ATBIR VS STATE OF NCT OF DELHI

ATBIR VS STATE OF NCT OF DELHI - Supreme Court Case Decision 2022

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



REPORTABLE
IN THE SUPREME COURT OF INDIA
 CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 714 OF 2022
(ARISING OUT OF SLP(CRL.) NO. 7887 OF 2021)
ATBIR …….APPELLANT(S)
VERSUS
STATE OF NCT OF DELHI ………RESPONDENT(S)
JUDGMENT
Dinesh Maheshwari, J.
Leave granted.
2. The appellant, serving the sentence of imprisonment for whole of
his natural life after commuting of death sentence by the Hon’ble
President of India, has preferred this appeal on being aggrieved by the
order dated 02.08.2021, as passed by the learned Single Judge of the
High Court of Delhi at New Delhi in W.P. (Crl.) No. 3345 of 2019
dismissing his writ petition against the order dated 21.10.2019, as issued
by the Director General of Prisons, Prison Headquarters, Tihar, Janakpuri,
New Delhi declining his prayer to grant furlough.
2.1. The prayer of the appellant for grant of furlough has been declined
by the orders aforesaid essentially with reference to the conditions of the
1
order dated 15.11.2012 issued by the Hon’ble President of India on a
mercy petition whereby, even while modifying the sentence of death as
awarded to the appellant to the one of imprisonment for life, it was
provided that the appellant would remain in prison ‘for the whole of the
remainder of his natural life without parole and there shall be no
remission of the term of imprisonment’.
2.2. The contention on behalf of the appellant essentially is to the
effect that the aforesaid terms of the order dated 15.11.2012 are of no
debarment, so far as his entitlement to furlough under the Delhi Prison
Rules, 20181
 is concerned.
3. With reference to the foregoing broad outline of the present case,
the relevant background aspects could be briefly noticed as follows:
3.1. The appellant was charged of the offence under Section 302 of
the Indian Penal Code, 1860 in the criminal case arising out of FIR No. 24
of 1996 dated 08.02.1996, registered at Police Station Mukherjee Nagar,
Delhi on the accusation that he caused the death of his step-mother, stepbrother and step-sister by multiple knife-blows. After trial, the Court of
Additional Sessions Judge, Delhi convicted the appellant of the offence
aforesaid by the judgment dated 10.09.2004 and awarded the sentence
of death to him by the order dated 27.09.2004. The reference for
confirmation of death sentence as also the criminal appeal filed by the
appellant against his conviction and sentence were decided together by
the High Court of Delhi by its judgment dated 13.01.2006. The appeal
1 Hereinafter also referred to as ‘the Rules of 2018’.
2
was dismissed and the death sentence was confirmed. Further to that,
Criminal Appeal Nos. 870 of 2006 and 877 of 2006, as filed by the
appellant and co-accused, were considered and decided by this Court on
09.08.2010. After examining the material placed on record and on
analysis of the relevant facts and circumstances, this Court confirmed the
conviction of the appellant and, finding it to be a case falling in ‘rarest of
the rare category’, confirmed the sentence of death awarded to him, while
also confirming the conviction and sentence of life imprisonment awarded
to the co-accused. This Court, inter alia, observed and held as under: -
“48. Though the accused Atbir was also at the age of 25 at
the relevant point of time, considering his hunger and lust for
property, killing his own family members when they had no
occasion to provoke or resist and causing 37 knife-blows on vital
parts of all the three persons, we conclude that it is a gravest case
of extreme culpability and the rarest of the rare case and death
sentence alone would be proper and adequate.
49. We have already noted that the accused had no
justifiable ground for his action. We are also satisfied that the
victims were helpless and undefended. Taking into consideration
all the facts and materials, it is crystal clear that the entire act of
Atbir amounts to barbaric and inhuman behaviour of the highest
order. The manner in which the murder was carried out in the
present case is extremely brutal, gruesome, diabolical and
revolting as to shock the collective conscience of the community.
50. In the light of the above discussion, we confirm the
conviction and sentence of death imposed on Atbir and the same
shall be executed in accordance with law. We also confirm the
conviction and sentence of life imprisonment imposed on Ashok.”
