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2021 DIGILAW 348 (RAJ)

Vidhya Devi v. State Of Rajasthan

2021-02-11

RAMESHWAR VYAS, SANGEET LODHA

body2021
JUDGMENT 1. By way of this writ petition, the petitioner has questioned legality of decision of State Open Air Camp Committee in refusing to make recommendation for transfer of the prisoner, his son-Krishna Lal, to the Open Air Camp. 2. The petitioner's son Krishna Lal was convicted for an offence under Section 302 IPC by the Additional Sessions Judge No.2, Hanumangarh vide judgment dated 21.3.95 in Sessions Case No.62/87 and was sentenced to life imprisonment. He was convicted in yet another case for offence under Section 302 read with Sections 149 & 120B IPC by the Additional Sessions Judge No.1, Hanumangarh vide its judgment dated 27.9.97 in Sessions Case No. 1/97 and sentenced to death. The conviction was upheld by the High Court, however, his death sentence was commuted to the imprisonment for life. On appeal, the Hon'ble Supreme Court vide judgment dated 29.3.01 while upholding the conviction, directed that the imprisonment for life for the convict Krishna Lal shall be the imprisonment in prison for the rest of his life and he shall not be entitled for any commutation or pre-mature release under Section 401 of the Code of Criminal Procedure, Prisoners Act, Jail Manual or any other statute and the rules made for the purposes of grant of commutation and remission. 3. Prior to passing of the order dated 29.3.01, the prisoner Krishna Lal was transferred to Open Air Camp, Jaitsar on 31.12.99 and served the sentence from 31.12.99 to 9.4.01 in the Open Air Camp. He was also allowed two regular paroles of 20 & 30 days from 16.3.99 to 4.4.99 and 15.6.2000 to 14.7.2000 respectively, however, after the decision of the Supreme Court dated 29.3.01, the prisoner Krishna Lal was again shifted to Central Jail, Bikaner. 4. The prisoner Krishna Lal again applied for transfer to the Open Air Camp, however, the State Open Air Camp Committee by impugned decision declined his prayer for transfer to Open Air Camp as aforesaid. Hence, this petition. 5. Learned counsel appearing for the petitioner contended that the decision of the Supreme Court dated 29.3.01 does not put any rider so as to deprive the prisoner Krishna Lal from transfer to Open Air Camp and thus, the impugned decision of the State Open Air Committee is ex facie illegal and arbitrary. Hence, this petition. 5. Learned counsel appearing for the petitioner contended that the decision of the Supreme Court dated 29.3.01 does not put any rider so as to deprive the prisoner Krishna Lal from transfer to Open Air Camp and thus, the impugned decision of the State Open Air Committee is ex facie illegal and arbitrary. Learned counsel submitted that the Open Air Camp also falls within the category of 'Prison' and therefore, the transfer of the prisoner Krishna Lal to Open Air Camp shall not be violative of the directions of the Supreme Court in any manner whatsoever. Learned counsel submitted that during the release on regular parole as also during the stay in jail and in Open Air Camp, the conduct of the prisoner Krishna Lal was satisfactory and thus, there is absolutely no reason why he should not be transferred to the Open Air Camp. In support of the contention, learned counsel relied upon a Bench decision of this Court dated 22.1.21 passed in Narendra Singh vs. State of Rajasthan & Ors.: D.B.Criminal Writ Petition No.506/20. 6. On the other hand, learned AAG submitted that while considering the application of the prisoner seeking transfer to the Open Air Camp, the fact that he was sentenced to suffer imprisonment for rest of his life with the further directions that he shall not be entitled to any commutation or pre-mature release under Section 401 of Code of Criminal Procedure, Prisoners Act, Jail Manual or any other statute and the rules made for the purpose of grant of commutation and remission, cannot be ignored and thus, the decision of the State Open Air Camp Committee cannot be faulted with. 7. We have considered the rival submissions and perused the material on record. 