1 2 wp.2015.10 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2015 OF 2010 Ravindra Vithal Patil. ... Petitioner Vs. The Superintendent, Yerawada Central Prison, Pune and anr. ... Respondents ----- Mr. Daulat G. Khamkar for the Petitioner. Ms. S.V.Gajare, APP for the State. ----- CORAM : A.M. KHANWILKAR and P.D. KODE, JJ. DATE : 21 st October, 2010. P.C. 1 By this second round of petition under Article 226 of the Constitution of India, it is prayed that the Respondents be directed to transfer the Petitioner to any open prison in Maharashtra. This relief is claimed on the assertion that the Petitioner came to be arrested on 2 nd April, 1994 and since then he is continuously in jail consequent to the finding of guilt against him by the trial Court vide judgment and order dated 29 th November, 1997. According to the Petitioner, although he was eligible for being transfered to open prison, his proposal has been rejected for reasons best known to the Authority. 2 2 wp.2015.10 2 Pursuant to notice issued by this Court, the Superintendent of Yerawada Central Prison, Pune, where the Petitioner is presently lodged, has filed affidavit dated 13 th September, 2010. The justification offered is that as per the order passed by this Court dated 24 th February, 2010 in Writ Petition No.241 of 2010, the Petitioner made application on 18 th March, 2010 and the same was decided by the appropriate authority on 17 th April, 2010. The earlier writ petition was filed by the Petitioner in which, direction was issued to the authority to decide the Petitioner’s application within 15 days from the date of the order. It is stated that as there was no vacancy in any of the open prisons, the Petitioner’s request for transfer to open prison came to be rejected. This decision is the subject matter of challenge in the present writ petition. 3 During the pendency of this petition, considering the grievance of the Petitioner that he is continuously in jail since 1994 unlike the other prisoners transferred to open prison, we called upon the Inspector General of Prisons, Pune to furnish information as to how many convicts/prisoners, who have undergone relatively lesser sentence period than that of the Petitioner are already availing facility of open prison. In response to the said order dated 5 th October, 2010, the Additional Director General of Police (Prisons) and Inspector General of Prisons, Maharashtra State, Pune has filed affidavit before us dated 16 th October, 2010. The said affidavit deals with all other aspects, but the information which we had called upon the Authority to furnish in terms of our 3 2 wp.2015.10 abovesaid order. In the circumstances, we had no option but to ask the Additional Director General of Police (Prisons) and Inspector General of Prisons, Maharashtra State, Pune to remain personally present alongwith relevant records in respect of the 611 convicts, who are reportedly enjoying the facility of open prison. Accordingly today, the said officer is present in Court with the relevant record. The documents produced by the officer across the bar, are taken on record. The original be returned to the learned APP after making the authenticated photocopy thereof. The Additional Director General of Police (Prisons), who is present in Court has tendered apology for not filing a proper affidavit. We deprecate the casual attitude of the officer. It appears that he did not bother to read the contents of our order dated 5 th October, 2010 before preparing his affidavit. As a matter of fact, the affidavit filed by the officer was of no assistance to answer the controversy on hand. 4 In the first place, we fail to understand as to why the information now disclosed on affidavit by the I.G. Prisons was not disclosed to this Court in the earlier round of writ petition itself. For, the said situation has not changed a bit. In as much as, the fact that the selection of prisoners to be sent to open prisons were held on 7.10.2008 and 2.12.2008 wherein 748 prisoners came to be selected, amongst whom 611 prisoners have already been transferred to open prisons and the remaining 137 prisoners are kept on the waiting list – as a result of which the Petitioner did not stand the chance of being transferred to open 4 2 wp.2015.10 prison. This position obtained even on 24 th February, 2010. If that were to be disclosed, the issue that has attracted our attention in the second round of writ petition could have certainly been dealt with at that stage itself. 5 Be that as it may, from the material, which is now produced before us, it is noticed that substantial number of convicts/prisoners out of the 748 prisoners already selected and in particular the 611 prisoners who are already availing of open prison facility, have undergone sentence period relatively lesser than that of the Petitioner. When called upon to explain this anomalous position, the response was that the Petitioner for the first time made application on 18 th March, 2010 and it is only thereafter, his case could have been considered for transfer to open prison. To justify this plea, the learned APP placed reliance on Rule 4 of the statutory Rules called the Maharashtra Open Prisons Rules, 1971. Since reliance has been placed on this Rules, we may immediately advert to Rule 4 and 5 thereof. The same read thus: “4. (i) The