IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12-08-2008 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE K. KANNAN HABEAS CORPUS PETITION NO.1094 OF 2008 M. Ananda Sri, W/o. Magesh .. Petitioner Vs. 1. The Addl. Director General of Prisons, No.1, Irvin Road, Egmore, Chennai 8. 2. The Superintendent of Central Prison, Vellore. .. Respondents Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Habeas Corpus to direct the 2nd respondent to transfer Mr. Magesh, S/o. Iyyapillai, aged about 34 years, petitioner's husband, from the 2nd respondent to the Central Prison, Puzhal, Chennai and to provide protection and safety to his life. For Petitioner : Mr.P. Vijendran For Respondents : Mr.P. Kumaresan Addl. Public Prosecutor - - - O R D E R
(Order of the Court was made by P.K. MISRA, J)
Heard Mr.P. Vijendran for the petitioner and Mr.P. Kumaresan, Additional Public Prosecutor, for Respondents 1 and 2.
2. This Habeas Corpus Petition has been filed on behalf of the prisoner, who is undergoing the sentence of imprisonment. Incidentally he is also an under-trial prisoner facing trial in S.C.No.227 of 2005, on the file of the Assistant Sessions Court, Ponneri and C.C.No.198 of 2007, on the file of the District Munsif -cum-Judicial Magistrate, Uthukottai. Such prisoner was undergoing sentence at Central Prison, Puzhal. Subsequently, by order No.549/08 dated 18.6.2008, he has been transferred to Central Prison, Vellore. On 11.7.2008, the present petitioner, the wife of the prisoner, made a representation to the first respondent, namely, the Additional Director General of Prisons, to transfer her husband back to the Central Prison, Puzhal, indicating certain difficulties. It was specifically projected by the petitioner in the representation that the prisoner has to face trial at Ponneri and, therefore, it would be much more convenient if he is lodged in the Central Prison at Puzhal. However, the first respondent has not passed any order on the said representation. Hence, the present Habeas Corpus Petition has been filed.
3. A counter affidavit has been filed on behalf of the respondents, wherein it is indicated that transfer has taken place on administrative grounds as the prisoner was in possession of a cellphone and sim card which were not permitted articles as per G.O.Ms.No.1447 Home (Prison-5) Department dated 16.10.2007. It has been further stated that as per paragraph 570 of the Tamil Nadu Prison Manual (in short “Prison Manual”) the Inspector General (at present the additional Director General of Prisons) is empowered to pass an order of transfer.
4. Learned counsel for the petitioner has contended that it would be much more convenient for the prisoner to be imprisoned in Central Prison, Puzhal on account of the fact that he has to come to the Court at Ponneri and Uthukkotai and it would not be convenient if he is continued to remain in Central Prison, Vellore. It is also stated that it would be more convenient for the family members to visit the prisoner in the Central Prison at Puzhal rather than at Vellore.
5. It is no doubt true that paragraph 570 of the Prison Manual empowers the Inspector General to pass orders relating to transfer of a prisoner from one prison to another prison. Paragraph 570(1) is to the following effect :-
“570. Powers of Inspector-General. – (1) The Inspector General subject to the order and under the control of the Government is authorised to sanction the transfer from one prison to another within the State of such prisoners as are referred to in section 29 of the Prisons Act, 1900 (Central Act III of 1900) except those under sentence of death.”
6. Even though there is no doubt that the Inspector General is vested with the power to transfer a prisoner from one prison to another, such power is made subject to the order and under the control of the Government. In other words, in a given case, if an order of transfer is by the Inspector General, the State Government has been given ample power to modify or revise such order, obviously, on the basis of any representation or any other materials which come to the knowledge of the State Government, otherwise. The power of transfer, which is vested with the Inspector General, cannot be construed as an absolute power. The grounds, reasons and circumstances of transfer have been indicated in paragraph 568 of the Prison Manual, which is extracted hereunder:-
“568. Grounds, reasons and circumstances of transfer. – Prisoners may be transferred from one prison to another for the following reasons namely:
(i) For custody and treatment in a suitable institution in accordance with the classification, procedure;
(ii) For attendance in court for the purpose of standing trial, or giving evidence.
(iii) On medical grounds;
(iv) On humanitarian grounds, in the interest of their rehabilitation;
(v) For post-release vigilance by the police;
(vi) For providing essential services;
(vii) On grounds of security, expediency or any other grounds; and
(viii) For other special reasons, if any.”
7. It is thus obvious that no authority is expected to act arbitrarily and he is required to keep in view the principles indicated in paragraph 568 of the Prison Manual. Inter alia paragraph 568 contemplates the attendance in court for the purpose of standing trial. Similarly, it is indicated that a transfer can be effected on humanitarian grounds, in the interest of the rehabilitation of the petitioner. It is relevant to note that the concerned Magistrate had given a suggestion on 17.2.2008 to retain such prisoner in Central Prison, Puzhal to facilitate convenient conclusion of the trial in C.C.No.198 of 2007.
8. Under these circumstances, we feel interest of justice would be served by permitting the petitioner to make a detailed representation to the State Government by highlighting the different aspects and if such representation is made, the same should be considered and disposed of by the State Government on its own merit by keeping in view the relevant factors as expeditiously as possible, preferably within a period of 30 days from the date of receipt of the representation. This order shall be communicated by the Registry to the State Government represented by the Home Secretary.
9. With the above observations, the Habeas Corpus Petition is disposed of.
dpk
To
1. The Secretary to the Government,
Home Department,
Fort St. George, Chennai 9.
2. The Addl. Director General of Prisons,
No.1, Irvin Road, Egmore, Chennai 8.
3. The Superintendent of Central Prison,
Vellore.
4. The Public Prosecutor,
High Court,
Madras