ATBIR versus STATE OF NCT OF DELHI on 29 April 2022

[2022] 8 S.C.R. 1166

SUPREME COURT REPORTS

[2022] 8 S.C.R.

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ATBIR

v.

STATE OF NCT OF DELHI

(Criminal Appeal No. 714 of 2022)

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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’blePresident of India on a mercy petition, the sentence of deathCawarded to the appellant was modified to imprisonment for lifewith the requirements that he would remain in prison for the wholeof remainder of his natural life without parole and any remissionin the term of imprisonment–Impugned order passed by theDirector General of Prisons declined furlough to the appellantDreferring 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 furloughis of ‘3 Annual good conduct reports’ and not ‘3 Annual goodconduct remissions’ – The expressions employed in Clause (I) ofRule 1223 cannot be read to mean that the prisoner ought to earnE‘good conduct remissions’ – Earning rewards is not equivalent toearning remissions – When furlough is an incentive towards goodjail conduct, even if the person is otherwise not to get any remissionand has to remain in prison for whole of the reminder of his naturallife, that does not mean that his right to seek furlough is foreclosedF– Even if he would spend some time on furlough, that will not cometo his aid so as to seek remission because of the fact that he has toremain in prison for whole of the reminder of his natural life –Further, in the present case, the Presidential order bars parole asalso remission but there is no mention of the treatment of entitlementtowards furlough – Whole scheme of granting furlough is based onGthe approach of reformation and as incentive for maintaining goodconduct – Thus, even if the appellant is to remain in prison for thewhole of remainder of his life, the expectations from him of goodconduct in jail would always remain and the lawful consequencesof good conduct, including that of furlough, cannot be denied,Hparticularly when the same has not been prohibited in the order dtd. 15.11.12 – Appellant cannot be denied furlough with referenceto the order dtd. 15.11.12 – Impugned order passed by the HighCourt and the order of the Director General of Prisons are set aside– Case of the appellant for grant of furlough is restored forreconsideration of the Director General of Prisons.

Criminal law – Grant of furlough – Held:In furlough, theprisoner is deemed to be serving the sentence inasmuch as the periodof furlough is not reduced from actual serving period – The conductis predominantly decisive of entitlement towards furlough.

Criminal Law – Delhi Prison Rules, 2018 – Parole andfurlough – Distinction between – Discussed.

Allowing the appeal, the Court

HELD: 1.1 Furlough is defined in Section 2(h) of the DelhiPrison Act, 2000. Chapter XIX of the Delhi Prison Rules, 2018deals with the matters concerning parole and furlough. Theobjectives of parole and furlough are set forth in Rules 1197 to1200 thereof. The specific subject of furlough is further dealtwith in Rules 1220 to 1225 of the said Rules of 2018. [Paras 9.1-9.3][1178-C-D; 1179-F]

Conclusion

1.2 Having examined the matter in its totality, it is difficultto agree with the reasoning in the order impugned and with thecontentions that once it has been provided by the Hon’blePresident of India that the appellant would remain in prison forwhole of the reminder of his natural life without parole and withoutremission in the term of imprisonment, all his other rights,particularly those emanating from good jail conduct, as availablein the Rules of 2018 stand foreclosed. In the Rules of 2018, theeligibility requirement to obtain furlough is of ‘3 Annual goodconduct reports’ and not ‘3 Annual good conduct remissions’.The expressions employed in Clause (I) of Rule 1223 of the Rulesof 2018 are that the prisoner ought to maintain ‘Good conduct inthe prison and should have earned rewards in last 3 Annual goodconduct report’ and further that he should continue ‘to maintaingood conduct’. Even these expressions cannot be read to meanthat the prisoner ought to earn ‘good conduct remissions’. Inthe scheme of the Rules of 2018 it cannot be said that earning A

