'A State Can Invoke Article 32 To Protect Fundamental Rights Of Citizens' : UP Govt In Plea To Transfer Mukhtar Ansari From Punjab

The State of Uttar Pradesh has filed Written Submissions in its plea seeking for transfer of custody of BSP MLA Mukhtar Ansari, currently lodged in a prison in Punjab, to face trial in UP in ten cases involving murder, extortion etc. The Written Submissions lay out the following: 1. The Writ Petition by the State is maintainable under Article 32. It has been submitted by the Uttar Pradesh Government that there exists no implicit or explicit bar for filing of a petition under Article 32 by a State as long as there exists a requirement of an order/direction to be passed for the protection of fundamental rights. "It is submitted that there is no restriction specified as to who per se can file a petition for the enforcement of fundamental rights of the citizens under Article 32, thus, anyone including the State can also approach this Hon'ble Court seeking reliefs pertaining to the enforcement and protection of the Fundamental Rights". The submissions further contends that the avoidance of criminal court proceedings against Ansari in UP would amount to denial of justice to the victims in those cases, and as a crime against a citizen is a crime against the State, the Petitioner has an onerous duty to ensure that its citizens uphold their trust and belief in the administration of justice under the aegis of State.It may be noted that Ansari has raised a preliminary objection that the Writ Petition by State of Uttar Pradesh is not maintainable under Article 32. 2. The Petitioner has locus standi to seek transfer of the Case. The submissions aver that the Petitioner(State of UP) is definitely an "interested party" as exortion calls had been allegedly made by the Respondent from within the jail premises at Banda, UP, and he had been subsequently arrested by the State of Punjab and brought from Banda Jail to Ropar. "The State of Uttar Pradesh is very much interested amongst the functionaries of the State of Punjab with the conduits of the accused gangster and history sheeter Mukhtar Ansari as also the suspended officials of the State of UP in the said FIR". 3. The Supreme Court under Article 142 can pass an order for transfer of an undertrial prisoner. Despite there being no existing provision in the Code of Criminal Procedure for the transfer of an undertrial prisoner, the submissions submit that the same had come up for consideration in the 1992 case of David Patrick Ward v. Union of India wherein it was stated that the Court could issue the necessary direction under Article 142. Further, as such illegality would have a far reaching effect which would be highly detrimental for the smooth functioning of the criminal justice system and create mistrust between the State machineries, the submissions state that the Supreme Court must not refrain from exercising its jurisdiction. 4. The present case is fit for exercising extraordinary jurisdiction. The submissions raise the issue that the Respondent has made contradictory submissions before the Supreme Court in order to delay the process of law, for instance alleging that transfer would UP would entail a threat to his life and that he is unable to travel due to medical reasons. It has additionally been submitted that the medical problems are not new and are not serious in nature, and that he is "only seeking ways and means to avoid case proceedings against him knowing fully well that he is likely to be convicted in the said cases". 5. Denial to produce Ansari in pursuance of summons under Section 267 of the CrPC deafts the entire object of Chapter XXII to ensure speedy trial. 6. Transfer of Ansari is imperative and that mere appearance through video conferencing would not serve the purpose. The submissions contend that the criminal justice system warrant the physical presence of the accused during the trial under Section 280 of CrPC so as to gauge the demeanor of witnesses. Further, due to non-appearance of Ansari on my occasions even on VC, the trial has been delayed. 7. Contention of Ansari that he has a risk to his life is unsustainable. "The plea of Respondent No. 3 that he has a risk to his life due to his rivalry with another accused Brijesh Singh is without any substance". Stating that being a history sheeter, gangster and a hardcore criminal, Ansari is expected to have rivalry with many other criminals and therefore, the same cannot be a ground to escape the clutches of law and seek refuge in another State. Further, the State of Uttar Pradesh is "duty bound to provide all safety and protection to accused Respondent No. 3 and as such the alleged fear of Respondent No. 3 is imaginary, ill-founded and deserves to be rejected". The writ petition, filed by the State of UP for the transfer of the BSP MLA from his current lodging in Ropar Jail in Punjab to UP's Ghazipur Jail, alleges that many serious offences are presently pending in the State against ...

'A State Can Invoke Article 32 To Protect Fundamental Rights Of Citizens' : UP Govt In Plea To Transfer Mukhtar Ansari From Punjab

Radhika Roy

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