Case Note & Summary
The petitioner, Sardar S/ Shah Wali Khan, a life convict under the Terrorist and Disruptive Activities (Prevention) Act (TADA) sentenced on 6 June 2007, filed a criminal writ petition seeking a direction to the respondents (State of Maharashtra and prison authorities) to transfer him from closed prison to open prison. He had been incarcerated for over 18 years and had made repeated requests since 2010, which were consistently rejected. The petitioner claimed that due to his good conduct, he was released on 18 occasions on parole and furlough leave, and was appointed as night watchman and later as warden in the prison. He had previously approached the High Court, which directed the respondents to consider his request according to law, but the respondents allegedly failed to comply properly. He also alleged discrimination, as other similarly situated convicts were granted open prison. The respondents opposed the petition, contending that under Rule 4(ii)(n) of the Maharashtra Open Prisons Rules, 1971, the petitioner was ineligible for open prison, and that the Inspector General of Prison had the discretion to decide eligibility. The court examined the rule and found that it did not create an absolute bar; rather, it required the authority to consider each case on its merits. The court noted the petitioner's good conduct, multiple paroles, and responsible positions held in prison. The court also observed that the respondents had not justified the alleged discrimination. Consequently, the court allowed the petition, set aside the earlier rejection, and directed the respondents to reconsider the petitioner's representation within four weeks, in accordance with law and without being influenced by the earlier rejection. The court clarified that it had not expressed any opinion on the merits of the representation.
Headnote
A) Prisons Law - Open Prison Transfer - Eligibility of TADA Convict - Rule 4(ii)(n) of Maharashtra Open Prisons Rules, 1971 - The petitioner, a life convict under TADA, sought transfer to open prison. The respondents rejected his request citing Rule 4(ii)(n) which excludes certain categories. The court held that the rule does not create an absolute bar and the authority must consider each case on merits, especially when the petitioner has demonstrated good conduct, been released on parole/furlough 18 times, and worked as night watchman and warden. The court directed the respondents to reconsider the petitioner's representation within four weeks. (Paras 2-5) B) Prisons Law - Discrimination - Parity Among Convicts - Article 14 of Constitution of India - The petitioner alleged that similarly situated convicts were granted open prison while he was denied. The court noted that the respondents did not provide any justification for the differential treatment. Held that the principle of equality requires that similarly placed convicts be treated alike, and the respondents must consider the petitioner's case without discrimination. (Para 4)
Issue of Consideration
Whether a life convict under TADA is eligible for transfer to open prison under the Maharashtra Open Prisons Rules, 1971, and whether the respondents' rejection of the petitioner's request was arbitrary and discriminatory.
Final Decision
The petition is allowed. The impugned order/rejection is set aside. The respondents are directed to reconsider the petitioner's representation for transfer to open prison within four weeks from the date of the order, in accordance with law and without being influenced by the earlier rejection. Rule made absolute accordingly.
Law Points
- Open prison eligibility
- Rule 4(ii)(n) Maharashtra Open Prisons Rules 1971
- TADA convict
- life imprisonment
- good conduct
- parole and furlough
- discrimination
- consideration of representation
