1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 424 OF 2010 Prashant Suresh Khade (Now confined at Nasik Road Central Prison, Nasik Road) .. Petitioner Vs. The State of Maharashtra and ors. .. Respondents Mr. N. N. Gavankar with Mr. Arfan Sait for petitioner. Mr. P. A. Pol, P.P. For State. CORAM: B. H. MARLAPALLE & ANOOP V. MOHTA, JJ. JULY 06, 2010. ORAL ORDER (Per B. H. Marlapalle,J.): 1. Heard Mr. Gavankar with Mr. Sait the learned counsel for the petitioner. 2. Rule. 2 3. Mr. Pol, the learned Public Prosecutor, waives service for the respondents. 4. Affidavit-in-reply by respondent no.3 has been filed and Mr. Pol, in addition, has placed before us a copy of the fax message he has received from respondent no.3. By consent of the parties, the petition has been heard finally. 5. The petitioner was arrested by the Byculla Police Station, Mumbai on 14/6/1992 and he was one of the accused put on trial in Sessions Case No. 1016 of 1992. As per the order of conviction and sentence dated 31/10/1995 passed in Sessions Case No. 1016 of 1992, petitioner came to be convicted along with other accused for the offence punishable under Section 302 read with Section 34 of IPC and he was sentenced to suffer life imprisonment. By now, he has completed 18 years of actual imprisonment and about 22 years of total imprisonment with remissions. As per the order passed by the State Government, he is to be released on completion of 24 years of imprisonment with remissions. 3 6. On 18/12/2008 the Selection Committee, as constituted under Rule 3 of the Maharashtra Open Prisons Rules 1971 (the Rules for short), considered the petitioner’s case for his transfer to the open prison and he was selected for the same. He was transferred to the open prison at Paithan on 31/3/2009. However, as per the fax message received on 27/5/2009, he was re-transferred from the open prison at Paithan to the Nasik Road Central Prison and this was done consequent to the order passed on 25/5/2009 by the In-charge Deputy Inspector General of Prisons (Headquarter) at Pune. The said order states that the petitioner was found to be connected/associated with a gang-war. 7. As per the petitioner, the selection for the transfer to the open prison is preceded by two earlier stages. The life convicts are first appointed as Convict Night Watchman and thereafter as Convict Oversear/ Warder depending on the jail record. While working as Convict Oversear/ Warder, their cases are considered for transfer to the open prison under the Rules. The petitioner was one such convict whose case was placed before the duly constituted Selection Committee in its meeting on 18/12/2008 and by considering his past record, the Committee had selected him for his transfer to the open prison. It has been pointed out that the remissions in 4 the Central Prison are at the rate of 9 days for each month ( 9 x 12 = 108) and 30 days of bonus every year, whereas in the open prison the remissions are 30 days for each month ( 30 x 12 = 360) + 30 days annual bonus and thus making a total of 390 days of remissions as against 138 in the Central Prison. As per Mr. Gavankar if the petitioner was continued in the open prison, by now, there was every possibility that he would be released on completion of life sentence and hence this petition. 8. The Inspector General of Prisons, Maharashtra State, has filed affidavit-in-reply and has pointed out that when the petitioner’s case was considered by the Selection Committee on 18/12/2008, his antecedents were not placed by the officer concerned before the Committee and appropriate action has been initiated against the said officer. It has been further pointed out that the co-accused Shri Dhanaji Dattu Dhuri was also given the benefit of transfer to the open prison in the absence of the record of antecedents and the IG Prisons has proposed appropriate action against the officer concerned. The petitioner has pointed out in para 9 of the petition memo the names of some other life convicts who were found to be the members of Dombe gang from Pandharpur and Bhai Thakur gang and despite the same, they came to be admitted to the open prison. In reply, the 5 respondent no.3 has stated that necessary action against the officers concerned for misrepresenting is in progress. In addition, the respondent no.3 has placed reliance on Rule 4(ii)) (n) of the Rules and stated that while passing the impugned order dated 25/5/2009, the said Rule has been invoked and it was not necessary to refer the petitioner’s case to the Selection Committee to cancel his admission to the open prison re-admit him to the Central Prison. 9. As per Rule 3 of the Rules, the Selection Committee consist of four members with the Inspector General of Prisons or his nominee being the Chairman. It is not disputed that the said Selection Committee had selected the petitioner for admission to the open prison on 18/12/2008 and he was, in fact, transferred to the open prison at Paithan on 31/3/2009. The impugned order has been passed by the In-charge Deputy Inspector General of Prisons (Headquarter) at Pune and he is not one of the members of the Selection Committee, unless of course the record indicated that he was the nominee of the Inspector General of Prisons in the Selection Committee and he chaired the meeting in which the petitioner’s name was selected. It is also not denied that the co-accused who was also claimed to be associated with gang-war has been released on completion of life 6 imprisonment in April 2009. Rule 4 of the Rules provides for the qualification and dis-qualification for being admitted to the open prison. Clause (i) of Rule 4 deals with selection for confinement in the open prison, whereas Clause (ii) sets out the category of prisoners who shall not normally be sent for confinement in an open prison. Sub-clause (n) of Clause (ii) of Rule 4 states that any other prisoner or category of prisoners whom the Inspector General of Prisons considering unfit for being sent to an open prison and in the affidavit-in-reply, it has been stated by the respondent no.3 that Rule 4(ii)(n) of the Rules is applicable in the petitioner’s case in support of the impugned order. 10. There is no dispute that the petitioner worked as Convict Night Watchman and subsequently as Convict Oversear / Warder before his case was considered for admission to the open prison. After he was admitted to the open prison on 31/3/2009, his case was not placed before the Selection Committee for reconsiderations or review so as to recall the earlier decision. Rule 4(ii)(n) of the Rules empowers, in our opinion, the Inspector General of Police to identify the prisoner or a category of prisoner who he considers to be unfit for being sent to an open prison, but the said Rule does not empower the Inspector General of Prison to cancel the admission 7 to open prison and, therefore, reliance on the said Rule does not support the impugned order. Even otherwise, the report dated 24/7/2005 sent by the Senior Police Inspector of Byculla Police Station clearly states that said police station did not have any record indicating that the petitioner was a member of any gang, though his brother – Shashank, who was co-accused and came to be acquitted was associated with the Gavali gang. In these obtaining circumstances, the impugned order is unsustainable and hence the petition succeeds. 11. In the premise, petition is allowed and Rule is made absolute in terms of prayer clause (a) to (c). (ANOOP V. MOHTA,J.) (B. H. MARLAPALLE, J.)