Dalip Singh, J.
1. This writ petition has been filed by the petitioner Manish Dixit who is undergoing the sentence awarded to him in Sessions Case No. 158/1994 having being convicted for offences under Sections 302,397 and 364 I.P.C. and 7/25(1)(a) of the Arms Act. The petitioner was sentenced to life imprisonment for offence under Section 302 I.P.C. and lesser sentence for the other offences and at present he is lodged in Central Jail, Jaipur.
2. The petitioner in this writ petition has sought the relief that in accordance with the provisions contained in the Rajasthan Prisoners Open Air Camp Rules, 1972 (hereinafter referred to as 'the Rules of 1972'), he is entitled to be sent to the Open Air Camp at Sanganer and he seeks a direction for being sent to the said Open Air Camp. The learned counsel for the petitioner submits that the petitioner was taken in the custody on 12.07.1994. He has already served the sentence of seven years for the offence under Section 397 I.P.C. yet he has been wrongly denied being sent to the Open Air Camp at Sanganer in terms of Rule 3 of the Rules o 1972. The learned counsel for the petitioner further submits that in accordance with the Rule 6 of the Rules of 1972, though the petitioner's name has been empanelled at Serial No. 132 in the Order of seniority, he has been wrongly denied being sent to the Open Air Camp at Sanganer.
3. In the response to the aforesaid writ petition, upon a notice being issued, the respondents have submitted a reply to the effect that writ petition is devoid of merits and should be dismissed as the petitioner's case was considered by the Advisory Committee as per the provisions of Rules of 1972 and he was not found fit to be transferred to the Open Air Camp. The learned counsel for the respondents submits that in the meeting dated 16.03.2004 the Advisory Committee observed that the conduct of the petitioner while he was on parole was not good and hence, he is not entitled to be transferred to the Open Air Camp as per the Rule 3(g) of the Rules of 1972. The minutes of the aforesaid meeting have been filed as Annexure Rule 3 with the reply on the record. At the item No. 7 of the minutes of the aforesaid meeting of the Committee which considered the cases of various prisoners, the case of the present petitioner has been dealt with after due consideration. Item No. 7 of the said minutes of the Committee reads as under:-
^^cUnh }kjk iwoZ esa Hkqxrh xbZ iSjksy vof/kesa vPNk vkpj.k ugha cuk;s j[kus ds dkj.k rFkk dkjkx`g esa vuqdj.kh; iznf'kZrugha djus ds dkj.k jktLFkku dSnh [kqyk f'kfoj fu;e 1972 ds fu;e 3 th dsvUrxZr canh [kqyk f'kfoj esa izos'k gsrq vik= gksus ls loZ lEefr ls canh [kqykf'kfoj ij u fydkys tkus dk fu.kZ; fy;k x;k A**
4. We have considered the submissions of the learned counsel for the petitioner and the learned Government Advocate.
5. The Rule 3 of the Rules of 1972, reads as under:-
'3. INELIGIBILITY FOR ADMISSION TO OPEN CAMP:-The followingclasses of prisoners shall ordinarily be not eligible for being sent toOpen Camp:-
(a) Prisoners whose ordinary place of residence is outside the State of Rajasthan or who have been convicted by a Court Martial.
(b) Prisoners convicted under the Explosive Substances Act, 1908.
(c) Prisoners who have escaped from the Jails or who have attempted to escape a lawful custody.
(d) Prisoners who have been convicted of an offence of offences under Section 121 to 130, 216A, 224, 225, 231, 232, 303, 311, 323, 332, 333, 376, 377, 383, 392 to 402, 435 to 440 and 460 of the Indian Penal Code (Act XLV of 1860).
(e) Prisoners who have been sentenced to less than five years imprisonment.
(f) Prisoners who are habitual with more than two previous convictions of imprisonment to their credit.
(g) Prisoners whose conduct in the jail is not good provided that a prisoner who would have not received any jail punishment for two years proceeding the date of the recommendations of his name for admission to the Open Camps may be considered eligible.
(h) Prisoners who are below 25 years of age and above 60 years of age.
(i) Prisoners who are lunatic or have mental deficiency or are physically incapacitated.
(j) Prisoners who have no fixed abode in Rajasthan.
