Bombay High Court Rejects Convict’s Plea For Transfer To ‘Open Prison’ Citing Discipline Issue

1 Present petition has been filed for following reliefs –

“(A) To issue appropriate Writ, order or direction and to allow the

petition, and thereby direct respondent No.3 to send petitioner in

Open Prison, and, or,

(B) To issue appropriate Writ, order or direction and thereby direct

the respondents to give Open Prison Remission to petitioner from

03.12.2024 till the date he is again transferred to Open Jail, and, or,

(B-1) By appropriate Writ, order, or direction in like nature to quash

and set aside the orders of the respondent No.4 dated 27.01.2025 (at

Exhibit- R4 page No.60), as well the decision of the Open Selection

Committee dated 10.01.2025 (at Exhibit R3 at page No.55) and

thereby direct the respondents to shift the petitioner to Open Prison

forthwith, in the interest of justice.”

2 Heard learned Advocate Mr. R.A. Jaiswal for petitioner and

learned APP Mr. V.K. Kotecha for respondent Nos.1 to 4.

3 Learned Advocate appearing for petitioner submits that

petitioner was convicted on 08.09.2016 for the offence punishable under

Section 302 etc. of the Indian Penal Code, 1860 in Sessions Case

No.311/2014 by learned City Sessions Court, Greater Bombay. He was

sentenced to death for the offence under Section 302 of the Indian Penal

Code and sentenced to suffer rigorous imprisonment for five years for the

offence under Section 326(B) of the Indian Penal Code. This Court by order

dated 12.06.2019 modified the order in Confirmation Case and set aside the

death penalty and commuted to sentence of imprisonment for life for the

offence punishable under Section 302 of the Indian Penal Code. He was then

transferred from Yerwada Central Prison to Open Prison, Paithan on

24.03.2024. He was granted furlough leave on 04.11.2024. He returned to

prison on 03.12.2024 and at the time of taking his bag it is stated that he was

found with mobile battery. Show cause notice was given, which was replied

by petitioner; yet, offence was registered under Section 223 of Bharatiya

Nyaya Sanhita vide Crime No.458/2024 and on the same day he was

transferred to the closed prison at Chhatrapati Sambhajinagar. Opportunity

of hearing was not given to petitioner and this amounts to punishing the

petitioner twice i.e. putting him in closed prison again and also asking him to

face the trial for the offence under Section 223 of the Bharatiya Nyaya

Sanhita. If we read the impugned approved order dated 27.01.2025 passed

by respondent No.4 as well as decision of the Open Selection Committee

dated 10.01.2025, then it can be seen that they are in contravention of Rule 6

of the Maharashtra Open Prison Rules, 1971 and also against the principles

of natural justice. The petitioner needs to be sent back to the open prison by

setting aside the impugned order.

4 Learned APP relies on the affidavit-in-reply filed by Dhansing

Dhondiba Kawale, in-charge Superintendent, Paithan Open Prison Class-I,

wherein it is stated that after the petitioner was found possessing mobile

battery, the further action has been taken. The prisoner must know the rules

as to what is permissible to be brought inside the jail. The prison rules and

regulations strictly prohibit mobile, mobile parts and electric device. False

reason has been given and also he has tried to blame the duty staff

unnecessarily. Show cause notice was issued on 07.12.2024 under

Maharashtra Prison Manual, 1979 Chapter No.26, Prison Discipline –

Statutory Rules, Rule No.17 sub rule 19 for carrying prohibited article in the

prison. It was replied by petitioner on 31.12.2024. Separate punishment has

not been imposed and double jeoparty has been avoided, because his

permanent transfer proposal was in process. As he was found possessing and

with an intention to bring it in the prison the mobile battery which is the

prohibited article, he would automatically disqualify for giving the benefit of

open prison and, therefore, the action taken is not against any provisions of

law.

5 We have gone through the Notifications, Open Prison Rule 1971

and Prison Discipline i.e. contained in the Manual. Certainly, the mobile,

mobile parts and the other instruments/articles are prohibited from taking it

inside the prison. Certainly, these discipline rules are aimed at bringing

discipline within inmates. If such articles are then allowed, it would then be

the easy task for the convicts to escape or make planning for escape or even

help somebody in escaping. The open prisons were created with certain

objects and it gives opportunity to the inmates to meet the family members

and do such activities which would then be helpful for him to establish his

life after the permanent release. However, the said benefit cannot be claimed

as of right. There are criteria laid down for holding a prisoner eligible to be

put in the open prison, even there is a waiting list for the same, because there

appears to be less quota. Therefore, this facility is not available to everybody,

though may be that prisoner reaches to the point of eligibility. The selection

committee is established under the law to select such prisoners as are eligible

for being confined in open prison and the said list in order of seniority for

approval will have to be placed before the Additional D.G.P. and Inspector

General of Prisons and Correction Centres. As aforesaid, taking into

consideration the list and subject to vacancies available those persons would

be transferred to open prison. It is also required to be borne in mind by such

prisoners that in order to continue the said benefit or facility they will have to

work and maintain good behaviour. It cannot be stated that once that

prisoner is placed in the open prison, he cannot be asked to be put in the

closed prison. As per Chapter 2 Rule 4(II) Open Prison Rule 1971, a prisoner

having any case pending in a Court and any other prisoner or category of

prisoners whom the Inspector General of Prisons considers unfit for being

sent to an open prison are considered as not eligible to continue the said

benefit. There are other conditions also under which such person can be held

to be not eligible. That means, the inherent conditions of behaviour will have

to be adhered to continuously by such prisoner who has been transferred to

open prison.

