[2026:RJ-JP:40987-DB]

REPORTABLE

HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

Judgment reserved on: 30.09.2026

Judgment delivered on: 26.10.2026

Judgment (Full) uploaded on: 26.10.2026

D.B. Criminal Reference No. 1/2024

CNR: RJHC021108372024 | URN: CRLRF / 2U / 2024

Gangaram S/o Shri Gulya Mali, Aged About 28 Years, R/o Chiroli

Lalpur Umari, Police Station Sadar Gangapur City District Sawai

Madhopur (Raj.) (at present in Special Central Jail Shyalawas

Dausa) through his elder brother Budhram Mali S/o Shri Gulya

Mali, Aged About 51 Years, R/o Chiroli Lalpur Umari, Police

Station Sadar Gangapur City, District Sawai Madhopur (Raj)

322201

----Petitioner

Versus

1. The State of Rajasthan, through the Secretary Home,

Secretariat, Jaipur.

2. Prisoners Open Air Camp Advisory Committee, through its

Director, Jaipur.

3. Director General Of Prisons, Directorate Prisons

Rajasthan, Ghatgate, Jaipur.

4. Superintendent Special Central Jail, Shyalawas Dausa.

----Respondents

Connected With

D.B. Civil Writ Petition No. 16575/2026

CNR: RJHC020051112023 | URN: CW / 197U / 2026

Kailash S/o Shri Govindram @ Govinda, Aged About 30 Years,

R/o Badh Bhogatpura, Police Station Ramgarh Pachwara, District

Dausa (Raj.) (at present in Central Jail Jaipur) through his

nephew Dayaram Meena S/o Shri Shankar Lal Meena Aged About

24 Years, R/o Badh Bhogatpura, Police Station Ramgarh

Pachwara, District Dausa (Raj.)

----Petitioner

Versus

[2026:RJ-JP:40987-DB] (2 of 17) [CRLRF-1/2024]

1. The State of Rajasthan, Through The Secretary Home,

Secretariat, Jaipur.

2. Prisoners Open Air Camp Advisory Committee, Through

Its Director, Jaipur.

3. Director General Of Prisons, Directorate Prisons

Rajasthan, Ghatgate, Jaipur.

4. Superintendent Central Jail, Jaipur.

----Respondents

D.B. Civil Writ Petition No. 16577/2026

CNR: RJHC020270822023 | URN: CW / 1176U / 2026

Gangaram S/o Shri Gulya Mali, Aged About 28 Years, R/o Chiroli

Lalpur Umari, Police Station Sadar Gangapur City District Sawai

Madhopur (Raj.) (at present in Special Central Jail Shyalawas

Dausa) through his elder Brother Budhram Mali S/o Shri Gulya

Mali, Aged About 51 Years, R/o Chiroli Lalpur Umari, Police

Station Sadar Gangapur City, District Sawai Madhopur (Raj)

322201

----Petitioner

Versus

1. The State of Rajasthan, Through The Secretary Home,

Secretariat, Jaipur.

2. Prisoners Open Air Camp Advisory Committee, Through

Its Director, Jaipur.

3. Director General Of Prisons, Directorate Prisons

Rajasthan, Ghatgate, Jaipur.

4. Superintendent Special Central Jail, Shyalawas Dausa.

----Respondents

For Petitioner(s) : Mr. Anshuman Saxena, Adv.

Mr. T.C. Swami, Adv.

Mr. Pankaj Gupta, Adv.

Mr. Vishram Prajapati, Adv.

Mr. Jai Lodha, Adv.

Mr. Govind Rawat, Adv.

Mr. B.R. Choudhary, Adv.

Mr. Dheeraj Singhal, Adv.

Mr. Tarun Agarwal, Adv.

For Respondent(s) : Mr. Rajesh Choudhary, GA-cum-AAG

with Mr. Aman Agarwal, Adv.,

Mr. Gaurav Gupta, Adv. &

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Ms. Neha Goyal, Adv.

