Bombay High Court
Bhima vs The State Of Maharashtra on 30 November, 2012
Bench: A. H. Joshi, S.P. Deshmukh
1 Cri.Writ Petition 389 of 2012
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.389 OF 2012
Bhima S/o.Rangnath Adagale,
Age-55 years, Occu-Convict No.6765,
R/o.at Central Prison, Aurangabad PETITIONER
VERSUS
1. The State of Maharashtra
2. The Inspector General of Prison,
Maharashtra State, Pune,
3. The Deputy Inspector General
of Prison, Maharashtra State, Pune,
4. The Superintendent,
Central Prison, Aurangabad RESPONDENTS
Mrs.Bharati Gunjal, learned counsel for the
petitioner.
Mrs.V.A.Shinde, learned A.P.P. for respondent/State.
( CORAM : A.H.JOSHI AND
SUNIL P.DESHMUKH, JJ.)
DATE : 30/11/2012
ORAL JUDGMENT : (Per A.H.Joshi, J.)
1. This petition was heard from time to time.
Various directions were issued and various
affidavits have been filed by different officers.
Information on various points is placed on record.
This petition can be disposed of finally as
2 Cri.Writ Petition 389 of 2012
pleadings are complete in all respects.
2. Rule. Rule is made returnable forthwith and
is heard by consent.
3. Perused the record.
4. History of previous petitions is as narrated in
paras to follow.
5. Cri.Writ Petition No.613 of 2010
(a) Petitioner had approached this Court by filing
criminal writ petition No.613/2010. He had prayed
for writ of mandamus. He had claimed that he be
transferred to Open Prison from Closed Prison.
(b) Petitioner had claimed that he had overstayed
while on furlough for 126 days between 4-11-2007 to
9-3-2008, when he was arrested and was brought back.
(c) The overstay was because he was suffering from
severe pain and un-healed burn injuries. He had
suffered the burns while he was on furlough and he
was taking treatment while at home. His failure to
report in Open Prison was due to reasons which were
beyond his control.
(d) He was served with a notice of show cause dated
25-5-2008. By said notice, he was called to show
cause against punishment towards jail offence of
3 Cri.Writ Petition 389 of 2012
overstaying furlough for 126 days.
(e ) Documents which were placed on record by the
petitioner to show that his overstay was on account
of his reason of being injured and actually under
treatment and confined to bed.
(f) The petition was opposed by placing on record
copy of order passed by Deputy Inspector General
(Prisons) Aurangabad dated 20-8-2008. The order
dated 20-8-2008 disclosed that thereby the decision
of Superintendent (Open Prison) Paithan dated
9-3-2008, committing/transferring the petitioner to
Closed Prison was confirmed. Copy of the order
dated 20-8-2008 is seen on record of said petition
as Exh.R-1, page 56 of paper book of writ petition
no.613/2010.
(g) It is evident from order dtd.20-08-2008 that it
was passed on account of overstay between 4-11-2007
to 9-3-2008.
(h) Petitioner amended the writ petition and
challenged the order dated 20-08-2008.
(i) This Court dismissed the petition by order
dated 17-2-2011. This Court held that the order
impugned was passed after giving to the petitioner
an opportunity of hearing.
(j) It is obvious that the order to which this
Court has referred as "order impugned" was the order
at Exh.R-1 page 56 of the said paper book which is
order dated 20-8-2008 for which prayer 17-B-1 was
made.
4 Cri.Writ Petition 389 of 2012
6. Cri.Writ Petition No.647 of 2011
(a) While the petitioner was serving sentence in
Closed Prison and was served with order confirming
his committal to Closed Prison dt.9-3-2008.
(b) Thereafter he had furnished a representation to
the Director General of Prisons, M.S. Pune.
(c) During pendancy of Cri.W.P.No.613/2010 the
petitioner was served on 12-7-2010 an intimation
dated 30th June/1st July 2010, by which he was
informed that his request for transfer to Open
Prison has been rejected.