3.2. It appears from the material placed on record that on 02.03.2011,
the review petition filed by the appellant bearing No. 518 of 2010 was
dismissed by this Court and, on 14.05.2011, the curative petition filed by
him was also dismissed. Thereafter, the appellant filed a petition under
Article 72 of the Constitution of India invoking the powers of the Hon’ble
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President of India to grant pardon and to suspend, remit or commute the
sentence.
3.3. By the order dated 15.11.2012, the Hon’ble President of India was
pleased to accept the recommendations of the Ministry of Home Affairs to
modify the sentence of death awarded to the appellant and, accordingly,
the sentence of death was modified to the one of imprisonment for life
with the requirements that he would remain in prison for the whole of
remainder of his natural life without parole and there shall be no
remission of the term of imprisonment. The relevant contents of the order
dated 15.11.2012 (Annexure P-3) read as under: -
“1.I have perused the mercy petition under Article 72 of the
Constitution submitted by the condemned prisoner, Atbir S/o Sir
Jaswant Singh and have also studied the judgment of Hon’ble
Supreme Court and comments and recommendations of the
Ministry of Home Affairs.
2. After considering all the facts of the case, I agree with the
recommendations made by the Home Minister to modify sentence
of death of the condemned prison, Atbir S/o Shri Jaswant Singh, to
one of the life imprisonment. However, the prisoner shall remain in
prison for the whole of the remainder of his natural life without
parole and there shall be no remission of the term of
imprisonment.”
4. In view of the aforesaid background aspects, the appellant is to
serve the sentence of imprisonment for the whole of his natural life
without parole and without any remission in the term of imprisonment.
Accordingly, the appellant is serving the sentence of imprisonment.
However, he made an application for grant of furlough in terms of the
Delhi Prison Rules, 2018.
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4.1. The prayer so made by the appellant for grant of furlough was
rejected by the Director General of Prisons by the order dated 21.10.2019
(Annexure P-4). The relevant contents of this order dated 21.10.2019,
which is under challenge by the appellant, read as under: -
“Sub: Regarding application for grant of Furlough to Atbir s/o
Sh. Jaswant Singh in case FIR No. 24/1996, u/s 302/34 IPC,
P.S.-Mukherjee Nagar, Delhi
Ref: Computer diary No. 3574359.
This is in reference to the application for grant of furlough to
convict Atbir s/o Sh. Jaswant Singh.
In this regard, I am directed to inform you that the Competent
Authority has considered the application for grant of furlough and
same has been declared at this stage for the following reason(s): -
1. Hon’ble President of India has passed an order dated
17.01.13 whereby his Death sentence commuted to Life
Sentence with the condition to remain in custody till reminder of
natural life without parole and without remission.
2. As per Para 1223(I) of Delhi Prison Rules 2018-Good
conduct in the prison and should have earned rewards in last 3
Annual Good Conduct Report and continues to maintain good
conduct. Hence, prisoner is not fulfilling criteria referred in Para
1223(I) of Delhi Prison Rules 2018 as the convict has not
earned last three Annual Good Conduct Report.
The convict may be informed under proper acknowledgement.”
5. Being aggrieved by the aforesaid order dated 21.10.2019, the
appellant preferred a writ petition before the High Court. The High Court
took note of the background aspects and then, with reference to its order
dated 03.07.2020 in W.P. (Crl.) No. 682 of 2019: Chandra Kant Jha v.
State of NCT of Delhi, found that the appellant was not entitled to seek
furlough because he was not entitled to remission of any kind. The whole
of the reasoning in the short order passed by the High Court in relation to
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the case of the petitioner as contained in paragraph 3 of the order
impugned reads as under: -
“3.Since the petitioner is not entitled to any remission of any kind,
the petitioner’s claim to seek furlough is not made out in view of
the decision of this Court in W.P. (Crl.) 682/2019 titled as ‘Chandra
Kant Jha vs. State of NCT of Delhi’ dated 3rd July, 2020.”
