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IN SUPREME COURT OF INDIA Page 1 of 9

CASE NO.:
Appeal (crl.) 1129 of 2004

PETITIONER:
Kalyan Chandra Sarkar

RESPONDENT:
Rajesh Ranjan @ Pappu Yadav & Anr.

DATE OF JUDGMENT: 14/02/2005

BENCH:
N.Santosh Hegde & S.B.Sinha

JUDGMENT:
J U D G M E N T
CRIMINAL MISCELLANEOUS PETITION NO. 10422 OF 2004
IN
CRIMINAL APPEAL NO. 1129 OF 2004

SANTOSH HEGDE, J.
The respondent herein Rajesh Ranjan @ Pappu Yadav was
in judicial custody. Pursuant to the cancellation of bail by this
Court, he was charged for offences punishable under Section 302
read with Section 120B of the IPC and was to be kept in Adarsh
Jail, Beur, Patna.

When he was supposedly in such judicial custody this Court

noticed from Media report that on 4th of May, 2004 he was found
addressing an election meeting in a place called Madhepura.
Noticing the same, a report was called for from the concerned
authorities to apprise this Court on what authority the respondent
was found in Madhepura on that day and how he was permitted to
address a public meeting.

The reports were received from Home Secretary, State of

Bihar, the Investigating Agency (CBI) and the Presiding Officer,
Fast Track Sessions Court, Madhepura.

The above reports showed that Fast Track Sessions Court,

Madhepura in a pending trial before it had issued a production
warrant and pursuant to the said warrant respondent was taken to
Madhepura. Report also stated that the said day was declared as
holiday, therefore, he was produced before the Jurisdictional
Magistrate and was remanded back to custody. The reports did
not, however, indicate on what basis the respondent was permitted
to address a political meeting while he was still under custody. The
averment in the report filed by the CBI shows that the respondent
in collusion with the police authorities accompanying him to
Madhepura addressed a public meeting and the escort
accompanying him took him to various places which the
respondent wanted to visit beyond the scope of the production
warrant.

The correctness of the issue of the production warrant by

Fast Track Court has been directed by us to be investigated by the
District & Sessions Judge, Madhepura and the report of the said
Judge as well as the explanation given by the Presiding Officer,
Fast Track Court is under consideration of this Court and it is not
necessary to deal with the same at this stage. Suffice it to note that
the respondent had misused the authority of the production
warrant issued by the Madhepura Fast Track Court.
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During the above inquiry, we also came to know that
pursuant to the order of this Court canceling his bail on 12th of
March, 2004, we had directed the respondent to be taken into
custody but in effect the respondent was never taken to the Jail.
When he was arrested after the cancellation of bail and taken to
Patna very surprisingly an urgent Medical Board was constituted to
examine the respondent which immediately on its constitution
and examination of the respondent directed that the respondent
required medical treatment at Patna Medical College, hence,
directed his stay in the said medical college. Though Patna
Medical College Hospital has a separate prisoner cell for their
treatment, under the special orders of Doctor concerned and the
Superintendent of the hospital, petitioner was accommodated in a
special ward. The accommodation provided was not only for the
respondent but also for his personal staff and others whose
presence with respondent was unauthorised. Reply filed by the
Superintendent of Patna Medical College and the concerned
Doctor who advised his being kept in a special ward is full of
contradiction as to why and who ordered his treatment in a special
ward. A separate inquiry is being conducted by this Court in this
regard but for the present it will suffice to note that the
respondent has sufficient clout or enormous influence for reasons
whatever it may be with the administration and staff of the Patna
Medical College who are prepared to go out of the way to help the
respondent from being kept in the confines of a Jail and in
providing unauthorised facilities to the respondent.
On coming to know of these illegal facilities granted to the
respondent this Court directed his transfer to Beur Jail and to
provide him treatment, if need be, in the prisoner’s cell there.

In the normal course one would have expected an accused

whose bail has been cancelled and who was intending to make an
application for grant of bail to behave in a manner not to give any
room for the prosecution to contend that he has been misusing the
facilities available to him in law while he is in Jail. But it seems, it
is not the attitude of the respondent.

