MANU/GJ/0682/2018

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/Special Criminal Application Nos. 3835 and 3913 of 2017
Decided On: 24.08.2018
Appellants: Sibli
Vs.
Respondent: State of Gujarat
Hon'ble Judges/Coram:
J.B. Pardiwala, J.
Counsels:
For Appellant/Petitioner/Plaintiff: D.D. Pathan and S.M. Vatsa
For Respondents/Defendant: Dharmesh Devnani, A.P.P.
Case Note:
Crimiinal - Transfer of accused from one jail to other jail - Writ Petitions
filed by Petitioners convict accused persons for direction to Respondent
Superintendent Central Jail not to transfer Petitioners from Jail to other
Jail - Whether Petitioners made out case for stay execution of order wereby
Petitioners were ordered to transfer one Jail to an other Jail - Held,
Petitioners were original accused of case where they transferred -
Therefore for due compliance of order passed by Special Judge CBI and on
passing of order by Special Judge to other jurisdicttion all Petitioners were
transferred - Rules framed by jail authorities would not be applicable to
Court - It would be applicable to jail authorities and executives -
Petitioners were original accused of City Jail were thay transferred and
were brought to other Jail by way of transfer warrants - Therefore they
were not covered by notification issue by Central Government and could not
be kept in State Jail - Writ Petitions rejected. [10],[12], [14]
JUDGMENT
J.B. Pardiwala, J.
1. Since the issues raised in both the captioned writ-applications are the same, those
were heard analogously and are being disposed of by this common judgment and
order.
2. The Special Criminal Application No. 3835 of 2017 is treated as the lead matter.
3 . By this writ-application under Article 226 of the Constitution of India, the writ-
applicants - convict accused persons have prayed for the following reliefs:-
6(I) To admit and allow this application.
(II) To quash and set aside the following impugned orders passed by Ld.
Special Designated Judge, Special Court for speedy trial of Serial Bomb Blast
Cases, City Civil and Sessions Court, Ahmedabad, Gujarat:-

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 (a) Order dated 19/04/2017 passed below Exh. 6323 and
(b) Order dated 4/05/2017 passed below Exh. 6384.
INTERIM PRAYER
(III) During the pendency of the final hearing of the present Application:
(a) Be pleased to stay the execution of the impugned order dated
4/05/2017 passed below Exh. 6384 and
(b) Direct the Superintendent, Sbarmati Central Jail, Ahmedabad not
to transfer the petitioners from Sabarmati Central Jail to Indore
Central Jail.
(IV) Be pleased to pass such other order as deemed fit in the interest of
justice.
4 . The case of the writ-applicants in their own words as pleaded in the writ-
application is as under:-
4.1 The above-named petitioners are the Original Accused at Sr. Nos. 11, 12, 13, 59,
60 & 61 as per the Order of framing of Charge in the S.C. No. 38/2009 pending
before Ld. Sessions Court, City Civil and Sessions Court, Ahmedabad and are
presently lodged at Sabarmati Central Jail. The petitioners, along with other co-
accused persons, are under-trial prisoners of Sessions Case No. 38 of 2009 which is
tried before Ld. Special Designated Judge, Special Court for Speedy Trial of Serial
Bomb Blast Cases, City Civil and Sessions Court, Ahmedabad, Gujarat (Hereinafter
referred to as the 'Ld. Trial Court') The said sessions case arises out of offences
registered vide a total of 35 FIRs separately registered at various police-stations for
the incidents of bomb-blasts on 26/07/2008 in Ahmedabad and plantation-cum-
recovery of bomb-blast devices at various places in Surat. The Ld. Trial Court was
pleased to consolidate the sessions cases registered pursuant to the committal of
multiple chargesheet and supplementary chargesheet with Sessions Case No. 38 of
2009 and framed charges vide Exh. 32 dated 11/01/2010 and modify the same vide
Exh. 122 dated 15/02/2010. The charges were framed against the present petitioners
as well as other co-accused persons for commission of various offences punishable
u/Ss. 120B, 121(A), 124(A), 153(A)(1)(b), 302, 307, 465, 471, 212 of Indian Penal
Code 1860; Sections 3, 5, 6, 7 of Explosive Substance Act 1908; Section 10, 13, 16,
18, 19, 20, 23, 38, 39, 40 of Unlawful Activity Prevention Act 1967 and Section
25(1)B, A, 27 of Arms Act 1959 and Section 65, 66 of Information Technology Act
2000. Till date, over 890 witnesses have been examined. The witnesses can be
broadly categorized as the complainant, injured witnesses, treatment and post-
mortem-doctors, recovery and some discovery panchas, FSL officers, executive
magistrates, officers in relation to sanctions, some police witnesses and public
witnesses. However, crucial witnesses are likely to be examined in the near future.
