Opposing the plea, Shahabuddin told the bench of Justice Dipak Misra and Justice Amitava Roy that such a transfer from Siwan district jail to Tihar was unwarranted and unjustified as same was contrary to the Transfer of Prisoners Act, 1950.
Telling the court that it could not issue a mandamus that was contrary to the law, senior counsel Shekhar Naphade said: "The plea for mandamus is contrary to law. What is illegal can't be a mandamus."
He said no order can be passed that is contrary to Section 3 of the Transfer of Prisoners Act, 1950 as prisons and the prisoners are in the exclusive domain of the State governments.
As bench observed that the plea was seeking the transfer of Shahabuddin from Siwan jail to Tihar Jail invoking top court's powers under Article 142, Naphade said: "You can't exercise powers under Article 142 of the constitution which may infringe my fundamental rights."
The top court was told this as it is hearing the plea by Chandrakeshwar Prasad and Asha Ranjan, widow of a journalist allegedly killed on Shahabuddin's orders, seeking his transfer from Siwan jail to Tihar Jail in Delhi and holding of his trial through video-conferencing.
Chandrakeshwar Prasad's three sons were killed allegedly by Shahabuddin's henchmen.
Reversing the Patna High Court's September 7 order granting him bail, the top court had on September 30 had ordered Shahabuddin back to jail in the Rajiv Roshan murder case as it pointed to the need for balancing the consideration of individual liberty of the accused with that of societal interest.