6. Seeking to question the aforesaid orders passed by the Director
General of Prisons and by the High Court, and while asserting the
appellant’s right to be granted furlough, the learned counsel Ms. Neha
Kapoor has emphatically argued that the authority concerned and the
High Court have viewed the case from an altogether wrong angle and
have declined the prayer of the appellant on a misconstruction of the
order passed by the Hon’ble President of India as also the relevant
provisions in the Rules of 2018. Learned counsel would submit that the
impugned orders run rather contrary to the fundamental principles
governing the entitlement of prisoner to be granted furlough and more
particularly, the rights available to the appellant in the Rules of 2018.
6.1. The learned counsel for the appellant has contended that furlough
is an obvious consequence of a prisoner maintaining good conduct in
prison; and cannot be denied to the appellant only on the ground that he
has to remain in prison for whole of the remainder of his natural life, which
in any case he would serve. Thus, according to the learned counsel, if
the appellant is maintaining good conduct in jail and fulfils eligibility
conditions as provided under Rule 1223(I) of the Rules of 2018, i.e.,
6
having his last 3 Annual good conduct reports, he is entitled to grant of
furlough and the same cannot be denied.
6.2. The learned counsel would also submit that the expression
“Annual good conduct report” occurring in Rule 1223(I) of the Rules of
2018 has been wrongly equated by the authorities and by the High Court
with the expression “Annual good conduct remission”. Learned counsel
would submit that the appellant has last 3 Annual good conduct reports in
his favour and thus, fulfils the basic requirement for grant of furlough.
Learned counsel would further submit that even if the Hon’ble President
of India has curtailed remission, which could have been granted in
exercise of powers under Article 72 of the Constitution of India; or for that
matter, even if the concession of premature release under Section 432 of
the Code of Criminal Procedure, 19732
 may not be available, that would
not curtail the power of the jail authorities - Director General of Prisons in
the present case - under the Rules of 2018 to grant furlough to the
appellant.
6.3. Learned counsel would further submit that the appellant is
languishing in jail for about 26 years. The remissions which ought to
have been granted for maintaining good conduct and for the work
undertaken by him, even when added to his sentence, may not have any
impact unless the sentence is remitted/commuted by the competent
authority. But that does not lead to the corollary that the appellant ceases
to earn remission altogether; and whether he gets advantage of release
2 Hereinafter referred to as ‘CrPC’.
7
because of such remission or not is a matter different and is not decisive
of the question of furlough. The submission has been that eligibility for
grant of remission is not relevant for the purpose of considering the case
of a prisoner for grant of furlough.
6.4. Learned counsel has argued that taking away the right of the
appellant to be granted furlough runs contrary to the reformative
approach and extension of incentives. This apart, according to learned
counsel, the most important right of a prisoner is to the integrity of his
physical person and mental personality; and no prisoner can be
personally subjected to deprivations not necessitated by the fact of
incarceration and the term of sentence.
6.5. Learned counsel for the appellant has also referred to the decision
of Delhi High Court in Chandra Kant Jha (supra) and has submitted that
reliance therein to the decision of the Constitution Bench of this Court in
the case of Union of India v. V. Sriharan & Ors.: (2016) 7 SCC 1 has
been rather misplaced because the enunciations by this Court that “when
a remission of the substantive sentence is granted under Section 432,
then and then only giving credit to the earned remission can take place
and not otherwise” cannot mean that furlough could be availed by the
appellant only if his case is considered for premature release. It is
submitted that furlough is a facility available only during the period of
custody and the co-relation, as assumed by the High Court, with
8
remission in the manner that furlough would be available only if remission
is available, is not correct.
6.6. Learned counsel has also placed before us the copies of
certificates said to have been issued to the appellant towards recognition,
good conduct, earned qualifications and even appreciation for fight
against COVID-19.
7. The Additional Solicitor General Mr. S. V. Raju, appearing for the
respondent, has referred to the definition of furlough in Section 2(h) of
Delhi Prison Act, 2000 and Rule 1199 of the Delhi Prison Rules, 2018;
and has also referred to the principles underlying grant of furlough, as
explained by this Court in the case of Asfaq v. State of Rajasthan &
Ors.: (2017) 15 SCC 55.
