1993 Bombay Blasts | Bombay High Court Rejects Convict Sardar Shahvali Khan's Plea For Transfer To Open Prison

A division bench of Justice Mangesh Patil and Justice Abhay S Waghwase sitting at Aurangabad held that the convicts under the Terrorist and Disruptive Activities (Prevention) Act, 1987 can fall under the category of prisoners ineligible for confinement in an open prison.

“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 respondent No. 2 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 petitioner cannot claim that he is physically unfit while asking for emergency parole but change his stance and claim he is fit to perform the manual labor required in an open prison, the court held.

“the petitioner seems to be blowing hot and cold at the same time…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,” it observed.

Khan is serving life imprisonment in Harsul Central Prison, Aurangabad having been convicted under section 3(3) (conspiracy, attempt, abetment, incitement, or facilitation of a terrorist act) of the TADA Act, 1987 and section 120B of the IPC. He sought transfer as per Maharashtra Open Prison Rules, 1971.

Khan’s requests to be transferred have been consistently denied by the authorities.

The Inspector General (IG) of Prison, Pune rejected Khan’s application on the ground that he was convicted in the Mumbai bomb blasts case. Further, he is more than 66 years of age and cannot put in hard labour required in an open prison due to physical infirmity. Thus, Khan approached the High Court.

Advocate Rupesh Jaiswal for Khan argued that there is no bar in the Open Prison Rules depriving a prisoner from being transferred to open prison based on the nature of crime.

Further, Rule 4(ii), which contains exceptions to prisoners who are entitled to an open prison, does not specifically exclude the convicts under the TADA Act, he argued.

APP MM Nerlikar for the prosecution argued that Khan has no inherent right to be transferred to an open prison. Further, the IG has exercised his discretion and considered in him unfit to be transferred based on objective material indicated in the order.

He also pointed out that the petitioner’s medical history shows that he is suffering from joint pains and suspected arthritis but now that he wishes to go to an open prison.

Rule 4(ii) of the Open Prison Rules provides the categories of prisoners who are not entitled to be transferred to an open prison. Rule 4(ii)(n) provides that the IG has the power to consider a prisoner and.

The court said that the discretion has to be exercised cautiously and reasonably. The court opined that the ground taken by the IG that the prisoner is a Mumbai blast convict is not arbitrary or capricious and the convicts under special statutes like TADA would fall in the categories mentioned in Rule 4(ii).

"We see no reason to observe that this ground purportedly resorted to by the Inspector General of Prisons is arbitrary or capricious. 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 court noted that the convicts for grave offences and habitual offender are excluded from being eligible to be confined in an open prison. The court opined that convicts under TADA can easily fall under this category.

The court agreed with the prosecution’s argument on the ground of physical infirmity and noted that the record shows that he was in constant consultation with the doctors due to joint pain and the doctor suspected arthritis.

Thus, the court found no illegality in IG’s decision to deny Khan’s request.

Case no. – Criminal Writ Petition No. 915 of 2022

Case Title – Sardar s/o Shahvali Khan v. State of Maharashtra