Manoj Yadav @ Rajesh Sharma @ ... vs State
2021 Latest Caselaw 6658 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
             D.B. Criminal Writ Petition No. 466/2019

Manoj Yadav @ Rajesh Sharma @ Kuldeep Sharma @ Ajay
Sharma @ Gopal Sharma S/o Sh. Badan Singh @ Waham Singh,
Aged About 54 Years, At Present Lodged In Central Jail, Bikaner
through his Wife Smt. Anita W/o Manoj Yadav, B/c Yadav, R/o
First Gipsy Complex, Pree Darsani Choraha, Friganj, Ujjain (M.p.)
                                                                       ----Petitioner
                                     Versus
1.     State, Through Secretary, Department of Home Secretary,
       Department of Home, Secretariat, Rajasthan, Jaipur.
2.     The Director General Jail, Jaipur.
3.     The Superintendent, Central Jail, Bikaner
                                                                  ----Respondents


For Petitioner(s)          :     Mr.Ashok Chhangani with Mr.K.R.Bhati
For Respondent(s)          :     Mr.Farzand Ali, AAG with Mr.Abhishek
                                 Purohit



            HON'BLE MR. JUSTICE SANGEET LODHA
      HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

                                  Judgment

5th March, 2021

PER HON'BLE MR. SANGEET LODHA,J.

1. By way of this writ petition, the petitioner, a life convict, has

questioned the decision of Prisoners Open Air Camp Advisory

Committee ('the Committee') constituted by the State

Government, in refusing to make recommendation for his transfer

to Open Air Camp.

2. The transfer to the Open Air Camp is denied to the petitioner

by the Committee on the following grounds:

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(i)     he suffers from mental deficiency and thus, fall within the

inhibition contained in clause (i) of Rule 3 of Rajasthan Prisoners Open Air Camp Rules, 1972 ('the Rules of 1972');

(ii) he is wanted in a criminal case being No.66/08 for offence under Section 364 IPC before the Additional Sessions Judge No.3, Haridwar (Uttrakhand);

(iii) vide decision dated 18.7.11 rendered by this Court in D.B.Criminal Appeal No.97/10, the death sentence awarded to the prisoner was commuted to imprisonment for remaining natural life.

3. A reply to the writ petition was filed on behalf of the

respondents on 26.11.19. Thereafter, on 5.3.20, a coordinate

Bench of this Court while considering the submissions of the

counsel appearing for petitioner passed an order in the following

terms:

"Learned counsel Shri K.R.Bhati representing the petitioner urges that vide order dated 06.03.2019, the following issues which were formulated by this Court in D.B.Criminal Writs No.98/2019 (Smt. Bhanwri Vs. State & Ors.) have still not been decided and remained unanswered:-

"1. Whether the authorities are holding the requisite number of meetings to consider the cases of the convicts for being sent to the Open Air Camp in accordance with the requirements of the statutes.

2. Whether suitable amendments have been entered in various prison rules so as to synchornize the same with the amendments brought around in the penal statutes viz. Penal Code & POCSO etc.

3. Whether steps have been taken to enhance the available accommodation in the Open Air Camps for keeping pace with the increase in number of convicts.

4. Whether appropriate steps have been taken by the State Government for prison reforms in compliance of the Supreme Court judgment in the case of In Re: Inhuman Conditions in 1382 Prisons: AIR 2016 SC 993."

Shri Farzand Ali, learned AAG is directed to file a response of the State Government on these issues and

(3 of 9) [CRLW-466/2019]

regarding entitlement of the petitioner-convict to be sent to the Open Air Camp. He has liberty to take assistance from the Criminologist and Researcher Ms. Smita Chakraborty, whose reports regarding Prisons' Reforms has been approved by the State Legal Services Authority."

4. Later on 17.12.20, taking into consideration a report

published on website regarding existence of caste based work

assignment system prevailing in the prisons of the State of

Rajasthan, the Court issued certain directions to the State to take

steps for complete overhauling of the prison manual and to ensure

that the prisoners are not forced to indulge in menial jobs like

cleaning toilets etc. merely on the basis of their caste and also

that no under trial prisoner is forced to perform such jobs in the

prison. The State was further directed to file a detailed response

to the observations made by the Court. In response thereto, the

State has filed detailed response on 5.2.21.

