Kalyan Kishan Bhondve v. The State of Maharashtra & Ors.

Ms.Sharda P.Chate, learned counsel for the petitioner. Mrs.R.K.Ladda, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 03/02/2011 PER COURT :

This is a petition under Article 226 of The Constitution of India, by which the petitioner prays for quashing and setting aside the order of transferring the petitioner to Central Prison Aurangabad from Open Prison, Paithan and thereafter to the Yerwada Central Prison at Pune. According to the petitioner, the petitioner has been released on parole on 06/01/2010. The parole leave was granted for 30 days, but on account of ailment of his mother, the petitioner had over- stayed for 154 days. The petitioner was thereafter served with a show cause notice dated 12/06/2010, calling upon him to show cause, as to why certain disciplinary action should not be taken 2 Criminal Writ Petition No.1024 of 2010 against the petitioner. The petitioner, submitted his reply to the show cause notice pointing out that the petitioner had over-stayed on account of ailment of his mother. Ultimately, the respondents rejected the reply submitted or the justification offered by the petitioner and accordingly passed the impugned order.

On notice being issued to the respondents, respondents have filed their affidavit in reply. In the affidavit in reply, at para no.4, it is stated that the petitioner has been released on leave on 6 occasions and out of that, on 4 occasions, when the petitioner was released on furlough and on two occasions when he was released on parole, the petitioner had overstayed by the period of 344 days and was required to be arrested and produced in jail. On the second occasion, the petitioner had over-stayed for 89 days and on the 3rd occasion, the petitioner was late by 4 days in surrendering. The petitioner had lastly overstayed by the period of 154 days and was required to be arrested and produced in jail. The respondents contend that after issuing show cause notice, and after giving an opportunity to offer his explanation, the impugned order came to be passed, as the petitioner does not have any right to remain in the open prison at Paithan.

In the present matter, the petitioner has committed breach of rules relating to his release on parole and furlough by overstaying on number of occasions. Rule 6 of The Maharashtra Open Prison 3 Criminal Writ Petition No.1024 of 2010 Rules, 1971 contemplates with conduct and behaviour of each prisoner transferred to open prison. Rule 6 further permits the re- appreciation of a convict back to the Central Prison, if on analysis, it is found that the prisoner is unfit for being kept in confinement in the open prison on the ground of indiscipline or unsatisfactory work or any other good and sufficient cause. The petitioner, on all the 6 occasions, when he had been released on parole or furlough, had overstayed and was often required to be arrested and brought back to the prison. The act of the present petitioner, therefore, would be sufficient justification for the respondents to re-transfer the petitioner back to the Yerwada Central Prison. It is always within the discretion of the competent authorities about the transfer of a prisoner to Central Prison. In the present case, the petitioner has been transferred to Yerwada Central Prison at Pune.

Upon hearing the learned counsel for the parties, we do not fine any justification whatsoever for interfering in the present petition and the present petition, therefore, being devoid of any merit, is summarily dismissed with no order as to costs. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/FEB. 2011/cri.w.p.1024-10