Bombay High Court
Chhaburao Kacharu Jare vs The State Of Maharashtra And Anr on 11 October, 2017
Bench: V.K. Tahilramani
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2759 OF 2017
Chhaburao Kacharu Jare ]
Age 43 years, Occ: Nil ]
R/o Chandakapur, Taluka Rahuri, ]
Dist. Ahmednagar, ]
Prisoner No. C/14337. ]
At present in the Yerawada Central ]
Prison, Pune. ].. Petitioner
Vs.
1) The State of Maharashtra ]
Through P.P. High Court, ]
Mumbai ]
]
2) The Superintendent, ]
Yerawada Central Prison, Pune ].. Respondents
....
Ms. Ankita Naik Advocate i/b Mrs. Indrayani M. Koparkar
Advocate for Petitioner
Mr. Arfan Sait A.P.P. for the State
....
CORAM : SMT.V.K.TAHILRAMANI AND
M.S.KARNIK, JJ.
DATED : OCTOBER 11, 2017
ORAL JUDGMENT [PER SMT. V.K.TAHILRAMANI, J. ]:
1 Heard both sides. The prayer of the petitioner is that
he be transferred to open prison.
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2 The learned counsel for the petitioner pointed out that
the Selection committee which met in the year 2010, had found
the petitioner fit for being sent to open prison, however, the
petitioner has not been sent to open prison.
3 The learned A.P.P. placed reliance on the affidavit of
Shri. Kurlekar, Deputy Superintendent, Yerawada Central Prison,
Pune. This affidavit shows that in the year 2010, Selection
committee had considered the petitioner's case for selection to
open prison and found him fit. At that time, there was no
vacancy in the open prison, hence,he was placed on the waiting
list. He was placed at Sr. No. 779 of the waiting list as per his
seniority. On 16.11.2013 a communication was issued by the
Office of the Additional Director General (Prisons) Pune directing
the Superintendent to confirm and report back whether
prisoners selected and approved for confinement in open prison
as per the waiting list were eligible for selection as per Rule 4(ii)
( c ) of the Maharashtra Open Prisons Rules, 1971 (hereinafter
referred to as "Open Prison Rules). Thereafter the record of the
petitioner was examined and it was found that on 12.10.2010
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when the petitioner was released on parole, he overstayed for a
period of 77 days on account of which, prison punishment of
cutting of remission of 4 days for each day of overstay was
imposed. Thus, remission of 385 days was cut. Thereafter on
14.6.2012 the petitioner was again released on parole for a
period of 30 days and he overstayed. On account of that, 10
days of remission was cut. Thereafter it is stated that the
petitioner was selected for the post of Convict Night Watchman.
On 15.8.2010 when the petitioner was on duty as Convict Night
Watchman in Barrack No.7 from 9 p.m. to 12 midnight, another
Convict Balasaheb Bajaba Pawar escaped from the barrack and
jail premises by cutting open iron grill windows. Pursuant
thereto, the petitioner was issued a show-cause notice and
disciplinary action was initiated against the petitioner. The
petitioner was punished by permanently removing him from the
post of Convict Night Watchman by the Superintendent of
Yerawada Central Prison. The said prison offence was granted
appraisal by the Sessions Court, Pune.
4 The learned A.P.P. placed reliance on Rule 4(ii)(c) of
the Open Prison Rules which reads as under:
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"Rule 4(ii) The following prisoners shall not normally
be sent for confinement in an open prison:-
(a) ........
(b) ........
(c ) prisoners who are awarded three or more
major punishments for prison offences during the last
two years, prior to the date of selection"
The learned A.P.P. pointed out that though the
petitioner was selected for confinement to open prison by the
Selection committee, it was not a final order and further as per
Rule 5(v) of the Open Prison Rules, the list of the prisoners
prepared for sending them to open prison has to be approved
and then the selected prisoners would be sent to open prison as
early as possible. Rule 5(v) of the said Rules reads as under:
"5(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 list being approved, the selected
prisoners shall as soon as possible be transferred for
confinement in the open prison."
It is further submitted that the final approval was
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granted by the Additional D.I.G. (Prisons) on 16.11.2013 to
prisoners who are eligible. As three major punishments were
awarded to the petitioner in the year 2011 to 2013 i.e. two for
two overstays and one in relation to the prisoner escaping from
the prison when the petitioner was Convict Night Watchman,
the petitioner was ineligible as per Rule 4(ii)(c) of the Open
Prison Rules.
5 Facts of this case clearly show that the petitioner was
awarded three major punishments during last two years prior to
the date of selection which took place on 16.11.2013, hence, as
per Rule 4(ii)( c ) the petitioner cannot be sent to open prison.
In this view of the matter, no case is made out for interference,
hence, petition is dismissed. Rule is discharged.
[ M.S.KARNIK, J.] [ SMT.V.K.TAHILRAMANI, J.]
kandarkar
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