R.SUBHASH REDDY, J. - (1.) This Writ Petition is filed under Article 32 of the Constitution of India, read with Section 406 of the Code of Criminal Procedure, 1973 (Cr.P.C.) by the State of Uttar Pradesh, seeking Writ of Mandamus, seeking appropriate directions, directing the respondent-State of Punjab and the Learned Judicial Magistrate-I, Mohali, State of Punjab, to transfer the criminal proceedings and trial in the Case Crime No.05 of 2019, titled as State of Punjab v. Mukhtar Ansari, pending before the Judicial Magistrate-I, Mohali, State of Punjab, to the Court of Special Judge (MP/MLA), Allahabad, Uttar Pradesh and with a further direction to the Respondent Nos.1 and 2 to handover the custody of the accused / 3rd Respondent from Roopnagar Jail, District Ropar, Punjab to District Jail Banda, Uttar Pradesh. (Writ Petition (Crl.) No. 409/2020)
(2.) The case of the petitioner-State, as averred in the Writ Petition, is as follows: I. The 3rd Respondent herein, is sitting MLA from District Mau in the State of Uttar Pradesh. It is the case of the petitioner-State that large number of criminal cases have been registered against the accused / Respondent No.3, namely Mohd. Mukhtar Ansari in various Districts of the State of Uttar Pradesh in the past. Further, in addition to the same, there are presently ten criminal cases pending trial against him. In pursuance of the directions, issued by this Court in Writ Petition (Civil) No.699/2016, titled as Ashwini Kumar Upadhyay and Ors. v. Union of India &Ors., vide orders dated 10.09.2020 and 16.09.2020, all the pending criminal cases against the MPs and MLAs, pending in various Courts, have been transferred to the Special Court, constituted to deal with the cases of MPs and MLAs. The ten criminal cases, which are pending trial against the accused / 3rd Respondent, were transferred from various Districts to the Special Court and pursuant to the order passed by the Special Court, the accused / 3rd Respondent was lodged in District Jail, Banda, Uttar Pradesh, so as to be produced before the Court, as and when required. Thereafter, every effort is made to fast track the cases and some cases have reached the stage of arguments. II. It is the case of the petitioner-State that in view of the conspiracy, hatched by the accused / 3rd Respondent, a Case in Crime No.05 of 2019 is registered against the 3rd Respondent for the offences punishable under Sections 386 and 506 of the IPC on the file of Police Station Mathaur, District Mohali, State of Punjab. The said crime is registered based on an anonymous call, allegedly made by one Ms. Rizwana Bano. Pursuant to registration of Crime No.05 of 2019 in Police Station Mohali, Punjab, on 19.01.2019, the Judicial Magistrate-I, Mohali, Punjab issued a production warrant under Section 267 of Cr.P.C, and in execution of the same, Senior Superintendent of District Jail, Banda, Uttar Pradesh, without seeking permission from the Special Court (MPs/MLAs), Allahabad gave custody of the accused / 3rd Respondent to the Judicial Magistrate, Mohali, State of Punjab. Pursuant to a remand order, made by the Judicial Magistrate-I, Mohali, Punjab, 3rd Respondent is lodged in Roopnagar Jail, State of Punjab. III. It is stated that the action taken by the Jail Superintendent, District Jail, Banda, Uttar Pradesh was in violation of Section 267(2) of Cr.P.C. and consequently, a departmental inquiry is initiated against him and the same is pending. IV. It is alleged that the Judicial Magistrate-I, Mohali, Punjab, instead of sending the accused / 3rd Respondent back to the District Jail, Banda, Uttar Pradesh, after he was produced in the Court, sent him to the District Jail, Roopnagar, Punjab on 24.01.2019 and since then, he is continuing in the same Jail. It is stated that neither the Charge-sheet has been filed nor the 3rd Respondent applied for default bail, as contemplated under Section 167(2) of Cr.P.C. V. It is the case of the petitioner that the accused / 3rd Respondent is making every effort to continue in the Jail at Punjab. Though, from the last two years, number of warrants have been issued to bring the accused / 3rd respondent from Roopnagar Jail, District Ropar, Punjab for production before the various Courts in the State of Uttar Pradesh, all efforts made by the Police were futile as every time the Jail Authorities refused to give custody on the pretext that the accused was unwell. The medical reports dated 17.08.2019, 27.08.2019, 29.08.2019, 02.09.2019, 04.09.2019, 08.09.2019, 11.09.2019, 13.09.2019, 20.09.2019, 26.09.2019, 27.09.2019, 29.09.2019 and 02.10.2019 were prepared showing that the accused / 3rd respondent was unwell. Though the medical reports do not reveal any serious ailments except ailments like diabetes, skin allergy, hypertension, backache, etc., but custody of the 3rd Respondent is denied on such health grounds. VI. It is alleged that though the State has made every effort to produce the accused / 3rd Respondent before various Courts in the State of Uttar Pradesh, where his appearance is required, it could not produce the 3rd Respondent as he was denied custody by the Jail Authorities at Punjab and as such, production warrants are not being executed on one pretext or the other. VII. Precisely, it is the case of the petitioner that the accused / 3rd Respondent is making every effort to continue his incarceration outside the State of Uttar Pradesh (in Punjab) and is avoiding his presence in the Special Court and other Courts, where number of criminal cases have come up for appearance/trial/arguments.