Full Bench

HON'BLE THE CHIEF JUSTICE MR. SANJAY K. AGRAWAL

HON'BLE MR. JUSTICE SAMEER JAIN

HON'BLE MR. JUSTICE PRAVEER BHATNAGAR

C.A.V. JUDGMENT

Sanjay K. Agrawal, C.J.

For sake of exposition, this judgment/order is divided in

following parts:-

S.No. Particulars Page Nos.

1.Preface 3

2.Conflicting judgments leading to reference to

the Larger Bench

4

3.Concept and Preamble of Open Air Camp and

reformative penology

5

4.Current framework criteria for consideration

to be transferred to Open Air Camps

8

5.Evaluation and Advisory Committee 9

6.Consideration 10

7.Meaning of expression ‘Ordinarily’ 10

8.No automatic right to admission is different

from no right to consideration

14

9.Non-arbitrary and reasoned exercise of

discretion

15

10.Dignity and the reformative prison

administration

15

11.Finding 16

12.Answer to the reference and Conclusion 17

Preface

1.Anoop Kumar Dhand, J., finding divergent view expressed by

various Division Benches of this Court on the interpretation of

Rule 3(d) of the Rajasthan Prisoners Open Air Camp Rules,

1972 (hereinafter referred to as ‘Rules of 1972’) has referred

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the matter to Hon’ble the Chief Justice for constitution of a

Larger Bench to consider the following question of law:

“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?”

Conflicting judgments leading to reference to the Larger

Bench

Liberal view:

2.The Division Bench of this Court in the matters of Nirbhay

Singh @ Nabbu vs. State of Rajasthan & Ors.

1

, Sandeep

vs. State of Rajasthan & Ors.

2

and followed in the matter

of Ajit Singh vs. State of Rajasthan

3

, has taken a view

that Rule 3 read with Rule 4 of the Rules of 1972 do not

absolutely prohibit entitlement of the prisoners falling in the

clause appended to Rules 3 and 4 to be sent in the Open Air

Camp.

Restrictive view:

2.1.Whereas the Division Bench of this Court in the matters of

Rajendra @ Goru vs. State of Rajasthan & Ors.

4

, Bhag

Singh @ Bhagirath vs. State of Rajasthan & Ors.

5

and

further in Vipin @ Vinkesh @ Vika vs. State of Rajasthan

6

has taken a view on interpretation of Rule 3 and 4 of the

Rules of 1972, more particularly, with reference to Rule 3(d)

of the said Rules, that such convicts may be treated as

ineligible for transfer solely on account of the nature of

1D.B. Criminal Writ Petition No.38/2018, decided on 04.04.2018

2D.B. Criminal Writ Petition No.532/2021, decided on 23.11.2021

3D.B. Criminal Writ Petition No.52/2022, decided on 11.03.2022

4D.B. Criminal Writ Petition No.189/2022, decided on 13.07.2022

5D.B. Criminal Writ Petition No.51/2022, decided on 24.08.2022

6D.B. Criminal Writ Petition No.166/2023, decided on 25.04.2023

[2026:RJ-JP:40987-DB] (5 of 17) [CRLRF-1/2024]

gravity of the aforesaid offences (Section 376 IPC or POCSO

Act) to be transferred to the Open Air Camp as their presence

will create a fear in the mind of the families of the other

inmates, and the children would not be safe.

2.2.The learned Single Judge (Dhand, J.) in Gangaram vs. State

of Rajasthan & Ors.

7

, noticed the aforesaid judgments (two

lines of the judgments) and further held that in Aasharam @

Aashu vs. State of Rajasthan & Ors.

8

this Court did not

notice restrictive view taken in the matters of Rajendra @

Goru (supra), Bhag Singh @ Bhagirath (supra) and Vipin

@ Vinkesh @ Vika (supra), and allowed the writ petition in

ignorance of the said judgments. The SLP in the matter of

Aasharam @ Aashu (supra) preferred by the State was

dismissed on 11.11.2024.

