Balwant Rai vs State of Rajasthan and Others

Mohammad Rafiq, J.—This writ petition has been filed by petitioner praying for a direction to respondents to transfer him from District Jail, Alwar to Open Air Camp, Alwar.

Petitioner is serving sentence of life imprisonment in District Jail, Alwar, consequent upon his conviction and sentence by Additional District and Session Judge(Fast Track) No. 1, Alwar, vide judgment dated 21.04.2006 in Sessions Case No. 06/2006(08/2006), for offence under Sections 363, 366A, 376(2)(g) and 302 read with Section 34 of the Indian Penal Code (for short, ''the IPC''). Aggrieved thereby, petitioner preferred D.B. Criminal Appeal No. 519/2006 before this Court, which is pending adjudication.

Petitioner has completed more than 10 years and 6 months of imprisonment including remission. It is contended that the conduct and behaviour of the petitioner in jail has been good and unblemished and there is no complaint against him. Earlier, he was granted three regular parole of 20, 30 and 40 days and one emergent parole for 15 days and during the said period, his behaviour remained good and he surrendered within stipulated time period.

The petitioner has completed more than 1/3rd of his sentence long before and regularly performing his scheduled task in prison and he is eligible to have his case considered for transfer to Open Air Camp, Alwar under the Rajasthan Prisoners Open Air Camp Rules, 1972 (for short, ''the Rules of 1972''). But, despite long span of time having passed, after the petitioner has completed the requisite sentence for consideration of his case as per rules, respondents are not considering his case for transfer in Open Air Camp, as he has been convicted under Section 376(2)(g) IPC whereas recently meetings for Open Air Camp have been conducted by the Jail Authorities and from the entire Rajasthan, number of prisoners have been transferred to Open Air Camps. After transfer in the Open Air Camp, the petitioner wants to take care of his old aged parents, wife and 2 children of the age of 8 and 5 years respectively through his earnings. Therefore, the bar contained in Rule 3(d) of the Rules of 1972 may be liberally interpreted qua the petitioner and he should be considered for transferring to Open Air Camp.

Learned counsel for petitioner submits that the petitioner cannot be denied admission to Open Air Camp solitary on the ground that he has been convicted for offence under Section 376(2)(g) of the IPC. Since petitioner''s jail conduct being satisfactory and he fulfilled all the conditions of eligibility for admission to open air camp as contemplated under Rule 4 of the Rules 1972, the respondents may be directed to send him to open air camp under the Scheme of Rules 1972. It is further contended that the respondents have already sent the prisoners to open air camp who have served sentence only up to eight years.

Learned counsel for the petitioner in support of his arguments has placed reliance upon decision of Division Bench of this Court in Babu Khan v. State of Rajasthan and Others(D.B. Civil Writ Petition No. 19231/2012 decided on 11.02.2013, wherein the Division Bench of this Court considering the fact that the petitioner therein was convicted under Section 376 IPC, directed the respondents to consider case of the petitioner therein for his transfer to Open Air Camp.

Reliance has also been placed upon the decision dated 27.02.2015 of this Court in Gopal v. The State of Rajasthan and Others (S.B. Civil Writ Petition No. 142/2015) wherein the application of the petitioner for transfer to Open Air Camp, who was convicted under Section 376(2)(g) IPC, was rejected by the respondents. This Court, while considering the facts and circumstances of that case allowed the writ petition and directed the respondents to consider case of the petitioner for admission to Open Air Camp.

Mr. Rishi Raj Singh Rathore, learned Deputy Government Advocate for respondents, on the other hand, submits that apart from petitioner''s conviction under Section 376(2)(g) IPC, which ordinarily may not consider him ineligible after the judgment of this Court, but certain additional factors are always to be kept in mind while taking decision. Transfer of convict prisoner from jail to open air camp is discretionary which lies with the respondent who can consider the convict for admission if sufficient accommodation is available in open air camp.

I have considered the submissions made by learned counsel for respective parties and perused the material on record.

The Government of Rajasthan in exercise of powers conferred by Clause (18) of Section 59 of the Prisons Act, 1894 (Central Act 9 of 1894) framed the Rajasthan Prisoners Open Air Camp Rules, 1972 primarily with the object for sending convicts to open air camps with a view to encourage good conduct, satisfactory performance of work and a life of self-discipline among the convicts of Rajasthan and to provide these convicts with a pre-release opportunity to learn social adjustment and economic self dependence. The open air camps are basically established with the object to introduce reformatory theory of punishment and not merely to lock up the prisoners but more importantly to reform them and to bring them into the main stream of the society as law abiding citizen.

It is true that no prisoner could claim admission to open air camp as a matter of right but, at the same time, jail inmates covered under the Scheme of the Rules of 1972 are to be considered for admission to open air camp under the given parameters on the recommendations made by the Superintendent or the Deputy Superintendent of Jail in his nominal roll, may send the application to the Inspector General of Prisons to be considered by the Committee subject to availability of accommodation and while deciding such applications, it has to be kept in mind that convicts having served longer term of imprisonment be given preference over the prisoners, who have served lesser sentence.