Immediately after cancellation of bail by this Court

respondent had moved a fresh application before the High Court
for grant of bail which came to be allowed by the order of the High
Court dated 21st September, 2004 and pursuant to the said order of
bail the respondent came to be released from Jail. The said order
of the High Court granting bail was challenged before this Court
by the complainant and the Investigating Agency (CBI) but what
happened in between is worth noticing, on 26th of September,
2004 when the respondent was out of Jail because of the bail
granted by the High Court, he instead of getting himself treated
for the ailment which is complaining of, it is alleged that he was
hosting a party for his co-prisoners in the Jail late in the night of
that day. While the authorities in the reports submitted pursuant to
the directions issued by this Court did not admit that a party was
given by the accused on 26th of September, 2004 they did admit
that between 9.30 p.m. to 10.00 p.m. on that night the respondent
did unauthorisedly visit the Jail contrary to all restrictions on the
entry to Jail under the Jail manual. A complaint in regard to this
unauthorised entry of the respondent to the prohibited areas of
Jail premises is registered and based on the direction issued by
the High Court of Patna an investigation is going on in this regard
and some of the Jail authorities have been transferred.

On 1-10-2004 this Court while entertaining appeal of the

complainant against the grant of bail by High Court directed the
respondent to surrender to custody forthwith. Consequent to which
he was taken back to custody.
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It has also come on record that while in judicial custody the

respondent was using cell phone which was seized from him and
he was closely interacting with hard core criminals who were
undergoing Jail sentence or are under trial prisoners.

The Respondent No. 1 while was in judicial custody has been

accused of hatching a conspiracy to murder one Dimple Mehta in
relation whereto a First Information Report being Purnea Sadar P.S.
Case No. 159/2004 has been lodged on 28.9.2004 under Section
302/120B/34 of the IPC and Section 27 of the Arms Act.

It appears from the order sheet dated 25.2.2003 of the Court

of Addl. Session Judge \026 XI, Patna that the informant Shri Kalyan
Chandra Sarkar had been given the threat by veteran criminals and,
thus, the Senior S.P. of Patna as well as S.P. was directed to make
proper security arrangement for him and his family members.

Paragraph 3.12 of the report submitted by the Central Bureau

of Investigation in response to this court’s order dated 2nd December,
2004 is as under:
"3.12 Investigation further reveals that Shri Dipak
Kumar Singh, IAS, the Inspector-General of Prisons
had on November 1, 2004, forwarded a Report of the
Special Branch dated October 30, 2004 that Shri
Rajesh Ranjan @ Pappu Yadav was meeting several
visitors in the Administrative Block of Beur Jail (not
the specified meeting place for visitors to the Jail) and
more significantly, that several such visitors, who
entered the Jail under the pretext of meeting him (Shri
Pappu Yadav) were actually meeting other dreaded
hard-core criminals lodged in the Jail. The Inspector-
General of Prisons had also urged the Jain
Superintendent to allow interviews with prisoners in
strict accordance with the provisions of the Jail
Manual."

It is now beyond any controversy that such visits by a large

number of persons inside the jail is in violation of the provisions of
the Bihar Jail Manual and in particular Rules 623, 626-628 thereof.
Even upon his election as a Member of Parliament from Madhepura
constituency he was not entitled to have such visitors having regard
to Special Rules for Division I Prisoners, Rule 1000 which permits
interviews only once every fortnight and Rule 1001 which debars
political matters being included in the conversation. These rules
also stand violated.

