Delhi High Court dismisses convicted Jaish-e-Mohammed militant’s plea for transfer from Tihar to Srinagar jail

Baba argued before a single-judge bench of Justice Poonam A Bamba, that he was 66 years old and suffering from many ailments, and his health was deteriorating every day. His family members — two daughters, 18 and 20 years, a son aged about 26 years, and his mother — are unable to visit him frequently and being close to his family would help him recover better, he argued.

He said that rules 664 and 672 of the Delhi Prison Rules, 2018, provide for the transfer of prisoners on humanitarian as well as medical grounds and he deserved to be transferred to the Srinagar jail. Lieutenant Governor, Delhi, on September 24, 2021, rejected his application for transfer to the Srinagar jail, he said.

The prosecution argued that Baba is a “hardcore militant” of JeM and he had absconded after he was released on bail even as his appeal was pending before the high court.

He remained absconding “deliberately for a long time and repeated non-bailable warrants” could not be executed against him for six years between 2013 and 2019. A reward of Rs 2 lakhs was declared for Baba’s arrest in March 2019 and he was subsequently arrested from Srinagar on May 11, 2019.

The prosecution argued that “there is every likelihood of the convict managing to flee from any other jail, considering his past conduct”.

They further submitted that Baba’s transfer may have “law and order repercussions in both, the transferring and the receiving state”.

In rebuttal, Baba submitted that he had not absconded and was unable to surrender as he was under “constant treatment at hospital Sher-i-Kashmir Institute of Medical Sciences” in Kashmir. He submitted that his transfer to jail at Srinagar would help in his speedy recovery and his family members would also be able to visit him more frequently.

The high court perused the September 2015 security advisory issued by the Ministry of Home Affairs for the shifting of high-risk prisoners from the jail of one state/Union territory to the jail of another.

The high court observed that the government has to be cautious in the transfer of high-risk prisoners convicted in terror-related cases, taking into account the security implications of such transfers in both the transferring and the receiving state/Union territory.

Agreeing with the prosecution, the high court in its November 3 order held, “No doubt, Rules 664 and 672, Delhi Prison Rules, 2018, provide that the prisoner may be transferred from one prison to another on medical and humanitarian grounds with prior approval of the State Government. However, in view of the above facts and circumstances and taking into account the apprehension of law and order repercussions expressed by the State pursuant to evaluation of the security risk in transfer of the petitioner from Central Jail Tihar, Delhi to Srinagar Central Jail, this court is not inclined to grant the prayer of the petitioner”.

The court further noted that although the choice of a convict for transfer should be respected subject to security, public interest etc., in Baba’s case the state had expressed its apprehension of law and order repercussions in both Delhi and Kashmir.

On Baba’s health concerns, the court took into account Tihar Jail’s medical officer’s report and noted that he was being provided “due medical care and treatment”.

It further directed the superintendent of Tihar Jail to ensure continuous requisite treatment/medical care for Baba.