Raish Khan @ Md.Rais Khan v. The State Of Bihar, Through The Home Commissioner, Bihar, Patna And ORS

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Writ Jurisdiction Case No.1268 of 2018 Arising Out of PS.Case No. -null Year- null Thana -null District- SIWAN =========================================================== Raish Khan @ Md.rais Khan S/o Late Qamrul Haque @ Quamruddin Haque , R/o Vill.- Gyaspur, P.S.- Siswan, District- Siwan. .... .... Petitioner

Versus

1. The State of Bihar, Through The Home Commissioner, Bihar, Patna.

2. The Inspector General of Police, Prison and Reform Services, Bihar, Patna.

3. The District Magistrate, Siwan.

4. The Superintendent of Police, Siwan.

5. The Jail Superintendent , Siwan Jail, Siwan.

6. The Superintendent Special Central Jail, Gaya. .... .... Respondents =========================================================== Appearance :

For the Petitioner/s : Mr. Yogesh Chandra Verma, Sr. Advocate For the Respondent/s : Mr. Md. Harun Quareshi, A.C. to S.C.01 =========================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT Date: 24-07-2018 Heard Mr. Yogesh Chandra Verma, learned Senior Counsel representing the petitioner and learned counsel representing the State.

This writ application has been preferred for quashing of the order as contained in memo no. 1279 dated 27.02.2018 passed by Inspector General, Prison and Reforms Services, Bihar, Patna by which the petitioner has been transferred from Siwan Jail to Central Jail, Gaya. The Inspector General of Police, Prison and Reforms Services (respondent no. 2) has passed the impugned order in exercise of the power conferred upon him under Section 29(2) of the Prisoners Act, 1900 and further in terms of Rule 781 Clause (vii) of the Bihar

Prisoner Manual. It appears that during pendency of the writ application the period of three months for which the order as contained in Annexur-3 of the writ application has been passed, expired, but once again the respondent no. 2 has issued memo no. 3197 dated 21.05.2018 as contained in Annexure-C series to the counter affidavit filed on behalf of respondent nos. 1, 2, 5 & 6. By Annexure-C, the transfer period has been extended for a further period of three months. This order has however not been challenged by filing any amendment application in the present writ application. Learned senior counsel representing the petitioner has challenged the order on three grounds namely, (1) that a judicial order by which the petitioner has been remanded to Siwan Jail cannot be allowed to be nullified by virtue of an administrative order passed under Section 29(3) r/w Rule 781 by respondent no. 2.

(2) In any case the order passed by respondent no. 2 in exercise of his power under sub-section (3) of Section 29 of the Prisoners Act is not based on any reason. Learned senior counsel submits that even reasons are not enough rather those reasons are required to be supported by materials on which the order is passed by respondent no. 2, and (3) he has submitted that the impugned order in the present case is nothing but a result of colourable exercise of power by respondent no. 2 who has kept on settling the petitioner from one

place to another in the garb of exercise of his power. On the other hand, learned counsel representing the State submits that the decision to transfer the petitioner from Siwan Jail to Central Jail, Gaya has been taken only after reviewing the security issues which arose during his stay in the Siwan jail. Learned counsel submits that a bare reading of Annexure-3 would show the reasons based on the materials which are duly indicated and have been considered by respondent no. 2 before passing the impugned order. It is further stated that the contention of learned senior counsel representing the petitioner that in the garb of his administrative order respondent no. 2 is nullifying the judicial order passed by the court below has no basis to stand.

It is submitted that no material at all muchless any order of the court below has been brought before this court to demonstrate that such order has been violated by respondent no. 2. It is submitted that the respondent no. 2 having understood the situations prevailing in the Siwan Jail during the stay of this petitioner has taken a decision in the interest of the Jail administration and the adequacy or inadequacy of the materials cannot be examined by this court sitting in its writ jurisdiction.

reasons based on which the decision impugned in the present writ application has been taken by respondent no. 2. The extract relevant to take a view on the submissions made on behalf of the petitioner, is quoted herein from Annexure-3 to the writ application "

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While pressing the propositions set forth by learned senior counsel, despite specific queries raised by this court requesting him to show any judicial order which has been violated or transgressed by respondent no.2, no such order has been placed before this court to demonstrate that by an administrative order the respondent no. 2 has violated a judicial order. The contention of learned senior counsel that it is a case of colourable exercise of power would not impress upon this court once the without reasons and rationale provided in Annexure-'3' are gone through.

This court would agree with the submission of learned counsel representing the State that sitting in its writ jurisdiction, the court would not assume upon itself the role of an administrative functionaries and the reasons for which the a jail inmate is transferred from one jail to another, sufficiency of materials, adequacy or inadequacy thereof has only to be objectively looked into by this court and there cannot be a subjective test by way of judicial review. Considering the fact that the as per the report whenever the petitioner is placed in Siwan Jail several difficulties arise which make it difficult to smoothly run the administration inside the jail, given the kind of criminal antecedents of the petitioner, if the respondent no.

Siwan Jail to some other jails from time to time, in the opinion of this court such discretion must be left open for respondent no. 2 and this court should not exercise its extraordinary writ jurisdiction to interfere with such orders.

The writ application has no merit. It is, accordingly, dismissed.

(Rajeev Ranjan Prasad, J) Rajeev/- AFR/NAFR CAV DATE Uploading Date 26.07.2018 Transmission Date 26.07.2018