4.2 On 19/04/2017, the Ld. Trial Court, after hearing Ld. Assistant Special Public
Prosecutor, was pleased to pass an order below letter dated 15/04/2017 (Exh. 6323)
written by the Respondent-Authority whereby the said Authority sought permission
for the transfer of the Petitioners and other co-accused from Sabarmati Central Jail to
Indore Central Jail, Madhya Pradesh as the petitioners (and others) they had been
sentenced to 'life-imprisonment' by the order of conviction dated 27/02/2017. The
Ld. Trial Court accepted that Rule-971, Chapter-XXIX of the Bombay Jail Manual,

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 1955 along with resolutions passed by the Respondent-State and the re-classification
in respect of lodging in various central-jails etc. situated in the Respondent-State is
applicable in the present facts and allowed the Respondent-authority to undertake
necessary steps for transferring petitioners and other co-accused from Sabarmati
Central Jail to Indore Central Jail.
4 . 3 On 04/05/2017, the Ld. Trial Court was pleased to allow a letter dated
4/05/2017 (Exh.-6384) addressed by the Superintendent, Sabarmati Central Jail
wherein the jail-authorities had requested that the present petitioners and 4 other co-
accused could not be lodged at Sabarmati Central Jail in view of Rule-971, Chapter-
XXIX of the Bombay Jail Manual, 1955 along with resolutions passed by the
Respondent-State as they had been sentenced to 'life-imprisonment' by the said order
of conviction dated 27/02/2017. Hence, the Ld. Trial Court was pleased to allow the
jail-transfer of the present petitioners and 4 others jail from Sabarmati Central Jail to
Indore Central Jail, Madhya Pradesh.
4.4 The brief facts necessitating the present petition is as hereunder:-
(A) On 26/07/2008 and immediately thereafter, a total of 35 FIRs separately
registered at various police-stations for the incidents of bomb-blasts on
26/07/2008 in Ahmedabad and plantation-cum-recovery of bomb-blast
devices at various places in Surat.
(B) On 11/01/2010 and 15/02/2010, the Ld. Trial Court was pleased to frame
charges vide Exh.-32 and modify the same videExh.-122 in Sessions Case
No. 38 of 2009 for commission of various offences punishable u/Ss. 120B,
121(A), 124(A), 153(A)(1)(b), 302, 307, 465, 468, 471, 212 of Indian Penal
Code 1860; Sections-3, 5, 6, 7 of Explosive Substance Act, 1908; Sections-
10, 13, 16, 18, 19, 20, 23, 38, 39, 40 of Unlawful Activity Prevention Act
1967 and Sections-25(a)B, A, 27 of Arms Act 1959 and Sections-65, 66 of
Information Technology Act 2000. As the case of the prosecution is of a
common conspiracy, hence a number of the sessions cases registered
pursuant to the filing of numerous chargesheets and supplementary
chargesheets were consolidated by way of a speaking order passed by the
Ld. Trial Court.
