Krishan Kumar vs State of Rajasthan and Another

Instant petition has been filed by the petitioner who is serving life sentence in Central Jail, Jaipur. The petitioner was convicted and sentenced by the Ld. Additional Sessions Judge (Fast Track) Jhunjhunu vide judgment dt. 28.8.2002 in Sessions Case No. 51/2001 (103/2001) whereby he was convicted u/s. 460, 395, 397, 398 IPC, against which the (petitioner preferred DB Civil Writ Petition No. 5813/2013 which has been disposed of by this Court. As per nominal roll which has been enclosed by the respondent on record issued from the office of Superintendent, Central Jail, Jaipur Ann. R/2, the petitioner has undergone 14 years 6 months and 7 days and his jail conduct was not found to be satisfactory for the reason that for the period November 2012 to 11.3.2013 he remained absent from the jail workshop and from 12.3.2013 to 31.3.2013 he did not work.

As alleged in the petition, the petitioner submitted application before the concerned competent authority on 30.11.2012 for his admission to open air camp under the Scheme of Rules 1972 but when no action was taken by the competent authority the petitioner preferred DB Civil Writ Petition No. 5813/2013 which came to decided vide order dt. 16.4.2013 with the direction to the respondent to consider and decide his case on its own merits for admission to open air camp. The case of the petitioner, thereafter was considered by the Advisory Committee but taking note of his nature of conviction for the offence u/s. 395, 397, 398 and his jail conduct, the committee was of the unanimous view that he is not entitled for admission to open air camp and accordingly rejected the application.

After notice of the present petition came to be served, reply has been filed by the respondent and it has been averred that the petitioner is serving imprisonment in Central Jail, Jaipur and has served the sentence of 14 years 6 months 7 days but his jail conduct was not found satisfactory and he is resident of District Rewadi, Haryana and taking note of the overall view the petitioner was not considered eligible for admission to open air camp.

Counsel for petitioner submits that despite the jail conduct to be unsatisfactory of convict Babu Lal @ Babudia, he was considered eligible for admission to open air camp in the light of judgment dt. 26.7.2013 in Writ Petition No. 7312/2013 and the present petitioner being similarly situated is entitled to seek indulgence for admission to open air camp.

Counsel for respondent submits that in the case of Babu Lal, the jail punishment awarded to him was more than 2 years and 9 months old and at one stage he was granted parole of 20 days and he never misused the conditions for grant of parole and his conduct in jail later on found to be satisfactory. And as regards the present petitioner is concerned, his jail conduct was unsatisfactory as being reflected from his nominal roll that he has not attended the jail workshop from November 2012 to 11.3.2013 and did not work from 12.3.2013 to 31.3.2013 which is one of the ineligibility as contemplated under R. 3 (g) and also under R. 4 of the Rules 1972 and there is no counter filed by the petitioner in (regard to his unsatisfactory conduct.

We have considered the submissions made by the parties and with their assistance examined the material on record.

As regards the conviction of the petitioner u/s. 396, 397, 398 is concerned under R. 3 of Rules 1972, the following classes of prisoners shall ''ordinarily'' be not eligible for being sent to Open 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.

From the consistent view of this Court it is settled principles of law that the word ''ordinarily'' used in R. 3 of the Rules 1972 does not mean "necessarily" and each case has to be examined on its own facts and mere conviction in itself will not deprive the prisoner from being considered for admission to open air camp. However, in the instant case apart from the fact that he was convicted for the offences u/s. 406, 395, 397, 398 IPC, his jail conduct was not found to be satisfactory as during the period from November 2012 to 11.3.2013 he did not attend the jail workshop & from 12.3.2013 to 31.3.2013 he did not work and one cannot claim admission to open air camp under the Scheme of Rules 1972 as a matter of right. At the same time, there are certain eligibility referred to under R. 4 for admission to open air camp and R. 4 (b) clearly postulates that jail inmates must regular in performing his schedule task in the jail factory or in jail service. At the same time R. 3(g) clearly postulates that the jail conduct of the prisoner is one of the paramount consideration and he must not have received any jail punishment for two years preceding the date of the recommendations of his name for admission to the Open Air Camp.

In the instant case the petitioner''s candidature could not have been denied from consideration for admission to open air camp merely on the premise that he has been convicted for offence u/s. 395, 397, 398 IPC but at the same time this fact cannot be ruled out that his jail conduct was not found to be satisfactory as he failed to perform his schedule task in jail workshop and which is one of the conditions of eligibility for admission to open air camp under R. 4(b) of the Rules and jail conduct during the period of two years, is one of the consideration while his application being considered for admission to open air camp and in the considered view of this Court looking to the jail conduct being unsatisfactory as he failed to perform his schedule task in the jail workshop certainly disentitle him for admission to open air camp.

The case of Babu Lal @ Babudia, on which strong reliance was placed by the petitioner, suffice it to say that jail punishment inflicted upon him was more than two years and nine months and was not covered under R. 3(g) of the Rules 1972 and he did carry eligibility u/r. 4 of the Rules and that appears to be the reason which was taken note of by the Court for admission to open air camp and for the aforesaid reason may not be of any assistance to him. Consequently, we find no force in the writ petition and accordingly dismissed. However, it will not preclude the petitioner from filing fresh application at latter point of time if fulfills other conditions of eligibility for admission to open air camp under Rules 1972 and if such application is submitted that may be examined by the Committee independently in accordance with law.