Anil Kumar Chhotelal Yadav vs The State Of Maharashtra
2023 Latest Caselaw 1346 Bom

                               SAT                                                       56-WP-3768-2019.doc




                                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            CRIMINAL APPELLATE JURISDICTION
                                         CRIMINAL WRIT PETITION NO. 3768 of 2019
                               Anil Kumar Chotelal Yadav                            ...Petitioner
                                     Versus
                               The State of Maharashtra & Ors.                       ...Respondents

                               Ms. Farhana Shah, Advocate for Petitioner.
                               Mrs. S.D. Shinde, APP for the Respondent-State.
                                                       CORAM             : A.S. GADKARI AND
                                                                           PRAKASH D. NAIK, JJ.

RESERVED ON : 31st JANUARY, 2023.

PRONOUNCED ON : 8th FEBRUARY, 2023.

JUDGMENT - (PER : PRAKASH D. NAIK, J.) :-

1. This Petition is filed through jail. Petitioner is detained at

Nashik Raod Central Prison, Nashik. Petitioner has prayed that, he

may be transferred to open prison.

2. The contents of the Petition would indicate that the

Petitioner has been convicted by the Sessions Court for Greater

Bombay vide Judgment and Order dated 30th March, 2015 for

offence under Section 302 Indian Penal Code (for short 'IPC') and

sentenced to suffer imprisonment for life. He is also convicted for

Digitally signed offence under Section 392 of IPC and sentenced to suffer by SUNNY SUNNY ANKUSHRAO ANKUSHRAO THOTE THOTE Date:

2023.02.08 imprisonment for seven years. It is further contended that the 15:48:21 +0530

Petitioner was arrested on 8th November, 2011 and he was detained

at Mumbai Central Prison as under trial prisoner. Pursuant to

SAT 56-WP-3768-2019.doc

Judgment of conviction, he was transferred to Nashik Road Central

Prison on 16th August, 2015 for undergoing sentence of

imprisonment. On the date of filing the Petition the Petitioner has

undergone sentence of 7 years, 7 months and 20 days. The

Petitioner has completed the sentence of imprisonment awarded for

conviction under Section 392 of IPC.

3. The Superintendent, Nashik Road Central Prison has filed

affidavit dated 16th December, 2022 stating that the Petitioner was

convicted by learned Additional Sessions Judge, Mumbai in

Sessions Case No.111 of 2012 in C.R. No.464 of 2011, registered

under Section 302, 392 r/w 34 of IPC with Ghatkopar Police

Station, Mumbai vide Judgment and Order dated 30 th March, 2015.

The Petitioner has been sentenced to imprisonment for life for

conviction under Section 302 of IPC and imprisonment for 7 years

for conviction under Section 392 of IPC. The Petitioner had

preferred Criminal Appeal No.588 of 2015 before this Court which

was dismissed and the conviction is confirmed. All the substantive

sentences were directed to run concurrently. Till 30 th November,

2022 the Petitioner has completed actual imprisonment of 10 years,

1 month and 25 days. Since, he has not completed 14 years

imprisonment his 14th year proposal is not yet placed before the

State Government for consideration of premature release.

SAT 56-WP-3768-2019.doc

4. Learned A.P.P. on instructions from Superintendent, Nashik

Road Central Prison, Nashik submitted that, Petitioner has

requested for transfer to open prison. However, in accordance with

Chapter-II, Rule-4 (ii)(g) accused convicted and sentenced for

offences under Sections 121, 121-A, 122, 123, 124, 124-A, 125,

126, 128, 129, 128, 129, 130, 131, 132, 133, 134, 135, 376, 392 to

402 of Indian Penal Code or for offences under the Bombay

Prevention of Gambling Act, 1887, or for offences under the Sea

Customs Act are not entitled for transfer to open prison.

5. Undisputedly, the Petitioner has been convicted for an

offence under Section 302 as well as under Section 392 of IPC. He

has been sentenced to imprisonment for life and imprisonment for

7 years on each count respectively. Both the sentences were

directed to run concurrently. The Petitioner has undergone

sentence of more than 10 years as of today. Thus, the Petitioner

has competed the sentence imposed for conviction under Section

392 of IPC.

6. This Court vide Judgment dated 12th August, 2010 passed in

Criminal Writ Petition No.362 of 2010 and other connected

petitions has observed that, in a case, where the convict has been

sentenced for the offences punishable under Sections 392, 394 or

397 of Indian Penal Code alongwith the offence punishable under

SAT 56-WP-3768-2019.doc

Section 302 of Indian Penal Code and the sentences are directed to

run concurrently, he will be eligible for admission to the open

prison on completion of the sentences so awarded under Sections

392, 394 or 397 of Indian Penal Code. However, while considering

eligibility, other factors like the jail record so as to point out

whether he was a habitual, escaping and absconding etc. are

required to be taken into consideration.

7. The Petitioner is thus eligible for being considered to admit

him in the open prison and the selection committee shall consider

his case for the same by taking into consideration his record.

Petitioner's case be considered expeditiously and the decision shall

be communicated to him within four weeks.

8. Petition is partly allowed in the aforesaid terms.

[PRAKASH D. NAIK, J.]                           [A.S. GADKARI, J.]