(C) Till date, over 890 witnesses have been examined either in the physical
presence of the present petitioners at Sabarmati Central Jail or by way of
Video-conference facility available at the Sabarmati Central Jail. However,
when evidence of formal nature or not directly connecting the present
petitioner has been recorded in their absence, that too on very few occasions
as the petitioners were facing trial in different states, in variably an
exemption application has been tendered on their behalf on each such
occasion so as not to delay the trial. The witnesses which have been
examined till now can be broadly categorized as the complainant, injured
witnesses, treatment and postmortem-doctors, recovery and some discovery
panchas, FSL officers, executive magistrates, officers in relation to sanctions,
some police witnesses and few public witnesses.
(D) Between 27/02/2009 to 25/11/2009, the petitioners were arrested by the
National Investigating Agency in connection with R.C. No. 04/2010/NIA/DLI
which after committal got registered as Sessions Case No. 2/2011, Special
Court for NIA cases, Ernakulam, Kerala.

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 (E) On 27/02/2017, the petitioners as well as other co-accused who were
held as guilty in the Sessions Case No. 132 of 2010 arising out of 1st C.R.
No. 120 of 2008, Peethampura Police Station, District: Dhar, M.P. by the Ld.
C.B.I. Court, 4th Additional and District Sessions Court, Indore, Madhya
Pradesh and were sentenced to Life Imprisonment.
(F) On 19/04/2017, the Ld. Trial Court, after hearing Ld. Assistant Special
Public Prosecutor, was pleased to pass an order below letter dated
15/04/2017 (Exh.-6323_ written by the Respondent-Authority whereby the
said Authority sought permission for the transfer of the petitioners and other
co-accused from Sabarmati Central Jail to Indore Central Jail, Madhya
Pradesh as the petitioners (and others) they had been sentenced to 'life-
imprisonment' by the order of conviction dated 27/02/2017. The Ld. Trial
Court accepted that Rule-971, Chapter-XXIX of the Bombay Jail Manual, 1955
along with resolutions passed by the Respondent-State and the re-
classification in respect of lodging in various central-jails etc. situated in the
Respondent-State is applicable in the present facts and allowed the
Respondent-Authority to undertake necessary steps for transferring
petitioners and other co-accused from Sabarmati Central Jail to Indore
Central Jail.
(G) On 19/04/2017, the Ld. Trial Court, on a separate application dated
19/04/2017 (Exh.-6331) of Ld. Assistant Special Public Prosecutor, was
pleased to stay its order passed below Exh.-6323. Ld. Asst. Sp.P.P. had
submitted vide Exh. 6331 that order passed below Exh. 6323 was passed
without hearing the Respondent-State and more particularly as the video-
conference link between Sabarmati Central Jail and Indore Central Jail is not
yet functional. Ld. Assistant Special Public Prosecutor had attached a letter
dated 19/04/2017 of the Respondent-Authority wherein it was declared that
the work is going on for establishing a video-conference link between
Sabarmati Central Jail and Indore Central Jail.
(H) On 04/05/2017, the Ld. Trial Court was pleased to pass the impugned
order below Exh. 6384 and ordered transfer of the petitioners and some
other co-accused persons in view of Rule-971, Chapter-XXIX of the Bombay
Jail Manual, 1955 along with resolutions passed by the Respondent-State as
they had been sentenced to 'life-imprisonment' by the said order of
conviction dated 27/02/2017. The Ld. Trial Court while passing the aforesaid
order below Exh. 6384 has recorded that"...... Both the Ld. Advocates are
present." Thus, the Ld. Trial Court was pleased to allow the jail-transfer of
the present petitioners and 4 other jail from Sabarmati Central Jail to Indore
Central Jail, Madhya Pradesh.
