Hon’ble Supreme Court in the case of ‘State of Maharashtra & Ors. etc. vs. Saeed
Sohail Sheikh etc’. [CRIMINAL APPEAL NOS. 1735-1739 OF 2012 (Arising out of S.L.P. (Crl.)
Nos. 6390-6394 of 2010), decided on 02.11.2012], has held that:
"it is obligatory for the Court to apply its mind fairly and objectively
to the circumstances in which the transfer is being
prayed for and take a considered view having regard to the
objections which the prisoner may have to
offer. There is in that process of determination and decision-making an implicit
duty to act
fairly, objectively or
in other words
to act judicially. It follows that any order of
transfer passed in
any such proceedings can be
nothing but a judicial
order or at
least a quasi-judicial one. Inasmuch as the trial court
appears to have
treated the matter to be
administrative and accordingly permitted the
transfer without issuing notice
to the under-trials or passing an appropriate
order in the matter, it committed a mistake. A communication received from
the prison authorities was dealt
with and disposed of at an administrative level
by sending a communication in reply without due and proper
consideration and without passing
a considered judicial order which alone
could justify a transfer in the case. Such being the position the High Court was right
in declaring the transfer to be void and directing the re-transfer of the undertrials
to Bombay jail. It is common
ground that the
stay of the proceedings in three
trials pending against
the respondents has
been vacated by this Court.
Appearance of the undertrials would, therefore, be required in
connection with the proceedings pending against them for which purpose they
have already been transferred back to the Arthur Road Jail in Bombay. Nothing
further, in that view, needs to be done by this Court in that regard at this
stage." [Para 39]