Rajasthan High Court - Jodhpur
Pawan Kumar Maru vs State Of Rajasthan ... on 24 November, 2023
Bench: Arun Bhansali, Nupur Bhati
[2023:RJ-JD:40559-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Writ Petition No. 1539/2023
Pawan Kumar Maru S/o Shri Santosh Kumar, Aged About 35
Years, B/c Maru, R/o V.p Khasoli, Dist. Churu, Raj. (At Present
Lodged In Central Jail, Bikaner)
----Petitioner
Versus
1. State Of Rajasthan, Through Special Officer(Home) (Jail)
Group-12, Rajasthan, Jaipur
2. The Director General And Inspetor General Jail, Jaipur
3. The Superintendnet, Central Jail, Bikaner
----Respondents
For Petitioner(s) : Ms. Ranjana Singh for Mr. Kalu Ram
Bhati.
For Respondent(s) : Mr. Anil Joshi, GA - cum - AAG with
Mr. Rajat Chhaparwal.
HON'BLE MR. JUSTICE ARUN BHANSALI
HON'BLE DR. JUSTICE NUPUR BHATI Judgment 24/11/2023
1. This petition has been filed by the petitioner aggrieved of the rejection of his application for being sent to Open Air Camp inter alia on the ground that he has been convicted for offence under POCSO Act.
2. Learned counsel for the petitioner made submissions that rejection of the petitioner's prayer for being sent to Open Air Camp is not justified and relied on certain orders.
3. Learned AAG made submission that this Court in Vipin@ Vinkesh @ Vika v. State of Rajasthan & Ors. : DB Criminal Writ Petition No. 166/2023, decided on 25.04.2023 referring to the judgment in the case of Rajendra @ Goru v. State of Rajasthan & Ors. : D.B. Cr. Writ Petition No.189/2022, decided on 13.07.2022 and Bhag Singh @ Bhagirath v. State of Rajasthan & Ors. : D.B. Cr. Writ Petition No.51/2022, decided on 24.08.2022, has come to (Downloaded on 24/11/2023 at 08:45:56 PM) [2023:RJ-JD:40559-DB] (2 of 4) [CRLW-1539/2023] the conclusion that those convicted inter alia for offences against women, i.e. Section 376 I.P.C. and under POCSO Act cannot be sent to Open Air Camp. Further, the orders relied on by learned counsel for the petitioner have been held to be per incuriam.
4. We have considered the submissions made by learned counsel for the parties and have perused the material available on record.
5. It is not in dispute that the petitioner has been convicted for offence under POCSO Act. This Court in the case of Vipin (supra), after considering the conflicting judgments/orders passed by various Benches, came to the following conclusion:
"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, 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 (Downloaded on 24/11/2023 at 08:45:56 PM) [2023:RJ-JD:40559-DB] (3 of 4) [CRLW-1539/2023] 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."
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 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 (Downloaded on 24/11/2023 at 08:45:56 PM) [2023:RJ-JD:40559-DB] (4 of 4) [CRLW-1539/2023] 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 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."
6. In view of the above, no case is made out in the writ petition, the same is, therefore, dismissed.
(DR. NUPUR BHATI),J (ARUN BHANSALI),J 30-Rmathur/-
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