Modunath vs State of Rajasthan and Others

Mohammad Rafiq, J.—This writ petition has been filed by the convict-petitioner Modunath through his nephew Mahaveer Yogi contending that the petitioner was awarded death sentence for the offences under Sections 147, 148, 302, 342, 427, 435 and 460 IPC read with Section 149 IPC by Additional Sessions Judge(Fast Track), No. 1, Kota in Sessions Case No. 27/2002 vide judgment and order dated 11.03.2003. It is contended that D.B. Criminal Appeal No. 421/2003 filed by the petitioner against the aforesaid judgment has been partly allowed vide judgment dated 02.06.2005 and the petitioner has been sentenced to life imprisonment. SLP filed by the petitioner was converted into Criminal Appeal No. 1108/2006 and the Hon''ble Supreme Court dismissed the same vide judgment dated 22.04.2013. At present, the petitioner is serving sentence in Central Jail, Kota.

It is contended that case of the petitioner for being sent to Open Air Camp, Kota is not being considered due to his age being more than 70 years, while his co-convict and nephew Radhey Shyam presently lodged at Open Air Camp, Kota, has expressed willingness to take care of and to accommodate petitioner with him. It is contended that the petitioner has remained in judicial custody for more than 13 years and during the aforesaid period, the conduct and behaviour of the petitioner in jail has been good and unblemished. There is no complaint against the petitioner. The petitioner was earlier granted regular parole of 20, 30 and 40 days and he did not misuse the liberty granted to him. Son of the petitioner namely Mukesh Yogi has expired on 06.07.2014, therefore, looking to the petitioner''s family condition he may be transferred to Open Air Camp, Kota to live with his nephew Radhey Shyam.

Learned counsel for the petitioner has submitted that other accused persons convicted in the same trial have already been transferred to Open Air Camp, Kota. Radhey Shyam, nephew of the petitioner has filed an affidavit expressing willingness to take care of and to accommodate the petitioner with him, which is on record.

Another contention of learned counsel for petitioner is that the petitioner cannot be denied admission to Open Air Camp solitary on the ground that he has been convicted for offence under Section 460 of the IPC because 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 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 upto eight years.

Learned counsel for the petitioner has cited judgment of Division Bench of this Court in Pyare Lal v. State of Rajasthan and Ors. (DBCWP No. 437/2013) decided on 15/01/2013 and argued that Division Bench in the aforesaid case has in the context of similar objection by the respondents while referring to Rule 3(d) and Rule 3 (m) of the Rules of 1972 held that word ''ordinarily'' used in Rule 3 is only directory and not mandatory. It is further held that since the word ''ordinarily'' has already been interpreted as ''not necessarily'', therefore, application of the petitioner ought to have been considered on its own merit.

Learned counsel for the petitioner has also cited decision rendered by the Division Bench of this Court on 30.08.2013 in the case of Subhash Chand v. State of Rajasthan and Others(D.B. Civil Writ Petition No. 12020/2013) wherein the Division Bench of this Court while relying upon the aforesaid decision in the case of Pyare Lal(supra), disposed of the writ petition directing the respondents therein to transfer the petitioner from District Jail, Alwar to Open Air Camp, Dholpur.

Learned counsel for the petitioner has also relied upon decisions rendered by Division Bench of this Court in the cases of Kishna v. State of Rajasthan, (2005) 2 RLW(Raj.) 960; Ratan Lal Vs. State of Rajasthan and Others, ; Munshi Ram v. State of Rajasthan and Ors(D.B. Parole Petition No. 8732/2013 decided on 12.08.2013).

Learned Deputy Government Advocate appearing on behalf of the respondents has opposed the writ petition and submitted that apart from petitioner''s conviction under Section 460 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. He further submits that transfer of convict prisoner from jail to open air camp is discretionary which lies with the respondents who can consider the convict for admission if sufficient accommodation is available in open air camp. The petitioner having the age of above 70 years and being physically incapacitated, he is not eligible to be sent to Open Air Camp, Kota.

I have heard learned counsel for the parties and perused the material available on record.

As regards the conviction of petitioner under Section 460 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." 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 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." 13. 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 aforesaid judgment, Division Bench reiterating its earlier view in Krishna and Anr. v. State of Rajasthan and Ors. : 2004(4) WLC (Raj.) 582 and Geeta Devi v. State of Rajasthan : 2012(3) WLC (Raj.) 146, has held in paras 10 and 11 of the said judgment, as under:--

"10. Since Rule 3 of the Rules of 1972 has already been considered and the word ''ordinarily'' has already been interpreted as ''not necessarily'', therefore, respondents cannot refuse to accept and consider the applications of the petitioners, subject to other conditions. The present matters are fully covered by decisions of this Court in Krishna and Anr. v. State of Rajasthan (supra) and Geeta Devi v. State of Rajasthan (supra).

In view of above discussion, we allow both the writ petitions and direct the respondents to accept and consider the applications of the petitioners for their transfer to open air camp, in accordance with law and in case they are otherwise eligible, as early as possible, but not later than a period of three months from the date of receipt of copy of this order."

In view of above, writ petition is disposed of with direction to the respondents to consider the case of the petitioner for his transfer to Open Air Camp, Kota, where his nephew Radhey Shyam is presently lodged in the light of aforesaid decisions upon filing application by the petitioner along with relevant documents and affidavit of his nephew Radhey Shyam expressing willingness to take care of and to accommodate the petitioner with him.