The Committee must consider mitigating circumstances when deciding parole applications, as disqualification is not absolute.

ORDER :

This parole petition is filed by the petitioner being aggrieved with the decision of the Prisoner Open Air Camp Advisory Committee (hereinafter to be referred as 'the Committee') dated 31st July, 2023, whereby the application filed by the petitioner for sending him to the open air camp has been rejected.

2. The Committee has assigned reason for rejection of the petitioner's application is that he has been convicted for the offence under Section 406 IPC along with other offences by the criminal court.

3. Learned counsel for the petitioner has argued that though Clause (d) of Rule 3 of the Rajasthan Prisoner Open Air Camp Rule, 1972 (hereinafter to be referred as 'the Rule of 1972') defines ineligibility for admission to open air camp, but it is to be noted that in Rule 3 of the Rule of 1972, the word 'ordinarily' is used which suggests that bar imposed on the transfer of the prisoners falling in the categories specified under Clauses (a) to (m) of the Rule 3 of the Rules of 1972 is not absolute. It is submitted that the Committee is under an obligation to apply its mind and any mitigating circumstances has to be taken into consideration before deciding the application of a prisoner for sending him to the open air camp.

4. Learned counsel for the petitioner while placing reliance on the decision dated 13.03.2019 of the Coordinate Bench of this Court in DB Criminal Writ No.101/2019 (Parvezshah v. State of Rajasthan & Ors.) has submitted that the Division Bench of this Court, while considering the earlier judgments of this Court, has held that the Committee is required to take into consideration the mitigating circumstances before deciding an application of a prisoner for sending him to the open air camp.

5. Learned counsel for the petitioner has submitted that in the present case, without applying its mind, the Committee has rejected the application of the petitioner for sending him to open air camp vide impugned decision.

6. Reply to the writ petition is filed on behalf of the State, wherein it is mentioned that since the case of the petitioner falls within the prohibited category under the Rules of 1972, his application has rightly been rejected.

7. Heard learned counsel for the parties.

8. From the perusal of the decision of the Committee, it is clear that no mitigating circumstances have been mentioned, which dis-entitles the petitioner for sending him to open air camp.

9. Learned AAG has produced communication received from the Director (Prisons), Jaipur dated 17.10.2023, wherein it is mentioned that as the petitioner along with other accused persons had brutally assaulted the complainant's father, which resulted into his death, the application of the petitioner for sending him to the open air camp has been rejected.

10. We have gone through the said communication, wherein it is mentioned that on account of some dispute with regard to grazing cattle, the petitioner along with other accused persons quarrelled with the complainant party and all the accused persons assaulted the complainant's father, which resulted into his death.

11. We are of the opinion that the circumstances, in which, the prisoner has committed the offence are to be taken into consideration by the Committee while deciding application of a prisoner for sending him to the open air camp. In the present case, the circumstances in which the petitioner has committed the offence are not of such a nature which create doubt about his conduct or leads to the conclusion that if he is lodged in the open air camp along with other prisoners, he may pose threat to them.

12. From