(k) Detenues and civil prisoners.
(1) Prisoners convicted for vagrancy.
(m) Prisoners who are unmarried.'
6. A perusal of the above Rule goes to show that it has been provided that ordinarily the above class of prisoners shall not be eligible for being sent to the Open Air Camp. Under Clause (g) of the above Rule where a prisoner whose conduct in the jail is not good, has been considered to be ineligible for being sent to Open Air Camp In the instant case, the Advisory Committee, as per its finding recorded vide Annexure Rule 3 has come to the conclusion that during the period while the petitioner was released on-parole, his conduct was not good. The said finding have been arrived at on the basis of the material available with the Committee and we find no reason to interfere with the said finding. The Committee constituted under the Rules is the authority as per the law to decide the cases on the basis of the recommendations of Superintendent/Deputy Superintendent, In- Charge of the Jail, as well as subject to the availability of the accommodation from time to time in the Open Air Camp. The Advisory Committee on the consideration of the material placed before it has arrived at a decision that on account of the fact that conduct of the accused was not good during the period while he was released on parole, therefore, his case was not a fit case for being sent to the Open Air Camp. As per Clause (g) of Rule 3 of the Rules of 1972, a prisoner whose conduct is not good has been considered ineligible.
7. In response to the aforesaid, learned counsel for the petitioner has submitted on the basis of the pleadings in para 6 of the writ petition that the Committee has taken into account the fact that a First Information Report was lodged against the petitioner by his sister-in-law for the offence under Sections 452 and 451 I.P.C. and charges were framed under Section 452 I.P.C. by the Court of Magistrate in this regard. Learned counsel for the petitioner further submits that the petitioner was discharged by the Court of the offence under Section 452 I.P.C. by the Order dated 09.07.2002 and was only charged under Section 451 I.P.C. The submission of the learned counsel for the petitioner is that learned Magistrate acquitted the petitioner of the charge under Section 451 I.P.C. vide Order dated 10.07.2002 as the petitioner entered into a compromise with the complainant (sister-in-law). In view of the above, the learned counsel for the petitioner submits that the compounding of the offence should not be taken as an adverse circumstance against the petitioner by the Advisory Committee.
8. We have considered the aforesaid submissions of the learned counsel for the petitioner. In the present case, as per the submissions made by the learned counsel for the petitioner that petitioner had been convicted by the Trial Court for offence under Section 302, 397 and 364 I.P.C. and 7/25(1)(a) of the Arms Act and was undergoing the aforesaid sentence and while the petitioner had been released on parole, the First Information Report of the offences under Sections 452 and 451 I.P.C. was lodged against the petitioner by his sister-in-law. As per the submissions of the learned counsel for the petitioner, this Report was in respect of an incident which took place when the petitioner had been given the benefit of parole while serving the sentence for the offence under Section 302, 397 and 364 I.P.C. The petitioner compounded the aforesaid offence under Section 451 vide Order dated 10.07.2002. It appears that learned Magistrate did not take into consideration the provisions contained in Sub-section (7) of Section 320 of the Code of Criminal Procedure. Sub-section (7) of the Section 320 of the Code of Criminal Procedure reads as under:-
'320(7). -No offence shall be compounded if the accused is, by reason of a previous conviction, liable either to enhanced punishment or to a punishment of a different kind for such offence.'
9. The provisions contained in Section 324 of the Code of Criminal Procedure are also relevant in this regard. Section 324 of the Code of Criminal Procedure reads as under:-
'324. Trial of persons previously convicted of offences against coinage, stamp-law or property.-(l) Where a person, having been convicted of an offence punishable under Chapter XII or Chapter XVII of the Indian Penal Code (45 of I860) with imprisonment for a term of three years or upwards, is again accused of any offence punishable under either of those Chapters with imprisonment for a term of three years or upwards, and the Magistrate before whom the case is pending is satisfied that there is ground for presuming that such person has committed the offence, he shall be sent for trial to the Chief Judicial Magistrate or committed to the Court of Session, unless the Magistrate is competent to try the case and is of opinion that he can himself pass an adequate sentence if the accused is convicted.