Thus, the material recorded hereinabove shows that the

respondent has absolutely no respect for rule of law nor he is in any
manner afraid of the consequences of his unlawful acts. This is clear
from the fact that some of the acts of the respondent recorded
hereinabove have been committed even when his application for
grant of bail is pending.
The material on record also shows that the Jail authorities at
Beur are not in a position to control the illegal activities of this
respondent for whatever reasons it may be.
Shri R.K. Jain, learned senior counsel appearing for the
respondent submitted that no fault can be found with the respondent
for his having been found in Madhepura because he was
summoned by a court. But in our opinion, that by itself would not
absolve the conduct of the respondent in addressing a political
meeting. Even the fact that the respondent entered the Jail on 26th
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of September, 2004 when he was out on bail contrary to law, cannot
be denied by the respondent. Since, a criminal complaint in this
regard is pending consideration. He could not also deny the fact that
on 1st of December, 2004 large number of unauthorized persons
were found visiting him in the prohibited area of the Jail but his
answer to this was that the respondent being an elected member of
the Parliament, he had every right to interact with his supporters and
if there is any law contrary to such interaction by an elected
representative the same should be declared ultra vires. He also
submitted being a member of Parliament he belongs to a superior
category of prisoner, therefore, the normal rules of Jail manual in
regard to right of visitation does not apply to him. These
submissions of the learned counsel are not supported by any law, on
the contrary has remained to be an argument without any basis.
The learned counsel then seriously contended a transfer of the
respondent from Beur Jail would violate his fundamental right as
declared by this Court in the case of Sunil Batra (II) vs. Delhi
Administration (1980 (3) SCC 488), Francis Coralie Mullin vs.
Administratrator, Union Territory of Delhi & Ors. (1981(1) SCC
608) & Inder Singh & Anr. vs. The State (Delhi Administration)
(1978 (4) SCC 161).
We have perused the above judgments which have been
delivered on the facts of those cases.
The fundamental right of an undertrial prisoner under Article
21 of the Constitution is not absolute. His right of visitations as also
other rights are provided in the Jail Manual. The Respondent as an
undertrial prisoner was bound to maintain the internal discipline of
the jail. Such a fundamental right is circumscribed by the prison
manual and other relevant statutes imposing reasonable restrictions
on such right. The provisions of the Bihar Jail Manual or other
relevant statutes having not been declared unconstitutional, the
Respondent was bound to abide by such statutory rules.

In D. Bhuvan Mohan Patnaik and Others Vs. State of Andhra

Pradesh and Others [(1975) 3 SCC 185], this Court observed that a
convict has no right to dictate whether guards ought to be posted to
prevent escape of prisoners as the same causes no interference with
the personal liberty or their lawful preoccupations.

Therefore, in our opinion, a convict or an undertrial who

disobeys the law of the land, cannot contend that it is not permissible
to transfer him from one jail to another because the Jail Manual does
not provide for it. If the factual situation requires the transfer of a
prisoner from one prison to another; be he a convict or an undertrial.
Courts are not to be a helpless bystander when the rule of law is
being challenged with impunity. The arms of law are long enough to
remedy the situation even by transferring a prisoner from one prison
to another, that is by assuming that the concerned Jail Manual does
not provide such a transfer. In our opinion, the argument of the
learned counsel, as noted above, undermines the authority and
majesty of law. The facts narrated hereinabove clearly show that
the respondent has time and again flouted the law even while he
was in custody and sometimes even when he was on bail. We must
note herein with all seriousness that the authorities manning the
Beur jail and the concerned doctors of the Patna Medical College
Hospital, for their own reasons, either willingly or otherwise, have
enabled the respondent to flout the law. In this process, we think the
concerned authorities, especially the authorities at the Beur Central
Jail, Patna, are not in a position to control the illegal activities of the
respondent. Therefore, it is imperative that the respondent be
transferred outside Bihar.

The matter relating to inter-state transfer of prisoners is

governed by the Prisoners Act. Section 3 of the said Act reads, thus:
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"(1) "prison" means any jail or place used permanently or
temporarily under the general or special orders of a State
Government for the detention of prisoners, and includes
all lands and buildings appurtenant thereto, but does not
include \026

(a) any place for the confinement of prisoners who

are exclusively in the custody of the police
(b) any place specially appointed by the State
Government under Section 541 of the Code of Criminal
Procedure, 1882; or
(c) any place which has been declared by the State
Government, by general or special order, to be a
subsidiary jail;"

