Can Rape, POCSO Act Convicts Be Shifted From Jails To Open Air Camps? Rajasthan High Court Refers Issue To Larger Bench

Taking note of the conflicting views, Rajasthan High Court has referred the issue of 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, to a Larger bench.

“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 Hon'ble 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,” Justice Anoop Kumar Dhand noted while hearing a bunch of petitions filed by individuals seeking to be shifted from jail to open air camps.

Counsel for the petitioners argued that the issue was already decided by a division bench of the Court in the case of Ajit Singh v State of Rajasthan (“Ajit Singh Case”) in which the convicts were ordered to be shifted to Open Air Camps. The counsel highlighted that the order in this case was subsequently followed in a number of cases.

Furthermore, another coordinate bench of the Court in the case of Aasharam v State of Rajasthan and Ors. (“Aasharam Case”) took a similar view which was also assailed before the Supreme Court. The Apex Court rejected the challenge to the order and upheld the decision of shifting the convicts to the open-air camps.

On the contrary, the Additional Advocate General (“AAG”) appearing for the State referred to another division bench case of the Court viz. Rajendra @ Goru v State of Rajasthan & Others (“Goru Case”) in which the Court considered Rule 3 of the Rajasthan Prisoners Open Air Camp Rules, 1972 (“the Rules”) and held that the word “ordinarily” had to be considered while taking into account the gravity of offence of the convict.

Rule 3 of the Rules laid down ineligibility for admission in open air camps and provided that prisoners who were convicted for the listed offences, that includes the offence of rape, shall “ordinarily” not be eligible for being shifted to open air camp.

It was argued that those convicted of heinous crimes under POCSO could not be allowed to be shifted to open air camps as that would create fear in the minds of families of other inmates and their children would not be safe. AAG further highlighted that the decision taken in the Goru Case was further followed by two other division benches of the Court in Bhag Singh @ Bhagirath v State of Rajasthan & Others (“Bhag Singh Case”) and Vinkesh @ Vika v State of Rajasthan & Others. (“Vinkesh Case”)

After hearing the contention, the Court perused different orders presenting the conflicting views on the issue and opined that since the three decisions in the Goru Case, Bhag Singh case, and the Vinkesh Case, were not challenged by the petitioners, these had attained finality. However, since these were not brought into the knowledge of the Court, the decision in the Asharam Case was passed in complete ignorance of these judgments.

Furthermore, the Court observed that the challenge against the Asharam case was also decided by the Apex Court in peculiar facts and circumstances of the case, but the question of law was kept open and therefore, the same required to be adjudicated now to avoid any future contradictory orders.

“The judicial decorum and legal propriety demands that where a Single Bench or Division Bench does not agree with the decision of the Bench of co-ordinate jurisdiction, the matter should be referred to the Larger Bench…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.”

Accordingly, the matter was directed to be placed before the Chief Justice for constitution of a Special/Larger bench.

Title: Gangaram v State of Rajasthan & Ors. and other connected petitions

Citation: 2024 LiveLaw (Raj) 393

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