6 Now, turning to the facts it is not in dispute that the petitioner

was granted furlough leave for 28 days and, therefore, he was released from

the prison on 04.11.2024. He surrendered himself before the prison

authority on 03.12.2024 within time. However, when his person was

searched at the entry gate, he was found with a bag and in that bag there was

a bermuda pant of which there was a plastic bag having a black colour

mobile battery. When this fact was reported to the Superintendent of Jail,

show cause notice was issued to petitioner on 07.12.2024, which the

petitioner replied. In his reply he has stated that at the time of his departure

his family members had kept some food items and clothes. He himself had

no knowledge as to what kind of food items and clothes were kept. But then

he blames that the Constable who was taking search suddenly states that he

got a mobile battery. When petitioner asked the said Constable to show that

to him, it was not showed to him. At another breath he says that by mistake

his family members who have no knowledge about the rules and regulations

of the prison might have kept the same. Thus, his defence was not certain

regarding the possession of the mobile battery. He has not specifically denied

it, but then claims ignorance. When it comes to taking decision on the basis

of disciplinary provisions, the authority is not required to hold a mini trial.

The show cause notice was the opportunity given by the prison authority to

the petitioner to explain his stand. This action of sending show cause notice

is as per the principles of natural justice. Again at the time of sending him in

the close prison, the prison authority did not give further hearing to the

petitioner. Taking disciplinary action is different thing than First Information

Report for the offence punishable under Section 223 of the Bharatiya Nyaya

Sanhita. There is no question of double jeopardy. Every prisoner has to

follow the rules and regulations, especially in respect of behaviour nobody

can be allowed to bring the prohibited articles inside the prison and,

therefore, finding a prohibited article in possession of prisoner who is about

to enter the prison would definitely liable to be dealt with as per the

disciplinary rules.

7 The only fact is that whether he ought to have been put directly into the closed prison on the same day ? The learned Advocate appearing for petitioner relies on the decision in Ravi alias Ravindra Umaji Gunjkar vs. State of Maharashtra and others [2011 All M.R. (Cri.) 1904], wherein this Court after taking note of various provisions of Maharashtra Open PrisonsRules, 1971 and relying on earlier decision in Prashant Suresh Khade vs. State of Maharashtra in Criminal Writ Petition 424 of 2010 decided on06.07.2010 found that when the prisons are selected by a SelectionCommittee in open prison, then the same Committee should then decide thereverse journey. The said decision was then again referred in DhananjayNamdeo Kharade vs. State of Maharashtra and others [2019 CJ (Bom) 724]. Of course, these two cases appear to be in respect of refusal to work but it is observed that –

“The second limb of Rule 6 indicates that if found unfit for being kept in open prison on the ground of indiscipline, unsatisfactory work or any other good and sufficient cause, prisoner shall be transferred, after obtaining approval of the Inspector General of Prisons, to such prison as the Inspector General of Prisons may specify.”

The proper procedure that was explained in Ravi @ Ravindra

Umaji Gunjkar (supra) for transferring the prisons selected by Selection Committee for confinement from open prison to central prison would be to place the proposal before the same Selection Committee. Therefore, we have no hesitation in adopting the same procedure here.

8 Here, in the present case, though it appears that petitioner was transferred to the close prison on 03.12.2024, the matter was put before the Selection Committee and the Committee has taken decision on 10.01.2025. The information that was put before the Selection Committee has also been placed before this Court and as aforesaid, the petitioner is stated to be found ineligible in view of Rule 4 (II) (d) & (n) of the Maharashtra Open Prisons Rules, 1971. Now, it is the case of the petitioner that Selection Committee has not heard him. Perusal of Ravi @ Ravindra Umaji Gunjkar (supra) would show that it is not stated that Selection Committee should hear the inmate. In both the matters i.e. in Ravi @ Ravindra Umaji Gunjkar (supra) and Dhananjay Namdeo Kharade (supra) the matter was not put before the Selection Committee at all. It is not the case and the procedure does not show that when the petitioner was selected by the Selection Committee for being transferred to open prison at that time he was heard. Now, on the basis of information supplied and the show cause notice that was given along with its reply was placed before the Selection Committee and on the basis of same the Selection Committee appears to have taken the decision. There is sufficient compliance of principles of natural justice and, therefore, we found that no case is made out for exercise of powers under Article 226 of the Constitution of India. The petition stands dismissed.

( SANJAY A. DESHMUKH, J. ) ( SMT. VIBHA KANKANWADI, J. )