1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE CRIMINAL WRIT PETITION NO. 1219 OF 2007 RAJU BALKRISHNA BHISE & ORS. .. PETITIONERS Vs. STATE OF MAHARASHTRA & ORS. .. RESPONDENTS Mr. J. D. Khairnar i/b Smita Kadu for petitioners Smt. U. V. Kejariwal, APP CORAM:SMT.RANJANA DESAI & DR. D.Y. CHANDRACHUD,JJ. DATED: 1/9/2008 ORAL JUDGMENT: (Per Smt. Ranjana Desai, J.) . Rule. Respondents waive service. By consent of the parties taken up for hearing forthwith. 2. The petitioners are at present lodged in Yerwada Central Prison, Pune. They are undergoing life imprisonment. Respondent 1 is the State of Maharashtra, respondent 2 is the D.I.G. (Prisons) Western Region, Yerwada Pune, respondent 3 is the Superintendent of Yerwada Central Prison and respondent 4 is the Superintendent of Yerwada Open Jail, Pune. 2 3. According to the petitioners in July 2004 they were transferred to Yerwada Open Prison from Paithan Open Jail because of their good conduct and behaviour. Initially they were working in the jail factory. However, since there was no work in the jail factory they were shifted to the farms. According to the first petitioner on 3/6/05 in the morning the petitioners and other prisoners were ordered to cut Nilgiri trees. The 1st petitioner felt that this was illegal. He made inquiry with Sepoy Gaikwad and Jailor Nitin Yaehal. He was told that orders for cutting trees were issued by the 4th respondent. 4. According to the petitioners in a span of 27 days about 20-25 trees were cut. Therefore, the 1st petitioner made an application to the 2nd respondent asking him to look into the matter. The 2nd respondent instituted an inquiry in the said matter. During the inquiry the 1st petitioner’s statement was recorded, however its copy was not given to him. On 9/9/05 the 4th respondent issued a letter stating that the 1st petitioner was making false allegations and that suitable action will be taken against him at suitable time. A copy of the 3 said letter is annexed to the petition. 5. Apprehending that the 4th respondent will create false record against him the 1st petitioner addressed a letter to this court. That letter was treated as Writ Petition No. 2468 of 2005. According to the 1st petitioner because a petition was filed making grievance about the 4th respondent, the 4th respondent issued a show cause notice to all the petitioners stating that on 2/9/05 they did not have their breakfast, tea and food and tried to create hindrance in the prison administration. It was inter alia alleged that they tried to influence the other inmates of the jail and they did not follow the discipline and rules of the jail. It was further alleged that they had inter alia committed an offence under Section 45, clauses 1,(3,4,14) of the Indian Prison Act, 1894. 6. The petitioners replied to the said notice denying the allegations. According to the petitioners during the pendency of Writ Petition No. 2468 of 2005, the 4th respondent got order issued from Inspector General of Prisons to punish the petitioners by sending them back to Yerwada 4 Central Jail. The petitioners were transferred to Yerwada Central Jail on 15/12/05. The grievance of the petitioners is that because they made grievance about the illegal activities of the prison officers the 4th respondent out of vengeance punished them and transferred them to Yerwada Central Prison though their conduct was good and they had given no cause for such transfer. The petitioners have, therefore, prayed that they may be sent back to Yerwada Open Jail from Yerwada Central Prison. 7. We have heard Mr. Khairnar, learned counsel appearing for the petitioners at some length. He reiterated the averments made in the petition. He submitted that the transfer of the petitioners to Yerwada Central Prison is malafide. The petitioners’ conduct was extremely good. They tried to bring the illegal activities of the officers of the Yerwada Open Jail to the notice of the court and, therefore, they have been wrongly punished. He drew our attention to the order dated 13/9/06 passed by this court on the 1st petitioner’s petition. He submitted that the respondents had given assurance to this court that the petitioners will not be harassed because the 1st petitioner had filed a petition in this court. 5 Learned counsel submitted that the respondents have not kept their word. They have behaved in a vindictive manner. Learned counsel submitted that it is, therefore, necessary to transfer the petitioners back to Yerwada Open Jail. 8. We have also heard learned APP Ms. Kejariwal. She has refuted all allegations made by the petitioners. She has drawn our attention to the affidavit of Ganesh Mahale, Jailor Group-I, in which he has stated that the petitioners misbehaved with prison staff, they did not follow the prison rules. They instigated other prisoners and tried to create fear and, therefore, they were transferred to Yerwada Central Prison. Learned APP submitted that, therefore, the petition be dismissed. 