DINESH MAHESHWARI J. - (1.) THE petitioner, said to be the sister of the prisoner Pappu Lal son of Badri Lal Meena, has filed this petition stating the grievance against denial of admission to the prisoner, her brother, in the Open Air Camp.
(2.) WHILE pointing out that the prisoner concerned was convicted for the offences under Sections 148, 302/109, 396, 120B, 307/149, 326/149, 323 and 324 IPC by the judgment and order dated 02.06.2003, as passed by the Additional Sessions Judge (Fast Track), Tonk, it has been asserted that he has served the sentence for more than 11 years; and availed of the first parole for a period of 20 days with good conduct. The petitioner has referred to Rule 3 of the Rajasthan Prisoners Open Air Camp Rules, 1972 ('the Rules of 1972') and has submitted that though convicted for the offence under Section 396 IPC, the prisoner has the exceptional eligibility to be admitted to the Open Air Camp. It is also submitted that the brother of the petitioner is the senior most prisoner in the jail (in terms of the length of serving the sentence) and the prisoners junior to him have been sent to the Open Air Camps. An order dated 13.02.2012 as passed by this Court in D.B.Criminal Parole Petition No.327/2012: Rafiq Vs. State of Rajasthan & Ors. has been referred; and during the course of submissions, the learned counsel for the petitioner has also referred to another order dated 27.03.2008 as passed by this Court in D.B.Criminal Parole Petition No.1174/2008: Gaju Ram Vs. State of Rajasthan & Ors. It is submitted that this Court has held that the word "ordinarily", as occurring in Rule 3 of the Rules of 1972, cannot be interpreted to mean that the prisoners falling in the classes specified therein shall never be eligible for being sent to Open Air C& and it is contended that the prayer for admission to Open Air Camp cannot be denied merely with reference to the offence for which the prisoner has been convicted. The respondents have filed a reply with the submissions that as on 12.06.2012, the prisoner concerned has served the sentence for about 11 years 3 months and 29 days, inclusive of remissions. It is, however, submitted that the prisoner Pappu absconded while being taken to District Court, Bundi on 30.11.2005 in connection with another pending criminal case; and a case for offence under Section 224 IPC was registered against him; and he was re-arrested only on 26.12.2005. The respondents have referred to clauses (c) and (d) of Rule 3 of the Rules of 1972 and have asserted that the prisoner concerned, having been convicted for offence under Section 396 IPC and having absconded from police custody, is not eligible to be sent to the Open Air Camp. We have heard the learned counsel Mr.K.R.Bhati appearing for the petitioner and the learned Government Counsel Mr.K.R.Bishnoi; and have considered the submissions with reference to the law applicable. In view of the submissions made, the true import and parameters of the provisions contained in the Rules of 1972, as regards ineligibility and eligibility of the prisoners for admission to Open Air Camp, call for exposition in this case. Rules 3 and 4 of the Rules of 1972 read 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) Prisoners whose ordinary place of residence is outside the State of Rajasthan or who have been convicted by a Court Martial. (b) Prisoners convicted under the Explosive Substances Act, 1908. (c) Persons who have escaped from the jails or who have attempted to escape from a lawful custody. (d) Prsioners 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). D.B. CRIMInAL PAROLE PETITION NO.5463/2012 Shanti Devi Vs. State of Rajasthan and Ors. 4 (e) Prisoners who have been sentenced to less than five years imprisonment. (f) Prisoners who are habitual with more than two previous convictions of imprisonment to their credit. (g) Prisoners whose conduct in the jail is not good provided that a prisoner who would have not received any jail punishment for two years preceding the date of the recommendations of his name for admission to the Open Camp may be considered eligible. (h) Prisoners who are below 25 years of age and above 60 years of age. (i) Prisoners who are lunatic or have mental deficiency or are physically incapacitated. (j) Prisoners who have no fixed abode in Rajasthan. (k) Detenues and civil prisoners. (l) Prisoners convicted for vagrancy. (m) Prisoners who are unmarried. 4. Eligibility for admission to Open Camps.- A prisoner shall be eligible for admission to an Open Air Camp, if- (a) He does not fall within any of the categories specified in rule 3 above (b) He has been regularly performing his scheduled task in the Jail Factory or in Jail Service. (c) He has served one third term of his substantive sentence including remission."
(3.) BEFORE proceeding further, it may be pointed out that clause (m) of Rule 3, rendering even the unmarried persons ineligible for admission to Open Air Camp, has already been pronounced against and struck down as invalid by this Court [vide order dated 20.11.2011 passed in D.B.Criminal Parole Petition No.8587/2011: Geeta Devi Vs. State of Rajasthan; and order dated 24.04.2012 passed in D.B.Criminal Parole Petition No.3286/2012: Udi Vs. State.] The real question in the present matter is as to how the cases of the prisoners falling in the operative clauses of Rule 3 ibid. are to be dealt with. In the case of Gaju Ram (supra), a Division Bench of this Court examined the scheme of the Rules of 1972 and referred to the use of the expression "ordinarily" in the principal provision contained in Rule 3; and in essence, opined that such expression could not be interpreted to mean that the prisoners falling in the specified categories were not eligible to be sent to Open Air Camp at all. The Court, inter alia, observed and held as under:- "Rule 3 provides that prisoners falling in clause (a) to (m) under Rule 3 shall "Ordinarily" be not eligible for being sent to open 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 fall within any of the category specified in Rule 3". Therefore, harmonious construction of Rule 3 and 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. Rejection 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 the 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 that decision is required to be taken by the Committee." In the case of Rafiq (supra), another Division Bench of this Court pointed out the interpretation already put on Rule 3 ibid. and further explained that the expression "ordinarily" does not mean "never" in the following:- "At the outset, we may say that rule 3 of the Rules of 1972 was interpreted by this Court and, in particular, word "ordinarily" occurring in the said rule to the effect that only because a person is convicted for the offences mentioned in rule 3 (d) by itself, would not disqualify them from making an application. The committee in such cases is required to examine all other relevant factors also necessary for consideration of the prayer made by the convict prisoner for sending him to open air camp jail and then should come to a conclusion as to whether his prayer should be considered or not ? The expression "ordinarily" does not mean "never". It is, therefore, necessary for the committee to take into account all other aspects, including the present one enumerated in rule 3." ;