2.3. The question of law was left open leading to making of the

reference on the aforesaid question of law, and in order to

resolve the dispute, Hon’ble the Chief Justice has constituted

the Full Bench vide order dated 26.09.2026. This is how the

reference comes up before us for answering the question, so

referred by the learned Single Judge.

Concept and Preamble of Open Air Camp and reformative

penology

3.The Open Air Camp in Rajasthan is the pre-release half-way

mechanism intended to encourage good conduct, self-

discipline and social readjustment, among the convicts,

framed under clause (18) of Section 59 of the Prisons Act,

7S.B. Criminal Writ Petition No.706/2023, dated 06.12.2024

8S.B. Criminal Writ Petition No.1895/2023, decided on 21.03.2024

[2026:RJ-JP:40987-DB] (6 of 17) [CRLRF-1/2024]

1894 (Central Act 9 of 1894) by way of the Rajasthan

Prisoners Open Air Camp Rules, 1972 as it has already been

referred as the Rules of 1972. In the matter of Suhas

Chakma vs. Union of India

9

, their Lordships of the

Supreme Court cited the aforesaid Rajasthan Rules of 1972

as best practice to the prisoners including their families and

children residing in camp. The purpose of the Open Air Camp

is closely connected with reformative penology. The Supreme

Court in the matter of Rama Murthy vs. State of

Karnataka

10

described the open prisons as a significant

instrument of reformative prison management and as one of

the most successful application of the principle of

individualization of penalties with a view of social

readjustment and observed in paras 47 and 48 as under:

47.Open air prisons play an important role in the

scheme of reformation of a prisoner which has to be one

of the desideratum of prison management. They represent

one of the most successful applications of the principle of

individualization of penalties with a view to social

readjustment as stated by B. Chandra in the Preface to his

book titled "Open Air Prisons". It has been said so because

release of offenders on probation, home leave to

prisoners, introduction of wage system, release on parole,

educational, moral and vocational training of prisoners are

some of the features of the open-air prison (camp)

system. Chandra has stated in the concluding portion of

Chapter 3 at p.150 (of 1984 Edition) that in terms of

finances, open institution is far less costly than a closed

establishment and the scheme has a further advantage

that the Government is able to employ in work, for the

benefit of the public at large, the jail population which

would have otherwise remained unproductive. According

to the author, the monetary returns are positive, and once

put into operation, the camps pay for itself.

48. Reference may also be made to what has been

stated in Chapter 5 about the change in the human and

social outlook, which activities and programmes of these

camps bring about. The whole thrust is to see that after

release the prisoners may not relapse into crimes, for

92026 SCC OnLine SC 317

10(1997) 2 SCC 642

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which purpose they are given incentives to live normal

life, as they are trained in the fields of agriculture,

horticulture etc. Games, sports and other recreational

facilities, which form part of the routine life at the open-air

camps, inculcate in the prisoners a sense of discipline and

social responsibility. The prayers made regularly provide

spiritual straight.”

3.1However, the preamble of the Rules of 1972 states as

under:

“Preamble. – Whereas it is necessary to frame rules for

sending convicts to Open air camps with a view to

encoursage good conduct satisfactory performance of work

and a life of self-discipline among the convicts of

Rajasthan, and to provide these convicts with a pre-

release, opportunity to learn social adjustment and

economic self dependence, the Government of Rajasthan

in exercise of the powers conferred by clause (18) of

section 59 of the Prisons Act, 1894 (Central Act 9 of 1894)

hereby makes the following rules.”

3.2Recently in the matter of Suhas Chakma (supra), further the

Supreme Court speaking through Sandeep Mehta, J.

emphasized the constitutional and penological significance of

open correctional institutions. Their Lordships described the

effective humane and sustainable responses to overcrowding,

which are integral components of a humane, reformative and

constitutionally compliant correctional system. Their

Lordships found that the Open Correctional Institutions

(OCIs) are severely under-utilized because of stringent and

non-uniform eligibility criteria and observed in para 61 as

under:

“61……....There is, therefore, an urgent need to reorient

eligibility criteria towards reformative indicators and to

substantially strengthen rehabilitative infrastructure within

OCIs, so that they operate as constitutionally compliant

institutions of correction, dignity and social reintegration.

