Rajasthan High Court - Jodhpur
Vijendra Singh vs State Of Rajasthan ... on 17 November, 2023
Bench: Pushpendra Singh Bhati, Rekha Borana
[2023:RJ-JD:39389-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Writ Petition No. 1611/2023
Vijendra Singh S/o Shri Om Prakash Ji, Aged About 32 Years, B/c
Jat R/o Sangariya Thana Sangariya Dist. Hanumangarh Raj. At
Present Lodged In Central Jail Bikaner
----Petitioner
Versus
1. State Of Rajasthan, Through Special Officer (Home) (Jail)
Group-12 Raj. Jaipur
2. The Director General And Inspector General, Jail Jaipur
3. The Superintendent Central Jail, Bikaner
----Respondents
For Petitioner(s) : Ms. Ranjana Singh.
For Respondent(s) : Mr. Anil Joshi, AAG assisted by
Mr. Pallav Sharma.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MS. JUSTICE REKHA BORANA Order 17/11/2023
1. The instant criminal writ petition has been preferred claiming the following reliefs:-
"It is, therefore most humbly and respectfully prayed that this writ petition may kindly be allowed and the convict prisoner Vijendra Singh s/o Shri Om Prakash, At Present Lodged in Central Jail Bikaner may kindly be sent to open air camp."
2. Ms. Ranjana Singh, learned counsel appearing on behalf of the petitioner has taken this Court to the Rajasthan Prisoners Open Air Camp Rules, 1972, the relevant being Rule 3 (d), which is reproduced as follows:-
"(a)...
(b)....
(c)....(Downloaded on 17/11/2023 at 08:35:47 PM)
[2023:RJ-JD:39389-DB] (2 of 8) [CRLW-1611/2023]
(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 XLV of 1860).
(e)..."
3. Learned counsel for the petitioner submits that the term used in the said rule is 'ordinarily' such persons, who are convicted under Section 376 of the IPC would not be eligible for the open air camps, but in exceptional circumstances, such persons can be considered for open air camps.
4. Mr. Anil Joshi, learned Additional Advocate General assisted by Mr. Pallav Sharma appearing on behalf of the respondents has relied upon the order of Division Bench of this Hon'ble Court in the case of Vipin @ Vinkesh @ Vika Vs. State of Rajasthan & Ors. (D.B. Criminal Writ Petition No.166/2023) decided on 25.04.2023. The operative portion of which reads as follows:-
"8. We have considered the submissions made by learned counsel for the parties and have perused the material available on record.
9. It is not in dispute that the petitioner is undergoing imprisonment having been convicted, inter-alia, under Section 376 IPC.
10. This Court in the case of Rajendra @ Goru (supra), wherein also, the prisoner was convicted for offence under Section 376 IPC, came to the following conclusion :-
"We have given our thoughtful consideration to the submissions advanced at bar and, have gone through the material available on record.
Rule 3 of the Rules of 1972 postulates that the classes of prisoners, which have been narrated in sub-clauses of Rule 3 of the Rules, (Downloaded on 17/11/2023 at 08:35:47 PM) [2023:RJ-JD:39389-DB] (3 of 8) [CRLW-1611/2023] would ordinarily not be eligible for being sent to the Open Air Camp. The term 'ordinarily' has been interpreted by this Court in numerous decisions and it has been held that it does not stipulate an absolute prohibition on such a convict for being sent to the Open Air Camp.
However, we are of the definite opinion that while considering the cases of the restricted classes of prisoners as per Sub-clause of Rule 3, the word 'ordinarily' would definitely have to be considered keeping in mind the gravity of offences attributed to the convict. The Open Air Camp facility gives an opportunity to the convicts to be rehabilitated into the society because they can keep their families with them in the campus and they can even move out of the camp during the day time for earning their livelihood. If the prisoners, who have been convicted with the heinous offence under the POCSO Act, are sent to the open air camp, their presence would definitely create a fear in the mind of the families of the other inmates that their children would not be safe if such prisoners are allowed to stay in the open air camp and this could dead to a situation of strife. The convict himself would be at risk as a consequence.
