JUDGMENT
Mansoor Ahmad Mir, J.
1. This Criminal Revision is directed against order dt. 23rd Aug 05, passed by the 3rd Additional Sessions Judge, Srinagar, in the case titled State-v. Suhail Ahmad Kataria, FIR No. 165 of 1996, registered with Police Station, Maisuma, Srinagar. The said order, here-in-after shall be referred to as the impugned order.
2. The grievance of the petitioner is that the learned Additional Sessions Judge, has no power and jurisdiction to pass the impugned order. It is stated that there is no provision in the Code of Criminal Procedure or the Public Safety Act, which mandates or empowers any trial court to direct lodging of the accused in any jail outside the J&K State. It is further stated that the trial court has to regulate the trial and the executive has no role to play.
3. Mr. Rathore, learned AAG, appearing on behalf of respondent State, argued that the impugned order is interlocutory one and this revision petition is not maintainable. It is stated that the learned Additional Sessions Judge, has not passed any direction with respect to lodgment of the petitioner has been passed by the detaining authority in terms of provisions of Public safety Act.
4. The trial court is not having jurisdiction to change the lodgment and it is the detaining authority which has the power to fix the lodgment in terms of the provisions of the Public Safety Act. It is stated that the trial court has only to ensure speedy trial and presence of the accused on each and every hearing.
5. Heard Considered.
It appears that the impugned order is interlocutory one but the controversy raised and involved in the present case is of great importance because these questions do arise before the trial courts and in order in marshal out and thrash out this question, I deem it proper to return findings on merit.
6. If a person is detained under Public Safety Act, the lodgment is to be fixed by the detaining authority and the power to regulate the place and the conditions of detention vests with the executive. It is useful to reproduce Section 10 of Public Safety Act, 1978, herein:
10. Power to regulate place and conditions of detention- Any person in respect of whom a detention order has been made under Section 8 shall be liable-
a/to be detained in such place and under such conditions including conditions as to the maintenance of discipline and punishment for breaches of discipline as the Government may, by general or special order, specify, and
b/to be removed from one place of detention to another place of detention in the State by order of the Government.
Clause (b) of the aforesaid Act stands amended and the. words in the state stand omitted and the following provision stands added: -Provided that the detenues who are permanent residents of the State shall not be lodged in Jails outside the State.
7. The detaining authority i.e. executive, while fixing the lodgment, has to take into account the, conditions prevailing in the State, allegations leveled against the accused/detenue, security of the State and the safety of the inmates who are lodged in the jails and also of the staff of the concerned jail.
8. The authority concerned is under legal obligation to bring the detenue before the court on each hearing and it is its duty to provide sufficient security to the detenue also.
9. In this backdrop, the executive has to exercise powers and it is within its rights to fix lodgment of a detenue outside the State while keeping in view the provision of the Public Safety Act, Criminal Procedure Code, The Prisoners Act and the Prisons Act read with the enabling provisions of the Jail Manual.
10. The trial court, cannot exercise powers while conducting trial in order to give a go-bye to the detention order and is not within its powers to say that the lodgment fixed by the competent authority under the Public Safety Act, is not correct and that the accused be lodged instead of that lodgment to any other jail. The trial court, however, is within its powers to regulate trial and to issue command asking the concerned authorities to produce the accused on each hearing.
11. Section 541 of the Code of Criminal Procedure, read with Jail Manual and Prisons Act of 2000, gives the power to the executive to fix the lodgment but after the police remand, the lodgment must be in a prison i.e. under judicial custody. It is profitable to reproduce Section 541 of the Cr.P.C., herein:
541. Power to appoint place of imprisonment-(l) Unless when otherwise provided by any law for the time being in force, the Government may direct in what place any person liable to be imprisoned or committed to custody under this Code shall be confined.
(2) Removal to criminal jail of accused or convicted persons who are in confinement in civil jail, and their return to the civil jail- If any person liable to be imprisoned or committed to custody under this Code is in confinement in a civil jail, the court or Magistrate ordering the imprisonment or committal may direct that the person be removed to a criminal jail.
12. This mandate of law cannot be pressed into service only when the accused is convicted and is undergoing imprisonment but it can also be pressed into service during trial when the accused is under custody. This provision also does not give power to the trial court to regulate the place of lodgment.
13. I have laid my hands on a judgment reported in AIR 1931 Lahore 476- In re Khairati Ram. It is profitable to reproduce the relevant portion of the judgment, herein:
Section 541(1) comes into operation only when there is no other law providing for the custody. It cannot however be invoked in case of custody of an approver as the Prisons Act makes ample provision for detention of approver committed to custody by Court of law.
14. While going through this judgment, it is crystal clear that this mandate of law can be passed into service when no other law provides for the custody of an accused person. But in the instant case, Section 10, referred to above, provides how to regulate the place and fix the lodgment.
15. I have also laid my hands on a judgment reported in AIR 1931 Lahore 353, Kundan Lal and Ors. v. Emperor At page 357 of the said judgment, it was observed as under:
A direction issued by the Local Government under Section 541(1), directing some approvers in a criminal trial to be confined in that portion of the Lahore Fort which is in the occupation of the police is ultra vires as there is ample provision made by law in the province of detention is prison and judicial lock ups of persons liable to be kept in custody ….
16. No doubt, it is the duty of the trial court to see that the accused is lodged in judicial custody and is provided with all amenities while keeping in view the fundamental rights and the guidelines laid by the Apex court in D.K. Basu v. State of W.B. .
17. In the given circumstances, I am of the view that this Revision petition merits dismissal. My this view is fortified by a judgment of this Court delivered in the case titled State v. Talib Hussain and Ors. 561-A Cr.P.C. 49/03, decided on 5th June 04. It is apt to reproduce the last para of the said judgment, herein:
In the above view of the matter, while the order to the extent of the lodgment of the accused only in Central Jail, Srinagar, is quashed. It is made clear that the Government I competent authority is the authority to lodge and commit the accused in custody at a proper place to confine him in any Jail as an under trial….
18. In view of the above discussion, the Revision petition is dismissed. Interim order dt. 5th Sept 05 shall stand vacated.