(I) On 18/05/2017, the wife of petitioner No. 2 had gone for a routine jail-
visit wherein a copy of the letter dated 08/05/2017 captioned "Request not to
transfer us to MP jail due to apprehension of fake encounters and miscarriage
of justice" was faxed by the Petitioner No. 2 to the Ld. Trial Court was given
wherein the Ld. Trial Court was urged not to transfer the petitioners to
Indore Central Jail and a specific grievance was raised that their trial at
Indore has been conducted largely in their absence which resulted in
complete non-communication with the lawyers at Indore which has resulted
in unfair-trial and miscarriage of justice and that their transfer to Indore will
further compound the injustice as crucial witnesses are being examined in

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 the trial before the Ld. Trial Court at Ahmedabad. On the same day, an
application to take the matter on board along with an application for taking
inspection of the records and proceedings of Sessions Case No. 38/2009 was
moved and the same was allowed by the Ld. Trial Court and inspection of the
records and proceedings was permitted on 19/05/2017.
(J) On 19/05/2017, after making the inspection of the records and
proceedings of Sessions Case No. 38/2009, another an application to take
the matter of Sessions Case No. 38/2009 on board along with a pursis was
submitted as the next date for further proceeding with S.C. No. 38/2009 has
been fixed on 31/05/2017. The Ld. Trial Court was pleased to record the
pursis after hearing the Ld. Assistant Special P.P. The said pursis specifically
declared as hereinbelow"
"Para-3......It was found that the last order below Exhibit-6384 by
the transfer of Safar Nagori as well as 9 others was made bears no
endorsement of the undersigned or any advocate appearing for any
one of the accused persons sought to be transfer from Sabarmati
Central Jail to Indore Central Jail. Thereafter the Roznama of that
day, i.e., 4/05/2017 was also perused and the same bears the fact
that the present undersigned was not heard during the hearing of
Exhibit-6384. ......"
4.5 The petitioners most humbly and respectfully state that they are compelled to
approach this Hon'ble Court under Articles 226 and 227 of the Constitution of India
read with Section 482 of the Criminal Procedure Code, 1973 (the "CrPC") and by way
of the present petition and are desirous of seeking quashing of the impugned orders
dated 19/04/2017 below Exh. 6323 and order dated 4/05/2017 below Exh.-6384
passed by Ld. Trial Court whereby the petitioners and some other co-accused persons
are sought to be transferred from Sabarmati Central Jail to Indore Central Jail on the
following amongst other grounds that may be urged at the time of final hearing.
5 . The impugned order passed by the Designated Judge below Exh. 6323 is as
under:-
ORDER BELOW EXH. 6323
1 . Read the application along with Jail Manual Chapter 29 with annexure.
Heard.
2. The Court has gone through the Resolution of Hon'ble the Government of
Gujarat dated 09.06.2014 and 08.07.2014, accordingly.
3 . The prosecution has moved the present application to transfer nine
prisoners of the present case to Indore, State - M.P., because Hon'ble CBI 4th
Additional District & Sessions Court, Indore, M.P., has convicted the said
accused in a Sessions Case No. 132/2010 and therefore the said accused
cannot be kept herein Ahmedabad Jail, as per the said Manual proviso and
the resolution of Hon'ble the Government of Gujarat. Hence, application
deserves to be allowed, as prayed for with the following order:
ORDER
• The application Exh.:6323 is hereby allowed as prayed for.

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 • Order be intimated to Superintendent, Central Jail, Ahmedabad for
necessary action.
• No order as to costs.
Pronounced in the open court today on this 19th day of April, 2017.
Date:19-04-2017
(Pankajkumar Chandrakant Raval)
Designated Judge
Special Court for conducting Speedy
Trial of Serial Bomb-Blast Cases,
Ahmedabad, Gujarat.
(Code No. :GJ00402)
6. According to Mr. Vatsa, the learned counsel appearing for the writ-applicants, the
following questions of law fall for the determination of this Court.
(A) Whether the transfer of the applicants from the State of Gujarat to the
State of Madhya Pradesh is arbitrary particularly when some applicants were
brought from other jails where they were serving their previous convictions
and this violates the fundamental right to non-discriminatory treatment?
(B) Whether the transfer of the Applicants from the State of Gujarat to State
of Madhya Pradesh only on the ground that the said Applicants are required
to serve the sentence of conviction in the State of Madhya Pradesh despite an
on-going trial in the State of Gujarat is in total violation of all the statutory
provisions?
