Bombay High Court dismisses plea of 1993 Mumbai blasts convict to shift him to open prison

The Aurangabad bench of the Bombay High Court recently upheld the decision of the prison authorities to reject a plea by a convict in the 1993 Mumbai blasts case to transfer him to an open prison [Sardar Shahvali Khan vs State of Maharashtra]. .A division bench of Justices Mangesh Patil and Abhay Waghwase dismissed the plea filed by Sardar Khan, who had questioned the decision of the Inspector General of Prison. The authority, by an order passed on February 4, had held that since Khan is above 65 years of age and also a convict in the blast case, he is not entitled to be shifted to an open prison as provided under the Maharashtra Open Prison Rules, 1971. The bench noted that the rules confer discretionary powers on the Inspector General which need to be exercised cautiously. "Bearing in mind such principles if we examine, the impugned order, it inter alia mentions that the petitioner is a convict of Mumbai Bomb Blast 1993 case as one of the reasons. Though it has not been specifically categorized in any other clauses of Rule 4, this ground, in our considered view, can certainly fit in the residuary 4(ii)(n). We see no reason to observe that this ground purportedly resorted to by the Inspector General of Prisons is arbitrary or capricious," the bench held. In our considered view, the convicts under special statutes like TADA would fall in the categories mentioned in sub Rule (ii) of Rule 4, the bench held..Notably, the rules provide the categories of prisoners who can and cannot be put up in open prisons. As per Rule 4 sub-rule (ii), prisoners who are habitual offenders, prisoners awarded three or major punishments, escapees or escape risk prisoners, one who are hired or professional murderers, or any prisoner who the Inspector General of Prisons deem unfit cannot be transferred in open jail. "Considering the category of prisoners mentioned in sub Rule (ii), the convicts for grave offences and habitual offenders are excluded from the benefit of selection for confinement in an open prison. The convicts under TADA, in our opinion can easily fit in such category of prisoners who have been excluded from such benefit. If the Inspector General of Prisons has found the petitioner unfit being a convict under Mumbai Bomb Blast 1993 case, we find that he has used the discretion appropriately," the bench held. .The bench further noted that the applicant was blowing hot and cold at the same time. It noted that when he wanted emergency parole and furlough during COVID pandemic as per the directions of the Supreme Court, he complained that he was an aged person and was even suffering from arthritis. Hence, he cannot subsequently claim that he is fit and should be transferred to open prison where manual labour has to be put it, the Court stated."Meaning thereby that he is changing his stance according to need. If in October 2021 he was claiming that he was more than 65 years of age and was suffering from arthritis and other illnesses, he cannot be heard to say that subsequently he became fit and he is entitled to the concession of being shifted to an open prison, where manual labour has to be put in. Therefore, we find no illegality even in this ground assigned by the Inspector General of Prisons for rejecting the petitioner’s claim," the bench opined. With these observations, the bench dismissed the plea..Advocate Rupesh Jaiswal appeared for the applicant. Additional Public Prosecutor MM Nerlikar represented the State. .[Read Order]