ORDER :—The petitioner- Ratan Lal, convicted for offence under S. 302, I.P.C. incarcerated in Central Jail, Ajmer, at the dusk of his life wishes to be re-united with his son Phool Chand, who is undergoing his sentence at the Sampurnanand Open Jail, Durgapura, Jaipur. The petitioner has challenged the omission on the part of the respondents in not transferring him from Central Jail, Ajmer to the Open Jail at Durgapura, Jaipur.
2. The brief facts of the case are that the petitioner along with his son Phool Chand were convicted for offence under Ss. 302/ 149, I.P.C. and were sentenced to life imprisonment by the Sessions Judge, Jhalawar. The petitioner is in judicial custody since 1-1-1995. The appeal filed by the petitioner and his son was dismissed by this Court.
Considering the excellent conduct of the petitioner's-son Phool Chand he was transferred from the Central Jail, Ajmer to the Sampurnanand Open Jail at Durgapura, Jaipur. The petitioner, who happens to be 69 years old, moved an application before the respondents for also transferring him from Central Jail, Ajmer to the Open Jail at Durgapura, Jaipur. However, his request has been turned down ostensibly on the ground that according to R. 3(h) of Rajasthan Prisons Open Air Camp Rules, 1972 (henceforth to be referred to as 'the Rules,' for short) a convicted prisoner above the age of 60 is ordinarily not entitled for being transferred from the Central Jail to the Open Air Camps. Hence this petition before this Court.
3. Mr. Sumer Singh, learned counsel for the petitioner, has contended that the petitioner is an old man, who is not keeping too good an health, in the last years of his life he would like to be reunited with his son and other family members who are staying at the Sampurnanand Open Jail in Jaipur. He has further contended that although, according to R. 3(h) of the Rules a convict prisoner above the age of 60 years are not eligible for being transferred to the Open Air Camp, but the word used is "ordinarily." Therefore, the said rule is not mandatory, but is merely directory in nature. Lastly, Mr. Sumer Singh has contended that the petitioner has spent for about 15 years in incarceration. His conduct in the jail has been good throughout. Therefore, he should be transferred to the Open Air Camp at Durgapura, Jaipur.
4. On the other hand, Mr. M. L. Goyal, learned P.P. has contended that R. 3(h) of the Rules is mandatory in nature. Since old prisoners are incapable of working, they are unable to earn a living for themselves while serving the remainder of their sentence in the Open Air Camp. Hence the jail authorities are justified in not transferring the petitioner to the Open Air Camp.
5. We have heard both the learned counsels.
6. The Open Air Camps are part of the reformative theory of punishment. The Open Air Camps are half-way house from the total incarceration of a jail to the total freedom of society at large. Once the prisoner has reformed himself to the point that there is neither any possibility of his reverting back to the life of crime, nor any possibility of his running away from the arms of law,
he is transferred to an Open Air Camp. The Open Air Camp is a subtle process of bringing back the prisoner into the mainstream of society. In the Open Air Camp convicted prisoner is encouraged to earn a living by going out to work outside the Camps from morning till evening, live with his own family and to again enjoy the company of human relationships. While considering cases of transfer to Open Air Camp the jail authorities should be sensitive to the need of the convicted prisoners. Moreover, considering the problem of over population in the jail, the Hon'ble Supreme Court in catena of cases has suggested the establishment of more and more Open Air Camps for the convicted prisoners. In the case of Sunil Batra II case (1980) 3 SCC 488 : (1980 Cri LJ1099), the Apex Court observed as under :—
"Visits to prisoners by family and friends are a solace in insultation, and only a dehumanised system can derive vicarious delight in depriving prison inmates of this humane amenity. Subject, of course to search and discipline and other security criteria, the right of society of follow men parents and other family members cannot be denied in the light of Art. 19 and its weep. Moreover, the whole habilitative purpose of sentencing is to soften, not to harden and this will be promoted by more such meetings.”
7. In the present case the petitioner is on the last lap of his life, where he needs the caring, the consoling, the love and affection of his near and dear ones. In the Central Jail, there is no one to look after his physical and emotional needs. But, at the Open Air Camp in a Durgapura, Jaipur where his son is living with his family, there are people who would look after his physical and emotional needs. The use of the word "ordinarily" in R. 3 of the Rules clearly reveals that it is not a total prohibition. The rule is directory in nature and not mandatory in content. Therefore, there is no reason for the respondents to deny the petitioner a transfer from Central Jail, Ajmer to Open Air Camp at Durgapura, Jaipur. In case of Krishna v. State of Rajasthan (2004 (4) WLC (Raj) 582) this Court dealt with cases of three aged prisoners whose families were also living in Open Air Camp and who desired that they should be transferred to the Open Air Camp where the sons were serving their sentence. In that case also this Court had directed that the aged petitioners should be transferred to the Open Air Camp at Sanganer, Jaipur.
8. In the result, this petition is allowed. The petitioner-Ratan Lal s/o Shri Narayan shall be sent to the Sampurnanand, Open Air Camp, Durgapura, Jaipur to live with his son Phool Chand. The petitioner is expected to work at the Open Air Camp. The Dy. Registrar (Judl.) is directed to send a copy of this order to the Central Jail, Ajmer and to the Sampurnanand Open Air Camp, Durgapura at Jaipur.
Petition allowed.