(2) When any person is sent for trial to the Chief Judicial Magistrate or committed to the Court of Session under Sub-section (1), any other person accused jointly with him in the same inquiry or trial shall be similarly sent or committed, unless the Magistrate discharges such other person under Section 239 or Section 245, as the case may be,'
9. The Legislature while framing the provisions contained in Section 320 Sub-section (7) and Section 324 of the Code of Criminal Procedure has put the cases of previous convicts on a separate fooling and their cases cannot be equated with those persons who are brought before the court for the first offence. As per the averments in the writ petition, the petitioner himself has admitted that he has been convicted for offence under Section 364, 397 and 302 I.P.C. and is undergoing the sentence in respect of the conviction for the said offences. A perusal of the provisions contained in the Indian Penal Code reveals that under the Chapter XVII, the offences enlisted from Section 378 to 462 I.P.C., (both inclusive) have been enumerated. As such, in the case of the accused who was previously convicted for the offence under Section 397 I.P.C. having been sentenced to imprisonment of seven years and in subsequent incident for which he was charged while undergoing the aforesaid sentence in respect of the incident involving the lodging of the Report by his sister-in-law with respect to the offence under Section 452/451 I.P.C. The said offences under Section 452 and 451 I.P.C. are also offences under the Chapter XVII of the Indian Penal Code. The offence under Section 451 I.P.C. is also punishable with imprisonment for more than three years so as to attract the provisions of Sub-section (7) of Section 320 I.P.C. In this view of the matter, we feel that the learned Magistrate who passed the Order dated 10.07.2002 did not take into consideration the aforesaid provisions and since the said matter is not before us, but has been mentioned in the writ petition by the petitioner with a view to satisfy that the Advisory Committee could not have taken into account his conduct while undergoing the sentence in respect of the alleged Report of having committed the offence under Section 451 I.P.C. while serving the sentence and having been enlarged on parole in view of the fact that he was allowed to compound the said offence of Section 451 by Magistrate by Order dated 10,07.2002. It is only on account of this that we have to examine the validity of the said Order dated 10.07.2002 and whether the Advisory Committee was right in taking into consideration the subsequent conduct of the petitioner while undergoing the sentence in accordance with the provisions of Clause (g) of Rule 3 of Rules 1972 which would make a prisoner, whose conduct in jail is not good, ineligible for being allowed the facility of being sent to the Open Air Camp.
10. From the above facts and circumstances, we find that the conduct of the petitioner goes to show that in fact not only was his conduct during the period of serving the sentence in jail not good but he has in fact misused the facility/liberty of being enlarged on parole as per his own showing he was charged for an offence under Section 451 I.P.C. and which the petitioner tried to compound with the informant. The conduct of the petitioner, therefore, was rightly taken into account by the Advisory Committee and it was found in the case of the petitioner in the meeting convened that his conduct while serving the sentence in jail and having being enlarged on parole, was not good or worthy for being eligible or being sent to the Open Air Camp under the Rules of 1972.
11. In this view of the matter, we find that petitioner was previously convicted, it is not understandable in what circumstance the Order dated 10.07.2002 allowing the compounding of the offence under Section 451 I.P.C. was passed by the learned' Magistrate. We are of the view that the Order dated 10.07.2002 in the light of the provisions contained in Sub-section (7) of Section 320 of the Code of Criminal Procedure read with the provisions contained in Section 324 Cr.P.C. cannot come to the aid of the petitioner in Order to show that decision arrived at by the Advisory Committee was not in accordance with law in any manner. On the contrary, from the plain reading of the averments made in the writ petition and the material placed by the petitioner during the course of arguments, we find that the petitioner's conduct has not been such as to afford him the benefit of being allowed to be sent to the Open Air Camp in accordance with the provisions contained in the Rules of 1972.
12. Consequently, having regard to the facts and circumstances of the case, we find no reason to interfere with the decision of the Advisory Committee and this writ petition being devoid of merits is hereby dismissed. In the end we would also like to mention that it would be open for the State to reconsider and take appropriate measures in respect of the Order dated 10.07.2002 passed by the Magistrate as alleged by the petitioner allowing the compounding of the offence for which the petitioner was charged for the offence under Section 451 I.P.C. while serving the sentence for the offences under Section 364, 397 and 302 I.P.C. read with Section 7/25 of the Arms Act.