1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.896 OF 2009 Govind s/o Maroti Jadhav, Age 37 years, Occu.Nil, R/o Central Jail at Aurangabad, District Aurangabad .. PETITIONER VERSUS 1. State of Maharashtra 2. The Dy.General Inspector, Central Jail, Harsool, Aurangabad 3. The Superintendent of Prison, Open Jail at Paithan, Taluka Paithan, Dist.Aurangabad .. RESPONDENTS Mrs.Sabahat Kazi, Advocate holding for Smt.Sharda P.Chate, Advocate for the petitioner Shri S.D.Kaldate, Assistant Public Prosecutor for respondents CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ DATE : 21st JANUARY 2010 2 ORAL JUDGMENT (Per P.V.Hardas, J.) 1. Rule. Rule returnable forthwith. With the consent of learned Counsel for the parties this petition is heard finally at the stage of admission. 2. The grievance of the petitioner in this petition under Article 226 of the Constitution of India is the issuance of the order of the Deputy Inspector General of Prisons, Central Prison, Aurangabad dated 24.9.2008, by which the petitioner came to be transferred from the Open Jail at Paithan to the Central Prison at Aurangabad on account of the fact that the petitioner was caught read handed on 1.9.2008 at about 9.45 p.m. while committing theft of wooden teak wood doors of a dilapidated building of the Irrigation Department. 3. According to the petitioner the petitioner had been convicted for an offence punishable under Section 302 read with 34 of the Indian Penal Code by a judgment rendered in Sessions Case No.131/1996, dated 11.9.1998. Since then, according to the petitioner, the petitioner is undergoing the sentence of imprisonment for life. It appears that the petitioner had filed an appeal in this Court which came to be dismissed by judgment of this Court dated 11.8.2008 thereby confirming the conviction and 3 sentence. It also appears that the petitioner who was initially placed in the Central Prison at Harsool, Aurangabad came to be transferred to the Open Jail at Paithan. According to the petitioner the petitioner had applied for furlough and he was accordingly released on furlough on 1.9.2008. According to the petitioner the petitioner proceeded to go to his native place i.e. village Pimpaldari, Taluka Loha, District Nanded. At that time the petitioner was in possession of an amount of Rs.7,000/- which comprised the wages payable to the petitioner. According to the petitioner the Security Guard of jail one Shri Bhalerao was aware about the fact that the petitioner was proceeding to his village on leave and the Security Guard came to the Bus Stand at Paithan and demanded money from the petitioner. The petitioner declined to give the money to the said Security Guard stating that the amount had been collected to be spent on the children and the other family members of the petitioner. According to the petitioner the Security Guard Shri Bhalerao threatened the petitioner that if the amount was not given he would lodge some complaint against the petitioner. The petitioner, therefore, succumbed to the pressure and gave an amount of Rs.500/- to the Security Guard. The Security Guard demanded further amount of Rs.2,000/- and also threatened the petitioner that in the event the aforesaid amount is not given the petitioner would be sent to Central Jail at Harsool, Aurangabad. The Security 4 Guard further told the petititoner that the petitioner had been called by the Superintendent for some office work and the petitioner was taken to the Open Jail at Paithan in a rickshaw by Shri Bhalerao and the petitioner was thereafter sent to the Central Prison at Harsool, Aurangabad by cancelling the furlough leave. The aforesaid action of the respondents is the subject matter of challenge int he present petition. 4. On notice being issued to the respondents, the respondents have filed their affidavit-in-reply. In the first affidavit-in-reply at paragraph 3 it is stated that the petitioner was caught read handed while committing theft and, therefore, the petitioner had violated Rule 45 of the Maharashtra Prison Rules, 1979 and also the provisions of the Prison Act. At paragraph 5 it is stated that taking a humanitarian view no offence of theft was registered against the petitioner. At paragraph 6 it is stated that the petitioner was sent to the Central Prison at Harsool, Aurangabad under orders of the superiors on 1.9.2008 itself and this had been done for security purposes. At paragraph 7 it is stated that the petitioner had been rightly informed that the petitioner had been transferred on administrative grounds. At paragraph 9 of the affidavit-in-reply it is stated that the transfer of the petitioner was justified on account of certain ill will which was developed in between the petitioner and the other prisoners and in order to 5 ensure security in future the petitioner could not be kept in open jail. 5. Perusal of the impugned order dated 24.9.2008 reveals the reason for transferring the petitioner from the Open Jail at Paithan to Central Prison, Harsool, Aurangabad. The aforesaid order recites that the petitioner was apprehended while committing theft of teak wood doors on 1.9.2008 at about 9.45 p.m. The impugned order further recites that the statements of persons acquainted with the facts of the case had been recorded. In the concluding part of the impugned order it is stated that since the petitioner had violated Rule 45 (3) (10) of the Rules framed under the Prison Act 1984, the petitioner was transferred. Thus, the impugned order does not state that the petitioner was transferred on account of any administrative grounds. 