Prisoners convicted under POCSO Act are generally ineligible for transfer to Open Air Camps due to the nature of their offenses.

ORDER :

(Anoop Kumar Dhand, J.)

1. Following common question of law and legal issue has arisen in all these petitions:

"Whether a prisoner convicted and sentenced for the offence punishable under POCSO Act/ Section 376 IPC can be shifted from Jail to Open Air Camp?"

2. Learned counsels for the petitioners submit that this issue has already been decided by the Division Bench of this Court in the case of Ajit Singh Vs. State of Rajasthan and Ors. (DB Criminal Writ Petition No.52/2022) vide dated 11.03.2022. Counsel submits that in the aforesaid judgment the Division Bench of this Court has dealt with the issue involved in these petitions and has passed orders for shifting of such convict prisoners to the Open Air Camp. Counsel submits that the view taken by the Division Bench of this Court has been followed subsequently in number of cases by different Single Benches. Counsel submits that recently, the Co-ordinate Bench of this Court in the case of Aasharam @ Aashu vs. State of Rajasthan and Ors. (S.B. Criminal Writ Petition No.1895/2023) has taken a similar view and passed orders for shifting of the convict prisoner to the Open Air Camp. Counsel submits that the aforesaid judgment passed by the co-ordinate Bench of this Court in the case of Aasharam @ Aashu (supra) was assailed by the State before the Hon'ble Apex Court by way of filing Special Leave to Appeal (Criminal) No.8666/2024, however, the said SLP submitted by the State against the order passed in the case of Aasharam @ Aashu (supra) has been rejected vide order dated 11.11.2024. Counsel submits that this Court in the case of Narender Versus State of Rajasthan & Another (S.B. Criminal Writ Petition No.291/2022) has also taken a similar view vide order dated 12.01.2023. Counsel further submits that even on the earlier occasion also the Division Bench of this Court in the case of Subhash Chand Versus State of Rajasthan & Others, while deciding D.B. Civil Writ Petition No.12020/2013 vide order dated 30.08.2013, has taken a similar view, hence, under these circumstances, all these petitions submitted by the convict-prisoners be allowed and the respondent authorities be directed to shift them to the Open Air Camp.

3. Per contra, learned Government Advocate-cum-Additional Advocate General Mr. Rajesh Choudhary opposed the arguments raised by counsel for the petitioners and submitted that the view taken by the Division Bench of this Court in the case of Ajit Singh (supra) has been changed subsequently by the same Division Bench in the case of Rajendra @ Goru Versus State of Rajasthan & Others, while deciding D.B. Criminal Writ Petition No.189/2022 vide order dated 13.07.2022. Counsel submits that considering the provisions, contained under Rule 3 of the Rajasthan Prisoners Open Air Camp Rules, 1972 (for short, 'Rules of 1972'), a view was taken that the word 'ordinarily' has to be considered keeping in mind the gravity of offence attributed to the convict. Counsel submits that the prisoners/convicts who have been convicted with the heinous offence under the POCSO Act cannot be allowed to shift to the Open Air Camp, as those persons would definitely create fear in the mind of the families of other inmates and their children would not be safe, if such prisoners are allowed to stay in the Open Air Camp. Counsel submits that the view taken by the co-ordinate Bench of this Court in the case of Rajendra @ Goru (supra) was followed by two different Division Benches of this Court in the case of Bhag Singh @ Bhagirath Versus State of Rajasthan & Others (D.B. Criminal Writ Petition No.51/2022) decided on 24.08.2022 and also in the case of Vipin @ Vinkesh @ Vika Versus State of Rajasthan & Others (D.B. Criminal Writ Petition No.166/2023) decided on 25.04.2023. Counsel submits that while deciding the case of Vipin @ Vinkesh @ Vika (supra), the Division Bench has noted this fact that the judgment passed in the case of Rajendra @ Goru (supra) was not brought into the notice of the different co-or