drp {1} Cri.W.P.No.1046/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1046 OF 2010 Mehboob Ali @ Fullan Lal Mohd. Fakir PETITIONER Age-45 years, Occ-Prisoner Open Jail, Paithan, Dist-Aurangabad VERSUS The State of Maharashtra RESPONDENT ....... Mr.R.D.Raut, Advocate for the petitioner (Appointed) Mr.N.H.Borade, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 18 th January 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. Rule. Rule made returnable forthwith. With the consent of learned counsel for the parties, this petition is heard finally, at the stage of admission. 2. A communication sent by the petitioner, through jail, was registered as Criminal Writ Petition and accordingly we had appointed Mr.R.D.Raut, learned counsel, to represent the petitioner, in this petition. drp {2} Cri.W.P.No.1046/2010 3. By the present petition, the petitioner seeks directions to the respondent authorities to sent him back in open jail, Paithan, by giving his back remission and to remove the red ribbon from his shirt. 4. The petitioner is convicted for an offence punishable u/s 302 of the Indian Penal Code and is sentenced to imprisonment for life. After undergoing the sentence of imprisonment for some period, the petitioner was transferred to Open Jail, Paithan. It is alleged that on 11.09.2009 the petitioner attempted to escape from the Open Prison and, hence, an offence, punishable u/s 224 of the Indian Penal Code was registered against the petitioner at CR No.36/2009 with Paithan Police Station. Thereafter, on 12.09.2009, the petitioner was arrested and transfered to Central Prison, Aurangabad. It appears that the petitioner was tried for the offence punishable u/s 224 of the Indian Penal Code by JMFC, Paithan in SCC No.759/2009 and came to be acquitted vide judgment and order dated 14.05.2010. 5. During the pendency of the trial before the JMFC, Paithan, a show cause notice was issued to the petitioner, under Rule 22 (1) of Chapter XXXVIII of the Maharashtra Prison Manual, to show cause as to why the remission of the petitioner should not be forfeited. The petitioner has replied the said show cause notice. drp {3} Cri.W.P.No.1046/2010 6. The petitioner, by this petition, has urged that as the petitioner has been acquitted from the offence punishable u/s 224 of the Indian Penal Code, by JMFC, Paithan, vide judgment and order dated 14.05.2010, the petitioner may be sent back to Open Prison, Paithan and remission be given to him so also the red ribbon be removed from his shirt. 7. Upon notice of this petition being issued, respondent appeared and filed affidavit in reply contending that the petitioner was transferred to Open Prison, Paithan from Central Jail Nashik vide order dated 01.05.2009 and while he was undergoing sentence in the open jail at Paithan, the petitioner tried to escape from the open jail on 11.09.2009 and was arrested on 12.09.2010 and therefore, offence was registered against him for an offence punishable u/s 224 of the Indian Penal Code. It is further contended that since 12.09.2009 the petitioner is transfered to Central Prison, Aurangabad, however the said transfer is temporary and no final decision, in respect of transfer of the petitioner to Central Prison, Aurangabad, has been taken as yet. Apprehension is expressed by the respondent authorities that if the petitioner is brought in open jail, he may again try to escape from the open jail. 8. We find that there is no basis for the apprehension of the respondent authorities that if bring in open prison, the petitioner may again try to escape. Rule 22 (i) of Chapter XXXVIII drp {4} Cri.W.P.No.1046/2010 of the Maharashtra Prison Manual reads thus- 22 (i) Where a prisoner escapes from legal custody, the total remission earned by him up to the date of his escape shall stand forfeited. 9. Admittedly, the judgment in SCC No.759/2009 acquitting the petitioner for an offence punishable u/s 224 of the IPC is not challenged and has thus attained finality. Therefore, forfeiture of the remission of the petitioner cannot be enforced. In the premise the petition deserves to be allowed. 10. Consequently, the petition is allowed and the rule is made absolute accordingly. We quantify the fees payable to learned counsel appointed on behalf of the petitioner at Rs.1500/- [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B10/cwp1046-10