Rajasthan High Court - Jodhpur
Vipin @ Vinkesh @ Vika vs State Of Rajasthan on 25 April, 2023
Bench: Arun Bhansali, Rajendra Prakash Soni
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Writ Petition No. 166/2023
Vipin @ Vinkesh @ Vika S/o Sh. Dhanna, Aged About 40 Years,
At Present Lodged In Central Jail, Udaipur Through His Mother
Smt. Jiv Ahari W/o Sh. Dhanna, Age About 60 Years, R/o
Sablana, P.s. Dhauda, Sagwada, Ramgarh, Dist. Dungarpur.
----Petitioner
Versus
1. State Of Rajasthan, Home Depart. Jaipur.
2. The Director General (Jail), Jaipur.
3. The Dist. Collector, Dungarpur.
4. The Superintendent, Central Jail, Udaipur.
----Respondents
For Petitioner(s) : Mr. Kalu Ram Bhati.
For Respondent(s) : Mr. Anil Joshi, G.A. - cum - AAG with
Mr. Rajat Chhaparwal.
Ms. Malini Agarwal, Addl. Director
General, Prisons, Rajasthan, Jaipur.
HON'BLE MR. JUSTICE ARUN BHANSALI
HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI Order 25/04/2023
1. This petition has been filed by the petitioner seeking direction to the respondents for sending him to Open Air Camp, Dungarpur.
2. It is, inter-alia, indicated by the petitioner that the petitioner is in custody for over 12 years now and that in terms of the Rajasthan Prisoners Open Air Camp Rules, 1972 ('Rules of 1972'), he is entitled to be sent to Open Air Camp, the respondents be directed to send him to Open Air Camp.
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3. Learned counsel for the petitioner made submissions that earlier by meeting dated 21.07.2020, the petitioner was recommended to be sent to Open Air Camp, however, on account of jail punishment imposed on him on 24.08.2020, the petitioner was not sent to Open Air Camp. Whereafter, after expiry of the period of two years from jail punishment, the case of the petitioner was again considered by the Committee on 26.12.2022, however, by indicating that as the petitioner is undergoing life imprisonment in the prohibited Section 376 IPC, his case was rejected.
4. Submissions have been made that this Court in the case of Parvezshah v. State of Rajasthan & Ors. : D.B. Cr. Writ No.101/2019, decided on 13.03.2019, while interpreting the provisions of the Rules of 1972, wherein it has been provided that ordinarily the prisoners undergoing punishment having been convicted for an offence, inter-alia, under Section 376 IPC shall not be sent to Open Air Camp, has laid down that the same is not an absolute prohibition and that the aspect requires consideration by the Committee and therefore, the rejection of the petitioner's case only on account of his undergoing imprisonment under Section 376 IPC is not justified.
5. Learned counsel for the petitioner also relies on the orders in the case of Ajit Singh v. State of Rajasthan & Ors. : D.B. Cr. Writ Petition No.52/2022, decided on 11.03.2022; Rajkumar v. State of Rajasthan & Ors. : D.B. Cr. Writ Petition No.240/2022, decided on 27.06.2022 and Single Bench judgments in Ram Lal v. State of Rajasthan & Ors. : S.B. Cr. Writ Petition No.389/2022, decided on (Downloaded on 25/04/2023 at 11:23:08 PM) (3 of 6) [CRLW-166/2023] 22.08.2022 and Rajkumar v. State of Rajasthan & Ors. : S.B. Cr. Writ Petition No.762/2022, decided on 05.01.2023.
6. Learned Government Advocate made submissions that the petitioner was convicted for the offence under Sections 302, 376 & 341 IPC by the Court of Additional Sessions Judge, Dungarpur and that as in Open Air Camp families of the prisoners, those who have been sent to Open Air Camp, stay with them sending a convict of offence under Section 376 IPC would create apprehension in their mind and therefore, the rejection in this regard is justified.
7. Reliance has been placed on 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.
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, 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 (Downloaded on 25/04/2023 at 11:23:08 PM) (4 of 6) [CRLW-166/2023] 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 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 (Downloaded on 25/04/2023 at 11:23:08 PM) (5 of 6) [CRLW-166/2023] 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."
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 (Downloaded on 25/04/2023 at 11:23:08 PM) (6 of 6) [CRLW-166/2023] 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. (RAJENDRA PRAKASH SONI),J (ARUN BHANSALI),J 13-Rmathur/-
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