following prisoners may be selected for confinement in all open prisons - Convicted criminal prisoners who- (a) are found to be of good behaviour, and are physically and mentally fit; and (b) are willing to do hard work and abide by the rules and regulations of the open prison; and (c) are sentenced to terms of imprisonment of one year or more and have undergone one-fourth of their sentence excluding remissions; or (d) are sentenced to imprisonment for life or more than 14 5 2 wp.2015.10 years in the aggregate and who have undergone five years of the sentence excluding remission; (ii) The following prisoners shall not normally be sent for confinement in an open prison:- (a) habituals classified as such by courts ; (b) known habituals ; (c) prisoners who are awarded three or more major punishments for prison offences during the last two years, prior to the date of selection. (d) prisoners having any case pending in a court, (e) prisoners suffering from mental disease or any other serious disease, (f) prisoners having previous history of serious mental illness, (g) prisoners convicted and sentenced for offences under sections 121, 121-A, 122, 123, 124, 124-A, 125, 126, 128, 129, 130, 131, 132, 133, 134, 135, 376, 392 to 402 of the Indian Penal Code or for offences under the Bombay Prevention of Gambling Act, 1887, or for offences under the Sea Customs Act, (h) escapees and escape risks, (i) hired and professional murderers, (j) prisoners convicted of offences connected with narcotics, (k) prisoners, who have been transferred from an open prison to a closed prison, (l) Class I prisoners, (m) women prisoners, (n) any other prisoner or category of prisoners whom the Inspector General of Prisons considers unfit for being sent to an open prison. (iii) Notwithstanding anything contained in sub-rule (ii) the Inspector General of Prisons, may on the recommendation of the Selection Committee, consider the cases of prisoners falling under sub-rule (2) for the purposes of confinement in an open prison. 6 2 wp.2015.10 5. (i) The Superintendents of prisons shall prepare separate lists of prisoners falling under sub-rule (i), and sub-rule (ii) of rule 4, and who are willing to be confined in an open Prison. (ii) The Superintendent shall prepare case histories of such prisoners in the Form I appended to these rules and then forward such lists together with case histories to the Selection Committee. (iii) The classification committee shall examine the said lists along with the case histories and files of the prisoners at the respective Central Prisons and District Prisons, Class-I. (iv) The case of each prisoner shall be screened, regard being had to the following factors, namely :- (a) health, physical and mental to withstand confinement in open prison ; (b) behaviour and conduct in prison and sense of responsibility displayed ; (c) progress in work, vocational training, education and in other like matters ; (d) group adjustibility ; (e) character and self discipline ; (f) extent of institutional impacts (whether he has reached peak point of training and treatment); (g) whether he is fit for being trusted for confinement in an open prison. (v) The Selection Committee shall select such prisoners as are eligible for being confined in open prison under rule 4, and submit a list of selected prisoners for the approval of the Inspector General of Prisons. On the list being approved, the selected prisoners shall as soon as possible be transferred for confinement in the open prison.” 7 2 wp.2015.10 6 On plain reading of these Rules, we fail to understand as to on what basis the Appropriate Authority is labouring under misconception that unless the convict/prisoner were to make a formal application for being transfered to open prison, his case cannot be considered for that relief. The Rules of 1971 are statutory Rules. As per Rule 4, the eligibility of convicts entitled for being transfered to open prison has been predicated. Rule 4(i) provides that prisoners specified therein may be selected for confinement in all open prisons. Indeed, that selection would be subject to fulfilling other conditions specified in the said Rules. The procedure for considering the claim of prisoners for transfer to open prison can be discerned amongst other from Rule 5. Even on fair reading of the said Rule, it is not possible to countenance the argument that unless the prisoner/convict were to make a formal application in writing, he cannot be considered for transfer to open prison. In our opinion, if the prisoner becomes eligible and conforms to all the stipulations provided in the said Rules, is entitled for being transfered to open prison as a matter of right, subject, however, to availability of vacancy in the open prisons in the State of Maharashtra. The Authority, referred to in the said Rules has a corresponding obligation to consider the case of every prisoner on its own as soon as the said convict/prisoner becomes eligible in terms of Rule 4. In other words, the Superintendent of Prison is obliged to empanel the name of every convict/ prisoner, who becomes eligible as 8 2 wp.2015.10 per the Rules in vogue, irrespective of whether any application in that behalf has been made by him or otherwise. That is imperative considering the intent behind the statutory Rules of 1971. The governing policy under this Rules, is that, transfer of prisoners to open prison is one of the essential process of reformation of the deserving prisoners/convicts in jail. In the circumstances, we are unable to accept the argument of the Respondents that the Petitioner’s case could not have been considered for transfer to open prison in absence of a formal application in that behalf. 