Bombay High Court
Vijay Babarao Mahakalkar (In Jail) vs Deputy Inspector General Of Prisons, ... on 17 September, 2019
Author: Pushpa V. Ganediwala
Bench: Z.A. Haq, Pushpa V. Ganediwala
1 926Cri.WP1205.18
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION (WP) NO. 1205/2018
1. Vijay Babarao Mahakalkar
Convict No. 8020
2. Devanand Bharatrao Mahakalkar
Convict No. 8022,
Both R/o Central Prison, Nagpur
.... PETITIONERS
VERSUS
1. Deputy Inspector General of Prisons,
East, Nagpur
2. Jail Superintendent,
Nagpur Central Jail,
Nagpur
.... RESPONDENTS
______________________________________________________________
Mr. Mir Nagman Ali, Advocate for petitioners
Mrs. S.S. Jachak, APP for respondents / State
______________________________________________________________
CORAM:- Z.A. HAQ AND
PUSHPA V. GANEDIWALA, JJ.
DATED :- 17/09/2019
ORAL JUDGMENT (Per Pushpa V. Ganediwala, J.) :
Rule. Rule is made returnable forthwith and heard finally with the consent of Mr. Ali, learned Counsel for the petitioners and Mrs. Jachak, learned A.P.P. for the respondents/State.
::: Uploaded on - 18/09/2019 ::: Downloaded on - 19/09/2019 01:16:58 :::2 926Cri.WP1205.18
2. By way of this petition, the petitioners, who are life convicts for the offence of murder, sought the following reliefs which are mentioned as prayer clauses (ii) and (iii) in the petition :
" ii. By suitable writ, order or direction and thereby be pleased to direct respondents to select petitioners to Open Prison.
iii. In the alternative, direct the respondent to hold meeting of selection committee for electing prisoners to Open Prison and consider petitioners for selection to Open Prison."
3. The petitioners state that they had applied for their selection to open prison, however, they were not found eligible for the same.
4. Learned Counsel for the petitioners brought to our notice the relevant rules for Open Prison i.e. the Maharashtra Open Prisons Rules, 1971. Rule 4(2) provides categories of prisoners, who are not eligible for selection to be confined in an open prison. The same are reproduced below :
"Rule 4 (2) : The following prisoners shall not normally be sent for confinement in an open prison :-
(i) Habituals classified as such by courts,
(ii) Known habituals,
(iii) prisoners who are awarded three or more major punishments for prison offences during the last two years, prior to the date of selection.::: Uploaded on - 18/09/2019 ::: Downloaded on - 19/09/2019 01:16:58 :::
3 926Cri.WP1205.18
(iv) prisoners having any case pending in a court,
(v) prisoners suffering from mental disease or any other serious disease,
(vi) prisoners having previous history of serious mental illness,
(vii) prisoners convicted and sentenced for offences under Sections 121, 121-A, 122, 123, 124, 124-A, 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,
(viii) escapes and escape risks;
(ix) hired and professions murderer,
(x) prisoners convicted of offences connected with narcotics,
(xi) prisoners, who have been transferred from an open prison to a closed prison,
(xii) Class I prisoners,
(xiii) Women prisoners,
(xiv) Any other prisoner or category of prisoners whom the Inspector General of Prisons considers unfit for bearing sent to an open prison.
5. Learned Counsel for the petitioners submits that the respective cases of the petitioners do not fall in any of the above referred categories.
6. We have carefully examined the record. The learned Additional Public Prosecutor is not able to show that the petitioners have been awarded three or more major punishments for prison ::: Uploaded on - 18/09/2019 ::: Downloaded on - 19/09/2019 01:16:58 ::: 4 926Cri.WP1205.18 offences during the last two years as per Rule 4(2)(iii). Their names have been removed from register of remissions, in view of their unauthorized over stay, is the only ground against the petitioners.
7. The affidavit-in-reply on behalf of the State placed much emphasis on the petitioners unauthorized over stay during their parole / furlough leave. It does not state about any other criteria as listed above for not considering their cases for open prison.
8. In that view of the matter, we are inclined to allow the petition and the same is accordingly allowed in terms of prayer clauses
(ii) and (iii) and direct the respondents to reconsider the petitioners for their confinement in an open prison in the light of the above observations. Hence, criminal writ petition stands disposed of in the above terms.
9. Rule is made absolute in the aforesaid terms.
JUDGE JUDGE
D.S.Baldwa
::: Uploaded on - 18/09/2019 ::: Downloaded on - 19/09/2019 01:16:58 :::