Supreme Court of India
ATBIRversusSTATE OF NCT OF DELHI
- Citation
- 2022 INSC 492
- Decided
- 29 April 2022
- Disposal
- Appeal(s) allowed
- Bench
- DINESH MAHESHWARI
Holding
Furlough is a statutory entitlement based on three annual good conduct reports and is not barred by a presidential order that only excludes parole and remission; therefore, a life convict without parole or remission cannot be denied furlough solely on that ground.
Summary
Atbir, convicted of multiple murders and originally sentenced to death, had his sentence commuted to life imprisonment by a presidential order that barred parole and any remission for the remainder of his natural life. He applied for furlough under the Delhi Prison Rules, 2018, but the Director General of Prisons denied his request, a decision upheld by the Delhi High Court. The Supreme Court examined whether the presidential order also precludes the grant of furlough and whether eligibility for furlough depends on earning "good conduct remissions". The Court held that the Rules require three annual good conduct reports, not remissions, and that the presidential order does not mention furlough, so the denial was unlawful. It emphasized that furlough is an incentive for good conduct and cannot be denied merely because the prisoner is barred from parole or remission. Consequently, the appeal was allowed, the lower courts' orders were set aside, and the case was remitted to the Director General of Prisons for fresh consideration of the furlough application.
Issues considered
- Whether the condition of "no parole and no remission" in the presidential order bars the grant of furlough under the Delhi Prison Rules, 2018.
- Whether eligibility for furlough under Rule 1223 requires earning "good conduct remissions" or merely three annual good conduct reports.
- Whether furlough is a statutory right based on good conduct and can be denied on the ground of lack of remission.
- Whether the High Court erred in conflating remission with furlough in its interpretation of the Rules.
Legislation cited
- Code of Criminal Procedure, 1973s. 432
- Delhi Prison Act, 2000s. 2(h)
- Delhi Prison Rules, 2018s. 1197-1200, s. 1220-1225, s. 1223
Subjects
furloughlife imprisonmentparoleremissionDelhi Prison Rulesgood conductreformative justicepresidential orderprisoner rightssentence commutation
Judgment
1166 [2022]REPORTS
SUPREME COURT 8 S.C.R. 1166 [2022] 8 S.C.R.
A ATBIR
v.
STATE OF NCT OF DELHI
(Criminal Appeal No. 714 of 2022)
B APRIL 29, 2022
[DINESH MAHESHWARI AND ANIRUDDHA BOSE, JJ.]
Delhi Prison Act, 2000 – s.2(h) – Delhi Prison Rules, 2018 –
rr.1220-1225 – By order dtd.15.11.12 issued by the Hon’ble
President of India on a mercy petition, the sentence of death
C
awarded to the appellant was modified to imprisonment for life
with the requirements that he would remain in prison for the whole
of remainder of his natural life without parole and any remission
in the term of imprisonment–Impugned order passed by the
Director General of Prisons declined furlough to the appellant
D referring to the saidconditions of the order dtd. 15.11.12 –
Challenged before High Court, writ petition dismissed –On appeal,
held: In the 2018 Rules, 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 cannot be read to mean that the prisoner ought to earn
E
‘good conduct remissions’ – Earning rewards is not equivalent to
earning remissions – 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 mean that his right to seek furlough is foreclosed
F – Even if he would spend some time on furlough, 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 –
Further, in the present case, the Presidential order bars parole as
also remission but there is no mention of the treatment of entitlement
towards furlough – Whole scheme of granting furlough is based on
G
the approach of reformation and as incentive for maintaining good
conduct – Thus, 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,
H particularly when the same has not been prohibited in the order
1166
ATBIR v. STATE OF NCT OF DELHI 1167
dtd. 15.11.12 – Appellant cannot be denied furlough with reference A
to the order dtd. 15.11.12 – Impugned order passed by the High
Court and the order of the Director General of Prisons are set aside
– Case of the appellant for grant of furlough is restored for
reconsideration of the Director General of Prisons.
Criminal law – Grant of furlough – Held:In furlough, the B
prisoner is deemed to be serving the sentence inasmuch as the period
of furlough is not reduced from actual serving period – The conduct
is predominantly decisive of entitlement towards furlough.