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Arewards is equivalent to earning remissions. It has also rightlybeen pointed out that when furlough is an incentive towards goodjail conduct, even if the person is otherwise not to get anyremission and has to remain in prison for whole of the reminderof his natural life, that does not, as a corollary, means that hisright to seek furlough is foreclosed. Even if he would spend someBtime on furlough, that will not come to his aid so as to seekremission because of the fact that he has to remain in prison forwhole 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 asCalso remission but significantly, there is no mention of thetreatment of entitlement towards furlough. Parole is akin totemporary suspension of execution of sentence. There cannotbe any temporary suspension of execution of sentence qua theappellant inasmuch as the sentence awarded to him has to run inDperpetuity and during the whole of his natural life. Moreover, forparole, conduct is not a decisive factor. In fact, some cause orevent predominantly decides the question whether the person isto be admitted to parole or not? When the appellant is to undergothe sentence for whole of his natural life, any cause or event maynot give him any right to claim parole. However, inEcontradistinction to parole, in furlough, the prisoner is deemedto be serving the sentence inasmuch as the period of furlough isnot reduced from actual serving period. And, the conduct ispredominantly decisive of entitlement towards furlough. Thus,even if the appellant would be on furlough, he would be deemedFto 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 Courtessentially formulated the question in converse and that hasresulted in its conclusion against grant of furlough. The CourtGwas of the view that since the convict in question would not getremission, he would not be entitled to furlough. The Courtassumed that remission was a pre- requisite for furlough. Theentitlement of furlough cannot be decided in the case of the presentnature with reference to the question as to whether any remissionwould be available or not. Even if the appellant would get furloughH

(of course, on fulfilment of other conditions) that would not resultinto any remission because whatever be the remission, he has tospend the whole of the life in prison. But that does not debar himfrom furlough if he is of good jail conduct and fulfils other eligibilityrequirements. On a close look at the decision in the case ofChandra Kant Jha, it appears that the observations of this Courtin the case of Asfaq to the effect that ‘Furlough is granted as agood conduct remission’ were taken by the High Court as decisiveof the matter and leading to the conclusion that furlough isavailable only if remission is available. With respect, this Courtis unable to agree with this line of reasoning of the High Court.Those observations of this Court in paragraph 14 on the decisionin Asfaq cannot be read in isolation and cannot be read to meanthat getting remission is a pre-requisite for obtaining furlough.The whole of the scheme of granting furlough is based on theapproach of reformation and as incentive for maintaining goodconduct. Viewed from any angle, the logic and reasoning of theHigh Court in the case of Chandra Kant Jha, which has beenfollowed 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 inprison for the whole of remainder of his life, the expectationsfrom him of good conduct in jail would always remain; and thelawful consequences of good conduct, including that of furlough,cannot be denied, particularly when the same has not beenprohibited in the order dated 15.11.2012. Depriving of even theconcession of furlough and thereby taking away an incentive/motivation for good conduct would not only be counter-productivebut would be an antithesis to the reformative approach otherwiserunning through the scheme of Rules of 2018. In the impugnedorder passed by the Director General of Prisons, it has been statedin paragraph 2 that the appellant had not earned the last 3 Annualgood conduct reports. Such observations, prima facie, appear to AB

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Abe of mixing up the ‘Annual good conduct report’ with ‘Annualgood conduct remissions’. Be that as it may, all other aspects ofentitlement of the appellant to furlough are left open forconsideration of the authorities concerned. However, theappellant cannot be denied furlough with reference to the orderdated 15.11.2012. The said order cannot be construed to takeBaway the requirements on the appellant to maintain good conduct;and to take away the rights, if flowing from his maintaining goodconduct. [Paras 15, 16][1187-D-G]

1.6 Thus, looking to the concept of furlough and the reasonsfor extending this concession to a prisoner it is held that even ifCa prisoner like the appellant is not to get any remission in hissentence and has to serve the sentence of imprisonmentthroughout his natural life, neither the requirements of hismaintaining good conduct are whittled down nor the reformativeapproach and incentive for good conduct cease to exist in hisDrelation. Thus, if he maintains good conduct, furlough cannot bedenied as a matter of course. However, whether furlough is to begranted in a given case or not is a matter entirely different. Takingthe case of the appellant, he is a person convicted of multiplemurders. Therefore, the requirement of Rule 1225 of the Rulesof 2018 may come into operation. However, it cannot be said thatEhis case would never be considered for furlough. Whether he isto be given furlough on the parameters delineated therein or notis a matter to be examined by the authorities in accordance withlaw. In view of the above, while disapproving blanket denial offurlough to the appellant in the orders impugned, the case of the

Fappellant for grant of furlough is left open for examination by theauthorities concerned in accordance with law. The impugned orderas passed by the High Court of Delhi and the order as passed bythe 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 saidGDirector 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.

