GANGARAM S/O SHRI GULYA MALI vs STATE OF RAJASTHAN

[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
(Uploaded on 26/10/2026 at 07:21:09 PM)
(Downloaded on 26/10/2026 at 11:21:13 PM)

(2 of 17)
[2026:RJ-JP:40987-DB] [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. &
(Uploaded on 26/10/2026 at 07:21:09 PM)
(Downloaded on 26/10/2026 at 11:21:13 PM)

(3 of 17)
[2026:RJ-JP:40987-DB] [CRLRF-1/2024]
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. 3
Preface
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. 10
Consideration
7. 10
Meaning of expression ‘Ordinarily’
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
(Uploaded on 26/10/2026 at 07:21:09 PM)
(Downloaded on 26/10/2026 at 11:21:13 PM)

(4 of 17)
[2026:RJ-JP:40987-DB] [CRLRF-1/2024]
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
1
Singh @ Nabbu vs. State of Rajasthan & Ors. , Sandeep
2
vs. State of Rajasthan & Ors. and followed in the matter
3
of Ajit Singh vs. State of Rajasthan , 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
4
Rajendra @ Goru vs. State of Rajasthan & Ors. , Bhag
5
Singh @ Bhagirath vs. State of Rajasthan & Ors. and
6
further in Vipin @ Vinkesh @ Vika vs. State of Rajasthan
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
1 D.B. Criminal Writ Petition No.38/2018, decided on 04.04.2018
2 D.B. Criminal Writ Petition No.532/2021, decided on 23.11.2021
3 D.B. Criminal Writ Petition No.52/2022, decided on 11.03.2022
4 D.B. Criminal Writ Petition No.189/2022, decided on 13.07.2022
5 D.B. Criminal Writ Petition No.51/2022, decided on 24.08.2022
6 D.B. Criminal Writ Petition No.166/2023, decided on 25.04.2023
(Uploaded on 26/10/2026 at 07:21:09 PM)
(Downloaded on 26/10/2026 at 11:21:13 PM)

(5 of 17)
[2026:RJ-JP:40987-DB] [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
7
of Rajasthan & Ors. , noticed the aforesaid judgments (two
lines of the judgments) and further held that in Aasharam @
8
Aashu vs. State of Rajasthan & Ors. 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,
7 S.B. Criminal Writ Petition No.706/2023, dated 06.12.2024
8 S.B. Criminal Writ Petition No.1895/2023, decided on 21.03.2024
(Uploaded on 26/10/2026 at 07:21:09 PM)
(Downloaded on 26/10/2026 at 11:21:13 PM)

(6 of 17)
[2026:RJ-JP:40987-DB] [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
9
Chakma vs. Union of India , 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
10
Karnataka 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
9 2026 SCC OnLine SC 317
10 (1997) 2 SCC 642
(Uploaded on 26/10/2026 at 07:21:09 PM)
(Downloaded on 26/10/2026 at 11:21:13 PM)

(7 of 17)
[2026:RJ-JP:40987-DB] [CRLRF-1/2024]
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.”
3.1 However, 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.”
3.2 Recently 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.
……”
(Uploaded on 26/10/2026 at 07:21:09 PM)
(Downloaded on 26/10/2026 at 11:21:14 PM)

(8 of 17)
[2026:RJ-JP:40987-DB] [CRLRF-1/2024]
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 :-
(Uploaded on 26/10/2026 at 07:21:09 PM)
(Downloaded on 26/10/2026 at 11:21:14 PM)

(9 of 17)
[2026:RJ-JP:40987-DB] [CRLRF-1/2024]
(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
(Uploaded on 26/10/2026 at 07:21:09 PM)
(Downloaded on 26/10/2026 at 11:21:14 PM)

(10 of 17)
[2026:RJ-JP:40987-DB] [CRLRF-1/2024]
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.
11
8.1 In Kailash Chandra vs. Union of India , it has been
observed that ‘ordinarily’ means ‘in the large majority of
cases but not invariably’.
8.2 Similarly, in Krishan Gopal vs. Shri Prakashchandra &
12
Ors. , 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.”
11 1961 SCC OnLine SC 293
12 (1994) 1 SCC 128
(Uploaded on 26/10/2026 at 07:21:09 PM)
(Downloaded on 26/10/2026 at 11:21:14 PM)

(11 of 17)
[2026:RJ-JP:40987-DB] [CRLRF-1/2024]
13
8.3 Similarly, in Union of India vs. Majji Jangamayya , 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
14
Shah , 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.”
8.5 In the matter of Commissioner of Customs, Mumbai vs.
15
J.D. Orgochem Ltd. , 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
(Uploaded on 26/10/2026 at 07:21:09 PM)
(Downloaded on 26/10/2026 at 11:21:14 PM)

(12 of 17)
[2026:RJ-JP:40987-DB] [CRLRF-1/2024]
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".”
8.6 The decision of the Supreme Court in the matter of Union of
16
India vs. Hemraj Singh Chauhan , 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
(Uploaded on 26/10/2026 at 07:21:09 PM)
(Downloaded on 26/10/2026 at 11:21:14 PM)

(13 of 17)
[2026:RJ-JP:40987-DB] [CRLRF-1/2024]
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,
(Uploaded on 26/10/2026 at 07:21:09 PM)
(Downloaded on 26/10/2026 at 11:21:14 PM)

(14 of 17)
[2026:RJ-JP:40987-DB] [CRLRF-1/2024]
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
(Uploaded on 26/10/2026 at 07:21:09 PM)
(Downloaded on 26/10/2026 at 11:21:14 PM)

(15 of 17)
[2026:RJ-JP:40987-DB] [CRLRF-1/2024]
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.
17
Delhi Administration , 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
(Uploaded on 26/10/2026 at 07:21:09 PM)
(Downloaded on 26/10/2026 at 11:21:14 PM)

(16 of 17)
[2026:RJ-JP:40987-DB] [CRLRF-1/2024]
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
(Uploaded on 26/10/2026 at 07:21:09 PM)
(Downloaded on 26/10/2026 at 11:21:14 PM)

(17 of 17)
[2026:RJ-JP:40987-DB] [CRLRF-1/2024]
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
(Uploaded on 26/10/2026 at 07:21:09 PM)
(Downloaded on 26/10/2026 at 11:21:14 PM)
Powered by TCPDF (www.tcpdf.org)