The nature and gravity of offences must be considered, especially for those convicted and sentenced under the POCSO Act and similar offences, when determining the eligibility of prisoners for open air camps.

ORDER :

1. The instant criminal writ petition has been preferred claiming the following reliefs:

“It is, therefore most humbly and respectfully prayed that this writ petition may kindly be allowed and the convict prisoner Vijendra Singh S/o Shri Om Prakash, At Present Lodged in Central Jail Bikaner may kindly be sent to open air camp.”

2. Ms. Ranjana Singh, learned counsel appearing on behalf of the petitioner has taken this Court to the Rajasthan Prisoners Open Air Camp Rules, 1972, the relevant being Rule 3 (d), which is reproduced as follows:

“(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, 333, 376, 377, 383, 392 to 402, 435 to 440, and 460 of the Indian Penal Code (Act XLV of 1860).

(e)..........”

3. Learned counsel for the petitioner submits that the term used in the said rule is ‘ordinarily’ such persons, who are convicted under Section 376 of the IPC would not be eligible for the open air camps, but in exceptional circumstances, such persons can be considered for open air camps.

4. Mr. Anil Joshi, learned Additional Advocate General assisted by Mr. Pallav Sharma appearing on behalf of the respondents has relied upon the order of Division Bench of this Hon’ble Court in the case of Vipin @ Vinkesh @ Vika vs. State of Rajasthan and Others, D.B. Criminal Writ Petition No. 166/2023 decided on 25.04.2023. The operative portion of which reads as follows:

“8. We have considered the submissions made by learned counsel for the parties and have perused the material available on record.

9. It is not in dispute that the petitioner is undergoing imprisonment having been convicted, inter-alia, under Section 376 IPC.

10. This Court in the case of Rajendra @ Goru (supra), wherein also, the prisoner was convicted for offence under Section 376 IPC, came to the following conclusion:

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

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.

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.

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 offences while considering the application submitted by a convict for being sent to the Open Air Camp more particularly for those who are convicted and sentenced under the POCSO Act and like offences.

As an upshot of the above discussion, we find no illegality or infirmity in the impugned order dated 23.02.2022 whereby, the application submitted by the petitioner for being sent to the open air camp was rejected.

He