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The Supreme Court Bench comprising Justice Ashok Bhushan & Justice R Subhash Reddy allowed Uttar Pradesh Government's plea seeking transfer of BSP MLA Mukhtar Ansari from Ropar Jail in Punjab to Uttar Pradesh's Ghazipur Jail.

In the writ petition, the State of UP said that Ansari was wanted for trial in various grave offences in UP, and that Punjab was shielding him in Ropar jail on fake medical grounds. 

The chronology of events shows that:

1. In connection to Case Crime No. 05 of 2019 u/s 386 & 506 IPC registered at Mohali, the JM-I issued a production warrant of the accused. 

2. The Senior Superintendent of District Jail, Banda, without seeking permission from the Court of Special Judge (MP/MLA) Allahabad gave custody of Mukhtar to the Court of JM, Mohali in utter disregard to the provisions of Section 267(2). 

3. Later on, the JM-I, Mohali instead of sending back the accused to Banda Jail, sent him to District Jail Roopnagar, Punjab. 

4. Despite all efforts of securing the custody of the accused to Allahabad, the same proved to be in vain as on each occasion the Jail Superintendent refused on ground of ill health of the accused. 

On the plea that whether it is a fit case to invoke power under Article 142 of the Constitution of India or not, it was not disputed that with regard to the cases and status, which are pending trial before the Special Judge, MPs/MLAs, Allahabad, Ansari s involved in various cases of attempt to murder, murder, cheating, conspiracy, etc., apart from offences under Gangsters Act. The said cases are various stages of trial. 

Further, the custody is denied to the police of Uttar Pradesh by the 1st Respondent on twenty six occasions. A perusal of the reasons for not giving custody shows that it is mainly on the medical grounds referring to diabetes mellitus, skin allergy, hypertension, backache, throat infection, etc. This gives an amount of suspicion on the conduct of Ansari in not even applying for grant of default bail, for not filing Final Report (Charge-sheet) by the Police, Police Station, Punjab within the statutory period. 

The Apex Court found that though, it is the case of Ansari opposing the relief sought for, on the ground that he is permitted in majority of the cases to appear by video conferencing, but the same, by itself, is no ground to oppose the relief sought for.

In the opinion of the Apex Court, a convict or an undertrial prisoner, who disobeys the law of the land, cannot oppose his transfer from one prison to another, be a convict or an undertrial prisoner, Courts are not to be a helpless bystander, when the rule of law is being challenged with impunity. In such situations, this Court can exercise power under Article 142 of the Constitution of India to order transfer of prisoners from one prison to another.

Though, there is a separate enactment called The Transfer of Prisoners Act, 1950, which permits transfer of a prisoner from one State to another by the Government, but, the same is circumscribed under Section 3 of the Act, as such, the claim of the petitioner will not fit into the same.

Earlier, the Apex Court in the case of State of UP vs Jai Superintendent and Ors, observed that fallacious plea of the accused that he does not want to come to Uttar Pradesh as his life is under threat, is contrary to the plea of the State of Punjab, which contends that the accused is unable to travel due to medical reasons.

It is also noted that in the case of A.B. Bhaskara Rao v. CBI and in the case of State of Haryana v. Sumitra Devi, this Court has held that in exercise of power under Article 142 of the Constitution of India, no order can be passed, which shall run contrary to the statute or statutory rules. 

The transfer of a prisoner from one prison to another prison in different States is covered by the provisions of The Transfer of Prisoners Act, 1950. However, the Apex Court clarified it clearly that there does not appear to be any provision for transfer of an under trial prisoner. There being no statutory provision, covering the transfer of prisoners from one State to another, having regard to the facts of the case on hand, this Court, certainly in exercise of jurisdiction under Article 142 of the Constitution of India, may issue necessary directions in the given circumstances.

Accordingly, the Bench of Justice Ashok Bhushan directed that Mukhtar Ansari be handed over to the custody of UP within 2 weeks. It is said that Ansari shall be lodged in Banda Jail and Jail Superintendent of Banda Jail will extend medical facilities. It is also directed that if any specialty treatment is required to the Ansari, the Jail Superintendent of District Jail, Banda, shall take necessary steps to extend such medical care also, by following the Jail Manual.

Case Title: State Of Uttar Pradesh V. Jail Superintendent (Ropar) & Ors.| WP(Crl) 409 of 2020