(d) Though Cri.W.P.No.613/2010 was pending the
communication dated 30th June/1st July 2010 was not
brought to the notice of the petitioner's advocate
by the petitioner, or even by the prison
authorities.
(e) In these premises, petitioner filed another
criminal writ petition no.647/2011 and prayed for
the relief against the order passed by the
respondent no.2 i.e. The Director General of Prisons
and communicated the petitioner by intimation dated
30th June/1st July 2010. Copy of said intimation was
placed on record as Exh.E, page no.18 of Cri.W.P.No.
647/2011.
(f) Thus, the second writ petition no.647/2011 was
filed for challenging the order passed by Director
General of Prisons on 30th June/1st July 2010.
5 Cri.Writ Petition 389 of 2012
(g) The ground raised in the said petition urged
during hearing, interalia, was that the Director
General of Prisons was under obligation to apply
mind to the cause of overstay by the petitioner,
however it was not done.
(h) It was urged and reiterated that as the
overstay for 126 days was on account of the reasons
beyond his control, the decision of the
Superintendent Open Prison, Paithan for transferring
the petitioner to the Closed Prison and the order
passed by Dy.Inspector General Prisons as well as of
Additional Director General of Police, confirming
the order passed by the Superintendent Open Prison
were liable to be set aside. The petitioner had
prayed that he be sent to Open Prison.
(i) During hearing of writ petition no.647/2011 it
had transpired that the Additional Director General
Prisons had not passed any order whatsoever by
adjudicating on the fact of the matter; as to the
veracity of the claim of the petitioner that he was
rendered incapable to report to prison due to
injuries etc.
(j) Therefore, this Court decided the writ petition
and passed an order on 15-11-2011 directing that the
factual aspects brought into controversy by the
petitioner while passing the impugned order, be re-
examined etc.
(k) The operative text of the judgment and order
passed in Cri.W.P.No.647/2011 reads as follows :-
6 Cri.Writ Petition 389 of 2012
(A) The petitioner's application, a copy
whereof is at page 13, be treated as
representation, as if undecided.
(B) The petitioner be given opportunity to
represent against the grounds due to which the
concession to be committed in the open prison,
is being denied, by serving upon him the
grounds. Thereupon the petitioner's eligibility
for transfer to open prison be decided within
60 days from today.
(C) The decision be communicated to the
petitioner.
(D) The learned APP is directed to communicate
this order to the competent authority.
PRESENT WRIT PETITION
7. It appears that Petitioner's case was
considered afresh after the order was passed in Writ
Petition No.647/2011 on 15-11-2011.
Fresh order dated 11-4-2012 purportedly passed
by the Deputy Inspector General is served on the
petitioner. Copy whereof is placed on record as
Exh.C, at page no.14. It is disclosed in said order
that petitioner's representation, in relation to
which, this Court had given directions to decide in
Cri.W.P.No.647/2011, was decided.
It is further disclosed that :-
(a) It was reported by Dy.Inspector General Prisons
7 Cri.Writ Petition 389 of 2012
Aurangabad that the petitioner had overstayed
furlough for 68 days and was brought back upon
arresting.
(b) That the Honourable High Court had directed
that petitioner's case be re-considered for
transfer to Open Prison.
(c) Dy.Inspector General (Prisons) Aurangabad has
not favourably recommended petitioner's case
for re-transfer to Open Prison.
(d) Petitioner's earlier writ petition no.613/2010
was already dismissed by Hon'ble High Court.
(e) In Writ Petition No.647/2011, Honourable High
Court has directed by order dated 15-11-2011
that petitioner's application for re-transfer
to Open Prison be re-considered.
(f) Since petitioner had overstayed furlough for 68
days and was produced upon arrest and therefore
his case can not be considered as a fit case
for his re-transfer to Open Prison.
8. In present writ petition, petitioner had raised
a plea that the Dy.Inspector General (Prisons), who
had passed said order, does not have power to pass
an order in the matter of transfer of prisoner to
Open Prison etc. Consequently, this Court gave
certain directions. Thereafter, fresh affidavit has
been filed. Alongwith additional affidavit, a copy
of the order passed by Additional Director General
(Prisons), apparently dated 5-4-2012, is placed on
8 Cri.Writ Petition 389 of 2012
record at page no.42 and 43 of paper book.