8. In Narendra Singh's case (supra), a Bench of this Court while considering the issue with regard to transfer to Open Air Camp in light of the provisions of Rajasthan Open Air Camp Rules, 1972 and the Prisons Act, 1894 of a prisoner undergoing sentence of imprisonment for remaining period of natural life, held: "8. It is true that the petitioner was convicted for committing murder of the jailor while undergoing sentence of life imprisonment and he was sentenced to suffer imprisonment for remaining period of natural life. It is true that the petitioner was convicted for committing murder of the jailor while undergoing sentence of life imprisonment and he was sentenced to suffer imprisonment for remaining period of natural life. But then, a bare perusal of the order dated 20.7.20 passed by a coordinate Bench in the writ petition earlier preferred by the petitioner assailing the decision of the Committee, reveals that the reasons assigned by the Committee, while declining the application seeking transfer to Open Air Camp, were found not sustainable in the eyes of law and thus, harping on the same string, ignoring the observations made by this Court as aforesaid, the Committee was not justified in rejecting the application. 9. It is noticed that as per clause (vi) of Rule 2 of the Rules, 'Open Air Camp' is the place which is declared to be an Open Air Camp for the detention of the prisoner in pursuant of clause (1) of Section 3 of Prisons Act, 1894 ('the Act of 1894') as adopted to the State of Rajasthan. 10. Clause (1) of Section 3 of the Act of 1894 defines 'prison' as under: "prison" means any jail or place used permanently or temporarily under the general or special orders of a State Government for the detention of prisoners, and includes all lands and buildings appurtenant thereto, but does not include- (a) any place for the confinement of prisoners who are exclusively in the custody of the police; (b) any place specially appointed by the State Government under section 541 of the Code of Criminal Procedure, 1882 (10 of 1882); or (c) any place which has been declared by the State Government by general or special order, to be a subsidiary jail; 11. A conjoint reading of clause (1) of Section 3 of the Act of 1894 and Rule 2 (vi) of the Rules makes it abundantly clear that the Open Air Camp also falls within the definition of the 'prison' and even after transfer of a prisoner to Open Air Camp, his detention continues and thus, the reasoning adopted by the Committee that since the petitioner has been sentenced to suffer imprisonment for remaining period of natural life, he cannot be transferred to Open Air Camp, does not appear to be justified. 12. 12. It is pertinent to note that the concept of Open Air Camp is evolved with a view to encourage good conduct, satisfactory performance of work and a life of self discipline among the convicts and to provide them with a pre-release opportunity to learn social adjustment and economic self dependence. The transfer of the prisoners to the Open Air Camp is regulated by the rules wherein the classes of the prisoners, who shall ordinarily be not eligible for being sent to Open Air Camp, have been specified under Rule 3 of the Rules. The prisoners convicted under Section 302 IPC are not amongst the class of the prisoners ineligible for admission to Open Air Camp. It is not even the case of the State that the case of the petitioner is covered by any of the inhibitions contained in Rule 3 of the Rules. The eligibility of the petitioner for transfer to Open Air Camp as provided for under Rule 4 of the Rules is also not in dispute. As per Rule 3(g), prisoners whose conduct in the jail is not good are not eligible for being sent to Open Air Camp but, a prisoner who would have not received any jail punishment for two years preceding the date of recommendation of his name for admission to the Open Air Camp, may be considered eligible. It is also not the case of the respondents that during the period of incarceration pursuant to the sentence awarded in the criminal case in question, the petitioner was ever awarded jail punishment for his conduct rather, his conduct during the stay in jail is reported to be satisfactory. Further, during the period of incarceration, the petitioner was released on regular parole thrice and emergent parole once and after availing the parole he returned to the jail peacefully." 9. In our considered opinion, keeping in view, the law laid down by this Court as aforesaid in Narendra Singh's case (supra), the case of the convict for transfer to the Open Air Camp deserves to be considered afresh by the State Parole Open Air Camp Committee in accordance with law. 10. Accordingly, the writ petition is allowed. The impugned decision of the State Open Air Camp Committee is set aside. 10. Accordingly, the writ petition is allowed. The impugned decision of the State Open Air Camp Committee is set aside. The State Open Air Camp Committee is directed to consider the case of the prisoner Krishna Lal for transfer to Open Air Camp afresh in accordance with law, within a period of four weeks from the date of receipt of certified copy of this order. No order as to costs.