Undertrial's Right To Defend Himself, Family Convenience Must Be Considered In Jail Transfer Requests: J&K&L High Court

Emphasising that the right of an undertrial to effectively participate in his defence and the convenience of his family are relevant considerations in deciding prison transfer requests, the Court ruled that such applications must be examined on all attendant circumstances instead of being disposed of on a narrow territorial consideration.

Justice M.A. Chowdhary made these observations while allowing a criminal revision petition filed by an accused facing trial in an attempt to murder case. The petitioner challenged an order of the Additional Sessions Judge, Kathua, refusing to shift him from District Jail, Jammu to District Jail, Kathua on the ground that neither he nor his family members were residents of Kathua and that his production before the trial court through virtual mode caused no inconvenience.

Setting aside the order, the High Court held that the trial court had failed to consider the relevant factors governing transfer of custody of an undertrial, particularly the convenience of the accused's family and the accused's ability to properly defend himself during trial.

The petitioner, lodged in District Jail, Jammu in connection with an FIR for offences including attempt to murder and illegal possession of arms had sought transfer to District Jail, Kathua where his criminal trial was pending. The application was moved through his mother, who submitted that the transfer would facilitate family visits as well as the conduct of the trial.

The trial court rejected the request, observing that the petitioner's family was residing at Mandi Gobindgarh in Punjab and not in Kathua, and further noting that the accused was already being produced before the court through virtual mode, thereby causing no prejudice. Aggrieved, the petitioner invoked the revisional jurisdiction of the High Court challenging the legality of the order.

Court's Observations:

The Court observed that although the trial court was competent to consider a request for transfer of an undertrial from one jail to another, it had failed to examine the relevant considerations governing such a request.

The Court noted that the petitioner's family was residing in Punjab and had to travel to Jammu merely to meet him in jail. At the same time, the petitioner was facing trial at Kathua, making the question of his custody relevant to the effective conduct of the proceedings. Justice Chowdhary observed,

"Accused while facing trial has not only to cause appearance through physical or virtual mode but also to assist his counsel in conducting his trial in a fair and impartial manner."

The Court held that these considerations were overlooked by the trial court, which confined its reasoning to the fact that the petitioner and his family were not residents of Kathua. Criticising the approach adopted by the trial court, the Court observed,

"The trial court has decided the case in a slipshod manner, without considering the matter in its true spirit as the aspect of convenience of the family and the accused facing the trial at Kathua were the paramount factors to be considered by the trial court."

The Court further held that mere absence of residence in Kathua could not, by itself, justify rejection of the application, especially when the accused was standing trial in that district.

Allowing the revision petition, the High Court set aside the order of the Additional Sessions Judge, Kathua and directed the trial court to reconsider the application afresh after taking into account all attending circumstances existing up to the date of the High Court's order and after affording both parties an opportunity of hearing.

Case Title: Rohit Kumar v. Union Territory of J&K

Citation: 2026 LiveLaw (JKL) 305

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