Excelsior Correspondent
Srinagar, July 16: High Court has held that neither the under-trial has right for choice of his lodgement nor the trial court is authorized to specify particular lodgement of under-trial for keeping him in judicial custody.
Court directed the IGP prison to ensure presence of petitioner before trial court on hearing dates for speedy trial of the case.
Justice Sanjeev Kumar dismissed the plea of petitioners for not shifting them to any other jail outside the valley. The petitioners are facing trial in FIR No.51/2013 under Sections 302/307/120-B, 419, 467, 468, 447-A, 326, 323 RPC, Section 14 of Forest Act, Sections 7/25, 7/27 Arms Act, Sections 3, 4 and 5 of Explosive Act and Sections 16, 17, 19, 20 and 40 of Unlawful Activities Prevention Act before Special Judge Designated under National Investigation Agency Act, Srinagar.
Petitioners submitted that a challan in FIR No.51/2013 against them along with eight others was presented before the Special Judge on 31.03.2013 and more than eight years have elapsed but the trial is still proceeding at a snail’s pace.
The major reason for the delayed trial attributed by them is their shifting to outside Kashmir valley and failure of the prosecution/State to produce them in the Court on each and every date of hearing.
Court said there is no merit in the instant petition and dismissed the same by providing that Inspector General Prisons shall ensure that the trial of the petitioners and others in FIR No.51/2013 is not delayed due to absence of the petitioners and other accused during trial.
“It shall be the duty of the Inspector General Prisons to ensure that the petitioners are produced in the trial Court on due date/dates, either physically or through video conferencing. Any delay in conducting of trial by the trial Court for the reasons aforesaid would be taken as violation of the right of speedy trial of the petitioners giving them a fresh cause of action to approach this Court again for enforcement of their fundamental right of speedy and fair trial”, Justice Kumar recorded.
Court said neither the under-trial is conferred any right to dictate choice of his prison for his lodgement during trial nor the trial court while giving remand of an under-trial during the course of trial is authorized to indicate or specify a particular prison/jail for keeping the under-trial in judicial custody.
Court while referring to the law on the issue said, the power of the court to specify or identify prison or jail for lodgement of an under-trial on remand would run counter to the provisions of law which gives such power of regulating the lodgement of convicts and undert-rials to the State.
Court on speedy trial of the prisoners said, an under-trial has a fundamental right to speedy trial and any attempt by the State to scuttle such right by resorting to arbitrary transfer of an under-trial from a prison located nearer the trial Court to a prison located at far off place in certain circumstances may amount to violation of right to fair and speedy trial of the under-trial.
“In such eventuality, the Constitutional Court may intervene, but for that under-trial has to demonstrate and make out a case of violation of his right to speedy trial conferred upon every under-trial under Article 21 of the Constitution. In the absence of any such foundational facts pleaded and demonstrated in the petition, embarking upon by the Court on such aspects would be an exercise in futility”, reads the judgment.
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