Ravindra Vithal Patil vs The Superintendent
2010 Latest Caselaw 76 Bom

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 ndm

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CRIMINAL APPELLATE JURISDICTION




                                                                                          
                      CRIMINAL WRIT PETITION NO.  2015  OF  2010




                                                                  
       Ravindra Vithal Patil.                                                ... Petitioner
             Vs.




                                                                 
       The Superintendent, Yerawada Central
       Prison, Pune and anr.                                                 ... Respondents
                                          -----
       Mr. Daulat G. Khamkar for the Petitioner.




                                                   
       Ms. S.V.Gajare, APP for the State.
                                   ig     -----

                                             CORAM  : A.M. KHANWILKAR and
                                 
                                                            P.D. KODE, JJ.

st DATE : 21 October, 2010.

P.C.

1 By this second round of petition under Article 226 of the

Constitution of India, it is prayed that the Respondents be directed to

transfer the Petitioner to any open prison in Maharashtra. This relief is nd claimed on the assertion that the Petitioner came to be arrested on 2

April, 1994 and since then he is continuously in jail consequent to the

finding of guilt against him by the trial Court vide judgment and order th dated 29 November, 1997. According to the Petitioner, although he was

eligible for being transfered to open prison, his proposal has been

rejected for reasons best known to the Authority.

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    2              Pursuant to notice issued by this Court, the Superintendent 

of Yerawada Central Prison, Pune, where the Petitioner is presently

th lodged, has filed affidavit dated 13 September, 2010. The justification

th offered is that as per the order passed by this Court dated 24 February,

2010 in Writ Petition No.241 of 2010, the Petitioner made application on

th 18 March, 2010 and the same was decided by the appropriate authority th on 17 April, 2010. The earlier writ petition was filed by the Petitioner in

which, direction was issued to the authority to decide the Petitioner's

application within 15 days from the date of the order. It is stated that as

there was no vacancy in any of the open prisons, the Petitioner's request

for transfer to open prison came to be rejected. This decision is the

subject matter of challenge in the present writ petition.

3 During the pendency of this petition, considering the

grievance of the Petitioner that he is continuously in jail since 1994 unlike

the other prisoners transferred to open prison, we called upon the

Inspector General of Prisons, Pune to furnish information as to how many

convicts/prisoners, who have undergone relatively lesser sentence period

than that of the Petitioner are already availing facility of open prison. In

th response to the said order dated 5 October, 2010, the Additional Director

General of Police (Prisons) and Inspector General of Prisons, th Maharashtra State, Pune has filed affidavit before us dated 16 October,

2010. The said affidavit deals with all other aspects, but the information

which we had called upon the Authority to furnish in terms of our

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abovesaid order. In the circumstances, we had no option but to ask the

Additional Director General of Police (Prisons) and Inspector General of

Prisons, Maharashtra State, Pune to remain personally present alongwith

relevant records in respect of the 611 convicts, who are reportedly

enjoying the facility of open prison. Accordingly today, the said officer is

present in Court with the relevant record. The documents produced by

the officer across the bar, are taken on record. The original be returned

to the learned APP after making the authenticated photocopy thereof.

The Additional Director General of Police (Prisons), who is present in

Court has tendered apology for not filing a proper affidavit. We deprecate

the casual attitude of the officer. It appears that he did not bother to read th the contents of our order dated 5 October, 2010 before preparing his

affidavit. As a matter of fact, the affidavit filed by the officer was of no

assistance to answer the controversy on hand.

4 In the first place, we fail to understand as to why the

information now disclosed on affidavit by the I.G. Prisons was not

disclosed to this Court in the earlier round of writ petition itself. For, the

said situation has not changed a bit. In as much as, the fact that the

selection of prisoners to be sent to open prisons were held on 7.10.2008

and 2.12.2008 wherein 748 prisoners came to be selected, amongst

whom 611 prisoners have already been transferred to open prisons and

the remaining 137 prisoners are kept on the waiting list - as a result of

which the Petitioner did not stand the chance of being transferred to open

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th prison. This position obtained even on 24 February, 2010. If that were

to be disclosed, the issue that has attracted our attention in the second

round of writ petition could have certainly been dealt with at that stage

itself.

5 Be that as it may, from the material, which is now produced

before us, it is noticed that substantial number of convicts/prisoners out

of the 748 prisoners already selected and in particular the 611 prisoners

who are already availing of open prison facility, have undergone sentence

period relatively lesser than that of the Petitioner. When called upon to

explain this anomalous position, the response was that the Petitioner for th the first time made application on 18 March, 2010 and it is only

thereafter, his case could have been considered for transfer to open

prison. To justify this plea, the learned APP placed reliance on Rule 4 of

the statutory Rules called the Maharashtra Open Prisons Rules, 1971.