Therefore, we are of the firm view that while considering the word 'ordinarily' even in a liberal sense, the authorities would definitely be justified in taking note of the nature and gravity of offences while considering the application submitted by a convict for being sent to the Open Air Camp more particularly for those who are convicted and sentenced under the POCSO Act and like offences.
As an upshot of the above discussion, we find no illegality or infirmity in the impugned order dated 23.02.2022 whereby, the application (Downloaded on 17/11/2023 at 08:35:47 PM) [2023:RJ-JD:39389-DB] (4 of 8) [CRLW-1611/2023] submitted by the petitioner for being sent to the open air camp was rejected.
Hence, the writ petition fails and is dismissed as being devoid of merit."
11. Whereafter, another Bench in the case of Bhag Singh @ Bhagirath (supra), following the order in the case of Rajendra @ Goru (supra), again came to the following conclusion :-
"It is true that the phrase ordinarily be not eligible as referred in Rule 3 and 4 of the Rules of 1972 does not absolutely prohibit entitlement of prisoners falling in the class enumerated in Rule 3 and 4 to be sent to open air camp as held by this Court in DB Criminal Writ Petition No.38/2018 (Nirbhay Singh @ Nabbu vs. State of Rajasthan & Ors.) decided on 04.04.2018 and DB Criminal Writ Petition No.532/2021 (Sandeep vs. State of Rajasthan & Ors.) decided on 23.11.2021, however, it is also true that the prisoners who have been convicted for the heinous offences under the POCSO Act cannot ask for sending them to the open air camp as a matter of right. This Court in Rajendra's case (supra) while rejecting the petition of a convict, in which he prayed for sending him to the open air camp, has observed as under :
"However, we are of the definite opinion that while considering the cases of the restricted classes of prisoners as per Sub-clause of Rule 3, the word 'ordinarily' would definitely have to be considered keeping in mind the gravity of offences attributed to the convict. The Open Air Camp facility gives an opportunity to the convicts to be rehabilitated into the society because they can keep their families with them in the campus and they can even move out of (Downloaded on 17/11/2023 at 08:35:47 PM) [2023:RJ-JD:39389-DB] (5 of 8) [CRLW-1611/2023] the camp during the day time for earning their livelihood. If the prisoners, who have been convicted with the heinous offence under the POCSO Act, are sent to the open air camp, their presence would definitely create a fear in the mind of the families of the other inmates that their children would not be safe if such prisoners are allowed to stay in the open air camp and this could dead to a situation of strife. The convict himself would be at risk as a consequence. Therefore, we are of the firm view that while considering the word 'ordinarily' even in a liberal sense, the authorities would definitely be justified in taking note of the nature and gravity of offences while considering the application submitted by a convict for being sent to the Open Air Camp more particularly for those who are convicted and sentenced under the POCSO Act and like offences."
Resultantly, we are of the view that there is no illegality in the order passed by the Committee whereby, the prayer of the petitioner for sending him to the open air camp has been rejected as he is convicted under POCSO Act and another criminal case is also pending trial against him.
Hence, there is no force in this parole writ petition and the same is hereby dismissed."
12. Insofar as, the orders in the case of Ajit Singh (supra) & Rajkumar (supra) are concerned, the Benches, which had passed the orders dated 11.03.2022 & 27.06.2022, have on subsequent occasions delivered the judgments in Rajendra @ Goru (supra) and Bhag Singh @ Bhagirath (supra), which have been noticed herein-before and came to the conclusion that those convicted under Section 376 IPC be not sent to Open Air Camp.
13. So far as, judgments in the case of Ram Lal (supra) and Rajkumar (supra) decided by the Bench at Jaipur are concerned, the said orders being subsequent to the orders (Downloaded on 17/11/2023 at 08:35:47 PM) [2023:RJ-JD:39389-DB] (6 of 8) [CRLW-1611/2023] passed in the case of Rajendra @ Goru (supra) and Bhag Singh @ Bhagirath (supra) and the said Division Bench judgments having not been considered by the said Single Benches, the said orders are per incuriam and cannot be relied on in view of orders in the case of Rajendra @ Goru (supra) and Bhag Singh @ Bhagirath (supra).