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Case Law Reference

[2015] 14 SCR 613held inapplicablePara 6.5[2017] 11 SCR 571referred toPara 7

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.714 of 2022.

From the Judgment and Order dated 02.08.2021 of the High Courtof 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,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.

Leave granted.

2. The appellant, serving the sentence of imprisonment for wholeof his natural life after commuting of death sentence by the Hon’blePresident of India, has preferred this appeal on being aggrieved by theorder dated 02.08.2021, as passed by the learned Single Judge of theHigh Court of Delhi at New Delhi in W.P. (Crl.) No. 3345 of 2019dismissing his writ petition against the order dated 21.10.2019, as issuedby the Director General of Prisons, Prison Headquarters, Tihar, Janakpuri,New Delhi declining his prayer to grant furlough.

2.1. The prayer of the appellant for grant of furlough has beendeclined by the orders aforesaid essentially with reference to theconditions of the order dated 15.11.2012 issued by the Hon’ble Presidentof India on a mercy petition whereby, even while modifying the sentenceof 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 wholeof the remainder of his natural life without parole and there shallbe no remission of the term of imprisonment’.

2.2. The contention on behalf of the appellant essentially is to theeffect that the aforesaid terms of the order dated 15.11.2012 are of no A

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[2022] 8 S.C.R.

Adebarment, so far as his entitlement to furlough under the Delhi PrisonRules, 2018[1] is concerned.

3. With reference to the foregoing broad outline of the presentcase, the relevant background aspects could be briefly noticed as follows:

B3.1. The appellant was charged of the offence under Section 302of the Indian Penal Code, 1860 in the criminal case arising out of FIRNo. 24 of 1996 dated 08.02.1996, registered at Police Station MukherjeeNagar, 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 ofCthe offence aforesaid by the judgment dated 10.09.2004 and awardedthe sentence of death to him by the order dated 27.09.2004. The referencefor confirmation of death sentence as also the criminal appeal filed bythe appellant against his conviction and sentence were decided togetherby the High Court of Delhi by its judgment dated 13.01.2006. The appealDwas dismissed and the death sentence was confirmed. Further to that,Criminal Appeal Nos. 870 of 2006 and 877 of 2006, as filed by theappellant and co-accused, were considered and decided by this Courton 09.08.2010. After examining the material placed on record and onanalysis of the relevant facts and circumstances, this Court confirmedthe conviction of the appellant and, finding it to be a case falling in ‘rarestEof the rare category’, confirmed the sentence of death awarded to him,while also confirming the conviction and sentence of life imprisonmentawarded to the co-accused. This Court, inter alia, observed and held asunder: - “48. Though the accused Atbir was also at the age of 25 at theFrelevant point of time, considering his hunger and lust for property,killing his own family members when they had no occasion toprovoke or resist and causing 37 knife-blows on vital parts of allthe three persons, we conclude that it is a gravest case of extremeculpability and the rarest of the rare case and death sentenceGalone would be proper and adequate.49. We have already noted that the accused had no justifiableground for his action. We are also satisfied that the victims werehelpless and undefended. Taking into consideration all the facts H1 Hereinafter also referred to as ‘the Rules of 2018’.

ATBIR v. STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.]

and materials, it is crystal clear that the entire act of Atbir amountsto barbaric and inhuman behaviour of the highest order. The mannerin which the murder was carried out in the present case is extremelybrutal, gruesome, diabolical and revolting as to shock the collectiveconscience of the community.

