Noor Mohammad Alihasan Malik vs State Of Maharashtra And Ors
2023 Latest Caselaw 1958 Bom

Osk                                                        36-Wp-516-2023.odt



            IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                   CRIMINAL APPELLATE JURISDICTION

               CRIMINAL WRIT PETITION NO. 516 OF 2023

Noor Mohammad Alihasan Malik                            ... Petitioner
      V/s.
The State of Maharashtra & Ors.                         ... Respondents


Mr. Mujahid S. Ansari for Petitioner.
Ms. M.H. Mhatre, A.P.P. for Respondent-State.


                                     CORAM : A. S. GADKARI AND
                                             PRAKASH D. NAIK, JJ.

                                     DATE       : 28th February 2023.

P.C. :

1. The Petitioner has been held to be ineligible for his transfer to

Open Prison as he has been convicted under Section 302 of Indian Penal

Code (IPC) and is sentenced to suffer life imprisonment and also under

Section 397 of IPC and sentenced to suffer 7 years of rigorous imprisonment

by the Judgment and Order dated 31 st July 2009 passed by the Additional

Sessions Judge, Ratnagiri. Both the substantive sentences are directed to run

concurrently. He has been held to be ineligible for transfer to Open Prison on

the principal ground that, he has been convicted under Section 397 of IPC.

2. Learned A.P.P. on instructions from Superintendent, Nashik Road

Central Prison, Nashik, submitted that, in pursuance of Circular dated 10 th

February 2023 issued by the Additional Director General of Police and

Osk 36-Wp-516-2023.odt

Inspector General of Prisons, Maharashtra State, the proposal of the

Petitioner will be submitted before the concerned Committee within a period

of one month from today and after the Committee takes a decision on it,

necessary course of action will be adopted to transfer the Petitioner to Open

Prison, if he is found eligible.

3. This Court vide Judgment dated 12 th 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.

4. In view of the said decision in Criminal Writ Petition No.362 of

2010, the Petitioner is 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. The Petitioner's case shall be considered

expeditiously and the decision of the same shall be communicated to him

within a period of four weeks therefrom.

Osk 36-Wp-516-2023.odt

5. Petition is partly allowed in the aforesaid terms.

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


           Digitally signed
           by OMKAR
           SHIVAHAR
OMKAR      KUMBHAKARN
SHIVAHAR
KUMBHAKARN Date:
           2023.03.04
           15:02:21
           +0530