7.1. The learned ASG would submit that in a comprehensive
consideration of the applicable provisions of law and the enunciations by
this Court, furlough is that of reduction in sentence of prisoner which
amounts to remission of sentence and this reduction is simply not
permissible in this case, in view of the order dated 15.11.2012 of the
Hon’ble President of India. The period of furlough is deducted from the
sentence unless the convict commits an offence while on furlough, per
Rule 1222 of the Rules of 2018; and such deduction being not
permissible, the appellant would not be entitled to be granted furlough.
7.2. With reference to Rule 1223 of the Rules of 2018, the learned
ASG has submitted that furlough could be granted only when the
9
appellant has good conduct in prison and has earned rewards in the last
3 Annual good conduct reports and continues to maintain good conduct.
There being no entitlement of Annual good conduct remission under Rule
1178 of the Rules of 2018, the appellant may not be admitted to furlough.
7.3. The learned ASG has also referred to the observations of this
Court in State of Gujarat & Anr. v. Narayan: (2021) SCCOnLine SC 949
and has submitted that a prisoner like appellant has no absolute legal
right to claim furlough; and in the present case, where good conduct
remission is not available, furlough would not be available to the
appellant. However, and even while maintaining the stance of respondent,
the learned ASG, in all fairness, has not joined issue on the principles
underlying the concept of furlough, as envisaged by the Rules of 2018
and as explained by this Court.
8. We have given anxious consideration to the rival submissions and
have examined the record of the case with reference to the law
applicable.
9. While dealing with the issue raised in this matter, i.e., as to
whether the appellant is entitled to furlough under the Delhi Prison Rules,
2018 despite bar over any remission in the term of imprisonment for the
whole of his natural life, it is necessary, in the first place, to take note of
the relevant applicable provisions.
9.1. Furlough is defined in Section 2(h) of the Delhi Prison Act, 2000
thus: -
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“Furlough means leave as a reward granted to a convicted
prisoner who has been sentenced to RI for 5 years or more and
has undergone 3 years thereof”
9.2. Chapter XIX of the Delhi Prison Rules, 2018 deals with the
matters concerning parole and furlough. The objectives of parole and
furlough are set forth in Rules 1197 to 1200 thereof and the same may be
usefully reproduced as under: -
“1197. Parole and Furlough to inmates are progressive measures
of correctional services. The release of prisoner on parole not only
saves him from the evils of incarceration but also enables him to
maintain social relations with his family and community. It also
helps him to maintain and develop a sense of self-confidence.
Continued contacts with family and the community sustain in him a
hope for life. The release of prisoner on furlough motivates him to
maintain good conduct and remain disciplined in the prison.
1198. Parole means temporary release of a prisoner for short
period so that he may maintain social relations with his family and
the community in order to fulfill his familial and social obligations
and responsibilities. It is an opportunity for a prisoner to maintain
regular contact with outside world so that he may keep himself
updated with the latest developments in the society. It is however
clarified that the period spent by a prisoner outside the prison
while on parole in no way is a concession so far as his sentence is
concern. The prisoner has to spend extra time in prison for the
period spent by him outside the Jail on parole.
1199. Furlough means release of a prisoner for a short period of
time after a gap of certain qualified numbers of years of
incarceration by way of motivation for maintaining good conduct
and to remain disciplined in the prison. This is purely an incentive
for good conduct in the prison. Therefore, the period spent by the
prisoner outside the prison on furlough shall be counted towards
his sentence.
1200. The objectives of releasing a prisoner on parole and
furlough are:
i. To enable the inmate to maintain continuity with his family life
and deal with familial and social matters,
ii. To enable him to maintain and develop his self-confidence,
iii. To enable him to develop constructive hope and active
interest in life, dd
11
iv. To help him remain in touch with the developments in the
outside world,
v. To help him remain physiologically and psychologically
healthy,
vi. To enable him to overcome/recover from the stress and evil
effects of incarceration, and
vii. To motivate him to maintain good conduct and discipline in
the prison”
(emphasis supplied)
9.3. The specific subject of furlough is further dealt with in Rules 1220
to 1225 of the said Rules of 2018, which could also be usefully
reproduced as under: -
“1220. A prisoner who is sentenced to 5 years or more of rigorous
imprisonment and has undergone 3 years imprisonment after
conviction with unblemished record become eligible for grant of
furlough.