Criminal Law – Delhi Prison Rules, 2018 – Parole and
furlough – Distinction between – Discussed. C
Allowing the appeal, the Court
HELD: 1.1 Furlough is defined in Section 2(h) of the Delhi
Prison Act, 2000. 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 D
1200 thereof. The specific subject of furlough is further dealt
with in Rules 1220 to 1225 of the said Rules of 2018. [Paras 9.1-
9.3][1178-C-D; 1179-F]
1.2 Having examined the matter in its totality, it is difficult
to agree with the reasoning in the order impugned and with the E
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 F
in the Rules of 2018 stand foreclosed. 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 G
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
H
1168 SUPREME COURT REPORTS [2022] 8 S.C.R.
A rewards is equivalent to earning remissions. 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
B
time on furlough, 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. [Paras 11, 12, 12.1][1184-
A-E]
1.3 The presidential order dated 15.11.2012 bars parole as
C also remission but significantly, there is no mention of the
treatment of entitlement towards furlough. 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
D 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. However, in
E 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
F to be serving the sentence for all time to come. [Paras 13,
13.1][1184-F-H; 1185-A-B]
1.4 In the case of Chandra Kant Jha, the High Court
essentially formulated the question in converse and that has
resulted in its conclusion against grant of furlough. The Court
G 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. 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
H
ATBIR v. STATE OF NCT OF DELHI 1169
(of course, on fulfilment of other conditions) that would not result A
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. On a close look at the decision in the case of
Chandra Kant Jha, it appears that the observations of this Court
B
in the case of Asfaq 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 respect, this Court
is unable to agree with this line of reasoning of the High Court.
Those observations of this Court in paragraph 14 on the decision C
in Asfaq 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. Viewed from any angle, the logic and reasoning of the
D
High Court in the case of Chandra Kant Jha, which has been
followed in the order impugned, cannot be approved. [Paras 14.2,
14.3, 14.5][1186-E-H; 1187-A-B, C]
Union of India v. V. Sriharan & Ors. (2016) 7 SCC 1 :
[2015] 14 SCR 613 – held inapplicable.
E
Chandra Kant Jha v. State of NCT of Delhi in W.P. (Crl.)
No. 682 of 2019 – disapproved.
1.5 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 F
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. 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 G
running through the scheme of Rules of 2018. 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
H
1170 SUPREME COURT REPORTS [2022] 8 S.C.R.
A be of mixing up the ‘Annual good conduct report’ with ‘Annual
good conduct remissions’. Be that as it may, all other aspects of
entitlement of the appellant to furlough are left 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
B
away the requirements on the appellant to maintain good conduct;
and to take away the rights, if flowing from his maintaining good
conduct. [Paras 15, 16][1187-D-G]
1.6 Thus, looking to the concept of furlough and the reasons
for extending this concession to a prisoner it is held that even if
C 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
D relation. Thus, if he maintains good conduct, furlough cannot be
denied as a matter of course. However, 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 into operation. However, it cannot be said that
E 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. In view of the above, while disapproving blanket denial of
furlough to the appellant in the orders impugned, the case of the
F appellant for grant of furlough is left open for examination by the
authorities concerned in accordance with law. The impugned order
as passed by the High Court of Delhi and the order 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
G Director General of Prisons. [Paras 17-19][1187-H; 1188-A-F]
Asfaq v. State of Rajasthan &Ors.: (2017) 15 SCC 55 :
[2017] 11 SCR 571; State of Gujarat & Anr. v. Narayan:
(2021) SCC OnLine SC 949 – referred to.
H
ATBIR v. STATE OF NCT OF DELHI 1171
Case Law Reference A
[2015] 14 SCR 613 held inapplicable Para 6.5
[2017] 11 SCR 571 referred to Para 7
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
714 of 2022. B
From the Judgment and Order dated 02.08.2021 of the High Court
of Delhi at New Delhi in W.P. (Crl.) No. 3345 of 2019.
Ms. Neha Kapoor, Milind Kumar, Advs. for the Appellant.
Suryaprakash V. Raju, ASG, Ms. Preeti Rani, Ms. Vanshaja Shukla, C
Kanu Agrawal, Ms. Sairica S. Raju, Mehul M. Gupta, Anshuman Singh,
Ankit Bhatia, Arpit Goel, Harsh Paul Singh, Advs. for the Respondent.
The Judgment of the Court was delivered by
DINESH MAHESHWARI, J. D
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
E
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.
