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Synopsis

The Aurangabad bench of the Bombay High Court recently rejected the plea of Sardar Shahvali Khan- a convict of the 1993 Mumbai blast seeking transfer to an open prison under Maharashtra Open Prisons Rules,1971.

A division bench of Justice Mangesh Patil and Justice Abhay S Waghwase observed that the inmates under the Terrorist and Disruptive Activities (Prevention) Act, 1987, can be disqualified for incarceration in an open jail.

“Considering the category of prisoners mentioned in sub Rule (ii) Maharashtra Open Prisons Rules 1971, 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,” the bench observed.

The bench further noted that on the ground of physical infirmity, it did appear that the petitioner had made some attempt to ascertain from the prison authorities the record regarding his certification as being unfit but he was not provided anything on the ground that no such record was available about such certification.

Sardar Khan is a convict in the 1993 Mumbai Bomb blast case. He is serving a life sentence in Harsul Central Prison in Aurangabad after being convicted under Section 3(3) of the TADA Act, 1987 (conspiracy, attempt, abetment, incitement, or facilitation of a terrorist act) and Section 120B of the IPC. He requested a transfer under the Maharashtra Open Prison Rules, 1971.

The authorities have repeatedly rejected Khan's demands to be transferred. By an order dated February 04, 2023, the Inspector General of Prison, Pune stated that Khan is above the age of 65 and a convict in the blast case, thus he is not eligible to be transferred to an open jail as permitted under the Maharashtra Open jail Rules, 1971.

Thus, he approached the high court.

Advocate Rupesh Jaiswal, representing Khan, contended that there is no provision in the Open Prison Rules that prevents a prisoner from being transferred to open prison based on the nature of the offence. He also stated that rule 4(ii) of Maharashtra Open Prisons Rules contains several exceptions and the categories of prisoners who are not entitled to selection for confinement in an open prison, there is no specific reference excluding the convicts under the TADA Act.

According to rule 4(ii)(n) the Inspector General of Prisons may consider the fitness of a prisoner for being sent to an open prison, which gives him a blanket power it cannot be exercised arbitrarily or capriciously, the counsel added.

On the other hand, the counsel for the state claimed that Khan had no inherent right to be transferred to an open prison. Furthermore, the Inspector General by order dated February 04, 2023, had determined that he was unfit to be transferred based on objective evidence in the order.

The state counsel further stated that the petitioner's medical history showed that he suffers from joint pains and suspected arthritis, but now he is seeking to be transferred to an open jail.

The bench after hearing both parties stated that IG's claim that Khan was a Mumbai Bomb blast convict was neither arbitrary nor capricious and that prisoners under special statutes such as TADA would come into the categories specified in Rule 4(ii).

“Rule 4(ii)(n) has conferred the power on IG to consider any prisoner as unfit, when the legislature has conferred such discretionary power on the Inspector General of Prisons, those cannot be arbitrary and are to be exercised cautiously and in a well-reasoned manner,” the bench stated.

The court agreed with the prosecution on the basis of physical infirmity, noting that the record showed that he was in frequent communication with doctors owing to joint pain, and the doctor suspected arthritis.

The court determined that the IG's decision to refuse the transfer of Khan to an open jail is correct.

Accordingly, the bench dismissed the writ petition of the convict.

Case Title: Sardar s/o Shahvali Khan vs. State of Maharashtra

Statute: Maharashtra Open Jail Rules, 1971, Terrorist and Disruptive Activities (Prevention) Act, 1987