(C) Whether the requirement of arrest as stipulated in the warrant of
sentence can be read dehors the provision of S. 418(2) of the Cr.P.C.
particularly when the convict is already in formal custody and confinement
Sabarmati Central Jail, Ahmedabad?
(D) Whether the Applicants being convicted by the Ld. Trial Court, Indore are
undergoing 'imprisonment' as defined under Section 53 of the I.P.C. and
hence would fall within the category of prisoners which are covered by
Section 3 of the Transfer of Prisoner's Act, 1950?
(E) Whether the power of such an inter-state transfer of convict-prisoners be
exercised contrary to the provisions of Transfer of Prisoner's Act, 1950 in
absence of any prior consultation between the IG-Prison, Gujarat State and
IC-Prison, Madhya Pradesh as well as without even bothering to ascertain the
wishes of any of the applicants?
(F) Whether the Notification dated 28/09/2011, 09/06/2014 and 8/07/2014
issued by the Home Department of the State of Gujarat for classification of
prisoners over-ride the specific statutory provisions which occupy the field of
interstate transfer of convict-prisoners and whether they permit the inter-
state transfer of convict-prisoners who are otherwise facing trial in the State
of Gujarat?
(G) Whether the transfer of the Applicants from State of Gujarat to State of
Madhya Pradesh also violates the right to effective legal-representation which
is intrinsic to fair trial and creates an avoidable 'disability' which is contrary

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 to letter and spirit of the Directive Principles of State Policy as enshrined in
Article 39A of the Constitution of India?
7 . An affidavit-in-reply has been filed on behalf of the respondent No. 4, duly
affirmed by one Dinesh Nargawe, S/o. Shri B.S. Nargawe, the Superintendent,
Central Jail, Bhopal, State of Madhya Pradesh, inter alia stating as under:-
"I, Dinesh Nargawe, S/o. Shri B.S. Nargawe, Superintendent, Central Jail,
Bhopal, State - Madhya Pradesh, Aged-40 years, Gender-Male, the
respondent No. 4 herein, do hereby solemnly affirm and state on solemn
affirmation:
1. I state that I have read a copy of the petition and I am therefore,
well conversant with the facts and circumstances of the case, hence I
am competent to swear this affidavit-in-reply. I say and submit that I
am filing the present affidavit in reply only with a view to oppose the
admission of the present petition and I reserve my right to file
further detailed affidavits in reply, if required.
2 . At the outset, I deny all the averments, allegations, statements
and submissions made by the petition save and except those which
are specifically admitted here-in-after. At present I am not dealing
with the affidavit in reply para-wise and reserve my right to file
further detailed para-wise affidavit as and when required.
3 . At the outset, I say and submit that, the Ld. Trial Court was
transferring the Judicial Custody of the petitioners from Sabarmati
Central Jail to Indore Central Jail as per the provisions of S. 3 of the
Transfer of Prisoners Act, 1950. Therefore the respondent No. 4 has
no objection if the Hon'ble High Court may transfer the petitioner
from Sabarmati Central Jail to Indore Central Jail. The respondent
No. 4 bound to execute the order passed by the Hon'ble Court as per
the Transfer of Prisoners Act, 1950 or any other Act concerned.
4. I say and submit that, regarding the transfer of prisoners, in the
State of Madhya Pradesh, the M.P. Prisoners/Transfer of Prisoners
Detained in Prison Order, 1968 passed by the State Government of
Madhya Pradesh and the respondent No. 4 bound to it, therefore, the
Hon'ble Court passed any order in this matter, the respondent No. 4
has bound to execute the order passed by the Hon'ble Court.
5 . I say and submit that the respondent No. 4 has no any
opinion/reply given in the matter regarding the quashing and setting
aside the impugned orders dated 19/04/2017 below Exh. 6323 and
04/05/2017 below Exh. 6384 passed by Ld. Special Designated
Judge, Special Court for speedy trial of Serial Bomb Blast Cases, City
Civil and Sessions Court, Ahmedabad.
