1 D.B. Civil Writ Petition (Parole)l No.3631 Of 2009 Moti Lal Vs. The State of Rajasthan & Others IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR O R D E R D.B. Civil Writ Petition No.3631 Of 2009 Moti Lal son of Shri Bhanwar Lal VERSUS The State of Rajasthan & Others Date of Order :::: 03/08/2009 Hon'ble Mr. Justice Dalip Singh Hon'ble Mr. Justice Jitendra Ray Goyal Mr. Sumer Singh, Counsel for the Petitioner. Mrs. Rekha Madnani, Dy. Govt. Counsel for the State. Per Court : Heard learned counsel for the parties. This petition has been filed by the accused, who is serving the sentence of life imprisonment having been convicted by the learned Additional Sessions Judge (Fast Track) No.2 Jhalawar in Sessions case No.259/2001 vide its judgment dated 26.04.2002 for commission of the offence under Sections302 read with Section 34 of the I.P.C. The petitioner was sentenced, as above, along with his son namely; Hazari, who was also convicted and sentenced as above. 2 D.B. Civil Writ Petition (Parole)l No.3631 Of 2009 Moti Lal Vs. The State of Rajasthan & Others It has been submitted by the learned counsel that son of the petitioner viz., Hazari having completed the requisite number of years as sentence, as required by Rule 4 read with Rule 3 of the Rajasthan Prisoners Open Air Camp Rules, 1972, was shifted from the Central Jail, Kota to Open Jail at Bikaner on 19.07.2008. The petitioner also submitted an application for being transferred to the Open Jail at Bikaner, wherein his son is serving the remaining sentence. However, in view of the provisions contained in Clause (h) of Rule 3 of the Rules, 1972 the application of the petitioner has not been forwarded by the jail authority. As per Clause (h) of Rule 3 of the Rules, 1972 the prisoners, who are below 25-years of age and above 60-years of age shall “ordinarily” not be eligible for being sent to the Open Camp. Since, the petitioner is more than 70-years of age, the Jail authority, in view of the above Rule, have not forwarded his application. After the notice was issued to the learned Public Prosecutor, a reply has been filed, wherein in Para 4 and 5 of the reply, the respondents have admitted the fact that the application of the petitioner was not forwarded, as he was 70- years old convict and infirm and incapable of discharging his daily routine work, as provided under Clause (h) of Rule 3 of the 3 D.B. Civil Writ Petition (Parole)l No.3631 Of 2009 Moti Lal Vs. The State of Rajasthan & Others Rules, 1972. Learned counsel for the petitioner has placed reliance upon a Division Bench's judgment of this Court in the case of Sukhdeva Ram & Others Vs. State & Another (DB CWP No.1430/2003), decided on 25.03.2003), wherein the Division Bench of this Court had considered the provisions contained in Clause (h) of Rule 3 of the Rules of 1972 and taking into consideration the language of Clause (h) of Rule 3 of the Rules of 1972, where the word “ordinarily” has been used held that the rule does not contained an absolute bar to the consideration of the application by the accused who is below 25-years of age and more than 60-years of age for being transferred to the Open Jail. In the facts and circumstances of the present case, we are also inclined to take a similar view and are in agreement with the view expressed by this Court in the case of Sukhdeva Ram & others (supra) as the word “ordinarily” does not mean always. This Court while allowing the petition also took into consideration the fact that two sons of the petitioner Sukhdeva Ram, who was more than 75-years of age were already transferred to the Open Air Camp (Jail). Taking note of these facts this Court allowed the writ petition in the following terms: 4 D.B. Civil Writ Petition (Parole)l No.3631 Of 2009 Moti Lal Vs. The State of Rajasthan & Others “Considering these facts, we direct the accused-petitioner to move an application to the concerned authority i.e. Superintendent or Dy. Superintendent of Jail concerned and that authority shall place the application of the petitioner before the Prisoners Open Air Camp Advisory Committee to consider his case for transfer to Open Air Camp Jail, Sanganer specialy for the reason that his two sons are already there in the Open Air Camp Jail, Sanganer. If the sons of the petitioner agreed to look after him and to help him to live independently without the aid of the jail authorities, then his case should be considered and he should be transferred to Open Air Camp Jail, Sanganer within two months from the date of receipt of certified copy of this order”. In the facts and circumstances of the present case also since the son of the petitioner namely Hazari admittedly is already serving the remaining part of the sentence in the Open Air Jail, Bikaner, we direct that the application submitted by the petitioner be forwarded to the Advisory Committee for consideration, as directed by this Court in the case of Sukhdeva & Others (supra) for consideration in the light of the observations quoted above. Consequently, this writ petition stands disposed of with the directions as given in the judgment of this Court in Sukhdeva's case. (Jitendra Ray Goyal) J. (Dalip Singh) J. ashok/