In CRIMINAL APPEAL NO.714 OF 2022-SC- Right to seek furlough is not foreclosed even when prisoner is not entitled to any remission and has to serve sentence of life imprisonment: SC Justices Dinesh Maheshwari & Aniruddha Bose [29-04-2022]

Read Judgment: ATBIR Vs. STATE OF NCT OF DELHI 

Mansimran Kaur

New Delhi, April 30, 2022: In a case where the appellant-prisoner has been serving the sentence of life imprisonment, the Supreme Court has observed 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.

The Division Bench of Justice Dinesh Maheshwari and Justice Aniruddha Bose observed that in case the appellant would get furlough 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.

The appellant in the present case has been serving the sentence of imprisonment for whole of his natural life after commuting of death sentence by the President of India. The appellant preferred the present appeal on being aggrieved by the order dated August 2, 2021, as passed by the Delhi High Court dismissing his writ petition against the order dated October 21,2019, as issued by the Director General of Prisons, Prison Headquarters, Tihar, Janakpuri, New Delhi declining his prayer to grant furlough.

The prayer for grant of furlough had been declined with reference to the conditions of the order dated November 15, 2012 issued by the 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.

The contention of the appellant was that the aforesaid order does not place an embargo on  his entitlement of furlough under the Delhi Prison Rules, 2018. 

The factual background of the case was that the appellant was arraigned under Section 302 of IPC, in consequence to an FIR registered against him alleging him of killing his step-mother, step-brother and step- sister by stabbing them multiple times with a knife. 

Thereafter, a trial was conducted  and the charges framed against the appellant were confirmed.  The Trial Court convicted the appellant and awarded him a sentence of death by an order dated September 27, 2004. The appellant appealed against the same in the High Court, however the High Court dismissed the same and confirmed the death sentence awarded by an order dated January 1, 2006. 

In pursuance of the same, review petition was filed by the appellant on March 2, 2011 and the same was dismissed, even the curative petition filed was also dismissed. 

Eventually the appellant filed a petition under Article 72 of the Constitution of India invoking the powers of the President to grant pardon and to suspend, remit or commute the sentence. 

In view of the same, by an order dated November 15, 2012, the President of India commuted the death sentence to that of life imprisonment.  Thereafter, the appellant moved an application for grant of furlough in terms of Delhi Prison Rules, 2018 and the same was rejected. 

On being aggrieved by the same, the appellant instituted a writ petition before the High Court. The High Court placed its reliance on its judgment in the case of Chandra Kant Jha v. State of NCT of Delhi, and observed in the instant case that the appellant was not entitled to grant of furlough as he was not entitled to remission of any kind. It is this impugned order that was assailed by the appellant in the form of appeal before the present Court. 

The Counsel for the appellant contended that the High Court erred in its ruling by observing that the appellant was not entitled to grant of furlough by submitting 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. 

If the appellant is maintaining good conduct in jail and fulfills eligibility conditions as provided under Rule 1223(I) of the Rules of 2018, i.e., having his last three  annual good conduct reports, he is entitled to grant of furlough and the same cannot be denied, the Counsel further contended. 

It was further contended by the Counsel for the appellant has also referred to the decision of Delhi High Court in Chandra Kant Jha (supra) and 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. was 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.

The Counsel for the respondent on the other hand, reproduced the definition of furlough under Section 2 (h) of the Delhi Prison Act, 2002 and Rule 1199 of the Delhi Prison Rules and also preferred to the case of Asfaq v. State of Rajasthan & Ors, wherein the principles were laid out concerning the grant of furlough. 

It was further submitted that furlough is that of reduction of sentence which amounts to remission of sentence and the same was not permissible in the instant case, in view of the order dated November 15, 2012. It was further submitted that “period of furlough is deducted from the sentence unless the convict commits an offence while on furlough, as  per Rule 1222 of the Rules of 2018; and such deduction being not permissible, the appellant would not be entitled to be granted furlough. 

The Court after considering the submissions from both the sides took into account different provisions to deal with the matter of grant of furlough in the instant case wherein the appellant was awarded life imprisonment without parole and remission. 

The Apex Court also relied on the case of Asfaq (supra) wherein stark distinction was made between parole and furlough. It was observed that parole can be granted a number of times whereas there is limitation in the case of furlough. Since furlough is not granted for any particular reason, it can be denied in the interest of the society.

Further reliance was placed in the case of the State of Gujarat & Anr. v. Narayan, wherein this Court emphasized on the portion of judgment stating that the grant of furlough must be balanced against the public interest and can be refused to certain categories of prisoners.

Thereafter, the Court noted that after dealing with the facts of the case it can be concluded that the reasoning in the impugned order and the contentions therein that once it was provided by the President of India through its order that the appellant would remain in prison without parole and remission were based on flawed reasoning and the other rights of the appellants do suffocate specifically those emerging from the good jail conduct, as mentioned in the Rules of 2018. 

Further considering the contention with respect to Rules of 2018, stating that the eligibility requirement to obtain furlough is of ‘three annual good conduct reports’ and not ‘three  annual good conduct remissions’, the Court observed that 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  three annual good conduct reports  and further that he should continue ‘to maintain good conduct’ could  not imply that the prisoner ought to  earn “ good conduct remissions”. It was further observed that in the scheme of Rules of 2018 it cannot be said that earning rewards is equivalent to earning remissions. 

It was further noted the presidential order dated bars parole as also remission but significantly, there was no mention of the treatment of entitlement towards furlough. The Court noted 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. However, 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, the Court added. 

The Apex Court further, formed its opinion referring the judgment in Chandra Kant Jha (supra), and held that the High Court in the aforesaid case assumed that the remission was pre- requisite for furlough. It was further opined that 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. I was observed that even if the appellant would get furlough that would not result in any remission because whatever be the remission, he has to spend the whole of his life in prison. But that does not debar him from furlough if he is of good jail conduct and fulfils other eligibility requirements.

Thus, in light of observations cited above and findings made, the Apex Court observed that the veil of complete denial of remission in pursuance to order dated November 15, 2012 was to be lifted 

In addition to this, the issue with respect to the grant of furlough to the appellant in the instant case was held  to be dealt with separately and to be be examined by the competent authorities in accordance with Rule 1225 of 2018 prison rules, Court remarked. 

Accordingly the appeal was allowed and the impugned order dated August 2, 2021 as passed by the High Court of Delhi and the order dated October 21, 2019 as passed by the Director General of Prisons, were set aside. Consequently, the case of the appellant for grant of furlough was restored for reconsideration of the said Director General of Prisons.