6. Mrs.Kazi, learned Counsel for the petitioner has urged before us that the impugned order transferring the petitioner from Open Jail at Paithan to Central Prison at Harsool, Aurangabad is unsustainable in law as the same has been passed with an oblique motive of wrecking vengeance on the petitioner and at the instance of the Security Guard. It is further stated that if the petitioner had indeed committed a prison offence, appropriate action would have been taken against the petitioner. However, 6 the petitioner came to be transferred suddenly on 1.9.2008 itself without awaiting the orders of the superiors. The learned Assistant Public Prosecutor has urged before us that the petitioner has been transferred to the Central Prison at Harsool, Aurangabad on account of the personal security and safety of the petitioner. It is also stated that the petitioner was apprehended while committing theft and, therefore, had committed a prison offence. 7. Section 45 of the Prison Act defines what are personal offences when committed by the prisoner. Sub-section 10 of Section 45 states that it would be a prison offence if “Willful damage is caused to prison property”. The respondents alleged that the petitioner had committed the prison offence of willfully damaging the prison property. In the subsequent affidavit-in- reply which has been filed by the respondents, the respondents have stated that the land where a dilapidated structure was standing, admeasures 39 Hectares and 74 Ares and is situated at Viha Mandwa, Taluka Paitha, District Aurangabad. The aforesaid land came to be allotted to the prison authorities for the purpose of using of this land for rehabilitation of prisoners lodged in the Open Jail at Paithan. The respondents have annexed copy of the Government communication dated 26.10.2006. The affidavit-in- reply further recites that the said land at Viha Mandwa is in 7 possession of the prison authorities since 11.11.2006. The learned Assistant Public Prosecutor has stated before us that the Security Guard Shri Bhalerao was posted as a Security Guard at Viha Mandwa. According to the respondents the petitioner was apprehended while in the act of committing the theft. 8. It would appear that firstly no report of the alleged theft had been lodged against the petitioner. No doubt the respondents state that as a humanitarian gesture no report was lodged. According to us such submission cannot be countenance especially coming from the prison authorities. According to the respondents the petitioner was immediately transferred on the same night to the Central Prison at Harsool, Aurangabad. Obviously, this action was taken by the respondents-authorities without obtaining the written orders from the superiors. Undisputedly, the Superintendent of Prison is not an authority conferred with the jurisdiction of transferring convicts from one prison to the other. The competent authority in this behalf is the Inspector General of Prisons or the Deputy Inspector General of Prisons. Till 24th September 2008, no written orders had been passed regarding transfer of the petitioner and it was only on 24.9.2008 that the impugned order came to be passed. The impugned order states that on 2.9.2008, the petitioner had been transferred. Section 46 of the Prison Act provides for procedure 8 of the enquiry to be conducted in respect of the prison offences which are defined in Section 45 of the Prison Act. Pursuant thereto it appears, on the basis of the affidavit of respondents that statements of the jail authorities etc. came to be recorded on 2.9.2008. Curiously, if it was a fact that the petitioner had been apprehended while committing the theft, we find it inexplicable that (i) no report of theft was lodged; and (ii) no punishment as is contemplated in Section 46 of the Prison Act was imposed. The petitioner was post-haste transferred from the Open Jail at Paithan to the Central Jail at Harsool, Aurangabad. 9. The learned Assistant Public Prosecutor in support of the impugned order has submitted before us that the reason for transferring the petitioner from the Open Jail at Paithan to the Central Prison at Harsool, Aurangabad was to ensure the safety and security of the petitioner. The aforesaid statement is made on the basis of instructions which are provided to the learned Assistant Public Prosecutor by the jail authorities who are present in Court. If that was the reason for transfer, the aforesaid reason does not stand reflected in the impugned order dated 24.9.2008. In the order dated 24.9.2008, the ostensible reason for transferring the petitioner from the Open Jail, Paithan to the Central Prison at Harsool, Aurangabad is on account of the fact that the petitioner was apprehended while committing theft of 9 teak wood. No reason is mentioned that the transfer of the petitioner was effected on account of the personal safety or security of the petitioner. Though in the impugned order the word “Security” is mentioned, the aforesaid word is mentioned in the light of the fact that it was not advisable to retain the petitioner in the Open Jail at Paithan from “Security point of view”. The impugned order does not state that the transfer of the petitioner was necessitated on account of personal safety or security of the petitioner. The reason given for transfer on the ground of security is the security of the prison and not of the petitioner. In the first affidavit-in-reply, we find that three different reasons have been given for transferring the petitioner. The first reason which was given was on account of theft. The second reason which was given was on administrative ground and the third which was given was on account of involvement of the safety of the petitioner because of ill-will which had developed between the petitioner and the other prisoners. 10. In the face of this material, according to us the impugned order is unsustainable and deserves to be quashed and set aside and accordingly it is quashed and set aside. We direct the Deputy Inspector General of Prisons to pass appropriate orders, in accordance with law afresh within a period of six weeks from today and communicate the decision thereon to the petitioner. 10 11. Rule is thus made absolute on the above terms with no orders as to costs. ( SHRIHARI P.DAVARE ) ( P.V.HARDAS ) JUDGE JUDGE (vvr/criwp896.09)