Anwar Abdul Aziz Pathan Vs the State of Maharashtra and Ors.

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Digitally signed by RUSHIKESH RUSHIKESH VISHNU VISHNU PATIL PATIL Date: 2024.03.14 14:48:11 +0530

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO. 2204 OF 2023 WITH

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INTERIM APPLICATION NO. 791 OF 2024

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Anwar Abdul Aziz Pathan.… Petitioner/Applicant

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 Versus

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The State Of Maharashtra And Ors..… Respondents

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Mr. N. N. Gawankar a/w Mr. Shreyas N. Gawankar i/b Mr. Manas N.
Gawankar, for the Petitioner/Applicant.

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Mrs. P. P. Shinde, A.P.P, for the Respondent – State.

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CORAM : REVATI MOHITE DERE & MANJUSHA DESHPANDE, JJ.

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DATE : 7th MARCH 2024

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ORDER [PER MANJUSHA DESHPANDE, J.]

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1.The Petitioner herein has been convicted by the learned
Additional Sessions Judge – 3, Kalyan, in Sessions Case No. 46 of 2003
vide the Judgment and Order dated 16th August 2011. The petitioner

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was sentenced to suffer rigorous imprisonment for life. The petitioner

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filed an appeal against the said judgment and order, which came to be

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dismissed by this Court vide Judgment and Order dated 10th May

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2018.

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2.While the petitioner was undergoing imprisonment at the
Kolhapur Central Prison, Kalamba, he was selected for open prison by
the Selection Committee on 20th March 2014, and he was transferred
to Yerwada District Open Prison. While the petitioner was in open
prison, he was released on parole leave by order dated 30th December
2016 issued by Divisional Commissioner, Pune, for a period of 30
days. After completion of the said parole period, the petitioner was
supposed to surrender on 29th January 2017. However, on 28th
January 2017, the petitioner was arrested in connection with the C.R.
No. 34 of 2017, registered with Ambernath Police Station, for the
offences punishable under Sections 386, 387 and 34 of the IPC. The
learned J.M.F.C., Ulhasnagar, District – Thane, granted remand and
sent petitioner to the police custody upto 31st January 2017.
Thereafter, the petitioner was sent to Yerwada Open District Prison,
alongwith warrant for the said new case. Because of the crime
registered against him, for security reasons, he was temporarily

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transferred to Yerwada Central Prison on the same day i.e. on 31st
January 2017, as per oral instruction of the Deputy Inspector General
(DIG), Western Region, Pune. The petitioner’s case was placed before
the Selection Committee on 24th March 2017, and the Committee
came to the conclusion that the petitioner should be permanently
transferred to the closed prison, at Kolhapur Central Prison. The said
order was passed by the Committee on 24th March 2017. Thereafter,
the petitioner was acquitted by the learned J.M.F.C., 5th Court,
Ulhasnagar, District- Thane, in connection with RCC No. 1128 of
2017, by its Judgment and Order dated 27th February 2023.

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Since, the petitioner was acquitted in the second case, his name
was forwarded to be considered for open prison before the Selection
Committee on 4th October 2023. The Committee favourably
considered the case of the petitioner and, accordingly, transferred him
to the Yerwada Open District Prison on 8th November 2023. The
petitioner has been given benefit of remission of open prison from 8th
November 2023. Initially, when this petition was heard, the petitioner
had challenged the order of his transfer from open prison to closed

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prison on various grounds raised in this Petition. However, thereafter,
the petitioner filed an Interim Application and he has given up the
other challenges raised in the petition, and did not press for the same.
Consequently, he has prayed only for his release from the prison, as
per his entitlement on the terms and conditions as this Court may
deem fit.

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3.We have heard learned counsel for the petitioner as well as
learned APP for the respondent- State.

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4.Learned APP has filed a detailed affidavit with regard to the
various orders passed by the respondent- State authorities in respect of
the petitioner, whereby the petitioner was transferred from open
prison to closed prison and again to the open prison. Alongwith the
said affidavit, which justifies the order passed by the authorities,
learned APP has annexed a chart, which reflects the remissions granted
to the petitioner. Learned APP has also annexed the order dated 24th
March 2017, issued by the Selection Committee, which has taken a
decision to cancel the petitioner’s order of open prison and sending

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him to the closed prison. When the aforesaid Interim Application of
the petitioner was heard on 29th February 2024, time was granted to
the learned APP to take instructions regarding the said Interim
Application.

