Raju Baswraj Guraw vs The State Of Maharashtra
2022 Latest Caselaw 9236 Bom

         Digitally
         signed by                                8-WP 5734-19.DOC
VINA     VINA ARVIND
         KHADPE
ARVIND   Date:
KHADPE   2022.09.15
         14:59:01
         +0530



                       Vina Khadpe



                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CRIMINAL APPELLATE JURISDICTION
                               CRIMINAL WRIT PETITION NO. 5734 OF 2019

                       RAJU ALIAS RAJIV BASAVRAJ                        ... Petitioner
                       GURAV
                            Versus
                       THE STATE OF
                       MAHARASHTRA AND ORS                             ... Respondents

                       Mr.Akkshay H. Kumar, Advocate i/b. Mr.
                       Abhishek R. Avchat for the Petitioner.
                       Ms. P.P. Shinde, APPfor the Respondent - State.


                                               CORAM:          M. S. SONAK &
                                                               N.R. BORKAR, JJ.

                                               DATED :         14th September 2022


                       ORAL JUDGMENT:

1. Heard Mr. Akkshay H. Kumar a/w Mr. Abhishek R. Avchat, learned counsel for the Petitioner and Ms. P.P. Shinde, Public Prosecutor for the Respondent - State.

2. Rule. Rule is made returnable forthwith at the request of and with the consent of the parties.

3. By this Petition, the Petitioner had sought for a direction to Respondent Nos.2 and 3 to consider the Petitioner's transfer from the Nashik Road Central Prison to any of the Open Prison in the State of Maharashtra.

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4. The Petitioner was convicted on 30th April, 2009 for offence punishable under Sections 304, 394 and 201 read with 34 of the Indian Penal Code, 1860.

5. The Petitioner has been sentenced to life imprisonment and claims to have undergone a sentence of about 15 years as on date.

6. On the earlier occasion, this Court was apprised of the circumstance of the Selection Committee having considered the Petitioner's case in terms of the Maharashtra Open Prisons Rules, 1971 ("the said Rules") and rejected the Petitioner's case for transfer to the Open Prison. A copy of such rejection was also placed before us.

7. The rejection order declares the Petitioner to be "unft for transfer to the Open Prison". The only reason recorded by the Selection Committee for this conclusion is the alleged circumstance that the Petitioner is not from the State of Maharashtra.

8. Though, the Petitioner has not formally challenged the rejection order made by the Selection Committee, in the interest of justice, we permit the learned counsel for the Petitioner to raise challenge to this rejection order.

9. The said Rules, including, particularly Rule 4 of the said Rules provides for selection of a prisoner for confnement in an Open Prison subject to fulfllment of certain conditions. Rule 4 for that matter in the sub Rules, we fnd no provision based on which the Selection can be declined simply because the Prisoner does not hail from the State of Maharashtra.

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10. Therefore, simply on account of circumstance that the Petitioner does not hail from the State of Maharashtra, the Petitioner could not have been declared as unft for transfer to the Open Prison. Since the Selection Committee has recorded no other reason, and the only reason recorded does not have any support from the said Rules, we are constrained to set aside the said. Accordingly, the decision of the Selection Committee declaring the Petitioner as "unft for transfer to the Open Prison" is set aside.

11. Ms. Shinde, learned Public Prosecutor further points out that in terms of Rule 4(2) of the said Rules, the prisoners convicted for offence under Sections 392 to 402 of the Indian Penal Code, 1860, are normally not to be sent for confnement in the Open Prison. She points out that the Petitioner was convicted, inter alia, for offence punishable under Section 394 of the Indian Penal Code, 1860.

12. Ms. Shinde's contention is correct. However, this contention has to be considered in the context of Rule 4(3) of the said Rules which reads as follows :

"(3) 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 confnement in an open prison."

13. Thus, though Rule 4(2) states that the Prisoners convicted, inter alia, for offence punishable under Sections 392 to 404 shall not "normally" be sent for confnement in an Open Prison, but sub-rule (3) of Rule 4 which consensus with non- obstante clause which provides that the Inspector General of Prisons may on the recommendation of the Selection

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Committee, consider the cases of the Prisoners falling under sub-rule (2) for the purposes of confnement in an Open Prison.

14. This means that the Selection Committee will have to consider the Petitioner's case, and if, the Selection Committee is satisfed that the recommendation can be made then it will be for the Inspector General of Prisons to further consider whether the Petitioner can be transferred to the Open Prison in the State of Maharashtra.

15. Accordingly, we grant the Petitioner liberty to make a representation setting out all circumstance which liberty, according to him required discretion to be exercised in his favour. Mr.Akshay Kumar states that such representation will be made within 15 days. Once such a representation is made, the Selection Committee to consider the Petitioner's case in accord with law. If the Selection Committee makes a recommendation in the Petitioner's favour then, the Inspector of General of Prisons to consider the Selection Committee's recommendation within 15 days from its receipt.

16. In any case, the necessary intimation based on the Petitioner's representation must be sent to the Petitioner no sooner a decision is made by the Selection Committee or the Inspector General of Prisons.

17. At this stage, we decline to advert to the merits of the matter because the merits are for the Selection Committee and/or the Inspector General of Prisons to consider at the frst instance.

18. Rule is accordingly made absolute in the above terms. There should be no order as to costs.

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19. All concerned to act on the authenticated copy of this order.

20. After this order was substantially dictated, the learned counsel for the Petitioner bring to our notice a notifcation dated 1st December, 2015 in terms of which the words "the Inspector General" wherever it occur in the Maharashtra Open Prisons Rules, 1971, the same shall be substituted by "Additional Director General of Police and Inspector General of Prisons and Correctional Centres". Therefore, our reference to the Inspector General of Prisons should be construed accordingly.

21. The Legal Services Authority to ensure that the learned counsel appointed under the Legal Aid Scheme is paid fees accordance with the Rules. This is in addition to the gratitude which the Bench expresses to them.

( N.R. BORKAR, J)                                   (M. S. SONAK, J)





                          12th September 2022