9. It is seen that order at page no.14 Exh.C to
the petition is sheer replication of order passed by
Additional Director General of Prisons. Entire text
of order dated 5-4-2012 passed by Dy. Inspector
General Prisons (Headquarter) Pune is word by word
copy of the order dtd.11-4-2012 passed by Addl.
Director General Prisons Pune.
10. This Court was therefore required to proceed
against the factual backdrop that Exh.'C' is just a
communication and whatever scrutiny that has to be
done is of order passed by Additional Director
General (Prisons) passed on 5-4-2012, seen at page
no.42 and 43.
11. During oral submissions, learned advocate for
the petitioner had advanced the submissions, which
are in nutshell as follows :
(a) The order passed by the Additional Director
General of Prisons suffers from the defects
mainly :-
(i) He has not dealt with the matter for
which a direction was given i.e.justifiability
of the reasons of petitioner's overstaying
leave upto 126 days offered by him in his
representation.
9 Cri.Writ Petition 389 of 2012
(ii) The reason on which the order is passed
is about 68 days overstay. Explanation,
if any, offered by petitioner in that
regard is not considered by the Additional
Director General of Prisons and any
decision thereon is not rendered by him.
(iii)An effort/attempt is made by the Addl.
Director General of Police to by-pass and
brush aside the object, spirit and express
terms with which direction was given to him
by this Court.
(iv) Addl.Deputy General Prisons has not
understood the exact direction given by
this Court in Cri.W.P.No.647/2011.
(v) Additional Director General (Prisons)
was directed to test the fact of the matter
and legality of order passed by Deputy
Inspector General Prisons, Aurangabad. He
has failed to discharge the duty of
adjudication assigned to him by judgment of
this Court.
(b) There are number of prisoners who have
overstayed the leave. Those are divided in following
categories :-
(i) Those who have overstayed furlough /
parole and reported voluntarily.
10 Cri.Writ Petition 389 of 2012
(ii) Those who have overstayed and brought
upon arrest, though the duration of their
overstay till the date of arrest is
numerically lesser than their respective
days of overstay as compared to the over-
stay by the prisoners who were either not
chosen for arrest or were actually not
arrested or they have reached the prison
before warrant of arrest could reach them.
(iii)In these premises, the transfer of
prisoners to Closed Prison is now left to
the sweet will of the Officers from the
Prison Department or Officers or personnel
from the Police force.
(iv) The officers choose to arrest somebody
and do not choose to arrest the remaining,
would decide the fate of prisoners'
concessions, and not the rule of Law.
(v) The arrest is delayed sheerly due to
coincidence in some cases, and deliberately
in many cases.
(vi) Petitioner is discriminated against
the prisoners who have stayed outside the
prison for durations longer than petitioner's
overstay but had reported before arrest,
11 Cri.Writ Petition 389 of 2012
and are kept/retained in Open Prison.
(vii)These prisoners / persons constitute a
favoured class since they were successful
in avoiding the arrest or efforts to arrest
them were not made.
(viii) There is no explanation as to why
the petitioner was arrested after 68 days
or 126 days as the case be and why many
others, who had overstayed for longer
duration, were not arrested.
12. The plea of discrimination raised by the
petitioner was startling. It was necessary to know
the fact of the matter. This Court, therefore,
directed the Jail Authorities to produce the data in
the form of Chart showing the names and days
pertaining to the prisoners who have overstayed and
in relation to whom, certain action such as to send
them to Closed Prison or for any other punishment,
is taken.
13. The chart as directed is produced and is taken
on record.
14. We have perused the chart. Analysis of said
chart shows that there are 7 prisoners who were/are
serving the sentence in Open Prison, including the
12 Cri.Writ Petition 389 of 2012
petitioner who have overstayed the furlough or
parole for more than 68 days.