Since reliance has been placed on this Rules, we may immediately

advert to Rule 4 and 5 thereof. The same read thus:

"4. (i) The following prisoners may be selected for confinement in all open prisons -

Convicted criminal prisoners who-

(a) are found to be of good behaviour, and are physically and mentally fit; and

(b) are willing to do hard work and abide by the rules and regulations of the open prison; and

(c) are sentenced to terms of imprisonment of one year or more and have undergone one-fourth of their sentence excluding remissions; or

(d) are sentenced to imprisonment for life or more than 14

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years in the aggregate and who have undergone five years of the sentence excluding remission;

(ii) The following prisoners shall not normally be sent for confinement in an open prison:-

(a) habituals classified as such by courts ;

(b) known habituals ;

(c) prisoners who are awarded three or more major

punishments for prison offences during the last two years, prior to the date of selection.

(d) prisoners having any case pending in a court,

(e) prisoners suffering from mental disease or any other

serious disease,

(f) prisoners having previous history of serious mental

illness,

(g) 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 Bombay Prevention of Gambling Act, 1887, or for offences under

the Sea Customs Act,

(h) escapees and escape risks,

(i) hired and professional murderers,

(j) prisoners convicted of offences connected with narcotics,

(k) prisoners, who have been transferred from an open prison to a closed prison,

(l) Class I prisoners,

(m) women prisoners,

(n) any other prisoner or category of prisoners whom the

Inspector General of Prisons considers unfit for being sent to an open prison.

(iii) Notwithstanding anything contained in sub-rule (ii) the Inspector General of Prisons, may on the recommendation of the Selection Committee, consider the cases of prisoners falling under sub-rule (2) for the purposes of confinement in an open prison.

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5. (i) The Superintendents of prisons shall prepare

separate lists of prisoners falling under sub-rule (i), and sub-rule (ii) of rule 4, and who are willing to be confined in an open Prison.

(ii) The Superintendent shall prepare case histories of such prisoners in the Form I appended to these rules and

then forward such lists together with case histories to the Selection Committee.

(iii) The classification committee shall examine the said

lists along with the case histories and files of the prisoners at the respective Central Prisons and District Prisons,

Class-I.

(iv) The case of each prisoner shall be screened, regard

being had to the following factors, namely :-

(a) health, physical and mental to withstand confinement in open prison ;

(b) behaviour and conduct in prison and sense of responsibility displayed ;

(c) progress in work, vocational training, education and in other like matters ;

(d) group adjustibility ;

(e) character and self discipline ;

(f) extent of institutional impacts (whether he has reached peak point of training and treatment);

(g) whether he is fit for being trusted for confinement in an open prison.

(v) The Selection Committee shall select such prisoners as are eligible for being confined in open prison under rule 4, and submit a list of selected prisoners for the approval of the Inspector General of Prisons. On the list being approved, the selected prisoners shall as soon as possible be transferred for confinement in the open prison."

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    6              On plain reading of these Rules, we fail to understand as to 

on what basis the Appropriate Authority is labouring under misconception

that unless the convict/prisoner were to make a formal application for

being transfered to open prison, his case cannot be considered for that

relief. The Rules of 1971 are statutory Rules. As per Rule 4, the

eligibility of convicts entitled for being transfered to open prison has been

predicated. Rule 4(i) provides that prisoners specified therein may be

selected for confinement in all open prisons. Indeed, that selection would

be subject to fulfilling other conditions specified in the said Rules. The

procedure for considering the claim of prisoners for transfer to open

prison can be discerned amongst other from Rule 5. Even on fair reading

of the said Rule, it is not possible to countenance the argument that

unless the prisoner/convict were to make a formal application in writing,

he cannot be considered for transfer to open prison. In our opinion, if the

prisoner becomes eligible and conforms to all the stipulations provided in

the said Rules, is entitled for being transfered to open prison as a matter

of right, subject, however, to availability of vacancy in the open prisons in

the State of Maharashtra. The Authority, referred to in the said Rules has

a corresponding obligation to consider the case of every prisoner on its

own as soon as the said convict/prisoner becomes eligible in terms of

Rule 4. In other words, the Superintendent of Prison is obliged to

empanel the name of every convict/ prisoner, who becomes eligible as

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per the Rules in vogue, irrespective of whether any application in that

behalf has been made by him or otherwise. That is imperative

considering the intent behind the statutory Rules of 1971. The governing

policy under this Rules, is that, transfer of prisoners to open prison is one

of the essential process of reformation of the deserving

prisoners/convicts in jail. In the circumstances, we are unable to accept

the argument of the Respondents that the Petitioner's case could not

have been considered for transfer to open prison in absence of a formal

application in that behalf.

