Bombay High Court
Faik Mushtaq Karambelkar vs The State Of Maharashtra on 24 August, 2016
Bench: V.K. Tahilramani
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2267 OF 2016
Faik Mushtaq Karambelkar ]
Age 32 years, Occ: Nil ]
Residing at Ratnagiri City, Ratnagiri ]
At present confined as Convict No. ]
C/7399 Nashik Road Central Prison ]
Nashik ]..Petitioner
Vs.
The State of Maharashtra ig ]
At the instance of the ]
Inspector General of Prisons ]
Maharashtra State, Pune ].. Respondent
....
Mr. Hitesh P. Shah Advocate for Petitioner
Mr. H.J. Dedia A.P.P. for the State
....
CORAM : SMT.V.K.TAHILRAMANI AND
MRS. MRIDULA BHATKAR, JJ.
DATED : AUGUST 24, 2016
ORAL JUDGMENT : [PER SMT. V.K.TAHILRAMANI, J. ]:
1 Heard both sides. Rule. By consent, rule is made
returnable forthwith.
2 This petition has been preferred by the petitioner
against the transfer of the petitioner from Nasik Road Central
Prison, Nasik to Kolhapur Central Prison.
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3 The reason for the transfer is that on 8.12.2015 and
9.12.2015 many convicts had gone on hunger strike in Nasik
Road Central Prison making various demands viz.:-
"(1) That the Superintendent should recommend
all the Furlough and Parole Leave of the Prisoners;
(2) That the furlough and parole leaves should
not be rejected by the D.I.G. / Divisional
Commissioner, not to put stringent conditions while
releasing on parole or furlough, the prisoners should
be released on furlough / parole on personal bonds;
(3) That punishment should not be imposed on
account of overstay of parole or furlough;
(4) That FIR should not be registered under
Section 224 of IPC if a prisoner absconds or does not
surrender in time after being released on parole or
furlough;
(5) That availability of Police Squad should be
made daily for taking Prisoners to General Hospital,
outside the jail;
(6) That at the time of visit of the relatives of
the Prisoners, who bring along with them eatables
and other articles, they should be allowed to enter
directly from the Main gate of the Prison and they
should not be prevented;
(7) That no action should be taken against the
prisoners for heating the food items (to make Handi)
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in Barracks;
(8) Meals provided in jail are not of good
quality".
4 Prisoners are prohibited to indulge in such type of
illegal activities like strike, hence, the prisoners were informed
that in view of the Rules and Regulations they should not
indulge in such kind of illegal activities and they are required to
maintain discipline in the jail. ig On 9.12.2015, D.I.G. Prison,
Central Region, Aurangabad visited Nasik Road Central Prison
and had a discussion with the prisoners and tried to convince
them that they should not indulge in such kind of illegal
activities and should not try to put pressure on the
administration of the jail. On the same day, majority of the
prisoners called off the hunger strike. However, it was noticed
that about 25 prisoners including the petitioner, were
instigating the other prisoners who were involved in the said
incident, hence, a proposal was sent through the Deputy
Inspector General of Prisons, Central Region Aurangabad to
the Inspector General of Prisons for granting sanction to
transfer these 25 prisoners including the petitioner to another
prison. By order dated 17.6.2016, 25 prisoners were ordered
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to be transferred to various prisons in Maharashtra. The
petitioner is one of these 25 prisoners.
5 Removal of prisoners to another prison is dealt with in
Chapter XXXV of the Maharashtra Prison Manual 1979. Rule 3
sets out the circumstances of removal of prisoners. Rule 3 (g)
in the said Chapter, reads as under:
"3. Prisoners may be removed from one prison to
another prison in the State for the following reasons,
that is to say:-
(a) ...
(b) ...
(c) ...
(d) ...
(e) ...
(f) ...
(g) grounds of security, expediency or
overcrowding in prisons."
The petitioner and other prisoners are being
transferred to another prison in view of Rule 3(g). Security is
an issue which is of utmost importance in a prison. The
conduct of the petitioner is such that it causes security
concerns and it is also expedient to transfer such prisoners to
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maintain prison discipline. Even otherwise the demands of the
prisoners were untenable for the below mentioned reasons.
6 As far as the demands of the prisoners is concerned,
the first demand could not have been at all acceded to i.e. the
Superintendent to recommend all the furlough and parole
leaves of the prisoners. Recommendation would depend on
the facts and circumstances of each case and the conduct of
the prisoner, hence, it is not possible for the Superintendent to
recommend parole and furlough leave in all cases.
7 The next demand was that furlough and parole leaves
should not be rejected by the D.I.G. / Divisional Commissioner
and stringent conditions should not be imposed and the
prisoners should be released on furlough or parole leave on
personal bonds. Grant of parole or furlough would depend on
the police report, on the facts and circumstances of each case
and conduct of the prisoners in the prison, hence, it is not
possible for the D.I.G. / Divisional Commissioner to grant all
parole or furlough leaves. Imposing conditions while granting
furlough / parole again depends on fact and circumstances of
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the case and the record of the prisoner. As far as the demand
for release of prisoner on personal bond is concerned, the
Supreme Court in the case of State of Maharashtra and
Another Vs. Suresh Pandurang Darvakar reported in (2006) 4
S.C.C. 776 has disapproved the release of prisoners without
surety.
