[email protected] Ramlal Nirmal vs The State Of Maharashtra
2023 Latest Caselaw 1347 Bom

                                SAT                                                       55-WP-1745-2019.doc




                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                             CRIMINAL APPELLATE JURISDICTION
                                          CRIMINAL WRIT PETITION NO. 1745 of 2019
                                Chhedilal @ Shiva Ramlal Nirmal                      ...Petitioner
                                      Versus
                                The State of Maharashtra                              ...Respondents

                                Mr. Sushan Mhatre, 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

Kolhapur Central Prison, Kalamba Kolhapur. 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 for an offence punishable under

Sections 302, 307, 321, 392 r/w 397 of Indian Penal Code (for

short 'IPC') and sentenced to suffer imprisonment for life for

offence under Section 302 of IPC and imprisonment for 7 years for

conviction under Section 307 of IPC and for conviction under

Section 394 r/w 397 of IPC, has been sentenced to suffer Digitally signed by SUNNY imprisonment for 7 years. The Petitioner had filed an appeal SUNNY ANKUSHRAO ANKUSHRAO THOTE THOTE Date: 2023.02.08 15:49:20 +0530

challenging the conviction before this Court and vide Judgment

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and Order dated 21st January, 2014, the conviction under Section

307 was converted to Section 326 of IPC but the sentence of 7

years imprisonment was maintained. The conviction under Section

394 with Section 397 of IPC also maintained. However, the High

Court directed that all the substantive sentences shall run

concurrently. Petitioner is in jail from 17th November, 2008.

Petitioner may be transferred to open prison.

3. The incharge Superintendent, Kolhapur Central Prison,

Kolhapur has filed affidavit stating that the Petitioner is convicted

by the Sessions Court, Mumbai vide Judgment and Order dated 29 th

April, 2011 in Sessions Case No.221 of 2009 for the offences

punishable under Section 302, 307, 324, 394, 397 of IPC. The

Petitioner had preferred Criminal Appeal No.1299 of 2011 before

this Court which was dismissed and the conviction under Section

302 and 324 was confirmed as well as conviction and sentence

under Section 394 r/w Section 397 was maintained and conviction

under Section 307 was converted to Section 326 of IPC. All the

substantive sentences were directed to run concurrently. The

complaint was lodged against the Petitioner under Section 188 of

IPC, Section 42, 45(12) of Prison Act, 1894 and Section 27 of

NDPS Act, 1985 with Juna Rajwada Police Station, Dist. Kolhapur

in connection with F.I.R. No.335 of 2021. The said case is under

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investigation. As per Prison Manual Chapter-II Open Prison Rule

No.4(ii)(d) the Petitioner cannot be transferred to open prison

against whom, any case is pending in the Court. Hence, the

Petitioner cannot be transferred to open prison.

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. Due to

pendency of case also the Petitioner is not entitled for transfer to

open prison.

5. Undisputedly, the Petitioner has been convicted for the

aforesaid offence. He has been sentenced to imprisonment for life

and imprisonment for 7 years. Both the sentences were directed to

run concurrently. Petitioner has undergone sentences more than 10

years. Thus, the Petitioner has completed the sentence imposed for

conviction under Section 394 r/w 397 of IPC.

SAT 55-WP-1745-2019.doc

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

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

this 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. In the affidavit in reply it is also stated that the proposal of

the Petitioner was placed before Open Prison Selection Committee

in 2021. However, the Selection Committee did not select the

Petitioner for open prison. The Petitioner has undergone actual

imprisonment of 14 years and 14 days upto 30 th November, 2022.

Hence, the proposal was placed before the Advisory Board for

recommendation under 14 year's premature release. It will be

forwarded immediately.

8. In accordance with Chapter-II of Prison Manual and open

prison Rule-4(2)(iv) the convict cannot be transferred to open

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prison against whom case is pending in the Court and since the

case registered vide C.R. No.335 of 2021 is pending against

petitioner, he cannot be transferred to open prison.

9. The affidavit-in-reply also indicate that the Petitioner had

undergone 14 years of actual imprisonment and hence his proposal

is placed before the Advisory Board for recommendations for 14

years premature release.

10. In the aforesaid circumstances, the Petitioner cannot be

transferred to open prison. However, the proposal for

recommendation under 14 years premature release as stated in

affidavit-in-reply may be considered expeditiously and decision be

communicated to the Petitioner.

11. Petition is disposed of in the aforesaid terms.

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