Rajasthan High Court - Jaipur
Ismile @ Asmal @ Tekariya vs State Of Rajasthan And Ors on 15 March, 2018
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Writ No. 177/2018
Ismile @ Asmal @ Tekariya S/o Shri Ghashi Khan, B/c
Musalman, Aged About 33 Years, R/o Village Nathoo Thala,
Police Station Pisangan, District Ajmer (Raj.) (At Present
Confined In Central Jail Udaipur) Through His Mother:- Smt.
Aami W/o Shri Ghashi Khan, Aged About 61 Years, B/c
Musalman, R/o Village Nathoo Thala, Police Station Pisangan,
District Ajmer (Raj.)
----Petitioner
Versus
1. State Of Rajasthan Through The Secretary, Department
Of Home, Govt. Secretariat, Jaipur.
2. District General Of Prisons, Directorate Prison, Rajasthan,
Jaipur.
3. The District Collector Ajmer (Raj.)
4. The Superintendent, Central Jail, Udaipur.
----Respondents
For Petitioner(s) : Mr. B.R. Choudhary
For Respondent(s) : Mr. V.S. Godara, PP
HON'BLE MR. JUSTICE DEEPAK MAHESHWARI
Judgment / Order
15/03/2018
Heard both the sides.
This writ petition under Article 226 of the constitution of India has been preferred on behalf of the petitioner Ismile @ Asmal @ Tekariya S/o Shri Ghanshi Khan for issuance of necessary directions to quash and set aside the order dated 03.11.2017, whereby decision was taken by Open Air Camp Committee not to send him into the Open Air Camp, Sanganer, Jaipur.
(2 of 4) [CRLW-177/2018] Learned counsel for the petitioner submits that the petitioner had served out the sentence of 11 years 01 month and 17 days as per the nominal roll dated 28.02.2018. His conduct is found satisfactory. Counsel submits that the application for sending petitioner to Open Air Camp was rejected on the ground that he did not surrender before the jail authorities on 14.09.2013 on the due date after availing the parole.
Learned counsel submits that there have been many other similarly placed convicts, who have been sent to the Open Air Camp after the period of 02 years of the alleged jump of parole.
To support his contention, the minutes of meeting dated 06.06.2016 of the Open Air Camp Committee has been submitted wherein convict Dinesh S/o Gopal, Raju @ Rajendra S/o Balwant Singh, Shimbhu Singh S/o Jhundu Singh and Chandra Prakash S/o Ramchandra were sent to Open Air Camp after lapse of period of 02 years from their jumping parole or jail punishment.
Learned counsel submits that since more than 02 years have passed in case of the present petitioner also he should have also been sent to Open Air Camp. The petitioner also surrendered before jail authorities on due date after availing emergent parole granted to him on the death of his father.
Per contra learned Public Prosecutor has opposed the prayer stating that the accused-petitioner not only jumped parole, but he was also arrested in FIR No.181/2013 registered at P.S. Ganj, Ajmer for the offence under Section 4/25 of the Arms Act. This was the reason that he was not sent to the Open Air Camp as per Rule 3(c) of the Rajasthan Open Air Camp Rules, 1972.
(3 of 4) [CRLW-177/2018] The aforesaid Rule 3(c) is as under :-
"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.
...................................................................................." On perusal thereof it does not appear that any reference has been made in the Rules of commission of offence during parole for which the convict can be refused to be sent to Open Air Camp. Further the word "ordinarily" used in the aforesaid Rules has been interpretted by the Division Bench of this Court in D.B. Civil Writ Petition No.12020/2013 (Subhash Chand Vs. State of Rajasthan & Ors.) and D.B. Civil Writ Petition No.437/2013 (Pyare Lal Vs. State of Rajasthan & Ors.), it has been held that the word 'ordinarily' cannot be interpreted as 'not necessarily'. Division Bench of this Court therefore held that the application filed by the convict for being transferred to Open Air Camp was fit to be allowed.
On perusal of the report regarding conduct of the accused- petitioner mentioned in the nominal roll, it appears that the conduct of the convict petitioner was found satisfactory. No jail punishment is said to be imposed on him. Period of almost 4½ years has lapsed after he jumped parole on 14.09.2013. His case cannot be treated on different footing than those of similarly placed other convicts.
Taking these facts into consideration, this Court is of the considered view that the writ petition preferred by the petitioner deserves to be allowed and is accordingly allowed. The order dated 03.11.2017 passed by the Open Air Camp Committee qua the accused-petitioner is quashed and set aside. The concerned (4 of 4) [CRLW-177/2018] committe is directed to consider and decide the application of the convict petitioner to be sent to Open Air (Jail) Camp, Sanganer, Jaipur afresh within a period of one month from today in view of above.
(DEEPAK MAHESHWARI),J Arun/17