While hearing rape and POCSO Act convict- Asaram's plea to be shifted to the Open Air Camp, the Rajasthan High Court has directed the competent authority on the administrative side to take a decision on the application, in light of the Court's recent full bench decision to the effect the rape/POCSO convicts are not absolutely barred from open-air camps.

The division bench of Justice Arun Monga and Justice Yogendra Kumar Purohit considered the fact that in the background of the above-mentioned decision of the Court in a criminal reference, the administrative side was yet to take a decision, and the same was expected within a period of 3 weeks.

For context, an application was filed on behalf of the self-styled godman, seeking his transfer to an open air camp. It was submitted that since he had remained in custody for more than 13 years, including remission, which was more than one-third of his substantive sentence, and his conduct in jail was found to be satisfactory, he was eligible for being considered for the transfer.

This application was rejected by the Open Air Camp Advisory Committee, Jaipur, on the ground that he was convicted under Section 376(2)(f), IPC, and sentenced to life imprisonment, and hence, was ineligible for the transfer. Challenging this order, the present petition was filed before the Court.

The counsel for the petitioner submitted that the rejection was a consequence of gross non-application of mind, and other similarly situated prisoners were also transferred to Open Air Camps. Hence, denial of the same benefit to the petitioner was arbitrary.

On the contrary, the respondents argued that considering his convictions for the offences under Sections 376 and 377, IPC, as well as under POCSO, he was ordinarily ineligible under Rule 3(d)and Rule 4(a) of the Rajasthan Prisoners Open Air Camp Rules, 1972.

After hearing the contentions, the Court took into account the recent decision of Gangaram v the State of Rajasthan (Criminal Reference No. 1/2024) in which the full bench of Chief Justice Sanjay K. Agrawal, Justice Sameer Jain, and Justice Praveer Bhatnagar observed,

“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 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 this background, the Court enquired and got to know that based on this order, the administrative side was yet to take a decision that was expected within 3 weeks.

Accordingly, the Court ordered the copy of the order to be sent to the competent authority to take an administrative decision and pass appropriate orders, within 3 weeks.

Counsel for petitioners: Mr. Nishant Bora; Ms. Abhilasha Bora; Mr. Prithvi Singh; Mr. Bharat Sain

Counsel for Respondents: Mr. Deepak Chandak for Mr. B.L. Bhati, AAG; Ms. Sulochana Bishnoi