1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL WRIT PETITION NO.348 OF 2011 (Mukesh Ramaji Yadav vs. State of Maharashtra and another) __________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Shri N. Samundre, Advocate for the petitioner. Shri N.S. Khubalkar, Additional Public Prosecutor for the respondents. ------- CORAM : P.V. HARDAS AND S.B. DESHMUKH, JJ. DATED : AUGUST 23, 2011 This is a petition under Article 226 of the Constitution of India by which the petitioner challenges the order of the respondents by which the petitioner was not referred to the open prison. On notice of this petition being issued to the respondents, the respondents have filed their affidavit-in-reply and in the affidavit-in-reply, it is stated that a criminal prosecution is pending against the petitioner and, therefore, by virtue of Rule 4(ii)(d) of the Maharashtra Open Prison Rules, 1971, the petitioner is not entitled to be sent to the 2 open prison. It is not disputed before us by the learned Counsel for the petitioner that the criminal prosecution is indeed pending against the petitioner. In the light of the aforesaid Rule, the petitioner is thus rendered disentitled to be referred to the open prison. The learned Counsel for the petitioner has urged before us that despite aforesaid Rule, one of the co-accused, who is also facing trial along with the petitioner, has been sent to the open prison. An order, which is passed de hors the provisions of law or contrary to the provisions of law cannot form a precedent nor can the petitioner claim to be discriminated on the basis of an order, which is unsustainable in law. The fact remains that the petitioner is rendered disentitled in the light of the pendency of the criminal case. There being thus no merit in the present petition, the petition is dismissed summarily with no order as to costs. JUDGE JUDGE khj 3