NOOR MOHAMMAD Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS writ petition has been filed by the convict -petitioner Noor Mohammad through his son -in -law Salim Khan contending that the petitioner is serving sentence of life imprisonment for the offence under Section 302/34 IPC awarded by Additional District Judge, Fast Track No. 1, Alwar in Sessions Case No. 103/2003 vide judgment and order dated 23.03.2004. It is contended that D.B. Criminal Appeal No. 496/2004 filed by the petitioner against the aforesaid judgment is pending before this Court. The petitioner submitted an application before concerned jail authority for his transfer from District Jail, Alwar to Open Air Camp, Alwar but the same has not been accepted on the ground that his age is more than 60 years. It is further contended that petitioner's son -in -law Salim Khan sent an application through speed post on 17.11.2014 to the concerned jail authority for transferring the petitioner from District Jail, Alwar to Open Air Camp, Alwar mentioning therein that the petitioner is an old man aged more than 60 years and serving his sentence of life imprisonment without any complaint and, therefore, the petitioner is entitled to be transferred from District Jail, Alwar to Open Air Camp, Alwar, but no action has been taken up on that application by the concerned authority. It is contended that Chhaju is real brother of the petitioner and is serving his sentence of life imprisonment in Open Air Camp, Alwar in the same incident. He submitted an affidavit with an application to the effect that the petitioner, who is his brother, is an old man aged about 70 years and it is not possible for him to look after his brother from Open Air Camp, Alwar. It was requested by Chhaju that if the concerned authority transfers the petitioner from District Jail, Alwar to Open Air Camp, Alwar on the basis of the aforesaid affidavit, then he is ready to take care of his brother's life and responsibility. It is contended that the petitioner has remained in judicial custody for more than 11 years and during the aforesaid period, the conduct and behaviour of the petitioner in jail has been good and unblemished. There is no complaint against the petitioner.

(2.) LEARNED counsel for the petitioner has cited the judgment of Division Bench of this Court in Pyare Lal Vs. State of Rajasthan & Ors. (DBCWP No. 437/2013) decided on 15/01/2013 and argued that Division Bench in the aforesaid case has in the context of similar objection by the respondents while referring to Rule 3(d) and Rule 3 (m) of the Rules of 1972 held that word 'ordinarily' used in Rule 3 is only directory and not mandatory. It is further held that since the word 'ordinarily' has already been interpreted as 'not necessarily', therefore, application of the petitioner ought to have been considered on its own merit.

(3.) LEARNED Public Prosecutor has opposed the writ petition.