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5.According to the Rules of remission, a regular convict is granted
7 days remission for every month in a closed prison, as against that, 30
days remission for every month in open prison, is admissible to a
convict. In case of the petitioner, as per the chart annexed to the
affidavit by the respondent- authorities, the petitioner has been
granted 7 days remission for each month, for a period from 16th
August 2011 to 22nd March 2014, in addition to 30 days remission for
his good conduct in the prison, for each year. Similarly, from 22nd
March 2014 to 31st January 2017, the period during which the
petitioner was in open prison, the petitioner has been granted 30 days
remission for each month, in addition to 30 days yearly remission for
his good conduct. So far as the period from 1st February 2017 to 8th
November 2023 is concerned, the petitioner has been granted 7 days

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remission for each month since he was in the closed prison during the
said period. Thereafter, the petitioner was again selected for open
prison and he is in open prison since then. Therefore, the petitioner
has been granted remission of 30 days per month from 8th November
2023 to 31st March 2023.

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6.Learned counsel for the petitioner relying on the said remission
chart has argued, that after the remand period of the petitioner was
over on 31st January 2017, the DIG (Prison), Western Region, Pune,
had given oral telephonic orders to transfer the petitioner to the
Yerwada Central Prison (closed prison), which according to the learned
counsel for petitioner, is unheard of and not tenable in the eyes of law.
He submits that such oral orders cannot be passed, when a particular
procedure has been prescribed for passing such orders. According to
him, the procedure for transfer of a prisoner from open prison to
closed prison is given in Rule – 6 of the Open Prison Rules, 1971. As
per the said Rule, it is the Inspector General of Prison, who has to
grant approval for such transfer.

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7.In the present case, no such approval is granted by the Inspector
General of Prison. In the affidavit filed by the Director General of
Police and Inspector General of Prison, State of Maharashtra, dated 6th
March 2024, it is mentioned in paragraph No. 6 of the affidavit that
the petitioner was temporarily transferred to the Yerwada Central
Prison on same day, i.e. on 31st January 2017, as per oral instruction of
DIG (Prison), Western Region, Pune. It is further submitted by the
learned counsel for the petitioner, that after the oral directions of DIG
(Prison) Western Region, Pune, dated 31st January 2017, the Selection
Committee passed the impugned order transferring the petitioner
permanently to closed prison at Kolhapur Central Prison, on 24th
March 2017. It is a undisputed fact that, from 31st January 2017 to
24th March 2017, the petitioner was in closed prison, without there
being any formal written order to that effect. Therefore, the petitioner
is claiming remission as admissible to a prisoner in a open prison
during that period. The said fact about passing of the order by the
Selection Committee on 24th March 2017 is also accepted in the

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affidavit filed by the respondent – State authorities. It is also admitted,
that prior to the petitioner’s arrest in the C.R. No. 34 of 2017, he was
in open prison and an official order for cancellation of the order of
open prison was passed only on 24th March 2017.

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8.After going through the record and considering the submissions
made by the parties in the peculiar facts of the present case, we deem it
appropriate to allow the Petition by holding that the period from 31st
January 2017 to 24th March 2017 undergone by the petitioner in
closed prison, will have to be treated as a period in open prison for the
purpose of counting remission. The respondent- authorities have
placed on record the chart reflecting the remission period of the
petitioner with his probable date of release. In the said chart, the date
of the petitioner’s release is shown to be 1st April 2024.

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9.Since, we have came to the conclusion that the petitioner would
be entitled for grant of remission during the period from 31st January
2017 to 24th March 2017, the remission of 30 days in each month for
the aforesaid period would be admissible to him. On including the

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said remission of 52 days in the total remission as admissible to the
petitioner and considering the probable date of his release which is
projected to be 1st April 2024, the petitioner is entitled to be released
from the prison forthwith. Hence, we pass the following order:

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ORDER

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i)The Writ Petition is allowed.

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ii)The petitioner to be released forthwith by the prison

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authority, if not required in any other matter.

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10.With the aforesaid directions, the Writ Petitions stands disposed
of.

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11.In view of the disposal of the Writ Petition, the Interim
Application does not survive and the same is also disposed of.

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12.All concerned to act on the authenticated copy of this operative
order.

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MANJUSHA DESHPANDE, J. REVATI MOHITE DERE, J.

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Anwar Abdul Aziz Pathan v. the State of Maharashtra and Ors.

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Anwar Abdul Aziz Pathan v. the State of Maharashtra and Ors.

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