Prisoners challenged the transfer from open to close prison alleging illegality and violation of natural justice. The court held the petition premature as the final transfer order awaited Inspector General approval under the relevant rules and administrative proceedings were still pending.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 716 OF 2019
| Sayyad Ali S/o. Sayyad (A-35674), Central Jail, Aurangabad. |
.. | Petitioner | |
|---|---|---|---|
| Versus | |||
| 1 | State of Maharashtra, Through Superintendent of Jail, Central Jail, Aurangabad. |
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| 2 | State of Maharashtra, Through Superintendent of Jail, Open Prison, Paithan. |
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| 3 | State of Maharashtra, Through D.I.G. Prisons, Aurangabad. |
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| 4 | State of Maharashtra, Through I.G. Prisons, Pune. |
.. | Respondents |
| ... Mr. Ru Mr. M. |
pesh A. Jailswal, Advocate for Petitioner M. Nerlikar, APP for Respondents |
||
| … | WITH CRIMINAL WRIT PETITION NO. 717 |
OF | 2019 |
| Abbas Ali S/o. Sayyad (A-35675), Central Jail, Aurangabad. |
.. | Petitioner | |
| Versus | |||
| 1 | State of Maharashtra, Through Superintendent of Jail, Central Jail, Aurangabad. |
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| 2 | State of Maharashtra, Through Superintendent of Jail, Open Prison, Paithan. |
||
| 3 | State of Maharashtra, Through D.I.G. Prisons, Aurangabad. |
||
| 4 | State of Maharashtra, Through I.G. Prisons, Pune. |
.. | Respondents |
| ... Mr. Ru |
pesh A. Jailswal, Advocate for Petitioner | ||
| Mr. M. | M. Nerlikar, APP for Respondents |
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WITH CRIMINAL WRIT PETITION NO. 810 OF 2019
| Habbirrao S/o. Bhauso Khamkar, | |||
|---|---|---|---|
| Central Jail, Aurangabad. | .. | Petitioner | |
| Versus | |||
| 1 | State of Maharashtra, | ||
| Through Superintendent of Jail, Central Jail, Aurangabad. |
|||
| 2 | State of Maharashtra, Through Superintendent of Jail, Open Prison, Paithan. |
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| 3 | State of Maharashtra, Through D.I.G. Prisons, Aurangabad. |
||
| 4 | State of Maharashtra, Through I.G. Prisons, Pune. |
.. | Respondents |
| ... Mr. R Mr. R. |
upesh A. Jailswal, Advocate for Petitioner D. Sanap, APP for Respondents |
||
| … | WITH CRIMINAL WRIT PETITION NO. 811 |
OF | 2019 |
| Santosh S/o. Shivaji Pawar, Central Jail, Aurangabad. |
.. | Petitioner | |
| Versus | |||
| 1 | State of Maharashtra, Through Superintendent of Jail, Central Jail, Aurangabad. |
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| 2 | State of Maharashtra, Through Superintendent of Jail, Open Prison, Paithan. |
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| 3 | State of Maharashtra, Through D.I.G. Prisons, Aurangabad. |
||
| 4 | State of Maharashtra, Through I.G. Prisons, Pune. |
.. | Respondents |
| ... Mr. R |
upesh A. Jailswal, Advocate for Petitioner | ||
| Mr. R. | D. Sanap, APP for Respondents |
3 52-CrWP-716-19-J
CORAM : T.V. NALAWADE &
K.K. SONAWANE, JJ.
DATED : 9th SEPTEMBER, 2019.
ORAL JUDGMENT : (PER : K. K. SONAWANE, J.) :
The points of controversy in all these petitions are centered on the question of transfer of petitioners-prisoners from Open District Prison, Paithan, to Central Prison, Aurangabad, under the Maharashtra Open Prisons Rules, 1971 (here-in-after, called as, “Rules of 1971”, for the sake of brevity), therefore, all these allied petitions are dealt with together for its adjudication on merit by this Common Judgment.
A) To issue appropriate Writ, order or direction and to allow the Petition, and thereby direct the 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 29.03.2019 till the date he is again transferred to Open Jail, and, or,
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C) To issue appropriate Writ, order or direction to quash and set aside the acts of Respondents including Registration of offence, if any, and, or.
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of 2019) and petitioner Habbirrao Bhauso Khamkar (WP No. 810 of 2019). The members of Vigilance Cell also recovered one instrument of FM Radio with its charger and currency notes of Rs.1080/- from the petitioner Abbas Ali Sayyad as well as Sayyad Ali Sayyad (WP No. 716 and 717 of 2019). The concerned Jail authority recorded the statements of petitioners-prisoners, immediately after discovery of objectionable articles from their custody. The petitioners conceded about the guilt and confessed that these articles were in their possession. The custody of all these articles were prohibited as per Maharashtra Prison Manual, 1979. Accordingly, the detail report of surprise visit of Vigilance Squad was prepared and forwarded to concerned official of Prison, for further process. The show-cause notices were issued to the petitioners. In response, they filed the reply, but, they denied about possession of all objectionable articles shown recovered from their custody.
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members of Selection Committee constituted under Rule 3 of the Rules of 1971, considered the allegations nurtured on behalf of Jail authority and after hearing the present petitioners declared them unfit to remain in Open Prison. The Committee recommended for transfer the present petitioners to Close Prison. Accordingly, the matter was referred to the Inspector General of Prison for approval as contemplated under Rule 6 of Rules of 1971. It has been submitted that the Inspector General of Prison on 12-07-2019 accorded the approval and directed the Jail authority to do the needful for confinement of petitioners from Open Prison to Close Prison and filed the report. Meanwhile, pending the recommendations of Selection Committee before the Inspector General of Prisons for approval under Rule 6 of Rules of 1971, the petitioners approached to this Court and filed these petitions to redress their grievances as prayed.
