POCSO Convicts and Open Air Camps: Rajasthan HC Refers

Open Air Camp for POCSO and Rape Convicts: Rajasthan High Court Refers Conflicting Rulings to Larger Bench

Published: 10 October 2026 · NyayVidhan

Faced with conflicting Division Bench rulings, the Rajasthan High Court referred to a Special/Larger Bench whether a prisoner convicted under Section 376 IPC or the POCSO Act can be shifted from jail to an Open Air Camp in view of Rule 3 of the Rajasthan Prisoners Open Air Camp Rules, 1972 (paras 19-20). The Supreme Court had dismissed the State's special leave petition in Asharam @ Ashu on its peculiar facts but kept the question of law open (paras 12-13).

Key holdings

Rule 3(d) makes Section 376 IPC convicts ‘ordinarily’ ineligible for an Open Air Camp; Benches differ on what that allows (paras 5-10).

Rajendra @ Goru line: no absolute bar, but the gravity of a POCSO offence can justify refusal (paras 8-10).

An SLP dismissed on peculiar facts, with the question of law kept open, settles nothing (paras 12-13).

A Single Bench facing conflicting Division Bench views must refer the question to a Larger Bench (paras 15-17, 19).

Referred: can a Section 376 IPC or POCSO convict be shifted to an Open Air Camp in view of Rule 3 (para 20)?

Brief Facts

A batch of criminal writ petitions by convict prisoners, led by Gangaram's, sought transfer from jail to an Open Air Camp. The common question was whether a prisoner convicted under the POCSO Act or Section 376 IPC can be shifted (para 1). Rule 3(d) of the 1972 Rules says that persons convicted of listed offences, including Section 376, shall ‘ordinarily’ not be eligible (para 5). The petitioners relied on Ajit Singh, Subhash Chand, Narender and Asharam @ Ashu, where transfers were ordered (para 2). The State relied on Rajendra @ Goru, Bhag Singh @ Bhagirath and Vipin @ Vinkesh @ Vika, and submitted that POCSO convicts in a camp would create fear among the families of other inmates (para 3).

Court's Findings

The Court set out two lines of authority. In Subhash Chand a Division Bench read ‘ordinarily’ as ‘not necessarily’ and required applications to be considered; in Ajit Singh the Division Bench called the Committee's reliance on the convict's young age and on women living in the camp extraneous (paras 6-7). In Rajendra @ Goru the Division Bench held that ‘ordinarily’ is no absolute bar, but that the authorities may weigh the nature and gravity of the offence, particularly for POCSO convicts; Bhag Singh @ Bhagirath and Vipin @ Vinkesh @ Vika followed it, and none of the three was challenged in the Supreme Court (paras 8-11). A Single Bench then allowed Asharam @ Ashu without noticing them, and the Supreme Court dismissed the State's SLP on its peculiar facts, keeping the question of law open (paras 12-13). The Court observed that the rulings favouring transfer had not considered the later Division Bench decisions or Rule 3, leaving conflicting views of Benches of equal strength (para 15). Relying on Sundaradas Kanyalal Bhathija, Ayyaswami Gounder, S. Kasi and Central Board of Dawoodi Bohra Community, it held that a Bench unable to follow a coordinate Bench must seek a Larger Bench (paras 15-17).

Legal Principle

Where Division Benches of the same High Court have taken conflicting views on a question, a Bench of equal or lesser strength should not choose between them or take a view of its own; judicial discipline requires the question to be referred to a Larger Bench through the Chief Justice (paras 15-17, 19).

Precedents Relied Upon

Rajendra @ Goru v. State of Rajasthan & Others D.B. Criminal Writ Petition No. 189/2022, decided on 13.07.2022
Referred To Discussed at ¶ 3, 8, 12, 15
Rule 3 is not an absolute bar, but the word ‘ordinarily’ must be applied keeping in mind the gravity of the offence; authorities are justified in considering the nature of the offence, particularly for POCSO convicts. One side of the conflict referred to the Larger Bench.
Bhag Singh @ Bhagirath v. State of Rajasthan & Others D.B. Criminal Writ Petition No. 51/2022, decided on 24.08.2022
Referred To Discussed at ¶ 3, 9, 12, 15
Followed Rajendra @ Goru: POCSO convicts cannot ask to be sent to an Open Air Camp as a matter of right.
Vipin @ Vinkesh @ Vika v. State of Rajasthan & Others D.B. Criminal Writ Petition No. 166/2023, decided on 25.04.2023
Referred To Discussed at ¶ 3, 10, 12, 15
Followed Rajendra @ Goru and Bhag Singh; held later Single Bench orders that did not consider them per incuriam.

View all precedents (12)

Ajit Singh v. State of Rajasthan and Ors. DB Criminal Writ Petition No. 52/2022, decided on 11.03.2022
Referred To Discussed at ¶ 2, 3, 7, 15
The convict's young age and the presence of women in the camp were extraneous grounds; the Committee's adverse recommendation was quashed and the convict sent to an Open Air Camp. The other side of the conflict.
Subhash Chand v. State of Rajasthan & Others D.B. Civil Writ Petition No. 12020/2013, decided on 30.08.2013
Referred To Discussed at ¶ 2, 6, 15
‘Ordinarily’ in Rule 3 means ‘not necessarily’; applications for transfer to an Open Air Camp must be considered.
Aasharam @ Aashu v. State of Rajasthan and Ors. S.B. Criminal Writ Petition No. 1895/2023
Referred To Discussed at ¶ 2, 12, 15, 18
A Single Bench ordered a convict's transfer to an Open Air Camp without noticing the three Division Bench rulings.
State of Rajasthan v. Aasharam @ Aashu Special Leave to Appeal (Criminal) No. 8666/2024, dismissed on 11.11.2024
Explained Discussed at ¶ 2, 3, 12, 13
The SLP was dismissed in the peculiar facts of the case and the question of law was kept open, so the question remained to be decided.
Narender v. State of Rajasthan & Another S.B. Criminal Writ Petition No. 291/2022, decided on 12.01.2023
Referred To Discussed at ¶ 2
Cited by the petitioners as taking the view that such convicts may be shifted to an Open Air Camp.
Sundaradas Kanyalal Bhathija & Ors. v. The Collector, Thane, Maharashtra AIR 1990 SC 261
Relied Upon Discussed at ¶ 15
Judicial decorum and propriety require a Bench that does not agree with a coordinate Bench to refer the matter to a Larger Bench.
Ayyaswami Gounder v. Munuswamy Gounder AIR 1984 SC 1789
Relied Upon Discussed at ¶ 15
A Single Bench or Division Bench of a High Court that disagrees with a coordinate Bench of the same Court should refer the matter to a Larger Bench rather than take a different view.
S. Kasi v. State Through the Inspector of Police, Samaynallur Police Station, Madurai District 2021 (12) SCC 1
Relied Upon Discussed at ¶ 16
A coordinate Bench cannot take a contrary view; in case of doubt it can only refer the matter to a Larger Bench.
Central Board of Dawoodi Bohra Community and Ors. v. State of Maharashtra & Anr. 2005 (2) SCC 673
Relied Upon Discussed at ¶ 17
A Bench of lesser or co-equal strength is bound by the earlier view; in case of doubt it can only request the Chief Justice to place the matter before a larger Bench.

Open Air Camp for POCSO and Rape Convicts: Rajasthan High Court Refers Conflicting Rulings to Larger Bench

Judgment Intelligence

Key holdings

Brief Facts

Court's Findings

Legal Principle

Precedents Relied Upon

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