Can Prisoners Convicted In POCSO & Rape Cases Be Shifted From Jail to Open Air Camp?- Rajasthan HC Refers Question to Larger Bench

The common question of law and legal issue which arose in all the petitions before the Jaipur Bench of the High Court was whether a prisoner, convicted for the offence under Section 376 IPC/POCSO Act, undergoing the sentence of imprisonment in Jail can be shifted to Open Air Camp.

The Single-Judge Bench of Justice Anoop Kumar Dhand said, “In a situation like the present one, where two conflicting views have been taken by the different Division Benches and Single Benches of this Court, this Court has no other option but to refer the matter to the Special/Larger Bench so that the controversy is put to rest in accordance with law.”

Advocate B. R. Choudhary represented the Petitioners while Government Advocate-cum-Additional Advocate General Rajesh Choudhary represented the Respondents.

It was the case of the petitioners that this issue was already decided by the Division Bench of the High Court in Ajit Singh Vs. State of Rajasthan and Ors.(DB Criminal Writ Petition No.52/2022). The Division Bench had passed orders for shifting of such convict prisoners to the Open Air Camp. It was also brought to the Court’s attention that a Co-ordinate Bench in the case of Aasharam @ Aashu vs. State of Rajasthan and Ors. (S.B. Criminal Writ Petition No.1895/2023) had passed orders for shifting of the convict prisoner to the Open Air Camp.

On the contrary, the Government Advocate-cum-Additional Advocate General opposed the arguments of the petitioners and submitted that the view taken 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 where it was observed that the word 'ordinarily' has to be considered keeping in mind the gravity of offence attributed to the convict. It was also submitted 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.

At the outset, the Bench explained that Rule 3 deals with the ineligibility for admission to the Open Air Camp. Sub Clause (d) says that prisoners who have been convicted for the offences under Sections 121 to 130, 261-A, 224, 225, 231, 232, 303, 311, 328, 333, 376, 377, 383, 392 to 402, 435 to 440 and 460 of IPC shall 'Ordinarily' be not eligible for being sent to the open camp.

“The question of law of eligibility or ineligibility has not been decided, hence, the same is required to be decided now to avoid further contradictory or conflicting orders to be passed in future”, it said. It was further noted that a petition was submitted before the Co-ordinate of this Court in the case of Asharam @ Ashu (supra) and the same was allowed in complete ignorance of the judgment in Rajendra @ Goru (supra).

The Bench was of the opinion that ordinarily it would not go into the merits of this case, once the position of law is settled with regard to the controversy on a particular issue, but the difficulty is to follow which view, more particularly when there are two different conflicting views on the same issue by the different Division Benches of this Court of equal strength.

It was noticed that there is no exact decision on the legal issue involved in this petition, rather there are conflicting opinions and views of different Division Benches of this Court, but in the case of Asharam @ Ashu (supra), the question of law has been kept open by the Apex Court. Hence, the same is required to be decided for all times to come, so that there should be uniformity in the orders on the legal issue involved in these petitions.

The Bench thus concluded the matter by ordering, “This Court accordingly refers this case to the Special/Larger Bench to answer the following question: Whether a prisoner, convicted for the offence under Section 376 IPC/POCSO Act, undergoing the sentence of imprisonment in Jail, can be shifted to Open Air Camp, in view of the Rule 3 of the Rules of 1972?"

The Court further ordered the matter to be placed before the Chief Justice on the administrative side for constitution of Special/Larger Bench to answer the aforesaid question.

Cause Title: Gangaram v. State Of Rajasthan & Ors. [Neutral Citation: 2024:RJ-JP:50330]

Appearance:

Petitioners: Advocates BR Choudhary, Vishram Prajapati, Govind Prasad Rawat

Respondents: Government Advocate-cum-Additional Advocate General Rajesh Choudhary, Advocate Aman Kumar

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