Point of Law: As a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position

JUDGMENT :

VIJAY BISHNOI, J.

1. This Larger Bench has been constituted under the orders of Hon’ble The Chief Justice for answering the following question:-

“Whether non surrendering of a prisoner to the prison authorities after expiry of the period of parole would amount to escape from lawful custody and therefore, ordinarily, such prisoner would not be entitled to be transferred to Open Air Camp, on account of inhibition contained in Rule 3(c) of the Rules of 1972 ?”

2. A Division Bench of this Court in Yogesh Kumar Devangan vs. State and Ors. (DBCr.WP No.541/2019) decided on 06.10.2020, while dealing with the provisions of Rule 3(c) of the Rajasthan Prisoners Open Air Camp Rules, 1972 (for short ‘the Rules of 1972’), has considered the case of a prisoner, whose request for sending him to Open Air Camp has been rejected by the Prisoners Open Air Camp Advisory Committee (for short ‘the Advisory Committee’) on the ground that after completion of regular parole of 20 days, the prisoner did not report to the concerned Jail Superintendent and absconded and as such by the mandate of Rule 3(c) of the Rules of 1972, he is not entitled to be shifted to Open Air Camp. The Division Bench, in the above referred case, has taken a view that such act of the prisoner of not reporting to the Jail Authorities on completion of his parole cannot be equated with the case of the prisoners, who have escaped from the jails or have attempted to do so and also held that the Rule 3(c) of the Rules of 1972 cannot be taken up as an absolute bar and it is upon the Advisory Committee to consider the application after due application of mind on merits.

3. Another Division Bench of this Court in the present case is not agreeable to the view taken by the Division Bench of this Court in Yogesh Kumar Devangan vs. State and Ors. (supra) and opined that if a prisoner, released on parole, does not surrender before the Jail Authorities on completion of parole period, it would amount to escaping from the lawful custody and thus, ordinarily be not eligible to be transferred to Open Air Camp on account of inhibition contained in Rule 3(c) of the Rules of 1972. The Division Bench in this case, therefore, requested Hon’ble The Chief Justice to refer the above question for consideration by a Larger Bench.

4. Learned counsel Mr Kalu Ram Bhati has argued that the law laid down in Yogesh Kumar Devangan vs. State and Ors. (supra) is correct law. It is submitted that a prisoner, who fails to report to the Jail Authorities on completion of his parole, cannot be equated with the prisoners, who have escaped from the jails or attempted to do so. It is further argued that the object of Open Air Camp is to bring the convict-prisoner into main stream of society and while considering the matter under adjudication, the aim and object of Open Air Camp must be taken into consideration.

5. Learned counsel Mr Ramandeep Singh Siddhu Kharlia has argued that prisoners, who have failed to report back to the Jail Authorities on completion of their parole period are different from those prisoners, who absconded or escaped from the jail or attempted to do so and cases of such prisoners are not liable to be considered as per Rule 3(c) of the Rules of 1972 but can only be considered as per Rule 3(g) of the Rules of 1972. Mr Kharlia further argued that provisions of Parole Rules prescribe punishment for such overstaying prisoners and it applies to them under the jail punishment category, therefore, denying admission to Open Air Camp in addition to such punishment would amount to double jeopardy, which is violative of Articles 14, 20 and 21 of the Constitution of India.

6. Learned counsel Mr Nikhil Dungawat has argued that Rules of 1972 is a welfare legislation and is directory in nature. While referring to Parole Rules, it is argued that in the said Rules, the expression used is “overstays” and not “escaped” or “absconded” for the prisoners, who fail to return to the prison and deal with their penalty se