Trial Court Must Consider Convenience Of Family & Accused's Right To Assist Counsel While Deciding Jail Shifting Applications: J&K High Court

"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. Simply observing that none of them are residents of Kathua does not justify the disposal of the application." High Court of Jammu & Kashmir and Ladakh, in a significant ruling, held that a trial court must prioritize the convenience of an accused and their family, along with the right to effective legal assistance, when considering applications for shifting jail custody.

Justice M A Chowdhary observed that rejecting such a request solely because the family resides outside the trial district constitutes a "slipshod" approach that fails to consider the "true spirit" of the law.

The petitioner, Rohit Kumar, is facing trial for attempt to murder and possession of illegal arms under FIR No. 104/2024 at Police Station Kathua, following an alleged attack on a police officer. Currently lodged in District Jail, Jammu, he moved an application through his mother to be shifted to District Jail, Kathua, where his trial is ongoing. The trial court had rejected this application on the ground that his family resides in Punjab and he is being produced virtually, causing no "inconvenience."

The primary question before the court was whether the trial court was justified in rejecting the shifting of the accused's custody based solely on the fact that neither the accused nor his family were residents of District Kathua. The court was also called upon to determine the paramount factors that must guide a trial court’s discretion in ordering the change of custody of an undertrial prisoner from one jail to another.

Trial Court Empowered To Change Custody Of Undertrials

The High Court initially noted the established legal position regarding the jurisdiction to transfer prisoners. Referring to the precedent set in Nayeem Rasool Vs. UT of J&K & Ors. [WP(c) No. 1991/2022], the court affirmed that it is the trial court only that has the authority to order the change of custody of an undertrial from one jail to another.

While the trial court acknowledged this power, it rejected the petitioner’s plea. The lower court reasoned that since the petitioner was originally from Jammu and his family had relocated to Mandi Govindgarh, Punjab, they were not residents of Kathua. Consequently, the trial court held that there was no valid ground for shifting him to the Kathua jail, especially since virtual hearings were available.

Family's Struggle To Meet Accused Must Be Weighed

Justice Chowdhary took strong exception to this reasoning, noting that the petitioner’s family has to travel all the way from Punjab to Jammu to seek an interview with him. The court emphasized that the jurisdictional boundaries of the trial court should not be used as a mechanical barrier to deny reasonable requests for proximity.

The bench observed that the family of an undertrial prisoner undergoes significant hardship when the place of lodgment is far removed from the place of trial or their residence. The court noted that "admittedly, the family of the petitioner have to travel all along from Punjab to Jammu" and that the trial court failed to appreciate this logistical burden.

Right To Fair Trial Includes Effective Consultation With Counsel - Accused Must Assist Counsel In Fair Manner

A crucial observation made by the High Court pertained to the constitutional right to a fair trial. The court highlighted that an accused facing trial does not merely need to "appear" in court via physical or virtual mode but must be in a position to actively assist his counsel.

The bench held that the ability of the accused to provide instructions and assist his lawyer in conducting the trial in a "fair and impartial manner" is a vital component of the legal process. By keeping the accused in a different district jail than where his counsel is likely based for the Kathua trial, the trial court overlooked this fundamental necessity.

"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."

Trial Court Decision Termed "Slipshod"

Setting aside the impugned order, the High Court described the trial court's disposal of the application as "slipshod." The court held that simply observing the non-residency of the family in Kathua did not justify the dismissal of the plea. Justice Chowdhary remarked that the lower court failed to consider the matter in its "true spirit."

The petition was allowed, and the impugned order dated November 05, 2024, was set aside. The High Court directed the Additional Sessions Judge, Kathua, to consider the matter afresh, looking into all "attending factors" and affording both sides an opportunity to be heard before passing a fresh order.

Date of Decision: 02 July 2026