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Central Prison, Aurangabad. The act of respondent was contrary to the rules prescribed for transfer of prisoners from Open prison to Close Prison. He drawn attention towards the Rules 3, 4 and 6 of the Rules of 1971 and submitted that prior to approval from the Inspector General of Prisons, the petitioners were transferred to Central Prison, Aurangabad. He assailed that there was violation of Rule 6 of the Rules of 1971. Therefore, entire action initiated by the respondent- Jail authority was illegal and required to be quashed and set-aside. According to learned counsel, the petitioners did not commit any prison-offences as defined under the Chapter XI of the Prison Act, 1894. But, the false and baseless accusations were made against them. There were no prohibitory articles recovered from the petitioners. The learned counsel Shri. Jaiswal, in support of his arguments, relied upon the legal ratio laid down by this Court, in the cases of - Ravi alias Ravindra Umaji Gunjkar Versus State of Maharashtra and others, reported in, 2011 ALL MR (Cri) 1904 Dhananjay s/o. Namdeo Kharade Versus State of Maharashtra and others, reported in, 2019 ALL MR (Cri) 2381 , Sadashiv Seena Salian Versus State of Maharashtra reported in 2002 (Supp.) Bom. C.R. (Cri.) 923, and, Gajanan Mohanlal Sikchi Versus State of Maharashtra and another Versus State of Maharashtra, reported in (1993) 1 BCR 147 : (1992) 94 Bom LR 254.
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reply filed on behalf of respondent-State. The intense scrutiny of the factual score of matter reveals that the relief claimed on behalf of petitioner appear to be pre-mature one. There was no final order of transfer of petitioners from Open District Prison, Paithan to respective Close Prison, for confinement, came to be passed by respondent authority. The transfer of petitioners from Open Prison, Paithan, to Aurangabad Central Prison, only for limited purpose to facilitate the concerned Jail authority to produce the petitioners before Selection Committee through Video Conference Facility. It was an admitted fact that the Video Conference Facility was not available in the premises of Open District Prison, Paithan. Therefore, the transfer of petitioner for specified purpose of Video Conferencing cannot be termed as an final order of their transfer from Open Prison to Close Prison.
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However, it has been alleged that immediately after search, statements of the petitioners were recorded and they confessed about mischief committed by them. According to Jail authority, all relevant documents including recommendation of Selection Committee after hearing petitioners through Video Conferencing on 30-03-2019 were forwarded to the Inspector General of Prisons for approval in view of Rule 6 of the Rules of 1971. The relevant documents adumbrate that the concerned Inspector General of Prisons verified the allegations nurtured on behalf of Jail authority against petitioners, etc., and accorded sanction. The recommendation of the Selection Committee to declare the petitioners unfit for their confinement in Open District Prison, Paithan, came to be approved under Rule 6 of Rules of 1971. It is to be noted that in the approval order dated 12-07-2019, concerned Inspector General of Prisons directed respondent - Jail authority to do the needful and issue order of transfer of the petitioners from Open District Prison, Paithan to respective Central Prisons for confinement to serve out the further punishment imposed on them. In such factual scenario, it cannot be said that respondent Jail authority committed any error or illegality within the ambit of law. In contrast, the procedure adopted by respondent- Jail authority was as per rules meant for transfer of prisoners from Open District Prison to Central Prison.
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still under consideration of respondent - Jail authority. The proceedings were pending for approval under Rule 6 of Rules of 1971 from higher authority i.e. the Inspector General of Prisons after recommendation of the Selection Committee. A requisite order to that effect is yet to be issued. Therefore, we do not find it just and proper to exercise extra-ordinary jurisdiction in favour of the petitioners. In sequel, petitions being inapt stand dismissed. No order as to costs.
[ K. K. SONAWANE ] [ T.V. NALAWADE ] JUDGE JUDGE
MTK
3 issues framed by the court
Whether the transfer of prisoners from open to close prison pending final approval order is premature for judicial intervention
Whether the jail authority violated procedural rules by transferring prisoners before the selector committee report received final sanction
Whether the search operation and transfer proceedings were in conformity with the Maharashtra Open Prisons Rules
Colour shows how this judgement treated each authority
Ravi alias Ravindra Umaji Gunjkar Versus State of Maharashtra and othersDistinguished¶27
Ravi alias Ravindra Umaji Gunjkar Versus State of Maharashtra and others, 2011 ALL MR (Cri) 1904
Dhananjay s/o. Namdeo Kharade Versus State of Maharashtra and othersDistinguished¶27
Dhananjay s/o. Namdeo Kharade Versus State of Maharashtra and others, 2019 ALL MR (Cri) 2381
Sadashiv Seena Salian Versus State of MaharashtraDistinguished¶27
Sadashiv Seena Salian Versus State of Maharashtra, 2002 (Supp.) Bom. C.R. (Cri.) 923 · Who else cites this
Gajanan Mohanlal Sikchi Versus State of MaharashtraDistinguished¶27
Gajanan Mohanlal Sikchi Versus State of Maharashtra and another, (1993) 1 BCR 147 : (1992) 94 Bom LR 254
Sayyad Ali
Abbas Ali
Habbirrao
Santosh
State of Maharashtra
T.V. Nalawade
K.K. Sonawane
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
