Atbir vs State Of Nct Of Delhi

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.

Signature Not Verified Digitally signed by Rajni Mukhi Date: 2022.04.29 16:36:34 IST Reason: 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, step-

brother 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

3 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.

4 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

5 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: -

10

“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.

12 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:

14

(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,

16 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)

18 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 pre-

requisite 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

19 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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