Mr. Rupesh Anil Jaiswal, Advocate for v. K. Kotecha, APP for
Legal Reasoning
117 W.P.52.2025.odtTHE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.CRIMINAL WRIT PETITION NO. 52 OF 2025Shaikh Rauf S/o Shaikh Ayub. (C-4919) Age: 38 years, Occ: Convict, R/O at present Confined in Open Prison Paithan,District. Chhatrapati Sambhajinagar.... PetitionerVersus1]Inspector General of Prisons, Yerwada, Pune.2]Special Police Inspector General, Prisons & Correctional Services, Pune.3]Superintendent, Open Prison Paithan, Dist. Chhatrapati Sambhajinagar.... Respondents…Mr. Rupesh Anil Jaiswal, Advocate for Petitioner.Mr. V. K. Kotecha, APP for Respondent/State.…CORAM :SMT. VIBHA KANKANWADI &SANJAY A. DESHMUKH, JJ.DATE :19th March, 2025. PER COURT:. This writ petition has been filed for the following relief:-“B]By Appropriate Writ, direction or order in like nature toQuash and set aside order of the Respondent no. 1 217 W.P.52.2025.odtdated 5.1.2022 and also of the Respondent no.2 dated6.2.2024 and or,”And alternatively, there is prayer clause (C), which reads as under:-“C]By Appropriate Writ, direction or order in like theRespondents be directed to give the petitioner OpenPrison Remission for the period 12.01.2012 till22.07.2023, and accordingly Respondents be directedto take entry to that effect immediately on NominationRoll of petitioner and, or,”2Heard the learned counsel for the petitioner and the learnedAPP. 3The learned counsel appearing for the petitioner submitsthat the petitioner was arrested on 30th November, 2009 in connectionwith Sessions Case No.82 of 2010, decided by the learned SessionsJudge, Jalna. The petitioner was convicted on 8th December, 2011, forthe offence punishable under Sections 302 of the Indian Penal Code andother Sections. The sentence what was awarded, is imprisonment forlife. The facts further disclose that while undergoing the sentence, inview of the order passed by the State, he was put in Morshi OpenPrison. During Corona pandemic situation, in view of the notificationdated 8th May, 2020, he was released on Corona emergency parole 317 W.P.52.2025.odtleave initially for 45 days with condition. He was directed to remainpresent before P.I., Badnapur Police Station, District Jalna. However,the P.I., Badnapur Police Station given report to the Superintendent ofMorshi Open Prison on 16th April, 2021 informing that a non-cognizableoffence has been registered against the petitioner and therefore, hisemergency parole should be cancelled. Accordingly, the competentauthority had cancelled his Corona emergency parole leave by orderdated 26th July, 2021 and he was directed to surrender with prisonauthorities at Morshi Open Prison on 18th August, 2021. Accordingly, thepetitioner had surrendered himself. Thereafter, by order dated 23rdAugust, 2021 passed by the DIG, Prison Nagpur, he was transferredfrom Morshi Open Prison to Paithan Open Prison. Thereafter, theSuperintendent of Paithan Open Prison wrote letter dated 5th October,2021 taking Rule 4(ii)(d) of the Maharashtra Prison Manual, 1979(hereinafter referred to as “the Prison Manual”), as base for transfer ofpetitioner to the closed prison. Then after taking necessary formality, hewas transferred from open prison to closed prison on 2nd November,2021. However, now, he is again sent to Paithan Open Prison. 4The learned counsel for the petitioner submits that as perthe impugned order, three non-cognizable cases came to be registeredwith Badnapur Police Station against the petitioner and therefore, 417 W.P.52.2025.odtrespondent No.1 by order dated 5th January, 2022 has refused to givenecessary remission during the period when the petitioner was in closedprison i.e. from 12th January, 2022 to 22nd July, 2023. It is the orderpassed by respondent No.2 dated 6th February, 2024, whereby the samehas been confirmed. Both authorities have wrongly considered andapplied Rule 4(ii)(d) of the Prison Manual in cases of non-cognizableoffenses. The non-cognizable offences were not pending in any Court.They failed to consider that all the three cases were filed by the sameperson and now those N.C. cases have been taken back by theconcerned person. Communication to that effect has been made by thesaid person to the appropriate authorities on 22nd September, 2022. Thevital right of the petitioner has been withheld due the misinterpretation ofthe Rule and therefore, both the orders deserve to be quashed and setaside.5The learned APP relies on the affidavit-in-reply ofMr. Balrajendra Chokhaji Nimgade, the Deputy Superintendent, PaithanOpen Prison Class-1, who submits that as the non-cognizable caseswere reported, the petitioner was then shifted to open prison and thenagain he has been taken in the open prison, but the period in betweenwill have to be counted as per Rule 4(ii)(d) of Chapter II of the PrisonManual. Even the committee has approved such action. No case is 517 W.P.52.2025.odtmade out for exercising the constitutional powers of this Court. Thelearned APP relies on the communications as well as the Rule.6In fact, a very small issue is involved regarding theinterpretation of Rule 4(ii)(d) of the Prison Manual, which has beenpressed into service in this matter. Chapter II deals with Open Prisonsand Rule 4(ii) states that “The following prisoners shall not normally besent for confinement in an open prison” and sub-rule (d) states thecategory of prisoners as “prisoners having any case pending in a court”.The interpretation of the words used by the Legislature will have to betaken as it is and therefore, by literal meaning of this Rule, a prisoner,whose case is pending in a Court of law, he would be considered asdebarred from confining him in an open prison normally. Taking intoconsideration the Rule 4 (ii) of the Prison Manual, when the word‘normally’ is used, then the interpretation is that there is no strict bar oreach and every prisoner who would be under Sub-Rule (a) to (n)normally should not be sent to confinement, but then the otherinterpretation is that there can be exception. So, it appears that thediscretion is still being given to the prison authorities