1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.897 OF 2010 Sachin Ganpat Badambe Petitioner versus The State of Maharashtra & others Respondents Mr.N .N.Gavankar i/by Mr.Arfan Sait for petitioner. Mr.P.A.Pol, APP for State. CORAM : B.H.MARLAPALLE AND ANOOP V. MOHTA, JJ. DATE : 5th July 2010 PC : 1. Heard Mr.Sait, learned counsel for the petitioner. Mr.Pol, learned Public Prosecutor appears for the respondents. Rule. Respondents waive service. With the consent of the parties, the petition is heard finally. 2. The petitioner came to be arrested on 26th March 1997 in connection with Sessions Case No.822 of 1997. As per his judgment and order dated 30th September 1999, the learned Additional Sessions Judge for Greater Bombay was pleased to convict the appellant for the offence punishable under section 302 read with section 34 of the Indian Penal Code and he was sentenced to suffer life imprisonment. He filed Criminal Appeal No.662 of 2009 before this Court and the same was dismissed on 6th December 2005. As per the petitioner, the D.I.G. (Prisons) invited the 2 names of life convicts undergoing imprisonment in the Central Prisons for admitting them in the open prison and the list of such prisoners was prepared some times in February-March 2009. The first batch of the prisoners was sent to the open prison in April 2009 and in May 2009 the petitioner came to know that his name was not recommended for the open prison as he was a gangster and was affiliated to the Manchekar Gang. He, therefore, approached this Court in Criminal Writ Petition No.1466 of 2009 and the petition was allowed by setting aside the decision of the Selection Committee dated 3rd January 2009. The Selection Committee was directed to consider the petitioner's case afresh in the light of the report received from R.A.K. Marg Police Station, Mumbai and N.M.Joshi Marg Police Station, Mumbai. 3. It appears that the selection committee met on 8th December 2009 to reconsider the case of the petitioner along with others for being admitted to the open prison and once again the selection committee held that the petitioner was unfit to be admitted to the open prison. 4. The following grounds have been stated in the decision of the selection committee viz. :- (i) the petitioner along with co-accused Mr.Sanjay Kage and Mr.Satish Kalgutkar are the members of Manchekar Gang as per letter dated 12th July 2009 received from Mahatma Phule Chowk Police Station, Kalyan; 3 (ii) the petitioner is a member of Manchekar Gang and, therefore, there was material to suggest that he was unfit to be admitted in the open prison; (iii) as per the statement of the petitioner recorded on 16th August 2009, the petitioner was not ready to become a night watchman and thus he refused to work on a promotion post and acted against Rule 5(iv) of Chapter-II of the Prisons Rules; (iv) the nature of the petitioner and his self-discipline including progress of work assigned to him was found to be unsatisfactory. 5. For the above reasons his case was rejected under Rule 4(ii)(n) of the Prisons Rules and he was declared unfit for being sent to an open prison. 6. As directed by us, the Mahatma Phule Chowk Police Station, Kalyan has sent its report dated 2nd July 2010 to the learned Public Prosecutor and the said report states that there is no offence registered against the petitioner with the said Police Station. The petitioner has been added in the category of hired and professional murderers by the impugned order. This Court while allowing Criminal Writ Petition No.1466 of 2009 has observed as under :- 4 " ... ... Decisions by the Selection Committee was taken on 3.1.2009 whereas the reports were received from the concerned police station much after that. Obviously when decision was taken by the Selection Committee, the Selection Committee had no material before it to come to the conclusion that the petitioner belongs to a Gang. They received the reports after the decision and the reports did not justify the decision. In this view of the matter, we allow the writ petition, set aside the order passed and direct the concerned Committee to reconsider the matter afresh in the light of the reports received from the R.A.K.Marg Police Station, Mumbai and N.M.Joshi Marg Police Station, Mumbai. Order shall be passed within two weeks from today." 7. As per the letter dated 8th July 2009 addressed to the Superintendent, Kolhapur Central Prison (Kalamba) by the Senior Police Inspector of R.A.K.Marg Police Station, Mumbai, there was no material to point out that the petitioner was connected with any gang. As per the letter dated 14th July 2009 addressed to the Superintendent, Kolhapur Central Prison by the Senior Police Inspector of N.M.Joshi Marg Police Station, Mumbai, there was only one crime registered against the petitioner and there was no material to indicate that the petitioner was connected or associated with either Manchekar Gang or any other gang. The learned counsel for the petitioner states that the petitioner will appear before the Selection Committee and give an undertaking in writing that he would be willing to perform the duties of a night watchman. 8. Hence, we allow the writ petition and quash and set aside the decision dated 8th December 2009 taken by the Selection Committee rejecting to admit the petitioner to the open prison. If the petitioner submits a written undertaking to the Superintendent, Kolhapur Central 5 Prison (Kalamba) within two weeks from today that he will perform the duties of a night watchman, we direct the Selection Committee to reconsider the petitioner's case for his admission to the open prison and the selection committee shall take appropriate decision as expeditiously as possible and preferably before 31st August 2010. The petitioner shall be informed the fresh decision. 9. Rule is made absolute in terms of above directions. (ANOOP V. MOHTA, J.) (B.H.MARLAPALLE, J.)