5. It is noticed that D.B.Writ Petition (PIL) No.17019/18 was

being listed with the present petition. However, vide order dated

4.2.21, the said writ petition was directed to be listed before the

Bench taking up DB PIL matters.

6. Learned counsel appearing for the petitioner submitted that

various issues relating to the Open Air Camp as noticed by this

Court vide order dated 5.3.20 and other issues relating to

maintenance of proper hygiene in the prisons may be considered

by this Court in the Writ Petition (PIL) No.17019/18 "Inderjeet

Singh vs. State of Rajasthan", but in any case, pending

consideration of those issues, the hearing of the petitioner's writ

petition for transfer to Open Air Camp may not be deferred and

the same may be heard on its own merits.

(4 of 9) [CRLW-466/2019]

7. The prayer made on behalf of the petitioner as aforesaid

appears to be justified and therefore, the petitioner's matter

regarding his transfer to Open Air Camp is taken up for

consideration.

8. Learned counsel appearing for the petitioner contended that

the rejection of the petitioner's application seeking transfer to

Open Air Camp by the Committee on the grounds specified is

absolutely illegal and arbitrary. Learned counsel submitted that

the petitioner is not suffering any such mental deficiency that he

cannot be transferred to Open Air Camp. Alternatively, it is

submitted that one prisoner Gopal s/o Motiram, who was also

suffering from mental deficiency, was permitted to be transferred

to Open Air Camp on the condition that a family member furnishes

affidavit to look after him. Learned counsel submitted that the

petitioner's wife has filed an affidavit before this Court with the

undertaking to take care of the petitioner's maintenance and

medical treatment and therefore, there is no reason as to why the

similar treatment as extended by the respondents to the prisoner-

Gopal, cannot be extended to the petitioner. Learned counsel

submitted that even while staying in the Open Air Camp, the

detention of the petitioner shall continue and thus, nothing turns

on the question that he has been awarded the punishment of

imprisonment for remaining natural life. Learned counsel

submitted that for parity of reasons, the transfer to the Open Air

Camp cannot be denied to the petitioner on the ground of the

petitioner being convicted in yet another case by the criminal

Court of competent jurisdiction at Haridwar. In support of the

contention, learned counsel relied upon decisions of this Court in

(5 of 9) [CRLW-466/2019]

Parvezshah vs. State of Rajasthan & Ors.: D.B. Criminal Writs No.

101/2019, decided on 13.3.20 and Narendra Singh @ Mukesh @

Bhura vs. State of Rajasthan & Ors.: D.B.Criminal Writ Petition

No.502/20, decided on 22.1.21.

9. On the other hand, learned AAG submitted that since the

petitioner suffers from mental deficiency by virtue of Rule 3(i) of

the Rules of 1972, ordinarily, he cannot be transferred to Open Air

Camp and thus, the decision of the Committee in declining to

transfer the petitioner to Open Air Camp after due consideration,

is just and proper and does not warrant any interference by this

Court. Learned AAG submitted that the order passed by this Court

imposing punishment of imprisonment for remaining natural life,

cannot be ignored and thus, the decision of the Committee in

declining the prayer of the petitioner on this count as well cannot

be faulted with. Learned AAG submitted that the petitioner's

conviction in yet another case by the criminal court of competent

jurisdiction at Haridwar indicates towards the petitioner being

habitual offender and therefore, the transfer of such prisoner to

Open Air Camp would encourage the prisoners committing heinous

crime.

10. We have considered the rival submissions and perused the

material on record.

