Noor Mohammad vs State of Rajasthan

Mohammad Rafiq, J.—This writ petition has been filed by the convict-petitioner Noor Mohammad through his son-in-law Salim Khan contending that the petitioner is serving sentence of life imprisonment for the offence under Section 302/34 IPC awarded by Additional District Judge, Fast Track No. 1, Alwar in Sessions Case No. 103/2003 vide judgment and order dated 23.03.2004. It is contended that D.B. Criminal Appeal No. 496/2004 filed by the petitioner against the aforesaid judgment is pending before this Court. The petitioner submitted an application before concerned jail authority for his transfer from District Jail, Alwar to Open Air Camp, Alwar but the same has not been accepted on the ground that his age is more than 60 years. It is further contended that petitioner''s son-in-law Salim Khan sent an application through speed post on 17.11.2014 to the concerned jail authority for transferring the petitioner from District Jail, Alwar to Open Air Camp, Alwar mentioning therein that the petitioner is an old man aged more than 60 years and serving his sentence of life imprisonment without any complaint and, therefore, the petitioner is entitled to be transferred from District Jail, Alwar to Open Air Camp, Alwar, but no action has been taken up on that application by the concerned authority. It is contended that Chhaju is real brother of the petitioner and is serving his sentence of life imprisonment in Open Air Camp, Alwar in the same incident. He submitted an affidavit with an application to the effect that the petitioner, who is his brother, is an old man aged about 70 years and it is not possible for him to look after his brother from Open Air Camp, Alwar. It was requested by Chhaju that if the concerned authority transfers the petitioner from District Jail, Alwar to Open Air Camp, Alwar on the basis of the aforesaid affidavit, then he is ready to take care of his brother''s life and responsibility. It is contended that the petitioner has remained in judicial custody for more than 11 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.

Learned counsel for the petitioner has cited the judgment of Division Bench of this Court in Pyare Lal Vs. 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 Vs. 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 Public Prosecutor has opposed the writ petition.

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

In the aforesaid judgment, Division Bench reiterating its earlier view in Krishna and Anr. Vs. State of Rajasthan and Ors. : 2004(4) WLC (Raj.) 582 and Geeta Devi Vs. State of Rajasthan, , 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. Vs. State of Rajasthan (supra) and Geeta Devi Vs. 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, respondents are directed to transfer the petitioner from District Jail, Alwar to Open Air Camp, Alwar, where his brother Chhaju is presently lodged. The petitioner shall have to work in Open Air Camp Dholpur and earn wages.

With that direction, writ petition is allowed. Deputy Registrar (Judicial) of this Court is directed to send a copy of this order to the Superintendent, District Jail Alwar and Superintendent, Open Air Camp, Alwar for compliance.