7 Assuming that we were to accept the argument of the

Respondents that the Petitioner should have made written application

requesting for transfer to open prison, there is nothing to show that the

Petitioner was personally informed about the existence of such a right as

soon as he became eligible for that facility on completion of the specified

sentence period as per Rule 4. The argument of the learned APP is that

th a general announcement was made before 7 October, 2008 in the

Yerawada Central Prison, Pune, where the Petitioner was lodged. When

called upon to produce documents to support that contention, it was

th stated that such announcement was made on a loudspeaker on 7

October, 2008. We fail to understand as to how such announcement can

fulfill the requirement of giving personal intimation to the Petitioner about

his right to be considered for being transfered to open prison as soon as

he became eligible therefor as per the Rules. Taking any view of the

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matter, therefore, we have no hesitation in concluding that the Petitioner's

case has not been considered at the time when he became eligible for

being transfered to open prison.

8 Reverting to the reason recored by the Appropriate Authority

in the impugned decision, that presently there is no vacancy in open

prison, to consider this ground, we called upon the Additional Director

General of Police (Prisons) to produce material, which will disclose the

number of prisoners/convicts, who have undergone relatively lesser

sentence period than that of the Petitioner, but are availing open prison

facility. Notably, from the documents produced before us, it is noticed

that substantial number of convicts, who have undergone relatively lesser

sentence period than that of the Petitioner, are already availing relief of

open prison. Indeed, those convicts had made formal application for

being transfered to open prison as soon as they became eligible as per

the Rules. In our opinion, as aforesaid, every prisoner, covered by Rule

4, is entitled for being transfered to open prison subject to availability of

vacancy in open prisons in the State of Maharashtra, as soon as he

becomes eligible therefor irrespective of the fact whether he had made

written application in that behalf or otherwise. Indeed, he would be

entitled to that relief only if he were to undertake to abide by the

requirements and stipulations provided in the said Rules - such as that

he would maintain good behaviour and also willing to do hard work and

abide by the rules and regulations of the open prison.

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    9              Considering   the   limited   number   of   prisoners   who   can   be 




                                                                                        

accommodated in the open prisons in the State of Maharashtra, the

appropriate course, in our opinion, is to direct the Appropriate Authority

to reconsider all the cases afresh so as to ensure that the prisoner/

convict, who has already undergone relatively more sentence period in

jail should get precedence for being transfered to open prison, which is

one of the essential process for reformation of the deserving prisoners.

Depending on the seniority of the eligible and deserving

convicts/prisoners in jail, the list will have to be re-drawn and thereafter

the vacancies in open prisons in the State of Maharashtra should be filled

up on that basis and not merely because some prisoners/ convicts had

made application in writing in earlier point of time. Taking any other view

would not only be arbitrary exercise of power but also result in

perpetrating discrimination. Besides, it will be denial of statutory relief to

the eligible prisoners/convicts essentially because of the inaction of the

Appropriate Authority to empanel them at the proper time. We are

conscious of the fact that while redrawing the select list, some prisoners

who are already availing of the open prison facility may not come within

the number of available vacancies. But, that is inevitable. They have got

benefit only because they were well informed and well advised to make

application in writing in earlier point of time. That, however, cannot be the

test applied to effectuate the intent behind the statutory Rules in its letter

and spirit.

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    10             Accordingly,   we   allow   this   writ   petition   by   directing   the 




                                                                                         

Respondents to reconsider the case of the Petitioner and similarly placed

prisoners including that of other prisoners/convicts who have already

been transfered to open prison and to redraw the list of eligible

prisoners/convicts on the basis of the sentence period already undergone

by them in jail. The vacancies in the open prisons in the State of

Maharashtra should be filled up in order of such seniority. Until such list

is prepared, the present arrangement shall be continued in all the open

prisons throughout the State of Maharashtra. The above process shall

however, be concluded by the Appropriate Authority of the State within

ten weeks from today. Ordered accordingly.

           [ P.D. KODE, J ]                                [ A.M. KHANWILKAR, J ]