……”

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3.3.The direction C(i) under para 73 of the Suhas Chakma

(supra), requires every State and Union Territory to:

“73C(i)...…..revisit and rationalise eligibility criteria for

transfer of prisoners from closed prisons to OCIs, ensuring

that such criteria are based primarily on the nature and

classification of offences, demonstrated reformative

potential, institutional conduct and readiness for social

reintegration, rather than rigid or unduly long periods of

incarceration in closed prisons. Individualised assessments

shall be undertaken through transparent and reasoned

procedure, with recorded justification for acceptance or

rejection.”

4.Having taken note of the concept of the Open Air Camp in

reference to mandate issued by their Lordships of the

Supreme Court in Suhas Chakma (supra), we would notice

the current framework of Rules 3 and 4 of the Rules of 1972.

Current framework/criteria for consideration to be

transferred to Open Air Camps

5.The criteria for the prisoners to be considered for transfer to

the Open Air Camp in Rajasthan is prescribed in Rules 3 and

4 of the Rules of 1972. Rule 3 of the said Rules is reproduced

as under:

“3. Ineligibility for admission to open air camp : -

The following classes of prisoners shall ordinarily be not

eligible for being sent to Open Camp:-

(a) to (c) xxxxxx

(d) Prisoners who have been convicted of an offence or

offences under sections 121 to 130, 216A, 224, 225,

231, 232, 303, 311, 328, 332, 333, 376, 377, 383, 392

to 402, 435 to 440, and 460 of the Indian Penal Code

(Act XLV of 1860).

(e) to (m) xxxxxx

5.1.Rule 4 provides for eligibility for admission to the Open Air

Camps, as under:

4. Eligibility for admission to Open Camps : - A

prisoner shall be eligible for admission to an Open Air

Camp, if :-

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(a) He does not fall within any of the categories specified

in rule 3 above.

(b) He has been regularly performing his scheduled task in

the Jail Factory or in Jail Service.

(c)He has served one third term of his substantive

sentence including remission.”

5.2.A careful perusal of Rule 4 of the Rules of 1972 would show

that the prisoners shall not be eligible for admission to an

Open Air Camp if he/she does not fall within any of the

categories specified in Rule 3 of the said Rules. As such, if

he/she falls in the categories of Rule 3, including Rule 3(d),

he/she ordinarily should not be entitled for admission to the

Open Air Camp. Rule 4 of the Rules of 1972 separately

prescribes the affirmative condition of eligibility for admission

to the Open Air Camp, which has to be read along with

disqualification in Rule 3.

Evaluation and Advisory Committee

6.As per Rule 14 of the Rules of 1972, assessment and

evaluation as to whether a prisoner/convict is to be

transferred to Open Air Camp is to be done by the Advisory

Committee, which consists of (1) Director, Correctional

Services, Chairman, (2) Inspector General of Prisons,

Rajasthan, (3) Dy. Secretary to Government, Home (Jails)

Department, (4) Dy. Inspector General of Prisons

(Correctional Programme), (5) Prison Psychologist, and (6)

Chief Probation Officer.

Consideration

7.The entire controversy in the present case talks of the proper

construction of word ‘ordinarily’ as it qualifies the ineligibility

created by Rule 3; whether it operate as (a) a rebuttable

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merit based threshold permitting the competent

authority/court to admit exception upon a consideration of

the facts of the individual case, (b) a policy level exclusion

which given the gravity of the offence under Section 376 IPC

or POCSO Act, ordinarily ought to be given full effect as the

Division Bench of equal strength have taken conflicting views

leading to the reference to the Larger Bench by the learned

Single Judge.

Meaning of expression ‘Ordinarily’

8.The Supreme Court has repeatedly explained the meaning of

the word ‘ordinarily’. The word ‘ordinarily’ does not signify an

inflexible or cast-iron rule and its meaning depends upon the

context in which it is used.

