DINESH MEHTA, J. - (1.) This petition is filed by the petitioner Parvezshah, the brother of a life convict Javed Shah, seeking direction to the respondents to transfer his brother presently lodged in Central Jail, Bikaner to Open Air Camp, Mandore, Jodhpur. In the alternative, it is prayed that the respondents be directed to consider the application dated 14.1.19 preferred by the convict Javed Shah seeking transfer to Open Air Camp, Mandore, Jodhpur.
(2.) It is noticed that an application earlier preferred by the convict Javed Shah seeking transfer to Open Air Camp was rejected by the State Level Committee vide its decision dated 25.7.17 on account of inhibition contained in Clause (d) of Rule 3 of the Rajasthan Prisoners Open Air Camp Rules, 1972 ("the Rules of 1972"), which reads 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)... (b)... (c)... (d) Prisoners 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)." .............
(3.) Learned counsel appearing for the petitioner contended that in Rule 3 of the Rules of 1972 which deals with ineligibility for admission to open air camp, the word "ordinarily" used clearly indicates that for transfer of the prisoners falling in the categories specified under Clauses (a) to (m) of the Rule 3 of the Rules of 1972, the bar contained is not absolute. Learned counsel submitted that while considering the application preferred by the prisoner falling in the categories (a) to (m) of the Rule 3 of the Rules of 1972, the State Level Committee is under an obligation to apply its mind and any mitigating circumstance has to be taken into consideration. Relying upon a decision of this Court in the matter of Gaju Ram Vs. State of Rajasthan and Ors. (D.B.Misc. Parole Writ Petition No.1174/08), learned counsel submitted that the application preferred by the convict for transfer to the Open Air Camp has to be decided by the State Level Committee taking into consideration the totality of the facts and circumstances of the Case and same cannot be rejected summarily.;