Yogesh Kumar Devangan vs State And Ors

The present petition has been filed by the petitioner, challenging the minutes of meeting dated 11.04.2019, 12.04.2019 and 15.04.2019, whereby his application for sending him in Open Air Camp has been rejected.

The petitioner, who is serving sentence pursuant to his conviction under Section 302 of Indian Penal Code moved an application under Rajasthan Prisoners Open Air Camp Rules, 1972 (hereinafter referred to as "the Rules of 1972") and prayed that he be shifted to Open Air Camp. The competent Committee rejected petitioner's application while observing that during regular parole of 20 days (10.06.2017 to 29.06.2017), the petitioner did not report to the concerned Jail Superintendent and absconded, whereafter he was arrested on 15.08.2017 and re-lodged in the jail.

Mr. Bhati, learned counsel for the petitioner argued that the State Level Advisory Committee has erred in rejecting petitioner's application for transferring him to Open Air Camp. It was argued that true it is that the petitioner failed to surrender on completion of his regular parole, but the same cannot be a reason to deny him the right to which he is otherwise entitled, under the Rules of 1972.

Mr. Abhishek Purohit, learned counsel appearing for the State submitted that if the petitioner is shifted to Open Air Camp, possibility of his absconding cannot be ruled out, particularly having regard to his past conduct.

While admitting that the petitioner has served sentence of 09 years, 06 months and 14 days till 31.12.2018, it was contended by Mr. Purohit that the petitioner's case for shifting him to Open Air Camp does not merit acceptance as he had absconded during his regular parole of 20 days.

Having heard learned counsel for the parties and given our thoughtful consideration over the matter; the judgments of this Court in Gaju Ram Vs. State of Rajasthan & Ors., (D.B. Misc. Parole Writ Petition No.1174/08); Mohan Lal Vs. State of Rajasthan [2002 (1) Cr.L.R. (Raj.) 460] and decision dated 13.03.2019 rendered in case of Parvezshah Vs. State of Rajathan & Ors. (DB Criminal Writs No.101/2019), we are of the view that inhibition contained in Rule 3 of the Rules of 1972 does not operate as absolute bar and reason given by the Committee in the impugned minutes does not conform to the Rules of 1972.

Rule 4 of the Rules of 1972 provides that a prisoner shall be eligible for admission to an Open Air Camp, if he does not fall within any of the categories specified in Rule 3. Rule 3 of the Rules of 1972 enlists various ineligibility, out of which clause (c) and (d) (reproduced hereunder) are of some significance :

"3. Ineligibility for admission to open air camp.- The following classes of prisoners shall ordinarily be not eligible for being sent to Open Camp:-

(a) ... ... ...

(b) ... ... ...

(c) Persons who have escaped from the jails or who have attempted to escape from a lawful custody.

(d) Prisoners who have been convicted of an offence or offences under sections 121 to 130, 216A, 224, 225, 231, 232, 303, 311, 328, 332, 333, 376, 377, 383, 392 to 402, 435 to 440 and 460 of the Indian Penal Code (Act XLV of 1860)."

...    ...      ...

...    ...      ..."

Clause (c) of Rule 3 of the Rules of 1972 deals with a situation when a prisoner escapes from the jail or has attempted to escape from lawful custody. The petitioner's case, who has failed to report to jail authorities on completion of his parole, cannot be equated with cases of prisoners, who have escaped from the jails or have attempted to do so.

In our opinion, the petitioner convicted under Section 302 I.P.C. having served a sentence of more than 10 years deserves to be shifted to Open Air Camp under the Rules of 1972. Section 302 is not a provision enumerated under Rule 3(d) of the Rules of  1972, and we therefore do not see any justifiable reason to deny the petitioner his right to be admitted to Open Air Camp.

The petition, therefore, succeeds. The impugned minutes of meeting dated 11.04.2019, 12.04.2019 and 15.04.2019 are quashed and set aside. The petitioner be forthwith shifted to Open Air Camp in accordance with law.