11. It is true that the prisoners who are covered by inhibitions

contained in Rule 3 of the Rules of 1972 shall not be ordinarily

eligible to transfer to Open Air Camp. But then, this Court in

Mohan Lal vs. State of Rajasthan: [2002 (1) Cr.L.R. (Raj.) 460],

while considering the scope of Rule 14 of the Rajasthan Prisoners

(6 of 9) [CRLW-466/2019]

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 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

(7 of 9) [CRLW-466/2019]

parole cannot be refused." (Emphasis supplied)

12. In Parvezshah's case (supra), which related to transfer to

Open Air Camp, this Court while relying upon the decision in

Mohan Lal's case (supra) and yet another Bench decision in Gaju

Ram vs. State of Rajasthan: D.B.C.Misc. Parole Writ Petition

No.1174/08, categorically held that the inhibitions covered by Rule

3 of the Rules of 1972 regarding transfer of the prisoners to Open

Air Camp cannot operate as an absolute bar and the application

preferred on behalf of the convicts has to be considered on merits

after due application of mind keeping in view the provisions of the

Rules of 1972.

13. Thus, the rejection of the petitioner's application by the

Committee treating the bar as contained in Rule 3 of the Rules of

1972 as an absolute bar, is not justified. Moreover, it is not denied

that the similarly situated person has been extended the benefit of

transfer to Open Air Camp on his family member giving an

affidavit to maintain and take care of the prisoner and therefore,

there is absolutely no reason as to why the petitioner's prayer for

transfer to Open Air Camp should not be considered by the

Committee taking into consideration the fact that his wife has

furnished an affidavit to take care of his maintenance and medical

treatment.

14. The issue raised regarding denial of transfer to Open Air

Camp on account of punishment of imprisonment for remaining

natural life being imposed upon a prisoner, is also no more res

integra inasmuch as, in Narendra Singh's case (supra), this Court

while considering the issues in light of the provisions of the Rules

of 1972 and the Prisons Act, 1894, categorically held :

(8 of 9) [CRLW-466/2019]

"11. A conjoint reading of clause (1) of Section 3 of the Act of 1894 and Rule 2 (vi) of the Rules makes it abundantly clear that the Open Air Camp also falls within the definition of the 'prison' and even after transfer of a prisoner to Open Air Camp, his detention continues and thus, the reasoning adopted by the Committee that since the petitioner has been sentenced to suffer imprisonment for remaining period of natural life, he cannot be transferred to Open Air Camp, does not appear to be justified."

15. Lastly, coming to the issue regarding the petitioner being

convicted in yet another case by the criminal Court of competent

jurisdiction at Haridwar, it is noticed that as per Rule 3(f), a

prisoner is considered habitual when he has more than two

previous convictions of imprisonment to his credit, which is not

the case set out by the respondents against the petitioner. Further,

even if the petitioner is transferred to Open Air Camp, as noticed

above, his detention shall continue and thus, the denial of benefit

of transfer to Open Air Camp to the petitioner for the said reason

also, does not appears to be in conformity with the provisions of

the Rules of 1972.

16. In the result, the writ petition is allowed. The decision of the

Prisoners Open Air Camp Advisory Committee in declining the

petitioner's application for transfer to Open Air Camp is set aside.

The matter is remanded to the Prisoners Open Air Camp Advisory

Committee to consider the case of the petitioner for transfer to

Open Air Camp afresh, keeping in view, the factual and legal

position discussed by this Court as aforesaid. Needless to say that

the respondents shall also take into consideration the affidavit

filed by the petitioner's wife giving undertaking to maintain him

and to take care of his medical treatment. The Prisoners Open Air

Camp Advisory Committee shall take a decision after due

(9 of 9) [CRLW-466/2019]

consideration expeditiously, in any case, within a period of four

weeks from the date of receipt of certified copy of this order.

17. The office is directed to place the copies of the orders dated

5.3.20 and 17.12.20 passed by a coordinate Bench of this Court

as also the response filed by the State pursuant thereto in the

instant case, on the file of the pending Writ Petition (PIL)

No.17019/18 "Inderjeet Singh vs. State of Rajasthan". It is

clarified that all the issues framed/noticed by the Court vide

orders dated 5.3.20 and 17.12.20, shall be considered in the

pending PIL.

(DEVENDRA KACHHAWAHA),J (SANGEET LODHA),J Aditya/

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