15. We have considered the figure of 68 days as a
benchmark because the impugned order contains a
statement that petitioner had overstayed leave for
68 days and he was arrested and brought back to jail
and he was committed to Closed Prison. The figure 68
days is mentioned in the order at Exh.'C' as well
order dated 11-4-2012 at Exh.R-3. It is not shown
as to how the figure 126 days shown in shown cause
notice became 68.
16. The extract from chart which is furnished by
the prison authorities, which discloses the data as
regards these 6 persons/prisoners is as follows :-
Sr. Convict Name of the Type of Days of Whether Punishment
No. No. Prisoner leave overstay voluntar of
ily overstay
reported
or
arrested
by
police
1. 3117 Balaji Manik Furlough 90 days Voluntar 270 days
Chavan ily deducted
2. 3787 Kalyan Kisan Furlough 89 days Voluntar 267 days
Bhodwe ily deducted
3. 3537 Yogiraj Parole 100 days Voluntar 300 days
Nilkanth ily deducted
Rangari
4. 4084 Milind Jitendra Furlough 71 days Voluntar 71 days
Sharma ily deducted
5. 3795 Ramesh Khimji Furlough 89 days Voluntar 89 days
Boricha ily deducted
6. 4009 Bhimrao Parole 143 days Voluntar 143 days
Sakharam Bodhu ily deducted
13 Cri.Writ Petition 389 of 2012
17. Six prisoners shown in foregoing para had
reported in the prison before they could be
arrested.
18. Though the order passed by Additional Director
General of Prisons refers to delayed reporting by 68
days, the show cause notice as well as the order
contained a specific mention that the petitioner had
overstayed and was arrested after 126 days. The
information about the prisoners who have overstayed
discloses that there is on prisoner in the list
quoted in paragraph no.16, where the prisoner
concerned was at large unauthorizedly for 143 days.
Thereafter, he had reported without arrest because
no orders for arrest were made or he was successful
in evading the arrest.
19. This voluntariness in appearance after 143
days could be dubious as well, however in the
judgment of the jail authorities, it relieves him
from the liability of being sent to Closed Prison.
The said dubious voluntariness earns the reward of
being retained in Open Prison than being sent to the
Closed Prison and hard labour apart from forced
seclusion. For him, the punishment of forfeiture
of remission is adequate punishment.
20. At this stage, we had orally directed learned
APP to take instructions and explain circumstances,
14 Cri.Writ Petition 389 of 2012
if any :-
Do reasons exist for which petitioner was
chosen for arrest after overstay for 68 days or 126
days as the case be, and as to why others having
large duration (number of days) of overstay were
not chosen for arrest or were not arrested.
21. Learned APP has taken instructions and made
oral statement in the Court as follows :-
(a) All those who were brought back to prison
upon arrest are uniformly treated. All such persons
were served with notice of show cause and after
observing the procedure, they are committed to
Closed Prison.
(b) Those who have voluntarily reported though
late, are a class apart. They are punished for Jail
offence by forfeiture etc. They are not left scot-
free
(c) 6 persons identified by Court having
overstay for duration longer than petitioner, had
voluntarily appeared. They were not arrested.
Therefore, they are not sent to Closed Prison.
(d) No reasons can be shown as to why some
prisoners are punctually arrested and others have
not been arrested.
22. It is not disclosed as to what were special
circumstances where the petitioner, in particular,
15 Cri.Writ Petition 389 of 2012
was arrested after 68 days or 126 days, while other
prisoners could remain at large unauthorizedly and
without arrest for a period between 71 to 143 days.
The choice and selection of the petitioner for
arresting and production is, to us, an unsolved
mystery and puzzle, which respondents have chosen to
keep unresolved.
23. Thus, it emerges that those who remained at
large, were not arrested because of favour or
negligence of prison officers or Police Authorities.
Those who are not belong to a class which could
manoeuvre the desired result, and possibly even by
unscrupulous means.