8 The next demand was that punishment should not be
imposed on account
ig of overstay. As far as imposing
punishment on account of overstay is concerned, discipline has
to be maintained in the prisons. Cases when punishments for
overstay are imposed are stated in the Maharashtra Prison
Manual. A prisoner cannot flout the conditions imposed on
him, or abscond or not surrender in time and then make a
demand that no punishment shall be imposed on him.
9 The next demand was that no F.I.R. should be
registered under Section 224 of IPC. When a prisoner is
granted parole or furlough, he is told for which period he has
been granted parole or furlough and the day on which he has
to surrender to the jail authorities. If the prisoner does not
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surrender in time and he has absconded, F.I.R. is registered
against the said prisoner under Section 224 of IPC. The
prisoner cannot demand that law should not be allowed to take
its own course.
10 The next demand was that availability of police squad
should be made daily for taking prisoners to the General
hospital or outside the jail. As far as this demand is concerned,
the prison authorities
ig have no control over the police
authorities. It is the police authorities who provide squad /
escort to take the prisoners to various places. The jail
authorities can only make a requisition to the concerned
police department and the job of providing escort is totally of
the police and the prison administration has no control over the
same, hence, this demand on the prison authorities too is
unreasonable.
11 The next demand was that at the time of visit of the
relatives of the prisoners who bring along with them eatables
and other articles, they should be allowed to take them directly
inside the prison without being prevented or checked. As far
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as this aspect is concerned, visitors could bring any drugs or
other articles like weapons, mobile phones etc. and give it to
the prisoner, obviously, in such case, looking to the security
and discipline of the prison, there has to be a check and only
permitted articles can be allowed to be taken inside the prison
for which checking is necessary, hence, this demand is also
unreasonable.
One more ground was that no action to be taken
against the prisoners for heating the food items in the
Barracks. Rule 43 under Chapter XXIV of the Maharashtra
Prison Manual 1979 which deals with cooking in kitchen only,
states that no chula or fire-place for cooking shall be allowed to
be constructed in any part of the prison other than the kitchen,
except under special circumstances which shall be reported by
the Superintendent to the Regional Deputy Inspector General.
Moreover, lighting a fire in the barracks for heating food or
cooking food would be hazardous for various reasons.
13 In addition to the above demands, the grievance was
that the food provided in the jail is not of good quality. As far
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as this aspect is concerned, the food given to the prisoners is
checked by Chief Medical Officer of Nashik Road Central Prison.
Apart from that the said food items are checked by the
Panchas who have been nominated by the Prisons for the said
purpose. The Superintendent, Senior Jailor and incharge of the
Kitchen also check the quality of the food meals. Further
during surprise visit by the District Judge, Deputy Inspector
General of Prisons, they also check the quality of food items
from time to time and no such complaints of inferior quality of
food items have been received from the prisoners so far. Thus
it is seen that as far as quality of food provided in prison is
concerned, there are sufficient checks.
14 It is seen that the group of prisoners including the
petitioner had formed unlawful assembly and went on hunger
strike by taking no meals on account of various demands and
thereby held the prison administration to ransom. As observed
earlier these demands were all highly unreasonable. It is seen
that the prisoners deliberately flouted and tried to disturb the
peace and discipline in the prison, hence, in view of Rule 3 of
Chapter XXXV of the Maharashtra Prison Manual 1979 on
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grounds of security and expediency, the prisoners are liable to
be transferred and accordingly, they have been transferred.
15 Security, peace and discipline in a prison are of
paramount importance. They have to be maintained at all
costs. Rule 13(2) of Chapter XXVI of the Maharashtra Prison
Manual, 1979 deals with duties of the prisoners. Every prisoner
is required to comply with their duty stated in Chapter XXVI
which includes to show respect to all officers, not strike or
assault or threaten any officer or any person in prison. This is
set out in Rule 13(q) of Chapter XXVI of the Maharashtra
Prison Manual, 1979. The petitioner by going on hunger strike
has violated Rule 13(q) of Chapter XXVI, hence, authorities
were well within their right to transfer the petitioner to another
prison.
16 Moreover, the petitioner is being transferred from
Nasik Road Central Prison to Kolhapur Central Prison. The
native place of the petitioner is Ratnagiri. Kolhapur is closer to
Ratnagiri than Nasik. The distance between Kolhapur and
Ratnagiri is hardly three hours whereas the distance between
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Ratnagiri and Nasik is about eight hours, hence, it is to the
advantage of the petitioner if he is transferred to Kolhapur
Central Prison.
17 In view of the above facts, we are not inclined to
interfere, hence, Rule is discharged. Petition is dismissed.
[ MRS. MRIDULA BHATKAR, J.] ig [ SMT. V.K.TAHILRAMANI,J. ]
kandarkar
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