1221. A prisoner, as described above, may be granted 7 weeks of
furlough in three spells in a conviction year with maximum of 03
weeks in one spell.
Note: -Every eligible convict may be granted one spell of furlough
in the month of his birthday, subject to fulfillment of the other
conditions, without any application for furlough moved by the
convict. If the prisoner does not want to avail this furlough then
written undertaking may be taken from him in this regard.
1222. If the prisoner commits an offence during the period, he is
released on Furlough then the period will not be counted as
sentence undergone.
 1223. In order to be eligible to obtain furlough, the prisoner must
fulfill the following criteria: -
I. Good conduct in the prison and should have earned rewards
in last 3 Annual good conduct report and continues to maintain
good conduct.
II. The prisoner should not be a habitual offender.
III. The prisoner should be a citizen of India.
1224. The following categories of prisoners shall not be eligible for
release on furlough:
i. Prisoners convicted under sedition, terrorist activities and
NDPS Act.
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ii. Prisoners whose immediate presence in the society may be
considered dangerous or otherwise prejudicial to public peace
and order by the District Magistrate of his home district or there
exists any other reasonable ground such as a pending
investigation in a case involving serious crime.
iii. Prisoners who are considered dangerous or have been
involved in serious prison violence like assault, outbreak of riot,
mutiny or escape, or rearrested who absconded while released
on parole or furlough or who have been found to be instigating
serious violation of prison discipline as per the reports in his/her
annual good conduct report.
iv. Convicted foreigners.
v. Prisoners suffering from mental illness, if not certified by the
Medical Officer to have recovered.
Note: - (1) Simultaneous furlough to co-accused convicts are
ordinarily not permissible. However, when co-accused convicts
are family members, simultaneous release may be considered
in exceptional circumstances only.
Note: - (2) If an appeal of a convict is pending before the High
Court or the period for filing an appeal before the High Court
has not expired, furlough will not be granted and it would be
open to the convict to seek appropriate directions from the
Court.
1225. That the prisoners convicted of murder after rape, under
POCSO Act, convicted for multiple murders whether in single case
or several cases, Dacoity with murder and murder after kidnapping
for ransom, may be considered by the competent authority on the
following parameters: -
(i) Deputy Inspector General (Range) of prisons shall put specific
recommendation for considering the said case.
(ii) Social Welfare/ Probation officer’s report/ recommendation
shall be considered while deciding such furlough application.
(iii) Subject to the conditions/rules mentioned in Rule 1221 to Rule
1223 above, the spell of furlough for such category would be as
follows:
(a). only one spell of 3 weeks in first year of eligibility.
(b). only two spells of furlough, one for 3 weeks and other for 2
weeks in the second convict year of eligibility.
(c). Three spells of furlough like all other convicts in the
subsequent years.”
(emphasis supplied)
13
10. The principles relating to different provisions dealing with the
matter of release of a prisoner by way of bail, furlough and parole have
been considered and the distinction has been explained by this Court in
several of its decisions. We need not multiply on the authorities but,
relevant it would be to take note of the observations and enunciations by
this Court in the case of Asfaq (supra), where it was observed, inter alia,
as under: -
“11. There is a subtle distinction between parole and furlough. A
parole can be defined as conditional release of prisoners i.e. an
early release of a prisoner, conditional on good behaviour and
regular reporting to the authorities for a set period of time. It can
also be defined as a form of conditional pardon by which the
convict is released before the expiration of his term. Thus, the
parole is granted for good behaviour on the condition that parolee
regularly reports to a supervising officer for a specified period.
Such a release of the prisoner on parole can also be temporarily
on some basic grounds. In that eventuality, it is to be treated as
mere suspension of the sentence for time being, keeping the
quantum of sentence intact. Release on parole is designed to
afford some relief to the prisoners in certain specified exigencies…
 *** *** ***
14. Furlough, on the other hand, is a brief release from the prison.
It is conditional and is given in case of long-term imprisonment.
