1 wp362.10gp-jud.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 362 OF 2010 Ashokkumar Satyanarayan Arya ....Petitioner. Vs. The State of Maharashtra & Anr. ....Respondents. Mr. Murtaza Najmi for the Petitioner. Ms. M.M. Deshmukh, APP for the State. WITH CRIMINAL WRIT PETITION NO. 630 OF 2010 Wilson Benjamin Castelino ....Petitioner. Vs. The State of Maharashtra & Anr. ....Respondents. Mrs. Rohini Dandekar for the Petitioner. Mrs. S.S. Shinde, APP for the State. WITH CRIMINAL WRIT PETITION NO. 1393 OF 2010 Dundappa Balappa Nignur ....Petitioner. Vs. The State of Maharashtra & Anr. ....Respondents. 2 wp362.10gp-jud.sxw ssm Mrs. Anjali Waghmare, for the Petitioner. Mr. D.P. Adsule, APP for the State. CORAM : B.H. MARLAPALLE & ANOOP V. MOHTA, JJ. DATE : 12th August, 2010 ORAL JUDGMENT:­ 1 Heard. Rule. The learned APP waives service. 2 Though the State has filed separate affidavit in reply in each petition, the grievance raised is common and mainly with regard to the eligibility for being admitted to the open prison if convicted and sentenced for the offences punishable under Section 392, 394 and 397 as well as 302 of the IPC and the sentence is directed to be suffered concurrently. Hence, these petitions are being decided by a common Judgment. 3 In Writ Petition No. 362 of 2010, the Petitioner has been convicted for the offences punishable under Sections 394 and 302 read with Section 34 of IPC and sentenced to suffer RI for 7 years under Section 394 and for life under Section 302 of IPC. He has by now, completed actual sentence of 13 years and thus, the sentence of 7 years awarded for the offence punishable under Section 394 has already been undergone. 3 wp362.10gp-jud.sxw ssm 4 In Writ Petition No. 630 of 2010, the Petitioner has been sentenced to suffer RI for 5 years under Section 393 and for life under Section 302 of IPC. He has by now, completed actual sentence of more than 12 years and sentence was directed to be suffered concurrently. 5 Whereas, the Petitioner in Criminal Writ Petition No. 1393 of 2010, has been sentenced to suffer RI for 5 years under Section 392 and for life under Section 302 of IPC and both the sentences to run concurrently. He has by now, completed actual sentence of more than 16 years. 6 The affidavit in reply filed by the State Government has placed reliance on Rule 4 (2)(vii) of the Maharashtra Open Prisons Rules, 1971 and it is contended that the convict who has been sentenced for the offences punishable under Section 392, 394 or 397 is not eligible for being sent to the open prison and therefore, the Petitioners’ cases were not considered by the authorities concerned. Rule 4 (2)(vii) of the Maharashtra Open Prisons Rules, 1971 reads as under:­ “(4) (2) The following prisoners shall not normally be sent for confinement in an open prison:­ (vii) prisoners convicted and sentenced for offences under Sections 121, 121­A, 122, 123,124, 124­A, 125, 126, 128, 129, 130, 131, 132, 133, 134, 135, 376, 392 to 402 of the Indian Penal Code or for offences under the Sea Customs Act,” 4 wp362.10gp-jud.sxw ssm 7 Our attention has been invited to the scheme of the Maharashtra Prisons (Remission System) Rules, 1962 regarding the scale of ordinary remission as well as rule 7 of the Maharashtra Open Prisons Rules, 1971. If a life prisoner is admitted in an open prison, he gets remissions of 30 days for a calendar month as against the remissions of 7 days under Rule 8 of the Maharashtra Prisons (Remission System), Rules 1962, if he remains in an ordinary prison. 8 Mr. Najmi also relied upon a scheme of Section 31 of the Cr.P.C. and submitted that on completion of the sentence awarded for offences punishable under Section 392, 394 or 397 of IPC what remains is the sentence for the offences punishable under Section 302 of IPC and therefore, the conviction awarded under Section 392, 394 or 397 of IPC cannot be taken into consideration and therefore, as it ceased to exist on completion of sentences suffered for such offences. 9 Mrs. Deshmukh, the learned APP has invited our attention to the Division Bench Judgment of this Court in the case of Gorakh @ Baba Patole Vs. Government of Maharashtra & Ors., 1993 Mh.L.J. 1423. This judgment supports the arguments of Mr. Najmi. The Division Bench in paragraph No.3 of the said Judgment stated as under:­ 5 wp362.10gp-jud.sxw ssm “.........................Only because the Court exercised the discretion of ordering the sentences to run concurrently, the independent character of those sentences does not disappear. On undergoing the imprisonment of seven years, the petitioner would cease to be a convict under section 397, Indian Penal Code. Had he been convicted only of offence under Section 397, he would have been a free bird. His continuation in the portals of jail is because of sentence under section 302, Indian Penal Code. He does not continue to be prisoner falling under category (2) of Rule 4 only because of concurrent nature of the other sentence undergoing which does not disqualify him from furlough leave. Contrary interpretation of Rule 4(2) would be against the letter as well as spirit of the Rules. .....................................”. 10 We, therefore, hold that in a case, where the convict has been sentenced for the offences punishable under Sections 392, 394 or 397 of IPC along with the offence punishable under Section 302 of IPC and the sentence is directed to run concurrently, he will be eligible for admission to the open prison on completion of the sentences so awarded under Section 392, 394 or 397 of IPC. However, while considering this eligibility, other factors like the jail record so as to point out whether he was a habitual, escaping and absconder etc. are required to be taken into consideration. 11 We therefore, hold that all these Petitioners are eligible for being considered to admit them in the open prisons and the selection committee shall consider their cases for the same by taking into consideration their earlier jail record. The Petitioners’ cases shall be considered in the next selection committee and they shall be communicated the decision of the 6 wp362.10gp-jud.sxw ssm selection committee within four weeks from today. 12 Rule is made absolute in terms of above directions. (ANOOP V. MOHTA, J.) (B.H.MARLAPALLE, J.)