LAL MOHAMMED  Vs STATE (GOVT. OF NCT) DELHIJudgment by Delhi High Court

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: 27.02.2024
Pronounced on: 12.03.2024

+ W.P.(CRL) 2917/2023

LAL MOHAMMED ….. Petitioner
Through: Mr. Vinayak Bhandari and Ms.
Teesta Mishra, Advocates
versus
STATE (GOVT. OF NCT) DELHI ….. Respondent
Through: Mr. Amol Sinhal, ASC for the
State with SI Ankesh Meena, P.S. Sangam Vihar, Delhi

CORAM:
HON’BLE MS. JUSTICE SWARANA KANTA SHARMA
JUDGMENT
SWARANA KANTA SHARMA, J.
1. The present writ petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (�Cr.P.C�), has been filed on behalf of the petitioner seeking issuance of writ in the nature of certiorari quashing the order dated 04.09.2023 passed by the respondents and for issuance of writ of mandamus directing the respondent to release the petitioner on furlough for a period of three weeks.
2. The petitioner is presently confined in Central Jail No. 8/9 Tihar, Delhi. By virtue of judgment dated 30.07.2018 the petitioner was convicted under Sections 506 Part-II of Indian Penal Code, 1860 (�IPC�) and Section 6 of Protection of Children from Sexual Offences Act, 2012 (�POCSO Act�) in case arising out of FIR bearing No. 528/2012 registered at Police Station Sangam Vihar, Delhi and was sentenced to undergo life imprisonment for by the learned Additional Sessions Judge, Saket Courts, Delhi. His appeal against conviction i.e., CRL.A. 1065/2018 was dismissed by this Court vide judgment dated 24.10.2020.
3. Learned counsel for petitioner argues that the ground for rejection of the petitioner�s application by the competent authority vide order dated 04.09.2023 is based on extraneous and irrelevant considerations and is liable to be set aside. It is submitted that the petitioner is a sole bread earner of his family consisting of his wife and seventeen years old daughter, who has cleared her 12th class examination and is pursuing her education. It is stated that the petitioner has arranged funds through his relatives to meet the educational requirements of his daughter. It is also stated that the competent authority despite there being no adverse report or punishment awarded to him throughout his period of incarceration has rejected the application. It is also argued that the conduct of the petitioner has remained satisfactory in jail and he has been working as Sahayak in Tailor Panja. It is further argued that as per catena of judgments of this Court as well as of the Hon�ble Apex Court it has been held that the release on parole/furlough is a valuable right of a convict and the same cannot be curtailed. Therefore, the petitioner has prayed that he be released on first spell of furlough for a period of three weeks.
4. Per contra, learned ASC appearing for the State has submitted that as per status report it is stated that the chargesheet in the present case was filed for offence punishable under Sections 376/506 of IPC and Section 4/5 of POCSO Act for which charge was framed against the petitioner vide order dated 12.04.20213. Trial was completed and vide judgment dated 27.07.2018, the petitioner was convicted for offence punishable under Section 506 Part-II of IPC and Section 6 of POCSO Act. The petitioner was sentenced to rigorous imprisonment for life and fine of |Rs.25,000/-. Furthermore, learned ASC for the State argues that the competent authority has committed no error by rejecting the application for grant of furlough to the petitioner, since as per the prison rules, if the prisoner is guilty of a heinous offence, he cannot be granted furlough and the same has been rightly rejected.
5. This Court has heard arguments on behalf of both the parties and has gone through the material placed on record.
6. This Court notes that the petitioner�s application for grant of 1st spell of furlough was moved on the ground to maintain social ties and to curb inner stress and depression due to incarceration. The application was rejected by the competent authority on 04.09.2023, and the rejection order reads as under:

��the competent authority has considered the application for grant of furlough and same has been decline at this stage in view of nature of crime committed by him��

7. While considering the present writ petition for grant of furlough, the Court also has to remain conscious of the fact that the petitioner has been awarded rigorous imprisonment for life and that as per Nominal Roll has undergone about 11 years of incarceration till date excluding remission of about 01 years 04 months and 29 days. As regards the overall jail conduct of the petitioner, it has been reported as satisfactory as per the nominal roll.
8. However, this Court has also taken note of the fact that the petitioner was granted parole twice on two occasions during (i) 1st wave of COVID-19 pandemic w.e.f. 15.05.2020 to 15.02.2021 and (ii) 2nd wave of COVID-19 pandemic on the ground that no other case is pending against him. Moreover, no punishment has been awarded to him, his conduct in the jail has been throughout satisfactory without a single punishment minor or major awarded to him during 11 years of his incarceration.
9. This Court has also gone through the Delhi Prison Rules, 2018. Rule 1197 and 1200 provide insights as to what objects are achieved by releasing a convict on parole. The said rules read 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. ***
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,
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…�

10. Further, Rule 1223 provides criteria in which a prisoner can be released on furlough. The said rule reads as under:
�1223. In order to be eligible to obtain furlough, the prisoner must fulfil 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.�

11. The Hon�ble Supreme Court in judgment Atbir v. State of NCT of Delhi (2022) 2022 SCC Online SC 527 has observed that:
�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.�

�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�. 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 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.�

12. This Court further notes that as per Rule 1223 of the Delhi Prison Rules, 2018 the petitioner needs three Annual Good Conduct reports and the fact that the petitioner in the present case has maintained good conduct throughout his incarceration is noteworthy. This Court cannot ignore the fact that furlough is an incentive or reward towards good conduct in the prison. The reformative approach of the criminal law includes the incentive of good conduct of a prisoner and any order of disapproval or declining of furlough or parole under a blanket stereotype order, i.e., he is guilty of a heinous offence or nature of offence without having regard to the other factors which entitle him under the prison rules to furlough, will be against the canons of justice.�
13. Thus, considering that the record maintained by the prison authorities itself reveals that the petitioner�s conduct in the last several years, since he is in incarceration has been satisfactory, no punishment has been awarded to him and that he has not been granted furlough till date, which is an incentive for maintaining good behavior and conduct in the jail, this Court is inclined to grant furlough to the present petitioner for 15 days from the date of his release, on the following conditions:
i. The petitioner shall furnish a personal bond in the sum of Rs.10,000/- with one surety of the like amount, to the satisfaction of the Jail Superintendent.
ii. The petitioner shall report to the SHO of the local area once a week on every Sunday between 10:00 AM to 11:00 AM during the period of furlough.
iii. The petitioner shall furnish a telephone/mobile number to the Jail Superintendent as well as SHO of local police station, on which he can he contacted if required. The said telephone number shall be kept active and operational at all the times by the petitioner.
iv. Immediately upon the expiry of period of furlough, the petitioner shall surrender before the Jail Superintendent.
v. The period of furlough shall be counted from the day when the petitioner is released from jail.
14. In above terms, the present writ petition along with pending application, if any, is disposed of.
15. A copy of this judgment be sent by the Registry to the Jail Superintendent concerned.
16. The judgment be uploaded on the website forthwith.

SWARANA KANTA SHARMA, J
MARCH 12, 2024/ns

W.P.(CRL.) 2917/2023 Page 1 of 9