A bare perusal of the aforementioned provision would clearly

go to show that there does not exist any provision for transfer of an
under-trial prisoner. The prayer for inter-State transfer of a detenu
came up for consideration before this Court in David Patrick Ward
and Another Vs. Union of India and Others [(1992) 4 SCC 154]
where in a preventive detention matter the petitioner therein was
lodged in Naini Jail at Allahabad. The petitioner made a prayer for
his transfer to Tihar Jail, Delhi inter alia on the ground that the
Consular Officers had the right to visit a national of the sending
State who is in prison or under detention in terms of Article 36 of
the Vienna Convention on Consular Relations. The authorities of
the Naini Jail having indicated that whenever visits are desired by
the officers of the British Consular Relations proper arrangement
therefor would be made, this Court refused to concede to the said
request. But, this decision is a pointer to the fact that in an
appropriate case, such request can also be made by an undertrial
prisoner or a detenue and there being no statutory provisions
contrary thereto, this Court in exercise of its jurisdiction under
Article 142 of the Constitution of India may issue necessary
direction.
While it is true that this Court in exercise of its jurisdiction
under Article 142 of the Constitution would not pass any order
which would amount to supplanting substantive law applicable to
the case or ignoring express statutory provisions dealing with the
subject as has been held in Supreme Court Bar Association Vs.
Union of India [(1998) 4 SCC 409] but it is useful to note the
following :

"48\005Indeed, these constitutional powers cannot, in any

way, be controlled by any statutory provisions but at the
same time these powers are not meant to be exercised
when their exercise may come directly in conflict with
what has been expressly provided for in a statute dealing
expressly with the subject."

It may therefore be understood that, the plenary powers of

this Court under Article 142 of the Constitution are inherent in the
Court and are complementary to those powers which are specifically
conferred on the Court by various statutes though are not limited by
those statutes. These powers also exist independent of the statutes
with a view to do complete justice between the parties\005and are in
the nature of supplementary powers\005[and] may be put on a
different and perhaps even wider footing than ordinary inherent
powers of a court to prevent injustice. The advantage that is derived
from a constitutional provision couched in such a wide compass is
that it prevents ’clogging or obstruction of the stream of justice.
[See Supreme Court Bar Association (supra)]
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In Union Carbide Corporation Vs. Union of India [(1991) 4
SCC 584], a Constitution Bench of this Court stated the law thus :

83. \005Prohibitions or limitations or provisions contained

in ordinary laws cannot, ipso facto, act as prohibitions or
limitations on the constitutional powers under Article
142. Such prohibitions or limitations in the statutes might
embody and reflect the scheme of a particular law, taking
into account the nature and status of the authority or the
court on which conferment of powers \027 limited in some
appropriate way \027 is contemplated. The limitations may
not necessarily reflect or be based on any fundamental
considerations of public policy. Sri Sorabjee, learned
Attorney General, referring to Garg case18, said that
limitation on the powers under Article 142 arising from
"inconsistency with express statutory provisions of
substantive law" must really mean and be understood as
some express prohibition contained in any substantive
statutory law. He suggested that if the expression
’prohibition’ is read in place of ’provision’ that would
perhaps convey the appropriate idea. But we think that
such prohibition should also be shown to be based on
some underlying fundamental and general issues of
public policy and not merely incidental to a particular
statutory scheme or pattern. It will again be wholly
incorrect to say that powers under Article 142 are subject
to such express statutory prohibitions. That would
convey the idea that statutory provisions override a
constitutional provision. Perhaps, the proper way of
expressing the idea is that in exercising powers under
Article 142 and in assessing the needs of "complete
justice" of a cause or matter, the apex Court will take
note of the express prohibitions in any substantive
statutory provision based on some fundamental principles
of public policy and regulate the exercise of its power
and discretion accordingly. The proposition does not
relate to the powers of the Court under Article 142, but
only to what is or is not ’complete justice’ of a cause or
matter and in the ultimate analysis of the propriety of the
exercise of the power. No question of lack of jurisdiction
or of nullity can arise."

Despite some criticisms at some quarters as regard the

correctness of the decision in Union Carbide (supra), we may notice
that in Mohd. Anis Vs. Union of India [(1994) Supp 1 SCC 145] it
was held that the power of the Supreme Court under Article 142 (1)
cannot be diluted by Section 6 of the Delhi Special Police
Establishment Act, 1946.

In State of Karnataka Vs. State of Andhra Pradesh and Ors.

[(2000) 9 SCC 572], this Court held:

"60\005It is also true that Article 142 confers wide powers

on this Court to do complete justice between the parties
and the Court can pass any order or issue any direction
that may be necessary\005"

In State of West Bengal Vs. Sampat Lal [(1985) 2 SCR 256],

this Court held:
"\005In our considered opinion, s. 6 of the Act does not
apply when the Court gives a direction to the CBI to
conduct an investigation and counsel for the parties
rightly did not dispute this position. In this view\005"
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Article 142 vests the Supreme Court with a repository of

discretionary power that can be wielded in appropriate
circumstances to deliver "complete" justice in a given case. Only
Bangladesh (Article 104) and Nepal (Article 88(2)) include similar
provisions in their Constitutions.