What is stated here-in-above is true to my knowledge, belief and information
and I believe the same to be true and correct.
Solemnly affirmed at Bhopal on 06th this day of February, 2018."
8 . An affidavit-in-reply has also been filed on behalf of the State of Gujarat, duly

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 affirmed by Karamshibhai Prabhatbhai Desai, Deputy Superintendent of Jail,
Sabarmati Central Jail, Ahmedabad, inter alia stating as under:-
"I, Karamshibhai Prabhatbhai Desai, Male, Aged about: 57 years, Occupation:
Deputy Superintendent of Jail, having address at Sabarmati Central Jail,
Ahmedabad, do hereby state on oath and solemn affirmation as under:-
1 . That the deponent undersigned is serving as Deputy
Superintendent of Jal at Sabarmati Central Jail. Since the deponent is
conversant with the facts and circumstances of the case, on behalf of
the respondents he craves liberty to file the present affidavit.
2. I humbly state and submit that I have gone through the memo of
application and I have also perused the application along with its
compilation. I humbly state and submit that only with a view to
oppose and protest this application as well as grant of any relief in
favour of the petitioners at this stage, without prejudice to future
rights and contentions, I am filing this affidavit. Since for the limited
purpose of opposing this application I am filing this affidavit, I seek
liberty to reserve my rights to file a further or additional affidavit in
case of necessity and therefore also, I am not dealing with memo of
this application, annexures in detail and para-wise.
3. Unless specifically admitted, the stand taken by the accused in the
application and also the arguments which would be advanced by him
are not admitted by me and I deny and refute the same.
4 . I humbly state and submit that the petitioners herein are the
original accused and were firstly arrested by Pithampur Police
Station, Madhya Pradesh in connection with the C.R. No. 120/2008.
In connection with that offence they were tried by the Special Court,
CBI, 4th Additional Sessions Judge, Indore (M.P.) in Sessions Case
No. 132/2010. By judgment and order dated 27.02.2017 the
petitioners have been awarded Life Imprisonment for the offences
punishable under Sections 122, 124(a), 153(a) of I.P.C. and also
under Section 13(1)(a)(b), 13(2), 4(a)(1), 5(a) of the Explosives
Substances Act and also under Sections 25(1)(a) of the Arms Act.
5. The aforesaid petitioners had been brought to Ahmedabad Central
Jail on the basis of the Transfer Warrant from outside Gujarat and
have been lodged in Sabarmati Central Jail on different dates as
Under-trial Prisoners.
6 . I further state and submit that thereafter, upon conviction the
learned Special Court, CBI, 4th Additional Sessions Judge, Indore
(M.P.) issued a Conviction Warrant under section 383 of Cr.P.C., on
Indore Central Jail, Madhya Pradesh so as to take the custody of the
accused for the purpose of serving out the sentence imposed on
them dated 27.02.2017. Deputy Jail Superintendent, Central Jail,
Indore wrote a letter dated 27.02.2017 to the Central Jail, Sabarmati,
Ahmedabad to comply with the requisitions of the said letter. The
said letter was received by Ahmedabad Central Jail, Sabarmati on
09.03.2017 pursuant to which necessary permissions from the
authorities as well as from the Hon'ble Court were taken. Thereafter,

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 relying also on the Government Notification regarding classification
of prisoners, the accused were transferred to the Indore Jail, Madhya
Pradesh on 27.05.2017.
7. I further state and submit that some of the present petitioners are
also accused in C.R. No. I-24/2013 registered with Ranip Police
Station for the offences punishable u/s. 224, 120-B of I.P.C.,
Sections-42, 45 of the Prison Act. The said offences relate to digging
of Tunnel - Surang with a view to escape from the jail custody,
which was foiled. As on today, the said case is pending in the court
of learned 11th Metropolitan Magistrate, Ahmedabad. So, considering
and taking into account the law and order situation and maintenance
of administration of jail, the accused are required to be transferred
to Indore Jail, Madhya Pradesh.