24. In either situation, when either jail
authorities or police is active and someone is
arrested, such prisoner suffers the result of losing
the concession of remaining in the Open Prison while
others are fortunate or manipulative against whom
Jail Authorities or Police choose not to take any
action.
25. Apart from the reasons and intentions, fact
remains that the petitioner is discriminated and is
met with a hostile treatment than against all those
who have overstayed furlough/parole and are retained
in Open Prison.
16 Cri.Writ Petition 389 of 2012
26. In our considered view, whether the
discrimination is due to deliberate or malicious act
or sheerly accidental, the result is certain. The
violation of Constitutional guarantee of equality
before Law and freedom from discrimination is done.
The guarantee of fairness in executive action too is
violated.
27. There is one more dimension to this case.
This dimension is that in our view, the Additional
General of Police has disregarded the directions
contained in the order passed by us while deciding
the petition, viz; W.P.No. 647/2011. We have quoted
those directions in foregoing para no.6(k). We have
also quoted in paragraph no.7 as to the attitude and
focus with which the Additional Director General of
Prisons has viewed the order passed by this Court in
Cri.W.P.No.647/2011.
28. This act of Additional Director General of
Prisons shows the attitude of apathy towards
prisoners as well as disrespect towards the orders
passed by this Court.
29. On facts, the application of the writ
petitioner, which was remitted for consideration by
Additional Director General of Prisons, was :-
"whether the order passed by Deputy Inspector
General (Prisons) Aurangabad dated 20-8-2008
17 Cri.Writ Petition 389 of 2012
(ratifying the action of the Superintendent, Open
Jail, Aurangabad, committing him to Open Prison) was
passed on valid reasons and whether excuse offered
by petitioner towards overstay between 4-11-2007 to
9-3-2008 was based on genuine grounds.
30. Instead of reading the order passed by this
Court in right perspective, the Additional Director
General of Prisons has considered the matter as if
it was a case of re-consideration of application of
petitioner for remittance to Open Prison.
31. The Additional Director General (Prisons) had
duty to scrutinize the ground put forth by the
petitioner. The Additional Director General of
Police has shown total dis-regard towards the faith
imposed in him by this Court while passing the order
in assigning the matter to him while deciding writ
petition no.647/2011. He has simply relied upon
the proposal and / or comments/recommendations
furnished by the Deputy Inspector General Prisons,
Aurangabad.
32. In our view, the net outcome of the way in
which the prison authorities have behaved is to
discriminate the petitioner from other similarly
situated i.e. the overstaying prisoners, in the
matter of treatment and this discrimination is not
generated sheerly on account of a contingency or
18 Cri.Writ Petition 389 of 2012
accident.
33. The differential and discriminatory treatment
given to petitioner is not on account of any
rational, or classification for reasons and grounds
whatsoever duly disclosed and justifiable.
34. Ordinarily, whenever a prisoner reports late
beyond a particular period and is not able to
demonstrate and prove that his failure to report was
on account of circumstances beyond his control,
distinguishable from his sheer wish to stay outside,
such insolent desire could be a ground to decide as
to whether he should lose the concession available
to him to remain in the Open Prison.
35. We are, therefore, of the considered view that
the treatment given to the petitioner by sending him
to Closed Prison for unauthorized stay of 68 or 126
days, as the case be, deserves to be quashed and set
aside, being contrary to rule of fair play, good-
conscious and reasonableness, being arbitrary and
discriminatory too.
36. At this stage, learned APP has offered oral
explanation as follows :-
68 days overstay is calculated after deducting
the days of actual hospitalization from some
incident of overstay of 126 days. Thus, this
19 Cri.Writ Petition 389 of 2012
aspect will show due application of mind.
37. This explanation by learned APP amounts to an
attempt to supplant reasons not found in the order.
An order which has to be reasoned order, can not be
justified by later on supplying reasons.
38. Therefore, we hold that the petitioner has been
met with hostile and grossly discriminatory, as well
arbitrary treatment.
39. The Additional Director General of Prisons was
afforded with an opportunity to undo said
discriminatory conduct of his subordinates. The
Additional Director General Police has chosen to
disregard this opportunity and has blindly endorsed
action of his subordinates.