The period of sentence spent on furlough by the prisoners need
not be undergone by him as is done in the case of parole.
Furlough is granted as a good conduct remission.
15. A convict, literally speaking, must remain in jail for the period of
sentence or for rest of his life in case he is a life convict. It is in this
context that his release from jail for a short period has to be
considered as an opportunity afforded to him not only to solve his
personal and family problems but also to maintain his links with
society. Convicts too must breathe fresh air for at least some time
provided they maintain good conduct consistently during
incarceration and show a tendency to reform themselves and
become good citizens. Thus, redemption and rehabilitation of such
prisoners for good of societies must receive due weightage while
they are undergoing sentence of imprisonment.
16. This Court, through various pronouncements, has laid down
the differences between parole and furlough, few of which are as
under:
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(i) Both parole and furlough are conditional release.
(ii) Parole can be granted in case of short-term imprisonment
whereas in furlough it is granted in case of long-term
imprisonment.
(iii) Duration of parole extends to one month whereas in the case
of furlough it extends to fourteen days maximum.
(iv) Parole is granted by Divisional Commissioner and furlough is
granted by the Deputy Inspector General of Prisons.
(v) For parole, specific reason is required, whereas furlough is
meant for breaking the monotony of imprisonment.
(vi) The term of imprisonment is not included in the computation of
the term of parole, whereas it is vice versa in furlough.
(vii) Parole can be granted number of times whereas there is
limitation in the case of furlough.
(viii) Since furlough is not granted for any particular reason, it can
be denied in the interest of the society.
(See State of Maharashtra v. Suresh Pandurang Darvakar
and State of Haryana v. Mohinder Singh)”
(emphasis supplied)
10.1. Further, in the case of Narayan (supra), this Court has
summarised the principles in the following terms: -
“24. The principles may be formulated in broad, general terms
bearing in mind the caveat that the governing rules for parole and
furlough have to be applied in each context. The principles are
thus:
(i) Furlough and parole envisage a short-term temporary release
from custody;
(ii) While parole is granted for the prisoner to meet a specific
exigency, furlough may be granted after a stipulated number of
years have been served without any reason;
(iii) The grant of furlough is to break the monotony of imprisonment
and to enable the convict to maintain continuity with family life and
integration with society;
(iv) Although furlough can be claimed without a reason, the
prisoner does not have an absolute legal right to claim furlough;
(v) The grant of furlough must be balanced against the public
interest and can be refused to certain categories of prisoners.”
(emphasis supplied)
15
11. Having examined the matter in its totality, we find it difficult to
agree with the reasoning in the order impugned and with the contentions
that once it has been provided by the Hon’ble President of India that the
appellant would remain in prison for whole of the reminder of his natural
life without parole and without remission in the term of imprisonment, all
his other rights, particularly those emanating from good jail conduct, as
available in the Rules of 2018 stand foreclosed.
12. As has rightly been pointed out, in the Rules of 2018, the eligibility
requirement to obtain furlough is of ‘3 Annual good conduct reports’ and
not ‘3 Annual good conduct remissions’. The expressions employed in
Clause (I) of Rule 1223 of the Rules of 2018 are that the prisoner ought to
maintain ‘Good conduct in the prison and should have earned rewards in
last 3 Annual good conduct report’ and further that he should continue ‘to
maintain good conduct’. Even these expressions cannot be read to mean
that the prisoner ought to earn ‘good conduct remissions’. In the scheme
of the Rules of 2018 it cannot be said that earning rewards is equivalent
to earning remissions.
12.1. It has also rightly been pointed out that when furlough is an
incentive towards good jail conduct, even if the person is otherwise not to
get any remission and has to remain in prison for whole of the reminder of
his natural life, that does not, as a corollary, means that his right to seek
furlough is foreclosed. Even if he would spend some time on furlough,
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that will not come to his aid so as to seek remission because of the fact
that he has to remain in prison for whole of the reminder of his natural life.
