1 Criminal Writ Petition No.20 of 2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.20 OF 2011 Ravi alias Ravindra Umaji Gunjkar, Age-Major, Convict No.A-34185, Central Prison, Aurangabad PETITIONER VERSUS 1. The State of Maharashtra, Through The Principal Secretary, Home Department, Mantralaya, Mumbai-32. 2. The Inspector General of Prisons, having office at Mumbai, 3. The Dy.Special Inspector General (Prisons) & the present Dy.Inspector General of Prison, Central Zone, Aurangabad 4. The Superintendent, Central Prison, Aurangabad RESPONDENTS Mr.S.M.Godsay, learned counsel for the petitioner. (Appointed) Mr.N.H.Borade, learned A.P.P. for respondents. (CORAM : NARESH H.PATIL & A.V.POTDAR, J.J.) DATE : 16/03/2011 ORAL JUDGMENT : (Per Naresh H.Patil, J.) 1. Rule. Rule returnable forthwith. By consent taken up for final 2 Criminal Writ Petition No.20 of 2011 hearing forthwith. 2. The petitioner, addressed a communication to the High Court in respect of his transfer from open jail, Paithan to Central Jail, Aurangabad. The said application was treated as Criminal Writ Petition. Mr.S.M.Godsay, Advocate was appointed in this matter to represent the petitioner under order dated 17/01/2011. Notices were issued to the respondents. Mr.Padmakar Devidasrao Bhalerao, Superintendent, Open Prison, Paithan, had filed his affidavit in reply on 08/03/2011. 3. In substance, the contention of the petitioner is that he is a life convict. He was convicted and sentenced in the proceeding by the Sessions Court Nanded in Sessions Case No.49/2002, vide judgment and order dated 05/03/2002. The petitioner was earlier transferred to Open Prison, Paithan for the period between 29/06/2010 to 22/10/2010 and thereafter he was transferred from Open Prison, Paithan to Central Prison, Aurangabad on the ground of prison offence. It is the case of the petitioner that on 22/10/2010, Mr.B.B.Autade, the then Superintendent noticed his suspicious behaviour and took his search and found an amount of Rs.310/-, iron rod, screw driver and some fire wood articles. The Superintendent recorded statements of co-prisoner no.4428, 4297, 4321, and 4252 and some members of the staff. During that time, the petitioner abused and threatened the Superintendent. According to the respondent/Superintendent, the petitioner has committed 3 Criminal Writ Petition No.20 of 2011 prison offence, and therefore the petitioner was transferred by him from Open Prison, Paithan to Central Prison, Aurangabad. In para no.9 of the reply, the deponent contends that, “Deponent most respectfully say and submit that while undergoing imprisonment in future the convict will commit such type of mistake so he has been rightly transferred from Open Prison to Central Prison.” 4. Learned counsel Mr.Godsay, appearing for the petitioner submitted that in the light of the rules namely Maharashtra Open Prisons Rules, 1971, the Superintendent of Open Jail is not entitled to exercise powers to transfer the prisoner from Open Prison to Central Prison. The Selection Committee, as mentioned under Rule 3 of The Maharashtra Open Prisons Rules, 1971, takes decision as to whether a convict in Central Prison is a convict to be transferred to open prison. The same Selection Committee also takes decision in respect of the proposals forwarded before it to transfer a prisoner from Open Prison to Central Prison. Learned counsel, appearing for the petitioner submits that the Superintendent, without following the procedure enumerated under the Rules, took the decision himself and transferred the prisoner. The learned counsel refers to the judgment delivered by the Division Bench of Bombay High Court in Criminal Writ Petition No.424/2010 dated 06/07/2010 in respect of powers of the jail authorities in transferring a prisoner from Open Prison to Central Jail. 5. The learned A.P.P. is instructed by the Jail Superintendent, 4 Criminal Writ Petition No.20 of 2011 who is present in Court. Original file of the petitioner is produced for our perusal by the learned A.P.P. The learned A.P.P. submits that in view of the objectionable conduct of the petitioner, the Superintendent had to take urgent steps and decision to transfer the petitioner from open jail. After transferring the petitioner to open Jail, the Superintendent had forwarded the proposal to Special Inspector General (Prisons), Central Region, Aurangabad for getting sanction to the transfer of the petitioner from open jail. From the original record, we find that the Special Inspector General (Prisons), Aurangabad forwarded a proposal to Additional Inspector General of Police (Prisons) Pune for seeking sanction to the transfer of petitioner from open jail to Central Jail. By communication dated 09/03/2011, the proposal was sanctioned to transfer the petitioner permanently from Open Prison, Paithan to Central Prison, Aurangabad. Copy of the sanction letter is placed on record for our perusal today. The learned A.P.P. submits that in accordance with Rules, though a Selection Committee envisaged under Rule 3, decides cases of the prisoners in respect of selecting them for confinement in any open prison, and for transferring the prisoners temporarily or permanently from open prison to Central Prison, the Inspector General (Prisons) is the final authority to sanction such transfer. In the facts of the present case, according to the learned A.P.P., the Superintendent had taken decision to transfer the petitioner to Central Prison, Aurangabad in an emergent situation, who after transfer, submitted a proposal for sanction with the superiors. 5 Criminal Writ Petition No.20 of 2011 6. We have perused the Maharashtra Open Prisons Rules, 1971. The “Classification Committee is defined under Rule 2, which reads as : “Classification Committee” means the Work Assignment Committee constituted at the prison under Rule 14 of the Maharashtra Prisons (Employment of Prisoners) Rules, 1965. Rule 3 and Rule 6 of the Maharashtra Open Prisons Rules, 1971 read as : Rule 3 : Selection Committee : (1) For the purpose of selecting prisoners for confinement in any open prison, there shall be a selection Committee consisting of - 1. The Inspector General or his nominee, who shall be the Chairman, 2. the Deputy Inspector General of Prisons of the region from which the prisoners are to be selected. 