Atbir vs State of NCT of Delhi

Criminal law – Grant of furlough – Held:In furlough, the 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.

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 1200 thereof. The specific subject of furlough is further dealt with in Rules 1220 to 1225 of the said Rules of 2018. [Paras 9.19.3][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 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. 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. 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, 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][1184A-E]

1.3 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. 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. 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. [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 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 (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. On a close look at the decision in the case of Chandra Kant Jha, it appears that the observations of this Court 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 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 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.

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 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 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 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 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 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. 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 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 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 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.