8.1In Kailash Chandra vs. Union of India

11

, it has been

observed that ‘ordinarily’ means ‘in the large majority of

cases but not invariably’.

8.2Similarly, in Krishan Gopal vs. Shri Prakashchandra &

Ors.

12

, dealing with Section 80A, the Supreme Court defined

the word ‘ordinarily’ as not mandatory and held, in para 12,

as under:

“12. ………….The word "ordinarily" does not indicate that

the provisions of sub-section (2) of Section 80A are not

mandatory and that relaxation in compliance with those

provisions is permissible. The word "ordinarily" only

qualifies the number of judges who can exercise the

jurisdiction which is vested in the High Court to try an

election petition. The said word indicates that normally it

would be single Judge of the High Court who can exercise

the jurisdiction which is vested in the High Court, but in

appropriate cases, such jurisdiction can also be exercised

by two or more judges.”

111961 SCC OnLine SC 293

12(1994) 1 SCC 128

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8.3Similarly, in Union of India vs. Majji Jangamayya

13

, the

Supreme Court has held as under:

“36. The expression ‘ordinarily’ in the requirement of

10 years’ experience shows that there can be a

deviation from the requirement and such deviation can

be justified by reasons.”

8.4 In the matter of Union of India vs. Vipinchandra Hiralal

Shah

14

, the Supreme Court has held, in para 9, as under:

“9. Clause (1) of Regulation 5 of the Regulations differs

from clause (1) of Regulation 4 which was considered by

this Court in Mohan Lal Capoor (1973) 2 SCC 836 in the

sense that the word "ordinarily" found in clause (1) of

Regulation 5 was not contained in clause (1) of Regulation

4. The insertion of the word "ordinarily" does not, in our

opinion, alter the intendment underlying the provision. It

only means that unless there are good reasons for not

doing so, the Selection Committee shall meet every year

for making the selection.”

8.5In the matter of Commissioner of Customs, Mumbai vs.

J.D. Orgochem Ltd.

15

, the Supreme Court, while

interpreting the word ‘ordinarily’, has relied upon the decision

in the matter of Kailash Chandra (supra) and held, in para

12 and 13, as under:

12. Rule 4 of the Rules has a direct nexus with Section

14(1) of the Act. The term used is "ordinarily". The said

term has been interpreted by this Court inter alia to mean

that there should be an "extra ordinary" or "special"

situation so as to enable the competent authority to opine

that the transactional value declared by the importer

should be disbelieved. It is not suggested that the

Customs Authorities are bound by such declaration. It,

however, has to rely on contemporaneous evidence to

show that the invoice does not reflect the correct value.

13. The expression "ordinarily" may mean "normally". It

has been held by this Court in Kailash Chandra v. Union of

India and Krishangopal v. Shri Prakashchandra and Ors.

[(1974) 1 SCC 12], that the said expression must be

understood in the context in which it has been used and,

thus, "Ordinarily" may not mean "solely" or "in the name",

and thus, if under no circumstance an appeal would lie to

the Principal District Judge, the Court would not be

13(1977) 1 SCC 606

14(1996) 6 SCC 721

15(2008) 16 SCC 576

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subordinate to it. When in a common parlance the

expression "ordinarily" is used, there may be an option.

There may be cases where an exception can be made out.

It is never used in reference to a case where there is no

exception. It never means "primarily".”

8.6The decision of the Supreme Court in the matter of Union of

India vs. Hemraj Singh Chauhan

16

, defining the word

‘ordinarily’ in reference to various institutions, would show

that ‘ordinarily’ identifies the normal rule while leaving room

for an exceptional case. The statutory context remains

decisive, but the word cannot be treated as surplusage. Thus,

in Rule 3, the specified prisoners are ordinarily ineligible for

admission to the Open Air Camp, but the provision cannot

automatically be read as ‘shall never be eligible’. The

Supreme Court has held as under:

“40. This Court is not very much impressed with the

aforesaid contention. The word `ordinarily' must be given

its ordinary meaning. While construing the word the Court

must not be oblivious of the context in which it has been

used. In the case in hand the word `ordinarily' has been

used in the context of promotional opportunities of the

Officers concerned. In such a situation the word

`ordinarily' has to be construed in order to fulfill the

statutory intent for which it has been used.

