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.

(2 of 6) [CRLW-166/2023]

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

(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

(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

(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.