13. We may examine the matter from yet another angle and
perspective. The presidential order dated 15.11.2012 bars parole as also
remission but significantly, there is no mention of the treatment of
entitlement towards furlough. Noteworthy it is that parole is akin to
temporary suspension of execution of sentence. There cannot be any
temporary suspension of execution of sentence qua the appellant
inasmuch as the sentence awarded to him has to run in perpetuity and
during the whole of his natural life. Moreover, for parole, conduct is not a
decisive factor. In fact, some cause or event predominantly decides the
question whether the person is to be admitted to parole or not? When the
appellant is to undergo the sentence for whole of his natural life, any
cause or event may not give him any right to claim parole.
13.1. However, in contradistinction to parole, in furlough, the prisoner is
deemed to be serving the sentence inasmuch as the period of furlough is
not reduced from actual serving period. And, the conduct is predominantly
decisive of entitlement towards furlough. Thus, even if the appellant
would be on furlough, he would be deemed to be serving the sentence for
all time to come.
14. When we revert to the reasoning and logic of the High Court in the
case of Chandra Kant Jha (supra), it appears that the High Court
proceeded on the assumption that the matter was being considered for
17
grant of remission and ‘consequently’ for grant of furlough under the Delhi
Prison Rules, 2018. In paragraph 4 of the aforesaid judgment, the issue
for consideration had been formulated thus: -
“4. The issue which thus arises for consideration in the two
petitions is whether a convict who has been awarded sentence for
imprisonment for life with the stipulation that no remission would
be granted for a particular period or for the remainder of the life is
entitled to furlough during the said period while undergoing the
sentence.”
14.1. The High Court further proceeded to examine the Rules of 2018
with the observations that the Court was ‘considering the grant of
remission and consequently grant of furlough’
3
. With this approach, the
Court proceeded to examine Rules 1170 to 1175 of the Rules of 2018
dealing with the matters for remission. The reasoning of the Court could
be specifically noticed in paragraphs 11 and 12 of the judgment in the
case of Chandra Kant Jha (supra) which read as under: -
“11. The note appended to Rule 1171 of the Delhi Prison Rules,
2018 clarifies that if any statute or the court in its order of sentence
has denied the remission to the prisoner and thereby not specified
the kind of remission to be denied then all kinds of remission will
be denied. Therefore, unless the sentencing Court while
stipulating the condition of no remission specifies debarment of
any particular kind of remission, all kinds of remissions shall be
barred to a prisoner. Consequently, as the sentences awarded to
the petitioners bar consideration for remission for fixed number of
years in the case of Sanjay Kumar Valmiki and for the remainder
life in case of Chandra Kant Jha, the petitioners cannot be said to
be eligible for grant of remission and consequently furlough.
12. As laid by the Supreme Court in its various decisions parole is
an exercise of discretion whereas furlough is a salutary right of the
convict to be considered for release which the convict can claim if
he satisfies the requirement of the Act and the Rules. Parole is
granted to meet certain emergencies whereas furlough accrues to
the petitioner on compliance of the conditions prescribed. From
Rules 1171 to 1178 and Rule 1223 of the Delhi Prison Rules, 2018
it is evident that a prisoner is entitled to furlough only if he has
3 Vide paragraph 9 of the judgement in Chandra Kant Jha (supra)
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earned three Annual Good Conduct reports and consequently
three Annual Good Conduct Remission. Where the sentence of
the convict bars grant of remission, the pre-requisite of attaining
three Annual Good Conduct Remission is not satisfied and hence
the threshold required to qualify for grant of furlough is not met.
Hence a prisoner who is not entitled to any remission for a
particular period or as in the case of Chandra Kant Jha for the
remainder of his life, would not be entitled to furlough as he does
not qualify for the threshold requirement.”
14.2. In our view, in the case of Chandra Kant Jha (supra), the High
Court essentially formulated the question in converse and that has
resulted in its conclusion against grant of furlough. The Court was of the
view that since the convict in question would not get remission, he would
not be entitled to furlough. The Court assumed that remission was a prerequisite for furlough. In our view, the entitlement of furlough cannot be
decided in the case of the present nature with reference to the question
as to whether any remission would be available or not. Even if the
appellant would get furlough (of course, on fulfilment of other conditions)
that would not result into any remission because whatever be the
remission, he has to spend the whole of the life in prison. But that does
not debar him from furlough if he is of good jail conduct and fulfils other
eligibility requirements.