3. the Superintendent of the prison from which the prisoners are to be selected for confinement in an open prison, 4. the Superintendent of Open Prison. (2) The Selection Committee shall, subject to the provisions of these rules, prepare a list of selected prisoners and shall submit the same to the Inspector General of Prisons for his orders. Rule 6 : Check up of work and suitability of prisoners transferred to open prison : The case of each 6 Criminal Writ Petition No.20 of 2011 prisoner transferred to an open prison shall be put up before the Classification Committee once a month, which shall analyse the problems of the prisoner in details. If it finds that a particular prisoner is found unfit for being kept in confinement in the open prison on the ground of indiscipline or unsatisfactory work or any other good and sufficient cause, he shall be transferred, after obtaining approval of the Inspector General of Prisons, to such prison as the Inspector General of Prisons may specify. We have also perused the Rules in the Maharashtra Prisons (Employment of Prisoners) Rules, 1965. 7. The Superintendent has filed affidavit in rely on 08/03/2011. In the said reply, no reference is made to a proposal forwarded by Special Inspector General to Additional Inspector General (Prisons), Pune, or any reference to the order of sanction issued by Inspector General (Prisons) Maharashtra State, Pune. The order dated 8-9/03/2011 is placed on record in respect of sanction order issued by the Inspector General (Prisons). From the submissions advanced by the learned A.P.P. it seems that the jail authorities are not putting proposals for re-transfer of the prisoners confined in open jail to the Selection Committee. It seems that the issue is not clear to the authorities in respect of the procedure, which is required to be followed by them. This is reflected from the communication of Special Inspector General (Prisons) Aurangabad, who had observed in 7 Criminal Writ Petition No.20 of 2011 the communication dated 27-31/01/2011 that the circular issued by the Head Quarter does not mention in respect of the procedure to be followed for transferring prisoners in Open Prison to Central Prison. 8. The Division Bench of Bombay High Court (Coram : B.H.Marlapalle, J. & Anoop V.Mohta, J.) while deciding Criminal Writ Petition No.424/2010, dealt with Rule 4(ii)(n) of the Maharashtra Open Prisons Rules, 1971. It would be useful to reproduce para no. 10 of the order, which reads as : “There is no dispute that the petitioner worked as Convict Night Watchman and subsequently as Convict Oversear/Warder before his case was considered for admission to the open prison. After he was admitted to the open prison on 31/03/2009, his case was not placed before the Selection Committee for re-considerations or review so as to recall the earlier decision. Rule 4(ii)(n) of the Rules empowers, in our opinion, the Inspector General of Police to identify the prisoner or a category of prisoner who he considers to be unfit for being sent to an open prison, but the said Rule does not empower the Inspector General of Prison to cancel the admission to open prison and, therefore, reliance on the said Rule does not support the impugned order. Even otherwise, the report dated 24/07/2007 sent by the Senior Police Inspector of Byculla Police Station clearly states that said police station did not have any record indicating that the petitioner was a member of any gang, though his brother – Shashank, who was co-accused and came to be acquitted was associated with the Gavali gang. In these obtaining circumstances, the impugned order is unsustainable and hence the petition succeeds.” 9. Considering these relevant rules, the stand adopted by the respondents and the submissions of the learned A.P.P., we find that 8 Criminal Writ Petition No.20 of 2011 reasonable and proper procedure for transferring the prisoners selected by Selection Committee for confinement from open prison to central prison would be to place the proposal before the same Selection Committee. Any other procedure like empowering the Superintendent alone to transfer the prisoner from open prison to central prison or forwarding proposal for sanction to a Superior Officers after the prisoner was transferred to Central Jail, would be unreasonable and contrary to the spirit of the said rules. Conferring such a power on one officer entrusted is likely to be misused and would not be in the interest of the jail administration. There is a specific and definite purpose behind putting proposals before the Selection Committee. 10. In the facts of the present case, till 8-9/03/2011, there was no sanction granted to the act of the Superintendent in transferring the petitioner on 22/10/2010 from open prison to central prison. It is only after hearing of this petition started, the authorities chose to devote their time to attend to the proposal and communicated that sanction was accorded. From the correspondence placed on record, we find that the officers at the higher level have failed to attend to the proposals forwarded to them by the Sub-ordinate Officers promptly. We expect the authorities to be vigilant and prompt in attending such proposals. 11. For the reasons stated above, we are of the view that the decision of the Superintendent, Paithan Open prison, to transfer the 9 Criminal Writ Petition No.20 of 2011 petitioner to Central Jail, Aurangabad and consequent sanction order of the Inspector General (Prisons) Pune dated 8-9/03/2011 deserves to be quashed and set aside. We, accordingly, set aside these orders. We direct the respondents to re-transfer the petitioner from Central Jail, Aurangabad to Open Prison, Paithan. 12. Registry is directed to forward a copy of this order to the Additional Chief Secretary (Home Ministry), Government of Maharashtra, and to the Inspector General (Prisons), Pune for circulating the same to all the responsible authorities, who are concerned with the administration of transferring the prisoners in the State. The Secretary, High Court Legal Service Sub Committee, Aurangabad shall pay Advocate’s fees to learned counsel Mr.Godsay quantified at Rs.5,000/- (Rs.Five thousand only). 13. Rule made absolute. (A.V.POTDAR, J.) (NARESH H.PATIL, J.) khs/MAR. 2011/cri.w.p.20-11