Special Appeal dismissed. Court upheld Single Judge's order rejecting State's opposition to prisoner's transfer to Open Air Camp, holding the ineligibility clause in prison rules is directory, not mandatory.
Special Appeal dismissed; impugned order of Single Judge allowing transfer consideration stands
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In the High Court of Judicature for Rajasthan
Jaipur Bench * *
DB Special Appeal (W) No.28/ 2015
Dat e of Or der ::: 1 5 / 1 / 2 0 1 5
Hon 'ble Mr . Ju st ice Aj ay Rast ogi Hon 'ble Mr . Ju st ice JK Ran k a
Mr. Rishi Raj Singh, Addl. G.C. for state. Mr. Lakhan Singh Tomar, for respondent-bank.
Instant intra court appeal has been filed by the State against the order of Ld. Single Judge dt.9.12.20914.
The respondent serving sentence of life imprisonment in Central Jail Jaipur, consequent upon his conviction and sentence vide judment dt.29.11.2008 for offence u/ S.302, 392/ 34 and 201 IPC and Sec.3(2) of the SC & ST ACT and completed sentence of 9 years 10 months and 26 days, filed application for his transfer from Central Jail, Jaipur to Open Air Camp, Sanganer.
Under the Scheme of Rule 3 ( d) of Rajasthan Prisoner Open Air Camp Rules 1952 such of the prisoners ordinarily are not eligible for being sent to Open Air Camp who have been convicted under various sections of IPC including sec. 392 and the present respondent is also convicted u/ S.392 IPC. Sec.3(d) reads ad infra-
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376, 377, 383, 3 9 2 to 402, 435 to 440 and 460 of the Indian Penal Code (Act SLV of 1860)
However, Division Bench of this Court in Krishna & Anr.
Vs. State of Raj. & Ors. reported in 2004(4) WLC 582 while interpreting the Scheme of Rules 1972 and R.3 in particular, observed that it is directory in nature and which subsequently again considered by the Division Bench of this Court in 2005 (3) WLC 694 Mahendra Kumar Vs. Direcotr General of Prisons & Ors and it was observed that the word 'ordinarily' does not mean 'necessarily' and each case has to be examined on its own facts and the prisoner carrying any of the ineligibilities, referred to u/ R.3, may not be ousted outrightly from consideration for admission to open air camp..
In the instant case, the application submitted by him was not examined on merits but rejected outrightly on the premise that he has been convicted for the offence u/ S.392 as if being prohibited to consider his application for transfer to Open Air Camp under the Scheme of Rules 1972.
Before the Ld. Single Judge, the matter was examined and taking note of judicial precedence and order of Division Bench of this Court where word 'ordinarily' has been interpreted does not mean 'necessarily' and the Ld. Single Judge taking note thereof allowed the writ petition and directed the state govt. to consider the case of the respondent on merits for admission to Open Air Camp under the Scheme
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of Rules, 1972.
It is also brought to the notice of the Court that the meeting of the com mittee which was held on 17.9.2014 by the Director General of Prisons for transfer to Open Air Camp under the Scheme of Rules 1972, there are good number of convict persons who are being convicted for offences falling under clause 3(d) of Rules 1972 on the basis of their jail conduct and other record which is maintained while are in judicial custody has been transferred to Open Air Camp.
We have heard counsel for the parties and do not find any error being committed by the Ld. Single Judge while passing order impugned.
Consequently, the special appeal being devoid of merit accordingly dism issed.
[ JK Ran k a] , J. [ Aj ay Rast ogi] , J. dsr/ -
"All corrections made in the judgment/order have been incorporated in the judgment/order being emailed"
Datar Singh P.S.
2 issues framed by the court
Whether the bar under Rule 3(d) of Rajasthan Prisoner Open Air Camp Rules 1952 against conviction under Section 392 IPC is mandatory or directory.
Whether the High Court erred in allowing the said Writ Petition setting aside the order rejecting the transfer to Open Air Camp.
Colour shows how this judgement treated each authority
Krishna & Anr. vs. State of RajasthanReferred¶14
Krishna & Anr. Vs. State of Raj. & Ors. 2004(4) WLC 582
Mahendra Kumar vs. Director General of PrisonsReferred¶15
Mahendra Kumar Vs. Director General of Prisons & Ors. 2005 (3) WLC 694
4 provisions across 3 enactments
State of Rajasthan
Respondent-Detainee
Ajay Rastogi
JK Ranka
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
