The gravity of the offences, particularly for those convicted under the POCSO Act and similar offences, must be considered when determining the eligibility of convicts to be sent to the Open Air Camp.

ORDER

1. The convict-petitioner Rajendra @ Goru has approached this Court by way of this writ petition for assailing the order dated 23.02.2022 passed by the Open Air Committee whereby the application submitted by the petitioner to be sent to the Open Air Camp was dismissed.

2. Learned Counsel Shri Bhati submitted that the respondents have erred in rejecting the application filed by the petitioner for being sent to the Open Air Camp with reference to Rule 3 of the Rajasthan Prisoners Open Air Camp Rules, 1972 (hereinafter referred to 'as the Rules of 1972') by observing that the petitioner has been convicted for the heinous offence of committing sexual assault upon his own niece. Shri Bhati submitted that Rule 3 of the Rules of 1972 only imposes a condition that prisoners, who have been convicted for classified offences under Rule 3(d) and fall under other categories in the sub-Rules of Rule 3 shall ordinarily not be eligible to be sent to the Open Air Camp. He urges that the term 'ordinarily' has been extensively interpreted by this Court in D.B. Criminal Writ Petition No.38/2018 (Nirbhay Singh @ Nabbu vs. State of Rajasthan & Ors.) decided on 04.04.2018 and cannot be treated to be an absolute prohibition against a convict from being sent to Open Air Camp. He thus implored the Court to accept the writ petition, set aside the impugned order and direct that the petitioner be sent to the Open Air Camp.

3. Per contra, learned AAG Shri Joshi vehemently and fervently opposed the submissions advanced by the petitioner's counsel. He urged that the petitioner has been convicted for the offences punishable under the POCSO Act with the allegation of having committed sexual assault upon his own 8 years old niece. The prisoners with their families reside in the Open Air Camps and thus, there will be a serious apprehension of harm to such family members who are already living in the facility if the petitioner is sent to the Open Air Camp. He thus submits that the fact that the petitioner has been convicted for committing sexual assault upon a minor child aged 8 years, covers his case by the exceptions provided under Rule 3 of the Rules of 1972 and hence, the respondent authorities were perfectly justified in rejecting the application filed by the petitioner for being sent to the Open Air Camp.

4. We have given our thoughtful consideration to the submissions advanced at bar and, have gone through the material available on record.

5. 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 stipulate an absolute prohibition on such a convict for being sent to the Open Air Camp.

6. 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.

7. 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 o