8. I further state and submit that after 27.05.2017, ten witnesses are
examined by Video Conference and thereafter, no prejudice is caused
to the accused as witnesses can be examined through Video
Conference, as held by the Hon'ble Apex Court.
9 . I further state and submit that even considering the Parole
Furlough Rules, Appeal Rules, as well as Sentencing Rules of
respective Madhya Pradesh State would apply to the convicted
persons, accused who are already transferred, are not required to be
brought back, unless their presence is sought by the Hon'ble Special
Judge at Ahmedabad."
9. Having heard the learned counsel appearing for the parties and having considered
the materials on record, the only question that falls for my consideration is whether
the writ-applicants are entitled to any of the reliefs prayed for in their writ-
application.
10. I take notice of the following:-
1. All the writ-applicants - original accused persons, are the original accused
of Indore case bearing Sessions Case No. 132/2010.
2 . By transfer warrants all these accused persons were brought to
Ahmedabad in connection with the Serial Bomb Blast cases at Ahmedabad
and also plantation of bombs in the City of Surat.
3. The Special Judge CBI, 4th Additional Sessions Judge, Indore, MP by his
judgment and order dated 27/02/2017 convicted all the accused persons.
4 . The Special Judge passed an order dated 27/02/2017 directing the S.P.
Jail, Central Jail Indore to take them in his custody.
5. The S.P. Indore Jail wrote a letter dated 27/02/2017 to the S.P. Sabarmati
Jail to comply with the order (passed by the Special Judge, CBI, Indore, MP).
6 . As the trial is going on before the Special Judge, Sabarmati Jail, the
Sabarmati Jail authorities filed an application Exh. 6323 dated 15/04/2017.
7. The Special Judge by order dated 19/04/2017 granted the same.

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 On the same day i.e., on 19/04/2017 the Special P.P. Submitted a report to
the Court contending inter alia that the arrangements for video conference in
the jail premises was under process. An application was also submitted in
that regard by the Special PP Exh. 6331.
8. Thereafter on 04.05.2017 a report was submitted by the jail authorities to
the Special Judge Exh. 6384 contending inter alia that the installation work
was completed and request was made to vacate the stay.
9. The Special Judge by his order was pleased to vacate the stay.
10. Thus, for the due compliance of the order passed by the Special Judge
CBI, Indore, MP and on passing of the order by the Special Judge,
Ahmedabad all the writ-applicants - accused were transferred to the Indore
Jail on 27/02/2017.
11. The direction to take the accused persons in custody was issued to the
S.P. Jail Indore, MP by the Special Judge, Indore, MP. Thus, the main order is
passed by the Special Judge, Indore, MP and therefore in compliance thereof
the procedure was followed and the Special Judge Ahmedabad also passed
an order for transfer of the accused to the Indore Jail. An order passed by the
Special Judge, Indore, MP cannot be challenged before this Court.
12. The Rules framed by the jail authorities would not be applicable to the
Court. It would be applicable to the jail authorities and executives.
13. After the transfer of the accused to the Indore Jail about 60 witnesses
were examined by way of video conference. The evidence recorded by way of
video conference is legal as held by the Supreme Court (i) in the case of
Asha Ranjan v. State of Bihar, MANU/SC/0159/2017 : (2017) 4 SCC 397 -
Para No. 85 and 87. Thus, no prejudice could be said to have been caused to
the accused persons.
The Supreme Court in the case of Asha Ranjan (Supra) has observed in
Paras-85, 86.1, 86.2, 86.3, 86.4, 86.5, 86.6, 86.7 and 87 as under:-
"85. It is fruitful to note that in Dr. Praful B. Desai (supra)
[MANU/SC/0268/2003 : (2003) 4 SCC 601] it has been clearly held
that recording of evidence by way of video conferencing is valid in
law.
