1 18 wp.1260.10 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1260 OF 2010 Bhimrao Shadu Jadhav. ... Petitioner Vs. The State of Maharashtra and ors. ... Respondents ­­­­­ Ms. Rohini Dandekar for the Petitioner. Mr. D.P.Adsule, APP for the Respondent/ State. ­­­­­ CORAM : A.M. KHANWILKAR and U.D. SALVI, JJ. DATE : 13 th September, 2010. P.C. 1 This petition is received through jail. The grievance of the Petitioner is that although he is eligible for being considered to be transferred to open prison, that request has been rejected by the appropriate authority. The Respondents have filed affidavit before us and have placed on record that the case of the Petitioner has been disapproved by the Inspector General of Prisons keeping in mind provisions of Rule 4 (ii)(h)(n) below Chapter II of the Maharashtra Prison Manual (Page No.7). 2 Sub­clause (h) as well as sub­clause (n) of clause (ii) of Rule 2 18 wp.1260.10 4 deal with different situations. Insofar as sub­clause (h) is concerned, the escapees and convicts having escape risks can be denied permission to be transfered to open prison. However, looking to the opening part of Rule 4 (ii), it is more than clear that it is an enabling provision. Besides, Rule 4 (iii) re­enforces the fact that the Inspector General of Prisons has ample power to consider even a case of escapees and prisoners/ convicts having escape risks. For that, subjective satisfaction has to be reached by the Inspector General of Prisons. As such, there is no complete bar on transferring the prisoners/ convicts to open prison, who have in the past indulged in escaping or have the potential of escape risk referred to in sub­clause (h). 3 Insofar as sub­clause (n) is concerned, that deals with entirely different situation. It provides that any other prisoner or category of prisoners ( not referred to in sub­clause (a) to (m) of Clause (ii) ), the Inspector General of Prisons considers unfit for being sent to an open prison. This clause can be invoked on case to case basis, if there are no general directions issued by the Inspector General of Prisons. 4 Taking any view of the matter, we think it appropriate to hold that the Inspector General of Prisons will have to consider all aspects of the matter afresh including the conduct of the prisoner/ convict after he returned to jail and that he has spent sufficiently long time thereafter, without availing of furlough leave and parole leave. 3 18 wp.1260.10 5 In the circumstances, we relegate the Petitioner before the appropriate authority for reconsideration of his case for being transferred to open jail, which will be considered on its own merits in accordance with law. That be done within eight weeks from today. 6 Court expresses word of gratitude for the able assistance given by the advocate appointed to espouse the cause of the Petitioner. 7 Copy of this order be forwarded to the Petitioner who is in jail, forthwith. [ U.D. SALVI, J ] [ A.M. KHANWILKAR, J ]