14. In view of what has been laid down in the case of Rajendra @ Goru (supra) and followed in the case of Bhag Singh @ Bhagirath (supra), we are firmly of the opinion that the rejection of petitioner's case for being sent to Open Air Camp by the Committee does not require any interference.
15. Consequently, the petition is dismissed."
5. Learned Additional Advocate General has also relied upon the order of Division Bench of this Hon'ble Court in the case of Rajendra @ Goru Vs. State of Rajasthan & Ors. (D.B. Criminal Writ Petition No.189/2022) decided on 13.07.2022. The operative portion of which reads as follows:-
"We have given our thoughtful consideration to the submissions advanced at bar and, have gone through the material available on record.
Rule 3 of the Rules of 1972 postulates that the classes of prisoners, which have been narrated in sub- clauses of Rule 3 of the Rules, would ordinarily not be eligible for being sent to the Open Air Camp. The term 'ordinarily' has been interpreted by this Court in numerous decisions and it has been held that it does not stipulate an absolute prohibition on such a convict for being sent to the Open Air Camp.
However, we are of the definite opinion that while considering the cases of the restricted classes of prisoners as per Sub-clause of Rule 3, the word 'ordinarily' would definitely have to be considered keeping in mind the gravity of offences attributed to the convict. The Open Air Camp facility gives an (Downloaded on 17/11/2023 at 08:35:47 PM) [2023:RJ-JD:39389-DB] (7 of 8) [CRLW-1611/2023] opportunity to the convicts to be rehabilitated into the society because they can keep their families with them in the campus and they can even move out of the camp during the day time for earning their livelihood. If the prisoners, who have been convicted with the heinous offence under the POCSO Act, are sent to the open air camp, their presence would definitely create a fear in the mind of the families of the other inmates that their children would not be safe if such prisoners are allowed to stay in the open air camp and this could dead to a situation of strife. The convict himself would be at risk as a consequence.
Therefore, we are of the firm view that while considering the word 'ordinarily' even in a liberal sense, the authorities would definitely be justified in taking note of the nature and gravity of offences while considering the application submitted by a convict for being sent to the Open Air Camp more particularly for those who are convicted and sentenced under the POCSO Act and like offences.
As an upshot of the above discussion, we find no illegality or infirmity in the impugned order dated 23.02.2022 whereby, the application submitted by the petitioner for being sent to the open air camp was rejected.
Hence, the writ petition fails and is dismissed as being devoid of merit."
6. This Court, after hearing learned counsel for the parties, is of the opinion that the analogy drawn by the Division Bench of this Hon'ble Court is that the open air camp facility is an opportunity for rehabilitation of the convicts in the society, so that they can have a smooth transformation from the life of a prisoner to that of a member of the open society. The open air camp also envisages (Downloaded on 17/11/2023 at 08:35:47 PM) [2023:RJ-JD:39389-DB] (8 of 8) [CRLW-1611/2023] that the families were to live with such accused persons and also earn their livelihood together. Any kind of fear psychosis, which could be created by such persons, who would be charged with offences like Section 376 of IPC would render the rest of the families and the other inmates in the camp amenable to apprehensions, which cannot be ruled out.
7. The Division Bench orders rendered in the cases of Vipin @ Vinkesh @ Vika (supra) and Rajendra @ Goru (supra) are directly covering the factual matrix of the present case, and thus, are applicable in the present case. Moreover, learned counsel for the petitioner is unable to point out anything, which is extraordinary about the present case, so as to enable the petitioner to come out of the exception carved out under Rule 3 of the Rajasthan Prisoners Open Air Camp Rules, 1972.
8. In view of the aforesaid observations, this Court does not find any ground to make any interference in this matter.
9. Consequently, the present petition is dismissed. All pending applications, if any, stand disposed of.
(REKHA BORANA),J (DR.PUSHPENDRA SINGH BHATI), J 21-/Jitender//-
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