F
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 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 G
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
H
1172 SUPREME COURT REPORTS [2022] 8 S.C.R.
A 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:
B 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
C 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
D 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
E 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
F 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
G 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
1
H Hereinafter also referred to as ‘the Rules of 2018’.
ATBIR v. STATE OF NCT OF DELHI 1173
[DINESH MAHESHWARI, J.]
and materials, it is crystal clear that the entire act of Atbir amounts A
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 B
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 C
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 President of India to grant pardon and to suspend, remit or
commute the sentence. D
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 E
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 F
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 G
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.”
H
1174 SUPREME COURT REPORTS [2022] 8 S.C.R.
A 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.
B
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: -
C “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.
D 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):-
E 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
F 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.
G
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
H
ATBIR v. STATE OF NCT OF DELHI 1175
[DINESH MAHESHWARI, J.]
Jha v. State of NCT of Delhi, found that the appellant was not entitled A
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 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, B
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 C
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
D
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.
E
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 F
conditions as provided under Rule 1223(I) of the Rules of 2018, i.e.,
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 G
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
H
1176 SUPREME COURT REPORTS [2022] 8 S.C.R.
A 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
B
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
C
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
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
D 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,
E 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
F 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
G
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
2
H Hereinafter referred to as ‘CrPC’.
ATBIR v. STATE OF NCT OF DELHI 1177
[DINESH MAHESHWARI, J.]
by the High Court, with remission in the manner that furlough would be A
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. B
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 & C
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 D
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. E
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 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 F
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) SCC OnLine
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 G
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. H
1178 SUPREME COURT REPORTS [2022] 8 S.C.R.
A 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,
B 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: -
C
“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
D 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
E 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.
F
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
G 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.
H
ATBIR v. STATE OF NCT OF DELHI 1179
[DINESH MAHESHWARI, J.]
1199. Furlough means release of a prisoner for a short period of A
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 B
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, C
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
iv. To help him remain in touch with the developments in the D
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 E
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 F
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 G
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.
H
1180 SUPREME COURT REPORTS [2022] 8 S.C.R.
A 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.
B
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
C 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.
D
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
E NDPS Act.
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
F 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
G 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.
H
ATBIR v. STATE OF NCT OF DELHI 1181
[DINESH MAHESHWARI, J.]
Note: - (1) Simultaneous furlough to co-accused convicts are A
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 B
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 C
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. D
(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 E
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.
F
(c). Three spells of furlough like all other convicts in the
subsequent years.”
(emphasis supplied)
10. The principles relating to different provisions dealing with the
matter of release of a prisoner by way of bail, furlough and parole have G
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: - H
1182 SUPREME COURT REPORTS [2022] 8 S.C.R.
A “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
B
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
C 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.
D 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
E 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
F 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
G the differences between parole and furlough, few of which are as
under:
(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
H imprisonment.
ATBIR v. STATE OF NCT OF DELHI 1183
[DINESH MAHESHWARI, J.]
(iii) Duration of parole extends to one month whereas in the A
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. B
(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.
C
(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) D
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
E
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 F
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; G
(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) H
1184 SUPREME COURT REPORTS [2022] 8 S.C.R.
A 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
B
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
C 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
D 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
E seek furlough is foreclosed. Even if he would spend some time on furlough,
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
F 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
G 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.
H
ATBIR v. STATE OF NCT OF DELHI 1185
[DINESH MAHESHWARI, J.]
13.1. However, in contradistinction to parole, in furlough, the A
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.
B
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
grant of remission and ‘consequently’ for grant of furlough under the
Delhi Prison Rules, 2018. In paragraph 4 of the aforesaid judgment, the
C
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
D
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,
E
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, F
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 G
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
3
Vide paragraph 9 of the judgement in Chandra Kant Jha(supra) H
1186 SUPREME COURT REPORTS [2022] 8 S.C.R.
A 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
B 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
C
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
D 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
E 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
F
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.
G
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
H remission is available. With respect, we are unable to agree with this line
ATBIR v. STATE OF NCT OF DELHI 1187
[DINESH MAHESHWARI, J.]
of reasoning of the High Court. Those observations of this Court in A
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.
B
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 C
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 D
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 E
Rules of 2018.
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 F
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 G
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 H
1188 SUPREME COURT REPORTS [2022] 8 S.C.R.
A 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.
B 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
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
C 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
D 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,
E 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
F decision in the matter expeditiously, preferably within two months from
today.
Divya Pandey Appeal allowed.
G
H
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