Rajasthan High Court - Jodhpur
Bhag Singh @ Bhagirath vs State Of Rajasthan on 24 August, 2022
Bench: Vijay Bishnoi, Uma Shanker Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Writ Petition No. 51/2022
Bhag Singh @ Bhagirath S/o Shri Nihal Singh, Aged About 50
Years, At Present Lodged In Central Jail, Sriganganagar Through
His Brother Shri Dharm Singh S/o Shri Nihar Singh, Age About
55 Years, B/c Bavri, R/o 66-Np, P.s. Sameja Koti, District
Sriganganagar.
----Petitioner
Versus
1. State Of Rajasthan, Home Depart. Jaipur.
2. The Director General, (Jail), Jaipur.
3. The District Collector, Sriganganagar.
4. The Superintendent, Central Jail, Sriganganagar.
----Respondents
For Petitioner(s) : Mr. Kalu Ram Bhati
For Respondent(s) : Mr. Anil Joshi, GA-cum-AAG
assisted by Mr. Pallav Sharma
HON'BLE MR. JUSTICE VIJAY BISHNOI
HON'BLE MR. JUSTICE UMA SHANKER VYAS Order 24/08/2022 This parole writ petition has been filed by the petitioner being aggrieved with the decision of the Open Air Camp Committee (for short 'the Committee') dated 19.01.2022 whereby, the application filed by the petitioner for sending him to the open air camp has been rejected.
The Committee has observed that the petitioner has been convicted and sentenced for the offence under Section 376(2)(f) IPC and under Section 5(3)/6 of the POCSO Act and apart from that a Criminal Case No.09/2009 under Sections 419, 420, 467, (Downloaded on 25/08/2022 at 08:47:27 PM) (2 of 5) [CRLW-51/2022] 468, 147 and 120-B of IPC is also pending against him before the Additional Chief Judicial Magistrate, Hanumangarh, therefore, the application of the petitioner for sending him to the open air camp is liable to be rejected.
Learned counsel for the petitioner has argued that a Co- ordinate Bench of Court vide order dated 23.11.2021 passed in DB Criminal Writ Petition No.532/2021 (Sandeep Vs. State of Rajasthan & Ors.) has clearly held that under Rule 3 of the Rajasthan Prisoners Open Air Camp Rules, 1972 (for short 'the Rules of 1972'), it is provided that the prisoners enumerated in Rule 3 and 4 of Rules of 1972 shall ordinarily be not eligible for being sent to open air camp, however, this itself is not sufficient to hold that no prisoners under the above referred categories can be sent to the open air camp.
It is further submitted by learned counsel for the petitioner that the Division Bench of this Court while interpreting phrase "ordinarily be not eligible" has clearly held that there is no absolute prohibition for sending the prisoners falling in the class enumerated in Rule 3 and 4 to be sent to open air camp.
Learned counsel for the petitioner has submitted that the petitioner has earlier filed DB Criminal Writ Petition No.584/2021, which came to be decided on 10.01.2022, wherein this Court has directed the Committee to decide the application filed by the petitioner for sending him in the open air camp within a period of two months and pursuant to that, the Committee has passed the impugned order, which is absolutely illegal and is liable to be set aside.
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(3 of 5) [CRLW-51/2022] Learned counsel for the petitioner has, therefore, prayed that this parole writ petition may be allowed and the respondents be directed to send the petitioner in the open air camp.
Per contra, Mr. Anil Joshi, learned AAG has vehemently opposed this parole writ petition and argued that the petitioner has been held guilty of committing sexual assault upon a minor child of five years of age and another criminal case is also pending against him, therefore, there is no illegality in the order dated 19.1.2022 passed by the Committee whereby the application filed by the petitioner for sending him to open air camp has been rejected.
Mr. Joshi, has further submitted that this Court in DB Criminal Writ Petition No.189/2022 (Rajendra @ Goru vs. State of Rajasthan & Ors.) decided on 13.07.2022 has clearly held that the word 'ordinarily' figured in sub-rule 3 of the Rules of 1972 would definitely have to be considered keeping in mind the gravity of the offences attributed to the convict. It is further argued that this Court was of the opinion that 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 and, in such circumstances, normally the prisoners convicted with the heinous offence under the POCSO Act should not be sent to the open air camp.
Mr. Joshi, learned AAG has, therefore, submitted that in view of categorical pronouncement of this Court in Rajendra's case (supra), there is no illegality on the part of the Committee in dismissing the application filed by the petitioner for sending him to the open air camp.
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(4 of 5) [CRLW-51/2022] Heard learned counsel for the parties and perused the material available on record.
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 himself would be at risk as a consequence.(Downloaded on 25/08/2022 at 08:47:27 PM)
(5 of 5) [CRLW-51/2022]
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.
(UMA SHANKER VYAS),J (VIJAY BISHNOI),J
22-Arun/-
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