7 Assuming that we were to accept the argument of the Respondents that the Petitioner should have made written application requesting for transfer to open prison, there is nothing to show that the Petitioner was personally informed about the existence of such a right as soon as he became eligible for that facility on completion of the specified sentence period as per Rule 4. The argument of the learned APP is that a general announcement was made before 7 th October, 2008 in the Yerawada Central Prison, Pune, where the Petitioner was lodged. When called upon to produce documents to support that contention, it was stated that such announcement was made on a loudspeaker on 7 th October, 2008. We fail to understand as to how such announcement can fulfill the requirement of giving personal intimation to the Petitioner about his right to be considered for being transfered to open prison as soon as he became eligible therefor as per the Rules. Taking any view of the 9 2 wp.2015.10 matter, therefore, we have no hesitation in concluding that the Petitioner’s case has not been considered at the time when he became eligible for being transfered to open prison. 8 Reverting to the reason recored by the Appropriate Authority in the impugned decision, that presently there is no vacancy in open prison, to consider this ground, we called upon the Additional Director General of Police (Prisons) to produce material, which will disclose the number of prisoners/convicts, who have undergone relatively lesser sentence period than that of the Petitioner, but are availing open prison facility. Notably, from the documents produced before us, it is noticed that substantial number of convicts, who have undergone relatively lesser sentence period than that of the Petitioner, are already availing relief of open prison. Indeed, those convicts had made formal application for being transfered to open prison as soon as they became eligible as per the Rules. In our opinion, as aforesaid, every prisoner, covered by Rule 4, is entitled for being transfered to open prison subject to availability of vacancy in open prisons in the State of Maharashtra, as soon as he becomes eligible therefor irrespective of the fact whether he had made written application in that behalf or otherwise. Indeed, he would be entitled to that relief only if he were to undertake to abide by the requirements and stipulations provided in the said Rules – such as that he would maintain good behaviour and also willing to do hard work and abide by the rules and regulations of the open prison. 10 2 wp.2015.10 9 Considering the limited number of prisoners who can be accommodated in the open prisons in the State of Maharashtra, the appropriate course, in our opinion, is to direct the Appropriate Authority to reconsider all the cases afresh so as to ensure that the prisoner/ convict, who has already undergone relatively more sentence period in jail should get precedence for being transfered to open prison, which is one of the essential process for reformation of the deserving prisoners. Depending on the seniority of the eligible and deserving convicts/prisoners in jail, the list will have to be re-drawn and thereafter the vacancies in open prisons in the State of Maharashtra should be filled up on that basis and not merely because some prisoners/ convicts had made application in writing in earlier point of time. Taking any other view would not only be arbitrary exercise of power but also result in perpetrating discrimination. Besides, it will be denial of statutory relief to the eligible prisoners/convicts essentially because of the inaction of the Appropriate Authority to empanel them at the proper time. We are conscious of the fact that while redrawing the select list, some prisoners who are already availing of the open prison facility may not come within the number of available vacancies. But, that is inevitable. They have got benefit only because they were well informed and well advised to make application in writing in earlier point of time. That, however, cannot be the test applied to effectuate the intent behind the statutory Rules in its letter and spirit. 11 2 wp.2015.10 10 Accordingly, we allow this writ petition by directing the Respondents to reconsider the case of the Petitioner and similarly placed prisoners including that of other prisoners/convicts who have already been transfered to open prison and to redraw the list of eligible prisoners/convicts on the basis of the sentence period already undergone by them in jail. The vacancies in the open prisons in the State of Maharashtra should be filled up in order of such seniority. Until such list is prepared, the present arrangement shall be continued in all the open prisons throughout the State of Maharashtra. The above process shall however, be concluded by the Appropriate Authority of the State within ten weeks from today. Ordered accordingly. [ P.D. KODE, J ] [ A.M. KHANWILKAR, J ]