Rajasthan High Court - Jodhpur
Parvezshah vs State Of Rajasthan on 13 March, 2019
Bench: Sangeet Lodha, Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR
D.B. Criminal Writs No. 101/2019
Parvezshah S/o Shri Anwar Shah Pathan, Aged about 29 years,
b/c Muslim, R/o Pathan Chahal, Opp. Railway Station, Taluki
Kadi, District Mesana (Gujarat).
(Convict Javed Shah S/o Shri Anwar Saha at present at Central
Jail, Bikaner)
----Petitioner
Versus
1. State Of Rajasthan through Secretary, Department of Home,
Secretary, Department of Home, Secretariat, Rajasthan,Jaipur.
2. The Director General Jail, Jaipur.
3. The Superintendent, Cental Jail, Bikaner.
4. The District Collector, Bikaner.
----Respondents
For Petitioner(s) : Mr. Kalu Ram Bhati
For Respondent(s) : Mr. Farzand Ali, AAG cum GA with Mr.
Abhishek Purohit
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE DINESH MEHTA Order 13/03/2019
1. This petition is filed by the petitioner Parvezshah, the brother of a life convict Javed Shah, seeking direction to the respondents to transfer his brother presently lodged in Central Jail, Bikaner to Open Air Camp, Mandore, Jodhpur. In the alternative, it is prayed that the respondents be directed to consider the application dated 14.1.19 preferred by the convict Javed Shah seeking transfer to Open Air Camp, Mandore, Jodhpur.
2. It is noticed that an application earlier preferred by the convict Javed Shah seeking transfer to Open Air Camp was rejected by the State Level Committee vide its decision dated 25.7.17 on account of inhibition contained in Clause (d) of Rule 3 (2 of 5) [CRLW-101/2019] of the Rajasthan Prisoners Open Air Camp Rules, 1972 ("the Rules of 1972"), which reads 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)...
(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)." .............
3. Learned counsel appearing for the petitioner contended that in Rule 3 of the Rules of 1972 which deals with ineligibility for admission to open air camp, the word "ordinarily" used clearly indicates that for transfer of the prisoners falling in the categories specified under Clauses (a) to (m) of the Rule 3 of the Rules of 1972, the bar contained is not absolute. Learned counsel submitted that while considering the application preferred by the prisoner falling in the categories (a) to (m) of the Rule 3 of the Rules of 1972, the State Level Committee is under an obligation to apply its mind and any mitigating circumstance has to be taken into consideration. Relying upon a decision of this Court in the matter of Gaju Ram Vs. State of Rajasthan & Ors. (D.B.Misc. Parole Writ Petition No.1174/08), learned counsel submitted that the application preferred by the convict for transfer to the Open Air Camp has to be decided by the State Level Committee taking into consideration the totality of the facts and circumstances of the Case and same cannot be rejected summarily.
4. In Gaju Ram's case (supra), a Coordinate Bench of this Court, while considering the ambit and scope of Rule 3 of the Rules of 1972 observed as under:
(3 of 5) [CRLW-101/2019] "Rule 3 providers that prisoners falling in clause (a) to (m) under Rule "Ordinarily" be not eligible for being sent to open air camp. The word "ordinarily" cannot be interpreted to mean that the prisoners falling in the categories (a) to (m) under Rule 3 shall not be eligible for sending to open air camp as it would destroy the purpose for enacting Rule 3 itself Rule 3 has been framed in the language as such in spite of Rule 4 which says that "a prisoner shall be eligible for admission to open air camp if he does not within any of the category specified in Rule 3"
Therefore, harmonious construction of Rule 3 & 4 can be that a convict of category referred into Rule 3 shall ordinarily be not eligible for being sent to open air camp but he could be considered and can be sent to open air camp Rajasthan of claim of candidates falling in the category under rule 3 on the ground that they are not eligible for sending to open air camp is contrary to rule 3 of Rules of 1972."
"Even if large number of applications are received from the prisoners who are not falling in clause (a) to (m) of Rule 3 of Rules of 1972 even then, if other requirements are satisfied by the prisoner then prisoner falling in the rule 3 of the Rule 1972 can have some percentage of accommodation in open air camp but for the decision is required to be taken by the Committee."
5. It is noticed that in yet another matter Mohan Lal Vs. State of Rajasthan [2002 (1) Cr.L.R. (Raj.) 460], this Court while considering the scope of Rule 14 of the Rajasthan Prisoners Release on Parole Rules, 1958 which is couched in terms similar to Rule 3 of the Rules of 1972, observed as under:
"5. The use of negative expression, qualified with word "Ordinarily" coupled with providing conditions in which conditions for exception to ordinarily envisaged prohibition has been stated, leaves no room of doubt that R.14 does not create an absolute bar against considering the applications for release on parole by a convict who falls in any of the category mentioned in Cl. (a) to (d) of R.14. Words of R.14 are expression with "ordinarily" and the conditions for release of the persons, who have been named in Cl. (a) & (b) are to be considered only on conditions specified in the later part of the said rule.
6. The expression "unless" denotes that the persons falling in any of the category (a) to (d) cannot be (4 of 5) [CRLW-101/2019] considered for release on parole, unless they have undergone 1/4 of the sentence including remission and release on parole can take place only if Superintendent of Jail recommends the case in consultation with the District Magistrate with special reasons therefor.
7. In parenthesis R.14 read like this that the class of persons enumerated in Cls. (a) to (d) will ordinarily be not eligible for release on parole unless they have undergone 1/4 of the sentence including remission and the Superintendent of Jail recommends the case in consultation with the District Magistrate with special reasons therefor.
8. This conveys that ordinarily the class of prisoners
(a) to (d) will not be eligible for release on parole but if they have undergone 1/4 of the sentence including remission the application for release on parole becomes liable to be considered. Such consideration which must take place by the Superintendent of Jail in consultation with District Magistrate, if on such consideration the Jail Superintendent finds that there exist any special reason to release a person falling in category (a) to (d) of R.14, such convict applicant can be released on parole, otherwise not.
9. Thus, there is no absolute impediment in considering the application for release of persons falling in category (a) to (d), after they have undergone 1/4 of the sentence, providing for such release on parole, exist to the satisfaction of the Jail Superintendent in consultation with the District Magistrate. If the two authorities in consultation, agree that the special reasons exist for release of any person falling in the category (a) to (d) on parole after completion of their 1/4 sentence, ordinarily such parole cannot be refused."
(Emphasis supplied)
6. Thus, as laid down by this Court in Gaju Ram & Mohan Lal's case (supra), the inhibition covered by Rule 3 of the Rules of 1972 regarding transfer of the prisoners to Open Air Camp cannot operate as absolute bar and the application preferred on behalf of the convict has to be considered on merits after due application of mind, keeping in view the spirit of the provisions of the said rule.
7. Accordingly, the writ petition preferred by the petitioner is allowed. The State Level Advisory Committee is directed to (5 of 5) [CRLW-101/2019] consider the application of the convict Javed Shah seeking transfer to the Open Air Camp on merits keeping in view the law laid down by this Court in Gaju Ram & Mohan Lal's case (supra), within a period of four weeks from the date of receipt of certified copy of this order.
(DINESH MEHTA),J (SANGEET LODHA),J
19-RP/-
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