Non-reporting after parole is treated as escape from lawful custody, affecting eligibility for Open Air Camp under the Rajasthan Prisoners Open Air Camp Rules, 1972.

ORDER

Rameshwar Vyas, J. - This criminal writ petition has been preferred by the petitioner, a life convict, assailing the decision of the Rajasthan Open Air Camp Committee taken in its meeting held on 21.07.2020, whereby, application preferred by the petitioner for sending him to Open Air Camp, was rejected.

2. Heard learned counsel for the parties and perused the record.

3. As per facts of the case, petitioner was convicted in Sessions Case No. 11/1997 (State Vs. Om Prakash & Ors.) for the offences under Sections 148, 342, 458, 396, 397 & 398 IPC and sentenced to life imprisonment with fine. Appeal against his conviction and sentences was also dismissed by this Court vide judgment & order dated 10.04.2003 passed in D.B. Criminal Appeal No.611/2000.

4. Petitioner was released on parole for 20 days on 30.04.2007, he was required to return back on 19.05.2007; he did not report back in time and remained absent, for which, FIR under Section 224 IPC was also lodged against him. Afterwards, he was arrested on 12.04.2018 and since then, he is in custody.

5. The application of the petitioner for sending him in Open Air Camp was rejected by the Committee on the ground that he is not eligible for being sent to Open Air Camp as per provisions of Rule 3(c) & (d) of the Rajasthan Prisoners Open Air Camp Rules, 1972 (for short, "Rules of 1972').

6. Rule 3 of the Rules of 1972 speaks as below:-

"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) Persons who have escaped from the jails or who have attempted to escape from a lawful custody.

(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.

(e)...

(f)...

(g)...

(h)...

(i) -

(j) -

(k)...

(I)...

(m)..."

7. Regarding the interpretation of terms 'escape from lawful custody', the Larger Bench of this Court in D.B. Crl. Ref. No. 1/2021 (Gajja Ram @ Gajendra Vs. State & Ors.) opined as under:-

"It is now well settled that failure of a prisoner to surrender to the prison authorities on completion of parole period would amount to escape from lawful custody of the State and ordinarily, such prisoner would not be entitled to be transferred to Open Air Camp as per Rule 3(c) of the Rules of 1972."

8. In the reference, the Larger Bench has also referred and relied upon the judgment of Division Bench of this Court passed in D.B. Criminal Writ No. 101/2019 (Parvezshah Vs. State of Rajasthan & Ors.) decided on 13.03.2019, in which, it was held as under:-

"6. Thus as laid down by this Court in Gaju Ram & Mohan Lal's case (supra), the inhibition covered by Rule 3 of the Rules of 1972 regarding transfer of the prisoners to Open Air Camp cannot operate as absolute bar and the application preferred on behalf of the convict has to be considered on merits after due application of mind, keeping in view the spirit of the provisions of the said rule."

9. After considering the law laid down by Division Bench of this Court in the above judgments, it is now settled legal proposition that non reporting back to prison in terms of conditions imposed while releasing on parole amounts to escape from lawful custody and convict will ordinarily not entitled to be transferred to Open Camp, however inhibition covered by Rule 3 of the Rules of 1972 does not operate as absolute bar. Each case has to be considered on its merit having regard to facts and circumstances of the case.

10. In present case, petitioner has failed to furnish any reasons for his long abscondance for a period of about 11 years. On 02.08.2021, this Court provided an opportunity to learned counsel for the petitioner to explain the period of abscondance of the convict petitioner but no explanation has been given in this regard. We are of the view that without any justification for remaining absent for such a long perio