14.3. On a close look at the decision in the case of Chandra Kant Jha
(supra), it appears that the observations of this Court in the case of
Asfaq (supra) to the effect that ‘Furlough is granted as a good conduct
remission’
were taken by the High Court as decisive of the matter and leading to the
conclusion that furlough is available only if remission is available. With
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respect, we are unable to agree with this line of reasoning of the High
Court. Those observations of this Court in paragraph 14 on the decision
in Asfaq (supra) cannot be read in isolation and cannot be read to mean
that getting remission is a pre-requisite for obtaining furlough. The whole
of the scheme of granting furlough is based on the approach of
reformation and as incentive for maintaining good conduct.
14.4. Furthermore, reference to the Constitution Bench decision in V.
Sriharan (supra) by the High Court as regards the types of remission and
the operation of Section 432 CrPC, again, has no application to the
question of grant of furlough in the present case.
14.5. Viewed from any angle, we are satisfied that the logic and
reasoning of the High Court in the case of Chandra Kant Jha (supra),
which has been followed in the order impugned, cannot be approved.
15. In other words, even if the appellant is to remain in prison for the
whole of remainder of his life, the expectations from him of good conduct
in jail would always remain; and the lawful consequences of good
conduct, including that of furlough, cannot be denied, particularly when
the same has not been prohibited in the order dated 15.11.2012. We
need not elaborate to say that depriving of even the concession of
furlough and thereby taking away an incentive/motivation for good
conduct would not only be counter-productive but would be an antithesis
to the reformative approach otherwise running through the scheme of
Rules of 2018.
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16. We may also observe that in the impugned order passed by the
Director General of Prisons, it has been stated in paragraph 2 that the
appellant had not earned the last 3 Annual good conduct reports. Such
observations, prima facie, appear to be of mixing up the ‘Annual good
conduct report’ with ‘Annual good conduct remissions’. Be that as it may,
we would leave all other aspects of entitlement of the appellant to
furlough open for consideration of the authorities concerned. However,
the appellant cannot be denied furlough with reference to the order dated
15.11.2012. The said order cannot be construed to take away the
requirements on the appellant to maintain good conduct; and to take
away the rights, if flowing from his maintaining good conduct.
17. Thus, looking to the concept of furlough and the reasons for
extending this concession to a prisoner lead us to hold that even if a
prisoner like the appellant is not to get any remission in his sentence and
has to serve the sentence of imprisonment throughout his natural life,
neither the requirements of his maintaining good conduct are whittled
down nor the reformative approach and incentive for good conduct cease
to exist in his relation. Thus, if he maintains good conduct, furlough
cannot be denied as a matter of course.
17.1. We would hasten to observe that whether furlough is to be
granted in a given case or not is a matter entirely different. Taking the
case of the appellant, he is a person convicted of multiple murders.
Therefore, the requirement of Rule 1225 of the Rules of 2018 may come
21
into operation. However, it cannot be said that his case would never be
considered for furlough. Whether he is to be given furlough on the
parameters delineated therein or not is a matter to be examined by the
authorities in accordance with law.
18. In view of the above, while disapproving blanket denial of furlough
to the appellant in the orders impugned, we would leave the case of the
appellant for grant of furlough open for examination by the authorities
concerned in accordance with law.
19. For what has been observed, discussed and held hereinabove,
this appeal succeeds and is allowed; the impugned order dated
02.08.2021 as passed by the High Court of Delhi and the order dated
21.10.2019 as passed by the Director General of Prisons, Prison
Headquarters, Tihar, Janakpuri, New Delhi are set aside; and the case of
the appellant for grant of furlough is restored for reconsideration of the
said Director General of Prisons. For that matter, a fresh report may be
requisitioned from the jail authorities and the matter may be proceeded in
accordance with law. We would expect the Director General of Prisons to
take a decision in the matter expeditiously, preferably within two months
from today.
……....……………………. J.
(DINESH MAHESHWARI)
……....……………………. J.
(ANIRUDDHA BOSE)
NEW DELHI;
APRIL 29, 2022.
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