41. The word “ordinarily”, of course, means that it does not

promote a cast-iron rule, it is flexible (see Jasbhai Motibhai

Desai v. Roshan Kumar [(1976) 1 SCC 671] at SCC p. 682,

para 35). It excludes something which is extraordinary or

special (Eicher Tractors Ltd. v. Commr. of Customs [(2001)

1 SCC 315] at SCC p. 319, para 6). The word “ordinarily”

would convey the idea of something which is done

“normally” (Krishan Gopal v. Prakashchandra [(1974) 1

SCC 128] at SCC p. 134, para 12) and “generally” subject

to special provision (Mohan Baitha v. State of Bihar

[(2001) 4 SCC 350 : 2001 SCC (Cri) 710] at SCC p. 354).”

9.The word ‘ordinarily’ does not mean ‘necessarily’ and as such,

the word ‘ordinarily’ employed in Rule 3 is not mandatory and

still in discretion of the concerned authority to admit the

16(2010) 4 SCC 290

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prisoner to Open Air Camp, though the case of the convict

may be covered under Rule 3(d) of the Rules of 1972.

10.Individual assessment under Rule 6 of the Rules of 1972

contemplates a selection process rather than automatic

transfer. The Rule 6 states as under:

“6. Orders for sending prisoners to Open

Camps:- (a) The Inspector General of Prisons, after going

through the recommendations of the Superintendent, or

the Dy. Superintendent, In charge of the Jail shall subject

to available accommodation from time to time select

prisoners to be sent to the Open Camp and submit their

case to the Prisoners Open Air Advisory Committee for

sanction :

Provided that convicts having served longer terms of

imprisonment will be given preference over those who

have served lesser terms of imprisonment.

(b) It would be the discretion of the Prisoners Open

Air Camp Advisory Committee to send a prisoner to any of

the Camps [and the Director-cum-Inspector General of

Prisons may at any time transfer any prisoner from one

camp to another camp.]”

10.1 The Inspector General of Prisons, after going through the

recommendations subject to available accommodation from

time to time, selects prisoners, through Advisory Committee,

to be sent to the Open Air Camp. Provided that convicts

having served longer terms of imprisonment will be given

preference. The Advisory Committee has discretion to send

the prisoner to any of the camps. Under Rule 14, this

structure supports an individualised assessment. It also

supports the conclusion that special circumstances should not

be mechanically equated. The nature and gravity of the

offence may, therefore, constitute a distinct relevant

consideration when the authority determines whether the

‘ordinary’ exclusion should be departed from. This is,

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particularly, the significance in cases involving sexual offences

against children given the nature of the Open Air Camp.

No automatic right to admission is different from no right

to consideration

11.A prisoner falling under Rule 3(d) of the Rules of 1972 cannot

claim admission to an Open Air Camp as a matter of right,

merely because the word ‘ordinarily’ is neither absolute nor

mandatory. Conversely, the authority cannot refuse even to

consider the case solely by stating that the conviction falls

under Rule 3(d). As such, Rule 3(d) creates an ordinary

exclusion, but it does not totally eliminate consideration of an

exceptional case. The prisoner must establish special or

exceptional circumstances sufficient to justify departure from

the ordinary rule, and the competent authority must record a

reasoned decision on the relevant factors. As such, Rule 3(d)

as an absolute bar would effectively substitute the expression

‘shall not be eligible’ for the actual expression ‘shall ordinarily

be not eligible’. Such a construction would give no operative

meaning to the word ‘ordinarily’. The decisions of the

Supreme Court noticed hereinabove in the matters of

Kailash Chandra (supra), Krishan Gopal (supra), Majji

Jangamayya (supra), Vipinchandra Hiralal Shah (supra),

J.D. Orcochem Ltd. (supra) and Hemraj Singh Chauhan

(supra), would show why such a reading should be avoided.