9. It appears from the affidavit of Ganesh Mahale, Jailor Group-I that in the month of July, 2004 the petitioners were transferred to Yerwada Open Prison from Paithan Open Jail. On 15/12/05 the petitioners were transferred to Yerwada Central Jail which is a close prison. It appears that for a considerable period the petitioners were in Paithan Open Jail and Yerwada Open prison. In the 6 affidavit no grievance is made that prior to August 2005 the petitioners had misbehaved either in Paithan Open Jail or Yerwada Open prison. It is a fact that the 1st petitioner sent a letter to this court complaining about illegal felling of trees by the officers of Yerwada Central Prison which was treated as a writ petition. Letter of the 1st petitioner which was treated as writ petition is dated 12/9/05. Show cause notice was issued by the 4th respondent on 14/10/05 stating inter alia that the petitioners had committed breach of prison discipline. The petitioners’ writ petition was disposed of by the Division Bench of this court on 13/9/06. It needs to be seen whether as alleged by the petitioners the respondents have adopted a vindictive approach. 10. We find from the order dated 13/9/06 that Dr. Venkat Gunale, Reader, Department of Botany, University of Pune was appointed as a Commissioner by this court to examine whether the allegations made by the petitioners are true or not. In his report Dr. Gunale has inter alia stated that prison authorities have planted a lot of trees to have vegetation cover and the branches of trees were cut to make enclosure for the guards and 7 visitors room, however, there was no sign of cutting or removing of large number of trees. After perusing this report, this Court observed that though it is stated in the report that there was no large scale removal of trees, there was some felling of trees and cutting of branches for the purpose of preparing enclosure for the guards and visitors. This court gave a direction that if any trees or branches are required to be cut, permission of tree authority may be obtained. The census of trees was directed to be conducted in all jails. This court recorded appreciation of the efforts made by authorities of Yerwada Central Prison to plant trees. We notice from this order that a fear was expressed on behalf of the 1st petitioner that the prison authorities may adopt vindictive attitude towards him because he had complained about felling of trees. Assurance was given by learned APP that no harassment will be caused to the petitioner. That assurance was recorded and the petition was disposed of. 11. Affidavit of Mr. Ganesh Mahale states that on 31/8/05 and 1/9/05 the jail authorities conducted search of all prisoners and their barracks and during the search they found that the prisoners had 8 unlawfully kept food articles with them. When the food articles were seized the petitioners resorted to hunger strike. They created dis-satisfaction amongst the prisoners on 2/9/05. The petitioners refused to take morning breakfast tea and food and instigated other prisoners to do so. The petitioners misbehaved with the prison authorities. They used indecent and arrogant language and created fear amongst other prisoners. When show cause notices were sought to be served on the 1st and 2nd petitioner they refused to accept them. These acts of the petitioners violate Rule 19 (iv), (v) and (xvii) of Chapter XXVI of Prison Discipline Rules. 12. It is further stated in the affidavit by Mr. Mahale that on 22/10/07 after the petitioners were lodged in the close prison the 1st petitioner assaulted one prisoner by name Nagnath with wooden stick as a result of which Nagnath received head injury. In respect of this a Non-Cognizable offence vide NC No. 2602/2007 under Section 323, 504 of the I.P.C. was registered at Yerwada Police Station, Pune. On 23/3/08 the 1st petitioner fought with another prisoner by name Sagar Choudhary on account of dispute about the place 9 provided for sleeping. He behaved arrogantly with the jailor when the jailor warned him. 13. Having perused the petition, the affidavit-in-reply and the order passed by this court in Writ Petition No. 2468 of 2005, we feel that the petitioners unnecessarily dragged prison authorities to the court on the ground of alleged illegal felling of trees. The Commissioner’s report indicates that only branches of trees were cut and that too for the purpose of creating enclosure for guards and visitors room. This obviously was done keeping the prison’s security in mind. This court appreciated the efforts of Yerwada Central Prison to plant trees. If the affidavit of Ganesh Mahale is read against the background of the order passed by this court, we feel that it is not possible to hold that prison authorities are vindictive. We feel that the petitioners did commit breach of prison discipline and, therefore, they had to be sent to the close jail. We have no reason to disbelieve Ganesh Mahale, Jailor Group-I. It is not possible for us to interfere with the prison discipline. However, the petitioners cannot be permanently punished for what they have done. It cannot be forgotten that 10 for several months they were in Paithan Open Jail and Yerwada Open Prison and till August 2005 there were no complaints about their conduct. Though we have held that the prison authorities have not acted vindictively, the prison authorities shall keep in mind the assurance given to this court on their behalf by learned APP, which is recorded in order dated 13/9/06, that there will be no harassment of the prisoners. We are of the opinion, that if the petitioners abide by the rules and regulations of the prison and maintain discipline, at the appropriate time, their cases should be considered in accordance with law for transfer to open jail. 14. The petition is disposed of in the aforestated terms. JUDGE JUDGE