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The Bombay High Court has rejected a petition by a 1993 bomb blast convict, currently serving a life term in Aurangabad jail, seeking relief that he be sent to an open prison.

Sardar Shahwali Khan (55) challenged the decision of prison authorities refusing to select him for committal to open prison. He challenged the constitutional validity of section 4(ii)(n) of Maharashtra Open Prisons Rules 1971.

Justice U D Salvi and Justice A H Joshi at the Aurangabad bench recently rejected the petitioner’s argument that unfettered, unguided and unbridled powers were vested in the authority by virtue of Rule 4 (ii)(n).

The bench observed “one cannot always foresee every situation which may arise when executive functions. Law makers usually give a frame of law leaving ample power to make rules by exercise of delegated legislation and further room for executive to function and for discretion to deal with day-to-day business. In these premises, Rule 4(ii)(n) carves out room for executive powers and discretion,” they observed.

“It is also seen that the Committee is always entitled to invoke Rule 4(iii) and recommend case of a prisoner who is otherwise found ineligible, for being considered for Open Prison and such cases can be considered by Inspector General of Prisons for special reasons. However, such recommendation would always be on account of personal good behaviour and/or merit for such eligibility and any other special circumstance,” the judges remarked.

“To our mind, may be because of clause (iii) that one amongst the prisoners, who is a convict in TADA offence as is indicated by petitioner, may have been selected and sent to Open Prison. Therefore, a residuary clause in the nature of Rule 4(ii)(n) has to be considered necessary, and a detailed and further scholarly debate is not warranted in this case”.

The judges concluded, “In the background of the foregoing discussion, the challenge to the constitutional validity on the ground that unfettered, unguided and unbridled powers are vested in the authority by virtue of Rule 4(ii)(n), has to fail”.

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