86.1 The right to fair trial is not singularly absolute, as is perceived,
from the perspective of the accused. It takes in its ambit and sweep
the right of the victim(s) and the society at large. These factors
would collectively allude and constitute the Rule of Law, i.e., free
and fair trial.
86.2 The fair trial which is constitutionally protected as a substantial
right under Article 21 and also the statutory protection, does invite
for consideration a sense of conflict with the interest of the victim(s)
or the collective/interest of the society. When there is an intra-
conflict in respect of the same fundamental right from the true
perceptions, it is the obligation of the constitutional courts to weigh
the balance in certain circumstances, the interest of the society as a

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 whole, when it would promote and instill Rule of Law. A fair trial is
not what the accused wants in the name of fair trial. Fair trial must
soothe the ultimate justice which is sought individually, but is
subservient and would not prevail when fair trial requires transfer of
the criminal proceedings.
86.3 A wrongful act of an individual cannot derogate the right of fair
trial as that interest is closer, especially in criminal trials, to the Rule
of Law. An accused cannot be permitted to jettison the basic
fundamentals of trial in the name of fair trial.
86.4 The weighing of balance between the two perspectives in case
of fair trial would depend upon the facts and circumstances weighed
on the scale of constitutional norms and sensibility and larger public
interest.
86.5 Section 3 of the 1950 Act does not create an impediment on
the part the court to pass an order of transfer of an accused or a
convict from one jail in a State to another prison in another State
because it creates a bar on the exercise of power on the executive
only.
8 6 . 6 The Court in exercise of power under Article 142 of the
Constitution cannot curtail the fundamental rights of the citizens
conferred under the Constitution and pass orders in violation of
substantive provisions which are based on fundamental policy
principles, yet when a case of the present nature arises, it may issue
appropriate directions so that criminal trial is conducted in
accordance with law. It is the obligation and duty of this Court to
ensure free and fair trial.
86.7 The submission that this Court in exercise of equity jurisdiction
under Article 142 of the Constitution cannot transfer the accused
from Siwan Jail to any other jail in another State is unacceptable as
the basic premise of the said argument is erroneous, for while
addressing the issue of fair trial, the Court is not exercising any kind
of jurisdiction in equity.
87. In view of the aforesaid conclusions, we direct the State of Bihar
to transfer the third respondent, M. Shahabuddin, from Siwan Jail,
District Siwan to Tihar Jail, Delhi and hand over the prisoner to the
competent officer of Tihar Jail after giving prior intimation for his
transfer in Delhi. Needless to say, that the authorities escorting the
third respondent from Siwan Jail to Tihar Jail would strictly follow
the rules applicable to the transit prisoners and no special privilege
shall be extended. The transfer shall take place within a week hence.
Thereafter, the trial in respect of pending trials shall be conducted by
video conferencing by the concerned trial court. The competent
authority in Tihar Jail and the competent authority of the State of
Bihar shall make all essential arrangements so that the accused and
the witnesses would be available for the purpose of trial through
video conferencing. A copy of this order shall forthwith be
communicated to the Home Secretary, Government of Bihar,

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 Superintendent of Siwan Jail and the Inspector General, Prisons,
Tihar Jail, Delhi. All concerned are directed to act in aid of the
aforesaid order as contemplated under Article 144 of the
Constitution."
14. The Government Notification dated 28/09/2011 is produced at Page No.
74 and according to that notification only those accused persons who fall
within the same and are covered, can be kept in the Ahmedabad jail. The
present accused persons are original accused of Indore case and were
brought to Ahmedabad by way of transfer warrants and therefore, they are
not covered by the notification referred to above and cannot be kept in the
State jail.
1 1 . If the writ-applicants have any grievance to redress with regard to the order
passed by the Special Judge, Indore, State of Madhya Pradesh, then it shall be open
for them to challenge the same before the appropriate forum in accordance with law.
However, no relief can be granted of the nature as prayed for in these petitions.
12. With the above liberty, both the writ-applications fail and are hereby rejected.
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