However, at the same time, treating ‘ordinarily’ as creating an

unrestricted discretion would also be contrary to the Rule.

The exception must remain exceptional. The authority

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considering the application under Rule 14 must, therefore,

identify the circumstances which justify departure from the

ordinary exclusion.

Non-arbitrary and reasoned exercise of discretion

12.The discretion contemplated under Rule 14 by consideration

of application for grant of admission to the Open Air Camp

must be exercised consistently with Article 14 of the

Constitution of India. The principle of non-arbitrariness

requires that relevant considerations be taken into account

and irrelevant considerations be excluded. Article 14 does

not create a fundamental right to admission to an Open Air

Camp. It does, however, reinforce the requirement that the

discretion under Rule 3 and Rule 6 along with Rule 14 of the

Rules of 1972 be exercised rationally, consistently and upon

relevant material, and rejection solely based on Rule 3(d) and

that has been effected under Section 376 IPC or POCSO Act,

without considering whether special circumstances exist,

would risk rendering the word ‘ordinarily’ ineffective.

Dignity and the reformative prison administration

13.The Supreme Court has repeatedly recognized that

incarceration does not extinguish the constitutional

personhood and dignity of a prisoner. In Sunil Batra vs.

Delhi Administration

17

, their Lordships affirmed that

prisoners retain constitutional rights, subject to restrictions

inherent in lawful incarceration. As such, where the statutory

scheme itself creates a rehabilitative mechanism, its

17(1978) 4 SCC 494

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administration should be consistent with dignity, fairness and

the reformative purpose of imprisonment.

Finding

14.On the basis of aforesaid analysis, we are of the considered

opinion that Rule 3(d) read with Rule 4 of the Rules of 1972,

neither there is absolute prohibition for admitting a prisoner

to the Open Air Camp, nor there is an unrestricted

entitlement to be admitted in Open Air Camp for a convict

under Section 376 IPC or POCSO Act. The word ‘ordinarily’

must be given operative meaning. Rule 3(d) establishes the

normal position that the specified category of prisoners is not

eligible. Reading the meaning of the word ‘ordinarily’ in light

of the judgment of the Supreme Court in the afore-cited

judgments, ‘ordinarily’ does not justify treating that exclusion

as absolute in every case. The appropriate legal approach is

to require consideration of the individual case where the

prisoner places special or exceptional circumstances before

the competent authority. At the same time, the authority is

entitled, and in appropriate cases required, to consider the

nature and gravity of the offence, particularly in POCSO Act

cases, along with the other relevant factors prescribed by the

Rules.

Answer to the reference and Conclusion

15.Our answer to the proposed question is as under:

“A prisoner convicted under Section 376 IPC or POCSO Act is

not totally ineligible for transfer to an Open Air Camp.

However, such a prisoner has no automatic right to admission

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in Open Air Camp, and the nature and gravity of the offence

including the age of the victim and the facts of the case are

legitimate considerations for the Advisory Committee and the

Advisory Committee must make an individualised, reasoned

assessment of institutional conduct, reformative potential,

risk and readiness for reintegration, and record its reasons

for transfer to Open Air Camp, in line with direction C(i) in the

matter of Suhas Chakma (supra), and where the Advisory

Committee finds such a prisoner suitable, it may impose

condition to protect other inmates, particularly children, and

may revoke the placement on breach.”

16.As such, the decisions of Division Bench noticed in this

judgment in the matters of Rajendra @ Goru (supra), Bhag

Singh @ Bhagirath (supra) and Vipin @ Vinkesh @ Vika

(supra) do not lay down correct law and accordingly they are

over-ruled. Let the matters be sent to the appropriate

Division Bench to deal with application(s) in light of questions

of law answered by us, as aforesaid.

17.The referred question of law is answered accordingly.

(PRAVEER BHATNAGAR),J. (SAMEER JAIN),J. (SANJAY K. AGRAWAL),CJ

/MohitTak