wp647.11 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 647 OF 2011 Bhima Rangnath Adagale, Age 54 years, Occ. Convict No. 6765 in Central Jail Harsool, Aurangabad ...Petitioner Versus 1. The State of Maharashtra (Copy to be served on P.P. High Court Bombay, Bench at Aurangabad) 2. The Inspector General of Prisons, Maharashtra State, Pune. 3. Deputy Inspector of General, Central Prison, Aurangabad 4. The Superintendent, Open Prison, Central Prison, Aurangabad 5. The Superintendent, Open Prison, Paithan, District Aurangabad ...Respondents ..... Mrs. Bharti B. Gunjal, advocate for the petitioner Mr. D.V. Tele, A.P.P. for respondents ..... CORAM : A.H. JOSHI AND A.M. THIPSAY, JJ. DATED : 15TH NOVEMBER, 2011 JUDGMENT (PER JOSHI, J.) :- 1. Rule. Rule made returnable forthwith. 2. Heard both sides. 3. The petitioner has approached this court challenging the communication purportedly dated 30.6.2010/1.7.2010 (Annexure “E”) at page 18. It is a copy of wp647.11 -2- communication sent by Law and Research Officer of the office of Inspector General of Prisons, Maharashtra State, Pune. 4. By the impugned communication, it has been informed that the proposal for transferring the petitioner from Central Prison Aurangabad, to open jail at Paithan, is already rejected, and therefore petitioner’s request for such transfer cannot be considered. 5. The petitioner has averred that :- (a) The petitioner was granted parole leave on 10.1.2004. (b) While on leave he had suffered accidental burn injuries and did not report in jail in time. During said overstay, he was admitted in Sasoon Hospital at Pune. This calamity has caused his overstay on parole. (c) He was arrested while in the hospital at Pune and was committed to Central Prison, Aurangabad. (d) Even after arrest and committal to Central Prison, Aurangabad, the petitioner had unhealed burn injuries. Therefore, he was immediately admitted for medical treatment in Government Hospital at Aurangabad till recovery. (e) After recovery, the petitioner applied for transfer to open jail. Copy of said application appears to be at page 13 of the paper book. 6. This petition is opposed by filing affidavit. In para-7 of the affidavit in reply it is averred that forfeiture of eligibility in remission by 126 days was ordered due to his overstay of 126 days while on parole with approval of the learned Sessions Judge. 7. The record concerning exact reasons, due to which the petitioner's prayer for sending him to open prison is rejected has not come on record through the petitioner or even through the State. wp647.11 -3- It is to be inferred from annexure E that said forfeiture is the cause leading to refusal to commit the petitioner to open prison. 8. As we see from the record that the petitioner has claimed that :- (a) He had suffered accidental burn injuries and that he was rendered unable to report in due time. (b) The reason assigned by him for late reporting is genuine and constitutes justifiable cause towards said late reporting. 9. Whether the reasons for late reporting are justified is a question of fact. It is not shown that the aspect as to genuineness and justifiability as regards reasons of late reporting has been adjudicated by the authorities. 10. It is also not shown that :- (a) On facts, said late reporting being intentional or deliberate etc. constitutes to be sufficient cause for refusal of concession for committal in open jail. (b) After giving to the petitioner the opportunity of hearing, any such decision was arrived at. 11. Had it been the case that it was brought on record before this court by the State that 126 days delay was intentional and/or voluntary and deliberate, and the authorities had taken suitable decision guided by their discretion, we would not grant any indulgence. 12. At this stage, since it is not shown that an order is passed by the authorities by applying judicious mind and after giving to the petitioner opportunity of being heard, we are not able to record findings on the question in issue in either way. 13. Therefore, we are, satisfied that the question, as to whether the petitioner wp647.11 -4- deserves to be sent to open jail, should be reconsidered by the authorities on its own merits, afresh. 14. We therefore, pass following order :- (A) The petitioner’s application, a copy whereof is at page 13, be treated as representation, as if undecided. (B) The petitioner be given opportunity to represent against the grounds due to which the concession to be committed in the open prison, is being denied, by serving upon him the grounds. Thereupon the petitioner’s eligibility for transfer to open prison be decided within 60 days from today. (C) The decision be communicated to the petitioner. (D) The learned APP is directed to communicate this order to the competent authority. 15. Rule is made absolute in the above terms. *****