J&K High Court Sets Aside Undertrial Custody Rejection, Orders Fresh Consideration of Jail-Transfer Application
Justice M A Chowdhary held that the Additional Sessions Judge, Kathua dismissed a custody-shift application in a slipshod manner, ignoring family convenience and trial access as paramount factors.
The High Court of Jammu & Kashmir and Ladakh, at Jammu, has set aside an order by which the Additional Sessions Judge, Kathua refused to shift the custody of undertrial Rohit Kumar from District Jail, Jammu to District Jail, Kathua. Justice M A Chowdhary, sitting singly, found that the trial court disposed of the application without examining the factors that mattered most: the accused's ability to assist his counsel during trial and the hardship on his family, who were travelling all the way from Punjab to Jammu for jail interviews. The revision petition was taken up for disposal on merits as there was no representation for the petitioner on several dates.
The Application Before the Trial Court
Rohit Kumar is an undertrial lodged in District Jail, Jammu. He faces charges of attempt to murder and possession of illegal arms in a case arising out of FIR No. 104/2024, registered at Police Station, Kathua. The allegation is that he attacked PSI Deepak Sharma when the officer went to arrest him in connection with a separate murder case registered as FIR No. 93/2023 at Police Station, Ramgarh. His trial is before the Additional Sessions Judge, Kathua.
Rohit Kumar's mother, Rajni Devi, moved an application in that court seeking a transfer of his custody from District Jail, Jammu to District Jail, Kathua. The stated grounds were the convenience of the family and the proximity to the court conducting the trial.
The trial court rejected the application by order dated 05.11.2024. It reasoned that neither Rohit Kumar nor any of his family members are residents of District Kathua — the family had shifted from Kotli Raiyan, R.S. Pura, Jammu and is now residing at Mandi Govindgarh, Punjab. The court also noted that the accused was being produced before it through virtual mode, causing no inconvenience. The trial court additionally noted, relying on Nayeem Rasool v. UT of J&K & Ors. [WP(c) No. 1991/2022, decided on 27.04.2023], that it is the trial court alone that has the power to order a change of custody of an undertrial from one jail to another.
Why the High Court Found the Reasoning Insufficient
Justice Chowdhary accepted that the jurisdictional point drawn from Nayeem Rasool was correct: the trial court is the appropriate forum to direct such a shift. However, the High Court took issue with how the trial court applied the facts to that power.
The trial court's central reason for rejection was that the family did not reside in Kathua. The High Court found this insufficient. The family lives at Mandi Govindgarh, Punjab — entirely outside the jurisdiction of the trial court — and must travel from Punjab to Jammu to meet the accused in jail. Shifting custody to Kathua would at least place the accused in the same district where his trial is being conducted.
The High Court also identified a factor the trial court had not weighed: an undertrial does not merely need to appear before the court, whether physically or virtually. He also needs to be able to consult his counsel and assist in the conduct of his own trial in a fair and impartial manner. Proximity of the jail to the trial court is directly relevant to that ability.
The court described the trial court's disposal as having been done “in a slipshod manner, without considering the matter in its true spirit.” The observation that none of the family members reside in Kathua did not, in the High Court's view, by itself justify rejection of the application. The convenience of the family and of the accused facing trial at Kathua were described as “paramount factors” that required proper consideration.
Scope of the Direction to the Trial Court
The High Court has not itself ordered the custody shift. It has set aside the impugned order of 05.11.2024 and directed the Additional Sessions Judge, Kathua to consider the matter afresh. The trial court has been directed to look into all attending factors from the filing of the application up to the date of the High Court's order, and to afford both sides an opportunity of being heard before passing a fresh order.
Order
The revision petition, Crl R No. 60/2024, was allowed and disposed of by order dated 02.07.2026. The impugned order dated 05.11.2024 of the Additional Sessions Judge, Kathua stands set aside. The matter is remitted for fresh consideration in accordance with the directions given by the High Court. The judgment has been marked as speaking and reportable.