1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2546 OF 2009 Dhairyshil Madhavrao Ghadge. ... ... ... Petitioner. Versus State of Maharashtra & Anr.. ... ... ... Respondents. Mr. P. V. Dhopatkar, Advocate appointed for the Petitioner. Ms. U. V. Kejriwal, APP for the Respondent/State. Mr. Ramesh Kamble, Research Officer, I.G.Office, Pune. CORAM : J. N. PATEL and A. A. SAYED, JJ. DATED : 30TH NOVEMBER,2009. P. C.: Rule. 2. Learned APP appearing for the State waives service on behalf of the Respondents. 3. By consent, Rule made returnable and heard forthwith. 4. The petitioner / prisoner, being Prisoner No. C/770, who is lodged in the Kolhapur Central Prison, has by his letter dated 2nd August, 2009 approached this Court being aggrieved by the decision of the Selection Committee constituted under the Maharashtra Open Prisons Rules, 1971, which rejected his case for 2 confinement in the open prison. 5. This Court treated the said letter as writ petition and appointed learned Advocate Mr. P. V. Dhopatkar from the Legal Aid Panel. On being issued with notice, the respondents filed an affidavit in reply of Jailor Group­II attached to Kolhapur Central Prison, Kalamba, District Kolhapur. 6. According to the respondents, the Superintendent of Kolhapur Central Prison, had prepared list of prisoners for the selection to open prison and sent it to the Selection Committee. In all 182 prisoners were recommended and name of the petitioner was at serial No.15. It is the case of the respondents that the petitioner was not selected for open prison by the Selection Committee which was duly communicated to the petitioner/prisoner. The petitioner / prisoner was declared unfit on account of 3 major defaults and 1 Prison Discipline Default as under : (a) Petitioner in the year 2001 overstayed for 144 days from Furlough Leave; (b) Petitioner in the year 20/home/tailor/pdf/cri.apln­3635.pdf03 again overstayed for 210 days from Parole Leave; (c) Petitioner in the year 2007 again overstayed for 60 days from Parole Leave; and (d) Petitioner in the year 1998 violated the Prison Discipline Rules by going from one circle to another circle without permission. 7. Learned Advocate appearing for the petitioner / prisoner submitted that the grounds on which the petitioner’s recommendation for being sent for confinement in an open prison cannot sustain in law as it is contrary to Rules 4(2)(iii) and (ivx) of the Maharashtra Open Prisons Rules, 1971. It is submitted that in case of the 3 petitioner / prisoner, the authorities have ignored the fact that three or more major punishments for prison offence should be within the period of two years preceding the date of selection. Whereas, in the case of the petitioner on 3rd January, 2009 his prison punishments of the year 2001 and 2003 have been taken into consideration. Further, the prisoner’s default in the year 1998 was also considered by the Committee. It is further submitted by the learned Counsel for the petitioner that the confinement in an open prison is a part of the Scheme of formation of open prisons and that the petitioner / prisoner has already suffered punishment for prison offences which were prior to two years and therefore the case of the petitioner ought to have been considered by the Selection Committee for confinement in an open prison. It is submitted that the impugned order of the Selection Committee, therefore, deserves to be quashed. 8. Per contra, learned APP submitted that the Inspector General (Prisons) in exercised his powers conferred under Rule 4(2)(iii) and (ivx) and Rule 5(iv)(b) and therefore having found that the prisoner’s record is not proper and that the behaviour and conduct of the prisoner in prison WAS NOT PROPER and he is lacking sense of responsibility, which is obvious from the punishment imposed upon him in prison, it is sufficient to disqualify the petitioner / prisoner from availing of the concession. 9. We do not concur with the view of the learned APP for the simple reason 4 that the grounds on which the Selection Committee declared the petitioner / prisoner unfit does not spell out what is now being tried to be canvassed before this Court. The record and proceedings which are placed before us clearly states that the case of the prisoner has not been considered for the reasons stated in the affidavit in reply filed on behalf of the respondents and also, as rightly submitted by the learned Counsel for the petitioner/prisoner, for the reason that the prison punishment during the last two years prior to the rejection was considered. There is nothing on record to show that the prisoner has been denied selection for the reasons the Inspector General (Prisons) considered him unfit for being sent to the open prison or that his behaviour and conduct in prison and sense of responsibility displayed. 10. Therefore, we quash and set aside the impugned decision of the Selection Committee and direct the Selection Committee constituted under the Maharashtra Open Prisons Rules, 1971 to reconsider the case of the petitioner / prisoner afresh by treating the case of the petitioner/prisoner for consideration in the year 2009. 11. We are informed that the Selection Committee meets once in two years. In view of the fact that the decision of the Selection Committee is quashed and set aside by this Court, there is no reason why the prisoner should suffer for it. Therefore, we direct the respondent State to hold a special meeting of the Selection Committee for considering the case of the petitioner / prisoner and take 5 a decision in the matter within four weeks from the date of receipt of this order which the learned APP is directed to communicate to the Inspector General (Prisons). 12. The writ petition is allowed in the aforesaid terms. Rule made absolute, accordingly. Sd/­ (J. N. PATEL, J.) Sd/­ (A. A. SAYED, J.)