as well as thehigher authorities. We are only concerned with sub-rule (d) i.e. inrespect of a prisoner whose case is pending in a Court. Here, it can beconsidered that three non-cognizable complaints came to be registered 617 W.P.52.2025.odtagainst the petitioner when he was on Corona parole leave. The non-cognizable complaint or case would be mainly governed under Section155 (1) of the Cr.P.C.. Sub-Section (1) of Section 155 states that, wheninformation is given to an officer in charge of a police station of thecommission within the limits of such station of a non-cognizable offence,he shall enter or cause to be entered the substance of the information ina book to be kept by such officer in such form as the State Governmentmay prescribe in this behalf, and refer the informant to the Magistrate.Now, the record that has been produced alongwith affidavit-in-reply doesnot show that the said informant who gave information regarding thenon-cognizable offence was referred to the Magistrate. Further, there isno such document, which has been produced alongwith affidavit-in-reply,which would show that the concerned police officer to whom suchinformation was given regarding commission of non-cognizable offenceor the officer in charge of the police station had applied for the order ofthe Magistrate having power to try such case or commit the case for trialfor investigation as per Sub-Section (2) of Section 55 of the Cr.P.C..Respondent No.1 had taken pains to collect the necessary information inrespect of Section 155(1) or Section 155(2) of the Cr.P.C. before passingthe impugned order. In the nutshell, then no case was pending beforethe Magistrate. 717 W.P.52.2025.odt7It also appears that there were chapter cases by the sameperson or on his behalf. The chapter cases were instituted throughpolice station before the Executive Magistrate. By communication dated22nd September, 2022, all those three chapter cases as well as non-cognizable reports were taken back by the concerned informants.Certainly, some orders would have been passed by the ExecutiveMagistrate while closing those cases. Respondent No.2 before passingthe order dated 6th February, 2024, has not considered the fact thatthose chapter cases have been withdrawn. It appears that acommunication appears to have been filed by the present petitioner,which was under Right to Information Act, received from concernedauthority, with Naib Tahsidar Office, Badnapur, stating that no NCR orchapter case is then pending before the Executive Magistrate. If nocase even under the chapter case category was pending before theExecutive Magistrate, then also the interpretation of Rule 4(ii)(d) of thePrison Manual as applied by respondent No.2, is wrong.8In the affidavit-in-reply as well as in the submissions by thelearned APP, reliance has been placed on Rule 6 of the Prison Manual,which runs thus:-“6. The case of each prisoner transferred to anopen prison shall be put up before the ClassificationCommittee once a month, which shall analyse the 817 W.P.52.2025.odtproblems of the prisoner in detail. If it finds that aparticular prisoner is found unfit for being kept inconfinement in the open prison on the ground ofindiscipline or unsatisfactory work or any other goodand sufficient cause, he shall be transferred, afterobtaining approval of the Inspector General of Prisons,to such prison as the Inspector General of Prisons mayspecify.”9This Rule is stated to have been considered together withRule No.7, Note-1, for refusing to accord remission. Note-1 states that“no remission shall be granted for the broken period or periods in acalendar month” and the table has been given as to how the scale ofremission to be counted under the said Rule. Here, in the present case,first of all the petitioner was sent back to closed prison by order dated 5thJanuary, 2022, but actually he was lodged in the closed prison on 12thJanuary, 2022. He was there till 22nd July, 2023. Then he was againbrought to the open prison by order of transfer dated 03.06.2023. Thesaid order only states that as per decision taken by the SelectionCommittee he should be transferred to open prison. Therefore, it is notpossible to know as to what was the criteria that was applied by theSelection Committee, when it had passed only one and ½ years to thepetitioner to be lodged in the closed prison. Now, as regards Rule 6 isconcerned, which is in fact the order i.e. challenged dated 5th January,
Decision
917 W.P.52.2025.odt2022, we will have to consider that the said rule gives the powers to theClassification Committee if it finds that a particular prisoner is found unfitfor being kept in confinement in the open prison on the ground ofindiscipline or unsatisfactory work or any other good and sufficientcause, he shall be transferred even to the closed prison. The facts ofthe case show that transfer of the petitioner from open prison to closedprison by order dated 5th January, 2022, was not on the ground ofindiscipline or any unsatisfactory work. Therefore, in order it to be underthe category “any other good and sufficient cause”, there should be areasoned order. However, no such reasoned order is passed andwhatever order is passed, is on the basis of misinterpretation of Rule4(ii)(d) of the Prison Manual, and therefore, both the orders are illegaland require to be quashed and set aside, by further holding that theprisoner is entitled for the open prison remission for the period between12th January, 2022 to 22nd July, 2023 also. 10For the aforesaid reason, we proceed to pass the followingorder:-O R D E RI.The writ petition stands allowed.II.The order passed by respondent No.1 on 5th January,2022 and the order passed by respondent No.2 on 6th 1017 W.P.52.2025.odtFebruary, 2024, are hereby quashed and set aside.III.The respondents are directed to accord the necessaryremission of open prison to the petitioner even for theperiod 12th January, 2022 to 22nd July, 2023, and thatperiod should not be considered as broken period.IV.Such orders be passed within a period of one monthfrom today. [ SANJAY A. DESHMUKH, J. ] [ SMT. VIBHA KANKANWADI, J. ] nga