Article 142 is an important constitutional power granted to

this Court to protect the citizens. In a given situation when laws are
found to be inadequate for the purpose of grant of relief, the Court
can exercise its jurisdiction under Article 142 of the Constitution of
India. In Ashok Kumar Gupta and Another v State of U.P. and
Others (1997) 5 SCC 201 at 250], this Court held :

"[t]he phrase "complete justice" engrafted in Article

142(1) is the word of width couched with elasticity to
meet myriad situations created by human ingenuity or
cause or result of operation of statute law or law declared
under Articles 32, 136 and 141 of the Constitution."

Taking into account the aforementioned legal-framework

surrounding the exercise of powers under Article 142, this Court in
Delhi Judicial Services Association Vs. State of Gujarat [(1991) 4
SCC 406 at p. 462] observed:

"50\005[t]he inherent power of this Court under Article

142 coupled with the plenary and residuary powers under
Articles 32 and 136 embraces power to quash criminal
proceedings pending before any court to do complete
justice in the matter before this Court."

Furthermore, in Ruchi Agarwal Vs. Amit Kumar Agrawal &

Ors. [2004 (8) Supreme 525], this Court ordered the quashing of an
FIR where there was the continuation of the criminal proceeding
"would be an abuse of the process of the court" [See also Mohd.
Shamim & Ors. v Smt. Nahid Begum and Anr. (2005) 1 SCALE 109
at p. 113]

In exercise of its powers under this Article, this Court in B.N.

Nagarajan and Others Vs. State of Mysore and others [AIR 1966 SC
1942] has also observed that it can grant relief to "appellants [who]
have not prosecuted their appeals" but who "in order to do complete
justice [\005] should also have the benefit of the judgment given by
[the Court]."

In Union of India and Others Vs. M. Bhaskar and Others

[(1996) 4 SCC 416 at p. 423], this Court has even interpreted the
constitutional provision to mean that benefits of a judgment, where
appropriate, can even be extended to all similarly placed persons
irrespective of whether they are party to the proceedings or not. [See
also E.S.P. Rajaram and Ors. v Union of India and Ors., (2001) 2
SCC 186 at p. 193; and, Deb Narayan Shyam v State of West
Bengal, 2004 (10) SCALE 124 at p.145].

In criminal cases, the Court in Anil Rai v State of

Bihar[(2001) 7 SCC 318 at p.342], albeit not expressly referring to
Article 142, has ruled that a non-appealing accused whose case was
identical to that of the appellants was also entitled to the benefit of
altered conviction and sentence. A similar ruling is discerned from
Dandu Lakshmi Reddy v State of A.P[(1999) 7 SCC 69 at p.76.].

Finally, as observed from the decisions in Vishaka v State of

Rajasthan [(1997) 6 SCC 241] and Vineet Narain v Union of India
[(1998) 1 SCC 226], directions issued by this Court under Article
142 form the law of the land in the absence of any substantive law
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covering that field. Such directions "fill the vacuum" until the
legislature enacts substantive law.

In Zahira Habibullah Sheikh and Another Vs. State of Gujarat

and Others [(2004) 5 SCC 353], this Court held that the power to
transfer a criminal trial from one State to another is within the
jurisdiction of this Court under Article 142 of the Constitution.
Shri Jain also contended that this Court has no jurisdiction to
initiate a suo moto action to transfer the respondent exercising the
power under Article 142 of the Constitution. Considering this
argument of the learned counsel, we notice that during his long
tenure in custody, the respondent has violated the law only two or
three times and that he is now a changed man, hence a further
opportunity should be given to him before we decide to transfer him
from Beur jail. Here, we may remind Mr. Jain that one of the
incidents leading to threatening of the I.G. (Prisons) took place
after we initiated this inquiry. In that background, we do not think
either the number or the gravity of violations committed by the
respondent would permit us to accede to such humanitarian plea.
Learned counsel for the respondent contended that if the
respondent is transferred out of Bihar, it would defeat his right for a
fair trial in as much as he will not be in a position to attend the
proceedings and instruct his counsel effectively. He also contended
that respondent has a right in law to be present in the trail against
him. It was his further contention that sending the respondent from
Bihar would keep him away from his family which would be a
negation of his basic human right.

