The gravity of offences attributed to the convict, particularly in cases of heinous offences under the POCSO Act, must be considered when interpreting eligibility for the open air camp under the Rajasthan Prisoners Open Air Camp Rules, 1972.

ORDER

1. This parole writ petition has been filed by the petitioner being aggrieved with the decision of the Open Air Camp Committee (for short 'the Committee') dated 19.01.2022 whereby, the application filed by the petitioner for sending him to the open air camp has been rejected.

2. The Committee has observed that the petitioner has been convicted and sentenced for the offence under Section 376(2)(f) IPC and under Section 5(3)/6 of the POCSO Act and apart from that a Criminal Case No.09/2009 under Sections 419, 420, 467, 468, 147 and 120-B of IPC is also pending against him before the Additional Chief Judicial Magistrate, Hanumangarh, therefore, the application of the petitioner for sending him to the open air camp is liable to be rejected.

3. Learned counsel for the petitioner has argued that a Co- ordinate Bench of Court vide order dated 23.11.2021 passed in DB Criminal Writ Petition No.532/2021 (Sandeep Vs. State of Rajasthan & Ors.) has clearly held that under Rule 3 of the Rajasthan Prisoners Open Air Camp Rules, 1972 (for short 'the Rules of 1972'), it is provided that the prisoners enumerated in Rule 3 and 4 of Rules of 1972 shall ordinarily be not eligible for being sent to open air camp, however, this itself is not sufficient to hold that no prisoners under the above referred categories can be sent to the open air camp.

4. It is further submitted by learned counsel for the petitioner that the Division Bench of this Court while interpreting phrase "ordinarily be not eligible" has clearly held that there is no absolute prohibition for sending the prisoners falling in the class enumerated in Rule 3 and 4 to be sent to open air camp.

5. Learned counsel for the petitioner has submitted that the petitioner has earlier filed DB Criminal Writ Petition No.584/2021, which came to be decided on 10.01.2022, wherein this Court has directed the Committee to decide the application filed by the petitioner for sending him in the open air camp within a period of two months and pursuant to that, the Committee has passed the impugned order, which is absolutely illegal and is liable to be set aside.

6. Learned counsel for the petitioner has, therefore, prayed that this parole writ petition may be allowed and the respondents be directed to send the petitioner in the open air camp.

7. Per contra, Mr. Anil Joshi, learned AAG has vehemently opposed this parole writ petition and argued that the petitioner has been held guilty of committing sexual assault upon a minor child of five years of age and another criminal case is also pending against him, therefore, there is no illegality in the order dated 19.1.2022 passed by the Committee whereby the application filed by the petitioner for sending him to open air camp has been rejected.

8. Mr. Joshi, has further submitted that this Court in DB Criminal Writ Petition No.189/2022 (Rajendra @ Goru vs. State of Rajasthan & Ors.) decided on 13.07.2022 has clearly held that the word 'ordinarily' figured in sub-rule 3 of the Rules of 1972 would definitely have to be considered keeping in mind the gravity of the offences attributed to the convict. It is further argued that this Court was of the opinion that 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 and, in such circumstances, normally the prisoners convicted with the heinous offence under the POCSO Act should not be sent to the open air camp.

9. Mr. Joshi, learned AAG has, therefore, submitted that in view of categorical pronouncement of this Court in Rajendra's case (supra), there is no illegality on the part of the Committee in dismissing the application filed by the petitioner for sending him to the open air camp.

10. Heard learned counsel for the parties and perused the material available on record.

11. It is true that the phrase ordinarily be not eligible as referred in Rule 3 and 4 of the Ru