Harikrishan Rawat vs State and Others

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

Petitioner is serving sentence of life imprisonment in Central Jail, Jaipur consequent upon his conviction and sentence by Additional District Judge (Fast Track) No. 1, Jaipur City, Jaipur vide judgment dated 20.6.2007 in Sessions Case No. 19/2005, for offence under Sections 396 and 120B of I.P.C. Aggrieved thereby, petitioner preferred criminal appeal before this Court, which is pending adjudication.

Petitioner has completed more than eleven and half years of sentence 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.

Petitioner submitted an application before concerned jail authority for his transfer to open air jail but the same was rejected observing that ordinarily convicts under Sections 394 of the I.P.C. are ineligible for admission to open air camp under Rule 3 of the Rajasthan Prisoners Open Air Camp Rules, 1972 (for short, ''the Rules of 1972'') and therefore he is not entitled to be transferred to open air camp.

Learned counsel for petitioner submits that the respondents could not be held justified in rejecting petitioner''s application solitary on the ground that he has been convicted for offence under Section 394 of the I.P.C. and further submits that his jail conduct being satisfactory and fulfilled all the conditions of eligibility for admission to open air camp as contemplated under Rule 4 of the Rules 1972, the decision of the Committee in rejecting his application by a non speaking order is arbitrary and deserves to be quashed and 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 lesser sentence than the petitioner.

Shri Anil Yadav, learned Deputy Government Advocate for respondents, on the other hand, submits that apart from petitioner''s conviction under Section 394 I.P.C., 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. In the instant case, the Committee primarily was of the view that nothing additional has been attributed in his performance which may consider his case for admission to open air camp and further submits that transfer of convict prisoner from jail to open air camp is discretionary which lies with the respondent and 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 394 of the I.P.C. 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 Vs. 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". 12. 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 Vs. 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 therefore. 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 and Others Vs. Bhawani Shanker and Another, 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." 13. Division bench of this Court in latest judgment dated 15.1.2015 passed in State and Raj. and Anr. vs. Subhash Sharma, D.B. Special Appeal (Writ) No. 28/2015 after considering the above judgment has upheld the order of single bench, whereby the writ petition was allowed with direction to the respondents to consider the case of the petitioner for sending him to Open Air Camp.

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 out-rightly from consideration for admission to open air camp.

In the instant case, application submitted by petitioner has been rejected primarily on the basis of his conviction under Section 394 of the I.P.C. treating it as an ineligibility under Rule 3 of the Rules of 1972. The prisoners who has served lesser sentence than the petitioner have been sent to open air camp whereas case of the petitioner has been illegally rejected. The action of the respondents is violative of right to equality granted under Article 14 of the Constitution of India. 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 succeeds and stands allowed. The rejection of the petitioner''s candidature by the Committee in its meeting held on 12.11.2014 is quashed and set aside. 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, if the prisoners with lesser sentence have been sent to Open Air Camp, he be given priority. Necessary orders be passed within a period of one month from the date a copy of this order is produced before them.