Bandu S/O Totiram Kukde vs State Of Mah. Thr. Its Secretary ...
2021 Latest Caselaw 9359 Bom

 Judgment                                 1                                   wp35.21.odt




                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                            NAGPUR BENCH, NAGPUR.


                        CRIMINAL WRIT PETITION NO. 35/2021


          Bandu S/o Totiram Kukde,
          Aged about 35 years, Convict No. C-8440,
          Nagpur Central Prison,
          Nagpur                                                   .... PETITIONER

                                    // VERSUS //

 1]       State of Maharashtra,
          Through its Secretary,
          Home Department,
          Mantralaya, Mumbai 400032

 2]       The Deputy Inspector General of Prison,
          Eastern Region, Nagpur

 3]       The Superintendent of Prison,
          Nagpur Central Prison, Nagpur
                                                               .... RESPONDENT(S)

  *******************************************************************
            Shri R.M. Sharma, Advocate (appt.) for the petitioner
                   Shri T.A. Mirza, APP for the respondents
  *******************************************************************

                           CORAM : V.M. DESHPANDE & AMIT B. BORKAR, JJ.

JULY 16, 2021

JUDGMENT : (PER:- AMIT B. BORKAR, J.)

1] Heard.

 2]               RULE. Rule made returnable forthwith.





  Judgment                                      2                              wp35.21.odt




 3]               By this writ petition under Article 226 of the Constitution of

India, the petitioner is seeking directions against the respondents -

Authorities to select the petitioner for open prison and also for the post of

Warden.

4] The petitioner is a convict for the offence punishable under

Section 302 of the Indian Penal Code and is undergoing sentence of life

imprisonment since 29/05/2012 at Nagpur Central Prison. In the year 2018,

the petitioner presented himself before the Open Prison Committee wherein

he was selected for being sent to open prison. As per Chapter II, Rule 4(ii)(c)

of the Maharashtra Prisons Manual, 1979, the following prisoner shall not be

categorized for the open prison :-

"the prisoners who are awarded three or more major

punishment for prison offences during the last two years

prior to the date of selection"

5] Relying on the said Rule, the petitioner, though selected, was

not sent to the open prison. The petitioner therefore filed the present writ

petition seeking directions against the respondents - Authorities to send him

to the open prison. This Court, on 19/01/2021, issued notices to the

respondents. The respondent no. 3 has filed reply dated 23/02/2021 stating

that three major punishments have been imposed on the petitioner and

therefore he is not eligible for being sent to the open prison. It is also stated

that since the petitioner is already appointed as Watchman and he is not

Judgment 3 wp35.21.odt

eligible for being appointed as Warden, his request for being appointed as

Warden cannot be granted.

6] We have heard the learned advocate for the petitioner and

learned A.P.P. At the outset, the learned advocate for the petitioner states that

in view of the reply filed by the respondent no. 3, he is not pressing his

prayer for appointment of the petitioner as Warden, however, he submitted

that insofar as the prayer of the petitioner for sending him to the open prison

is concerned, all the punishments imposed on the petitioner are after the

date of his selection for open prison. He invited our attention to para no. 5 of

the reply filed by the respondent no. 3 to show that in the month of April

2019 three major punishments were imposed on the petitioner. He submitted

that the petitioner was selected for being sent to the open prison in the year

2018 and therefore his right for being sent to the open prison cannot be

denied.

7] We have gone through the memo of petition and the reply filed

by the respondent no. 3. It is not in dispute that in the year 2018 the

petitioner was selected for being sent to the open prison. It is also not in

dispute that the major punishments imposed on the petitioner are dated

16/04/2019 and 22/04/2019. Rule 4(ii)(c) of Chapter II of the Maharashtra

Prisons Manual, 1979 requires that the award of three or more major

punishments for prison offences must precede the date of selection of the

prisoner. In the facts of the present case, since the punishments imposed on

Judgment 4 wp35.21.odt

the petitioner are after the date of selection for being sent to the open prison,

the relief as claimed by the petitioner for being sent to the open prison

cannot be denied.

 8]               Hence, the following order:-



                  a)           The respondents - Authorities are directed to send

the petitioner to the open prison on such terms and conditions

as the respondents deem fit and proper.

b) The advocate appointed to represent the petitioner

Shri R. M. Sharma graciously submitted that he may not be paid

his professional fees. We appreciate this gesture of Shri R.M

Sharma.

Rule is made partly absolute in the above terms. Pending

application(s), if any, stand(s) disposed of.

                   (JUDGE)                                  (JUDGE)




 ANSARI