It is true in a normal trial the Criminal Procedure Code

requires the accused to be present at the trial but in the peculiar
circumstances of this case a procedure will have to be evolved it will
not be contrary to the rights given to an accused under the Criminal
Procedure Code but at the same time protest the administration of
justice. Therefore, as held by this Court in the case of State of
Maharashtra vs. Dr.Praful B.Desai, (2003 (4) SCC 601) and
Sakshi vs. Union of India & Ors. (2004 (5) SCC 518), we think the
above requirement of the Code could be made by directing the trial
by video conferencing facility. In our opinion, this is one of those
rare cases wherein a frequent visit from the place of detention to the
court of trial in Bihar would prejudice the security of both the
respondent and others involved in the case. Apart from being a
heavy burden on the State exchequer.. It is in this background the
CBI has submitted that the prisons at Chennai, Palayamkottai
Central Jail, Vellor Central Jail, Coimbatore Central Jail all in the
State of Tamilnadu and Mysore Central Jail in the State of
Karnataka has video conferencing facilities. Therefore the
respondent can be transferred to any one of those Jails.

While it is true that it is necessary in the interest of justice to

transfer the respondent out of State of Bihar, we are required to
keep in mind certain basic rights available to the respondent which
should not be denied by transferring the respondent to any one of
the Jail suggested by CBI. It will cause some hardship to the wife
and children of the respondent who we are told are normally
residents of Delhi. His wife being Member of Parliament and two
young children going to school in Delhi. Taking into consideration
the overall fact situation of the case, we think it appropriate that the
respondent be transferred to Tihar Jail at Delhi and we direct the
seniormost officer-in-charge of Tihar Jail to make such
arrangements as he thinks is necessary to prevent the reoccurrence
of the activities of the respondent of the nature referred to
hereinabove and shall allow no special privileges to him unless the
same is entitled in law. His conduct during his custody in Tihar Jail
will specially be monitored and if necessary be reported to this
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Court. However, the respondent shall be entitled to the benefit of
the visit of his family as provided for under the Jail manual of
Tihar. He shall also be entitled to such categorization and such
facilities available to him in law.
We also direct that the trial of the case in Patna shall continue
without the presence of the appellant by the court dispensing such
presence and to the extent possible shall be conducted with the aid
of video conferencing. However, in the event of the respondent
making any application for his transfer for sole purpose of being
present during the recording of the statement of any particular
witness same will be considered by the learned Sessions Judge on its
merit and if he thinks it appropriate, he may direct the authorities of
Tihar Jail to produce accused before him for that limited purpose.
This, however, will be in a rare and important situation only and if
such transfer order is made the respondent shall be taken from Tihar
Jail to the court concerned and if need be detained in appropriate
Jail at the place of trial and under the custody and charge of the
police to be specially deputed by the authorities of Tihar Jail who
shall bear in mind the factual situation in which the respondent has
been transferred from Patna to Delhi.
As stated above the respondent shall be entitled for the
visitation rights of his family members as provided under the Tihar
Jail manual. It shall be strictly followed and will be confined to
only such persons who are entitled for such visit.
In compliance of this order, we direct the State of Bihar to
transfer the respondent from Beur Jail, Patna to Tihar Jail, Delhi
and hand over the prisoner to the authorized officer by prior
intimation to Tihar Jail authorities of his arrival in Delhi. The
authorities escorting the respondent from Patna to Delhi shall
strictly follow the rules applicable to the transit prisoners and no
special privilege should be shown, any such act if proved, will be
taken serious note of. The respondent shall be transferred to Tihar
Jail from Patna within one week from the date of this order. A copy
of this order shall forthwith be communicated to the Home
Secretary, Government of Bihar, Superintendent of Beur Adarsh Jail
and the Inspector General, Prisons, Tihar Jail. We further direct all
authorities civil and judicial shall act in aid of this order of this
Court as contemplated under Article 144 of the Constitution of
India.