We, therefore, set aside order passed by
Additional Director General of Prisons passed on
5-4-2012 Annexure R-2 at page no.42 and 43 of paper
book of W.P.No.389/2012, as well order passed by
Deputy Inspector General (Prisons) Aurangabad passed
on 11-4-2012 and issue further directions as
mentioned hereinafter.
40. We clarify that though we have set aside the
order of committing the petitioner to Closed prison
from Open Prison, this order shall not operate till
5-1-2013.
20 Cri.Writ Petition 389 of 2012
The Additional Director General (Prisons)
Maharashtra shall call for the papers and take a
decision as to whether and how :-
(a) Petitioner's case is different from the
case of prisoners named in this order in the
foregoing paragraph no.16;
(b) If there exist any special reason for which
the petitioner was required to be arrested in
comparison to those who were not arrested;
(c) Whether other prisoners have reported late,
had brought on record justifiable and convincing
reasons and circumstances beyond the control of the
Prisoner concerned whereby the prisoners concerned
were "precluded and prevented" from reporting in
jail on the due date and on each day of delay, due
to which they deserve retention in Open Prison in
contrast with the case of present petitioner.
41. We believe that an executive can err, but can
also correct itself, once the executive action can
be set right even by the executive. We wish that the
Authorities would once again consider the
petitioner's case on its own as well on comparative
merit.
42. We further clarify that, if for any reason, the
Additional Director General (Prisons) Maharashtra is
not able to take a decision on or before 5-1-2013,
the petitioner shall be liable to be committed to
21 Cri.Writ Petition 389 of 2012
Open Prison forthwith and the Additional Director
General (Prisons) may take the decision soon
thereafter.
43. We have also noticed that prisoners undergoing
conviction or who are under trial prisoners in
serious offences too have overstayed for period more
than one year while availing parole. Instances of
overstay and selective arrests are seen to be usual
matters. In this situation, we consider it necessary
that the Prison Authorities should devise a uniform
pattern where such action of fortuitous arrest or
fortuitous failure to arrest should not recur. A
uniform pattern in this regard be devised and be
adopted for sending directions or warrant of arrest
for all those prisoners who have not reported after
a fixed duration. A uniform method of follow up of
execution of warrants should also be adopted.
44. It should also be seen that the fact that
somebody is arrested alone in exclusion to many
others, in isolation, should not be a ground of
forfeiture of concession of continuation in Open
Prison. We hope that appropriate decision be arrived
at by the Director General of Prisons in
consultation with the Government and sub-ordinate
prison authorities. We hope and expect that such
decision be arrived at within the period of 6 months
at the most, and compliance be reported to this
22 Cri.Writ Petition 389 of 2012
Court.
45. We direct the learned APP to communicate this
order to Additional Director General Prisons and
ensure its compliance.
46. The Director General of Prisons and Additional
Director General of Prisons should take a note of
this writ in the register and certify the writ in
their own handwriting and forward it to this Court.
47. Considering that the petitioner was required to
approach this Court repeatedly, present is a fit
case where petitioner should be awarded costs.
48. We are constrained to impose costs in the
background that not only petitioner has been met
with an injustice, but also because the Additional
Director of Prisons has totally disregarded the text
and spirit of the orders passed by this Court in
W.P.No.647/2011. We have not issued a personal
notice to the Officer concerned as we are not
viewing towards his conduct as an act of willful
dis-obedience tantamounting to contempt. The token
costs shall be Rs.2,500/-. This amount shall be
payable by the Additional Director General of
Prisons, who has passed impugned order dated
5-4-2012. Amount of costs be paid to the petitioner
directly within 30 days and compliance be reported
23 Cri.Writ Petition 389 of 2012
to this Court.
49. We, make the Rule absolute in the terms of para
nos.39, 41, 42 and 48.
(SUNIL P. DESHMUKH, J.)
( A.H.JOSHI, J.)
khs/NOV.2012/cri.w.p.389-12