(3.) Counter Affidavit is filed on behalf of the Superintendent of District Jail, Roopnagar, Punjab (1st Respondent) and the State of Punjab (2nd Respondent). While denying various allegations, made in the Writ Petition, the case of the Respondent Nos.1 and 2 is as under: I. The Writ Petition, as filed under Article 32 of the Constitution of India read with Section 406 of the Code of Criminal Procedure, 1973 is not maintainable, inasmuch as there is no infringement of fundamental rights of the petitioner-State of Uttar Pradesh and further, the Writ Petition is also not maintainable under Section 406 of Cr.P.C. It is stated under Section 406 of Cr.P.C. the transfer petition is maintainable only on the application, made by the Attorney-General of India or by a party interested, as such, the petitioner-State of Uttar Pradesh cannot maintain a petition, as filed, seeking transfer of Case No.05 of 2019, pending before the Judicial Magistrate-I, Mohali, State of Punjab to any other Court in the State of Uttar Pradesh. II. The accused / 3rd Respondent is presently confined in District Jail, Roopnagar, Punjab in connection with the FIR No.05 of 2019 dated 08.01.2019 under Sections 386 and 506 of IPC, Police Station Mathaur, District SAS Nagar(Mohali), State of Punjab. Learned Magistrate has issued production warrants under Section 267 of the Cr.P.C. and in view of the said warrants, the accused was taken into custody from District Jail, Banda, State of Uttar Pradesh on 22.01.2019 and is presently lodged in District Jail, Roopnagar, Punjab, pursuant to a remand order, passed by the Judicial Magistrate-I, Mohali, State of Punjab in the aforesaid case on 24.01.2019. III. It is stated that the said case is registered in view of the complaint of Mr. Umang Jindal, C.E.O., Homeland Hights, Mohali, Punjab, where it is alleged that there was a call from Mobile No.6390407709, demanding ransom of Rs.10 crores. As per the information, the accused / 3rd Respondent has called him on 07.01.2019, as such, the case was registered and he was taken into custody in connection with the said case. Further, it is stated that the accused / 3rd Respondent Mohd. Mukhtar Ansari was also figured as an accused in case FIR No.252 dated 26.11.2014 for the offences punishable under Section 302 read with 34 of IPC, on the file of P.S. Morinda and in connection with the said case, he is not yet arrested. IV. It is stated that as per the jail records, 14 other cases are pending against the accused / 3rd Respondent in different Courts in the State of Uttar Pradesh and out of the said cases, in 06 cases, the concerned Trial Courts have permitted the accused / 3rd Respondent to appear through video conferencing and the accused / 3rd Respondent is already appearing in those cases. The details of cases against the accused/3rd Respondent, pending in the State of Uttar Pradesh are given in tabular form. Further, it is stated that vide order dated 10.02.2020, the Presiding Officer, Special Court MPs/MLAs, Allahabad, Uttar Pradesh had desired to verify the report sent by the Jail Authorities, and had directed the Additional Chief Secretary, Home Affairs, State of Punjab to constitute a committee of three doctors to evaluate the ailments of the accused / 3rd Respondent. Pursuant to the same, a committee of doctors was constituted and medical report was submitted vide letter dated 27.02.2020. Further, it is stated that the accused / 3rd Respondent / under-trial prisoner Mohd. Mukhtar Ansari, had been undergoing treatment at the jail hospital and at other secondary and tertiary hospitals, from time to time, since his date of admission to District Jail, Roopnagar, Punjab i.e. 24.01.2019. Details of medical examinations (date-wise) are furnished in a tabular form. V. It is stated that in view of the aforesaid reasons, the accused / 3rd Respondent could not be handed over to the petitioner-State of Uttar Pradesh due to the specific advice of medical authorities / medical board / specialists, from time to time, and in view of the legal obligations on the answering respondent, as per Section 269 of Code of Criminal Procedure, 1973. While denying the allegation of conspiracy, it is stated that accused / 3rd Respondent is lodged in Roopnagar Jail, State of Punjab, pursuant to a case registered in Crime no.05 of 2019. VI. It is stated that as per the record, available in the office of the deponent, neither chargesheet has been submitted nor the accused / 3rd Respondent has applied for bail. While denying that the deponent is bound to follow provisions under Section 269 of Cr.P.C, it is stated that in view of the medical conditions of the accused / 3rd Respondent, he could not be handed over to the petitioner-State of Uttar Pradesh. With the aforesaid pleas, in the counter affidavit, Respondent Nos.1 and 2 prayed for dismissal of the Writ Petition. ;