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2013 Supreme(Raj) 32
(Rajasthan High Court)
Jaipur Bench
Sonu @ Raghuvendra Vs. State of Rajasthan & Ors. (Jain, J.)
HON'BLE NARENDRA KUMAR JAIN, J.
HON'BLE VEERENDR SINGH SIRADHANA, J.
Sonu @ Raghuvendra
Versus
State of Rajasthan & Ors.
D.B. Civil Writ Petition No.19884 of 2012, decided on 16.01.2013
Anshuman Saxena with Omprakash Choudhary, for Petitioner;
Ms. Rekha Madnani, Deputy Govt. Advocate, for Respondents
Headnote:Rajasthan Prisoners Open Air Camp Rules, 1972, Rule 3 (m) — `Transfer to open Air Camp — Convict petitioner is unmarried — Transfer application not accepted nor considering his case to transfer him to open Air Camp as he is unmarried — Held — It is a duty of the Superintendent of the concerned Jail to accept such application of convict and concerned authority/committee is required to consider the case — In case he is not eligible then by assigning reasons, his candidature may be rejected — Held — Concerned authority cannot refuse to accept and consider the application filed by a convict.
Petition allowed. (Paras 14 & 15)
jktLFkku cUnh [kqyh gok f'kfoj fu;e] 1972] fu;e 3 ¼M½ & [kqyh gok f'kfoj esa LFkkukUrj.k & nks"kfl) izkFkhZ vfookfgr gS & LFkkukUrj.k vkosnu u rks Lohdkj fd;k x;k vkSj u gh mls [kqyh gok f'kfoj esa LFkkukUrfjr djus gsrq mlds izdj.k ij fopkj djuk D;ksafd og vfookfgr gS & vfHkfu/kkZfjr & lEcfU/kr tSy ds v/kh{kd dk ;g drZO; gS fd og ,sls nks"kfl) ds vkosnu dks Lohdkj djs vkSj lEcfU/kr izkf/kdkjh@lfefr dks pkfg;s fd og ml ekeys ij fopkj djs & ;fn og vgZd ugha gks rks] dkj.k n'kkZrs gq, mldh vH;FkZuk fujLr dh tk ldrh gS & vfHkfu/kkZfjr & nks"kfl) }kjk nk;j vkosnu dks Lohdkj djus vkSj ml ij fopkj djus ls lEcfU/kr izkf/kdkjh badkj ugha dj ldrhA ¼in la[;k 14 o 15½
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2. Convict/petitioner Sonu @ Raghuvendra S/o Late Shri Kailash Chand Saini, has preferred this writ petition to issue appropriate writ, order or direction, directing the respondents to transfer the petitioner to Open Air Camp.
3. It is contended in the writ petition that petitioner has already served out more than 12 years and 6 months of imprisonment without remission and he became eligible for his transfer to Open Air Camp under the provisions of the Rajasthan Prisoners Open Air Camp Rules, 1972 (hereinafter referred to as 'the Rules of 1972'), but neither the application of petitioner is being accepted for his transfer to Open Air Camp, nor the respondents are considering his case to transfer him to Open Air Camp, as he is unmarried and he is being treated as ineligible, in view of Rule 3(m) of the Rules of 1972.
4. The respondents have filed their reply to writ petition mentioning therein that petitioner is unmarried, therefore, in view of Rule 3(m) of the Rules of 1972 he is ineligible for Admission to open air camp. A copy of letter dated 08.01.2013, written by the Superintendent, District Jail, Alwar to the Government Advocate, Rajasthan High Court, Jaipur, has also been annexed as Annexure-R/1, with reply to writ petition, wherein it is specifically mentioned that since petitioner is unmarried, therefore, he is ineligible for consideration of his case under the provisions of the Rules of 1972.
5. we have considered the submissions of the learned counsel for the parties.
6. From the submissions of the learned counsel for the parties, it is clear that case of petitioner for his transfer to Open Air Camp under the Rules of 1972, is not being considered by the respondents on the ground that he is ineligible because of Rule 3(m) of the Rules of 1972.
7. Rule 3(m) of the Rules of 1972 reads as under:-
“3. Ineligibility for admission to open air camp.- The following classes of prisoners shall ordinarily be not eligible for being send to Open Camp:-
(a).....
.....
(m)Prisoners who are unmarried.”
8. The Division Bench of this Court in Kishna & Anr. vs. State of Raj. & Ors., reported in 2004(4) Western Law Cases (Raj.) 582 = RLW 2005(2) Raj. 2846, while considering the Rules of 1972, held that Rule 3 is directory in nature. Para 11 of the judgment is reproduced as under:-
“11. Coming to the scheme of 1972 Rules it may be noticed that eligibility incorporated in Rule 3 is directory in nature. The persons mentioned in the said rule are although normally not eligible for being sent to Open Camp, they may however be sent when special circumstances exists. In view of the Rules 7,8,9 and 10, the prisoners can keep their families with them in Open Camp. Suitable accommodation for this purpose shall be allotted to the prisoners for this purpose and they shall have to make their own cooking arrangement for their food from their own cooking arrangement for their food from their own earning from the work distributed to them. Work in any form can be allotted to the prisoner.”
9. The Division Bench of this Court in Mahendra Kumar vs. Director General Prisons & Ors., reported in 2005(3) Western Law Cases(Raj.) 694 = RLW 2005(4) Raj. 2255, considered the word “ordinarily” used in Rule 14 of the Rajasthan Prisoners Release on Parole Rules, 1958 and while following the earlier judgment of Division Bench of this Court in Mohan Lal vs. State of Rajasthan, 2002(2) WLC 484 = RLW 2002(3) Raj. 1921, held that word “Ordinarily” does not mean “Necessarily”. Para 4 of the judgment is reproduced as under:-
“4. A perusal of Rule 14 of the Rules of 1958 would clearly manifest that it is ordinarily that a convict shall not be allowed parole on the ground of stipulated in sub-clause (a) to (d). The word “Ordinarily” does not mean “Necessarily”. The language provided in the Rules of 1958 is not mandatory and it is still in the discretion of the concerned authorities to grant parole even though the case of convict may be covered in any of the