As regards the conviction of petitioner under Section 376(2)(g) of the IPC is concerned, under Rule 3 of Rules 1972, following classes of prisoners shall ordinarily be not eligible for being sent to Open Air Camp-

"(d) Prisoners who have been convicted of an offence or offences under sections 121 to 130, 216A, 224,225, 231, 232, 303,311, 328, 333, 376, 377, 383, 392 to 402, 435 to 440 and 460 of the Indian Penal Code (Act SLV of 1860)

(g) prisoners whose conduct in the jail is not good provided that a prisoner who would have not received any jail punishment for two years preceding the date of the recommendations of his name for admission to the Open Camp may be considered eligible.

R. 4 Eligibility for admission to Open Camps- A prisoner shall be eligible for admission to an Open Air Camp-

(a) He does not fall within any of the categories specified in rule 3 above;

(b) he has been regularly performing his scheduled task in the Jail Factory or in Jail Service;

(c) he has served one third term of his substantive sentence including remission."

A Division Bench of this Court in Krishna and Another v. State of Rajasthan and Others - 2004 (4) WLC 582, while interpreting the scheme of Rules 1972 and Rule 3 in particular, observed that it is directory in nature and para 11 of the judgment relevant for the purpose reads ad infra:

"Coming to the scheme of 1972 Rules it may be noticed that eligibility incorporated in R.3 is directory in nature. The persons mentioned in the said rule are although normally not eligible for being sent to Open Camp, they may however be sent when special circumstances exists. In view of the Rules 7,8,9 and 10, the prisoners can keep their families with them in Open Camp. Suitable accommodation for this purpose shall be allotted to the prisoners for this purpose and they shall have to make their own cooking arrangement for their food from their own cooking arrangement for their food from their own earning from the work distributed to them." 14. A Division Bench of this Court in Mahendra Kumar Vs. Director General Prisons and Others, , considered the word ''ordinarily'' under Rule 14 of the Rajasthan Prisoners (Release on Parole) Rules, 1958 (Parole Rules 1958) and taking note of the earlier judgment of Division Bench of this Court in Mohan Lal v. State of Raj. 2002 (2) WLC (Raj.) 484 held that the word ''ordinarily'' does not mean ''necessarily'' and para 4 of the judgment which is relevant for the purpose reads ad infra-

"A perusal of Rule 14 of the Rules of 1958 would clearly manifest that it is ordinarily that a convict shall not be allowed parole on the ground stipulated in sub-clause (a) to (d). The word "Ordinarily" does not mean "Necessarily". The language provided in the Rules of 1958 is not mandatory and it is still in the discretion of the concerned authorities to grant parole even though the case of convict may be covered in any of the sub-clauses mentioned above. That apart, the vigor of rule is set-off if a person has already undergone one fourth of the sentence including remission and the Superintendent of Jail recommends the case with the consultation of the District Magistrate with special reasons therefor. The petitioner admittedly has undergone one fourth sentence including remissions and the Superintendent of Police has given reasons which are not at all relevant nor reasonable for rejecting the prayer of parole. No report from the Superintendent of Police has given reasons which are not at all relevant nor reasonable for rejecting the prayer of parole. No report from the Superintendent of Jail has been obtained. A Division Bench of this Court in the case of Mohan Lal v. State of Rajasthan 2002 (2) WLC 484 has held that, the fact that a prisoner is residing in another State would not be an absolute bar for grant of parole in the case aforesaid, Clause (a) of Rule 14 of the Rules of 1958 was pressed into service in denying the parole to the petitioner." 15. Thus, it is clear that Rule 3 of the Rules of 1972 is not mandatory and the word ''ordinarily'' does not mean ''necessarily'' and each case has to be examined on its own facts and the prisoner carrying any of the ineligibilities, referred to under Rule 3, may not oust him outrightly from consideration for admission to open air camp.

In the instant case, case of the petitioner for his transfer to open air camp cannot be denied to be considered on the basis of his conviction under Section 376(2)(g) of the IPC treating it as an ineligibility under Rule 3 of the Rules of 1972. At the same time, there is no special reasons required for the prisoner from being considered for admission to open air camp and as per nominal roll of the petitioner he has rendered sentence for more than seven years, ten months and twenty one days excluding remission and his jail conduct has been found to be satisfactory. It is also not the case of respondents that petitioner is not entitled to be given preference looking to his term of imprisonment. In the considered view of this Court no reason is forthcoming which disentitles the petitioner for being admitted to open air camp under the Scheme of Rules of 1972.

Consequently, the writ petition is disposed of. The respondents are directed to consider the case of the petitioner for admission to open air camp under the Scheme of the Rules of 1972 as well as in the light of aforesaid decision and decision of this Court in Babu Khan(supra) and Gopal (supra) as well and necessary orders be passed within a period of one month from the date an application along with copy of this order is produced before them by the petitioner.