Smt Kamla Devi Spouse Of Ghasi Ram vs State And Ors

The convict-prisioner Rakesh being the son of the petitioner was denied the opportunity to be transferred to the Open Air Camp on the ground that he has been convicted for the prohibited offence under Section 376 IPC as per sub-rule (d) of Rule 3 of the Rajasthan Prisoners Open Air Camp Rules, 1972 (hereinafter referred as 'the Rules of 1972').

Learned counsel Shri Kalu Ram Bhati representing the petitioner vehemently and fervently urged that though the prisoner Rakesh has been convicted for the offence under Section 376 IPC but the restriction imposed under Rule 3 (d) of the Rules of 1972, the same cannot be read to the prejudice of the prisoner in light of the affirmative pronouncement of this Court in the case of Gaju Ram Vs. State of Rajasthan passed in D.B. Misc. Parole Writ Petition No.1174/2008 decided on 27.03.2008. He contended that in the said decision, the Hon'ble Division Bench has held that the word "ordinarily" used in Rule 3 cannot be interpreted to mean as "absolutely". He thus urges that the reasoning assigned in the impugned recommendations whereby, the said word "Ordinarily" has been misinterpreted as absolute bar deserves to be quashed and set aside and the matter should be remanded to the State Government for reconsidering the case of the convict for being sent to the Open Air Camp.

Per contra, Shri Farzand Ali, learned Additional Advocate General with reference to the reply, urged that the prisoner was granted interim bail by the Additional Sessions Judge on 10.08.2009 but he did not surrender on the due date and absconded. He was also granted first parole on 09.04.2013 and again, he absconded and failed to report on the scheduled date. He further urges that the convict's conduct outside the jail is not exemplary and satisfactory and thus, he cannot claim the privilege of being sent to the Open Air Camp.

We have considered the submissions advanced at the Bar and have gone through the material available on record.

There cannot be two different views regarding the interpretation of Rule 3 of the Rules of 1972 which carves out classification of prisoners who ordinarily will not be entitled to be sent to the Open Air Camp.

As has been held by Division Bench of this Court in the case of Gaju Ram (Supra), the word "ordinarily" cannot be interpreted to mean "absolutely". However, on perusal of the preamble of the Rules, it is clear that the same were promulgated with a view to ensure good conduct, satisfactory performance of work and a life of self discipline amongst the convicts of Rajasthan and to provide these convicts with a pre-release opportunity to learn social adjustments and economic self-dependency. Rule 3 of the Rules of 1972 carves out the exception of classes of prisoners who would ordinarily not be eligible for being sent to the Open Air Camp. Prisoners convicted for the offence under Section 376 IPC (as is the case of the convict herein) have been excluded by virtue of Rule 3 (d) of the Rules of 1972.

Further, we feel that in addition to the above ineligibility criteria, the prisoner must display good conduct and self-discipline if he is to be given advantage of the liberty of being sent to the Open Air Camp and is to be considered for being sent to the Open Air Camp despite he being "ordinarily" ineligible.

As has been noted above, the convict herein was twice released; firstly by an order of interim bail granted by the Trial Court and secondly, by virtue of an order of parole. On both occasions, he absconded and did not report back at the prison on the scheduled date. Thus, he did not display a good conduct or self-discipline entitling him to special consideration by ignoring the exceptions carved in Rule 3 of the Rules of 1972.

As an upshot of the above discussion, we are of the opinion that the prison authorities were justified in rejecting the application filed by the convict-Rakesh for being sent to the Open Air Camp. The impugned recommendations do not suffer from any error or illegality whatsoever warranting interference therein.

The parole petition is dismissed as being devoid of merit.