18. WP 3476-10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. WRIT PETITION NO. 3476 OF 2010 Ganpat Bhikaji Bamne ] (Convict No. 11503), Presently lodged at ] Yerawada Central Prison, Circle No. 111/8, ] Yerawada, Pune - 411 006. ] Petitioner Versus 1. I.G. (Prison) ] 2. D.I.G. Prison (Western Region, Pune) ] 3. Superintendent Y.C.P. Pune 6 ] 4. Assistant Commissioner of Police, ] Sakinaka Police Station, Chandivali Mhada ] Colony, Mumbai. ] Respondent Mr. Ayaz Kahn for the Petitioner Mr. A.S. Gadkari, APP for the State CORAM : P.V. HARDAS & M.N. GILANI, JJ. DATE : 7th APRIL, 2011. ORAL JUDGMENT [Per P.V. HARDAS, J]: 1. Heard learned Counsel for the respective parties. 2. Rule. By consent, Rule made returnable forthwith and the petition is heard finally at the stage of admission. 1 18. WP 3476-10.doc 3. The petitioner who is convicted, undergoing sentence of imprisonment for the offence punishable under Section 302 and other Sections of the IPC, takes exception to rejection of his candidature for being sent to the open prison. 4. An affidavit on behalf of the respondents discloses that the case of the petitioner was considered for transfer to open prison but was rejected on the ground that the petitioner was having alliance with the crime syndicate of Gurunath Satam and Chhota Rajan gang and therefore the Prison Administration did not find him to be fit under sub-Rule (i) of Rule 4 of Chapter II Open Prison (Page No. 6 and 7) of the Prison Manual. The affidavit in reply further discloses that the petitioner belongs to the syndicate of Chhota Rajan gang and therefore, the Inspector General of Prisons had rejected the proposal of the petitioner for his transfer to the open prison by order dated 6th December 2010. 5. We have asked the learned APP to produce the material which would indicate that the petitioner has an alliance with the crime syndicate of Gurunath Satam and Chhota Rajan gang. The learned APP has produced before us copies of the statements recorded during investigation of the co-accused in the trial in which the petitioner had been convicted. The learned APP has also produced before us a copy of the 2 18. WP 3476-10.doc judgment of the trial Court convicting the petitioner and the other accused. The learned APP has candidly admitted that no findings are recorded by the trial Court in its judgment about any alliance of the petitioner with the crime syndicate of either Gurunath Satam or Chhota Rajan gang. In absence of that, mere statements of the co-accused recorded by the police during investigation cannot be considered to be the basis or to be considered to be forming objective material on the basis of which the findings could be recorded by the Authority that the petitioner had an alliance with the crime syndicate of Gurunath Satam and Chhota Rajan gang. The entire investigation has merged in the judgment of the trial Court convicting the petitioner and the other accused. Apart from this, the learned APP very candidly admitted that there is no other material which would even remotely indicate that the petitioner has an alliance with the crime syndicate of Gurunath Satam and Chhota Rajan gang. If that be the case, according to us, the rejection of proposal of the petitioner for being sent to the open prison cannot be justified. However, the Inspector General of Prisons apparently has found the petitioner to be unfit for being referred to the open prison. In that light of the matter, therefore, according to us, the impugned order dated 6th December 2010 deserves to be quashed and set aside and the matter needs to be remitted back to the Authorities for considering the proposal of the petitioner afresh in accordance 3 18. WP 3476-10.doc with law in the light of the observations made by us above. 6. Resultantly, this petition is allowed and the impugned order dated 6th December 2010 is hereby quahsed and set aside and the matter is remitted back to the Authorities for deciding the proposal of the petitioner in accordance with law. This be done by the Authorities within a period of six weeks from today. 7. Rule is made absolute on the above terms with no order as to costs. 8. Copy of this order be transmitted to the petitioner who is serving a sentence in jail. [ M.N. GILANI, J ] [ P.V. HARDAS, J ] 4 18. WP 3476-10.doc 5