mohammad Ayub Mir, is facing trial in criminal cases before the court of Chief Judicial Magistrate, Sopore and Judicial Magistrate 1st Class, Srinagar, respectively in cases falling under Section 323& 506 RPC and under Section 488 Cr.P.C., 1973 filed against him by present petitioner and as per the orders passed by the Court, he stands lodged in Central Jail, Srinagar, temporarily till further orders. It has also been submitted that petitioner's husband, a lifer, is undergoing sentence awarded to him by Additional Sessions Judge, Delhi, and lodged in Tihar Central Jail, so respondents have got no power or authority to keep convict in central jail and that there is no such provision provided in Jail Manual of keeping the convict in the Central Jail, Srinagar. Further contention of respondents is that petition does disclose anywhere as to whether the Delhi Government, where convict is undergoing sentence, has sought consent from the J &K State Government and unless and until any proposal for seeking consent of J &K Government by State of Delhi is initiated, writ petition is maintainable because the State of J &K can be asked to give consent only when there is some proposal before it, besides it is the prerogative of concerned State Government to seek or to give the consent and no mandamus can be sought from this Court in this behalf.