50. In the light of the above discussion, we confirm the convictionand sentence of death imposed on Atbir and the same shall beexecuted in accordance with law. We also confirm the convictionand sentence of life imprisonment imposed on Ashok.”

3.2. It appears from the material placed on record that on02.03.2011, the review petition filed by the appellant bearing No. 518 of2010 was dismissed by this Court and, on 14.05.2011, the curative petitionfiled by him was also dismissed. Thereafter, the appellant filed a petitionunder Article 72 of the Constitution of India invoking the powers of theHon’ble President of India to grant pardon and to suspend, remit orcommute the sentence.

3.3. By the order dated 15.11.2012, the Hon’ble President of Indiawas pleased to accept the recommendations of the Ministry of HomeAffairs to modify the sentence of death awarded to the appellant and,accordingly, the sentence of death was modified to the one ofimprisonment for life with the requirements that he would remain inprison for the whole of remainder of his natural life without parole andthere shall be no remission of the term of imprisonment. The relevantcontents of the order dated 15.11.2012 (Annexure P-3) read as under: - “1. I have perused the mercy petition under Article 72 of theConstitution submitted by the condemned prisoner, Atbir S/o SirJaswant Singh and have also studied the judgment of Hon’bleSupreme Court and comments and recommendations of theMinistry of Home Affairs.

2. After considering all the facts of the case, I agree with therecommendations made by the Home Minister to modifysentence of death of the condemned prison, Atbir S/o ShriJaswant Singh, to one of the life imprisonment. However, theprisoner shall remain in prison for the whole of the remainder ofhis natural life without parole and there shall be no remission ofthe term of imprisonment.”

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4. In view of the aforesaid background aspects, the appellant is toserve the sentence of imprisonment for the whole of his natural lifewithout 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 theDelhi Prison Rules, 2018.

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4.1. The prayer so made by the appellant for grant of furloughwas rejected by the Director General of Prisons by the order dated21.10.2019 (Annexure P-4). The relevant contents of this order dated21.10.2019, which is under challenge by the appellant, read as under: - C

“Sub: Regarding application for grant of Furlough to Atbirs/o Sh. Jaswant Singh in case FIR No. 24/1996, u/s 302/34IPC, P.S.-Mukherjee Nagar, Delhi Ref: Computer diary No. 3574359.

DThis is in reference to the application for grant of furlough toconvict Atbir s/o Sh. Jaswant Singh.

In this regard, I am directed to inform you that the CompetentAuthority has considered the application for grant of furlough andsame has been declared at this stage for the following reason(s):- E

1. Hon’ble President of India has passed an order dated 17.01.13whereby his Death sentence commuted to Life Sentence withthe condition to remain in custody till reminder of natural lifewithout parole and without remission.

2. As per Para 1223(I) of Delhi Prison Rules 2018-Goodconduct in the prison and should have earned rewards in last 3Annual Good Conduct Report and continues to maintain goodconduct. Hence, prisoner is not fulfilling criteria referred inPara 1223(I) of Delhi Prison Rules 2018 as the convict has notearned last three Annual Good Conduct Report.

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The convict may be informed under proper acknowledgement.”

5. Being aggrieved by the aforesaid order dated 21.10.2019, theappellant preferred a writ petition before the High Court. The High Courttook note of the background aspects and then, with reference to itsorder dated 03.07.2020 in W.P. (Crl.) No. 682 of 2019: Chandra Kant H

Jha v. State of NCT of Delhi, found that the appellant was not entitledto 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 Courtin relation to the case of the petitioner as contained in paragraph 3 of theorder 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 ofthe decision of this Court in W.P. (Crl.) 682/2019 titled as‘Chandra Kant Jha vs. State of NCT of Delhi’dated 3[rd] July,2020.”

6. Seeking to question the aforesaid orders passed by the DirectorGeneral of Prisons and by the High Court, and while asserting theappellant’s right to be granted furlough, the learned counsel Ms. NehaKapoor has emphatically argued that the authority concerned and theHigh Court have viewed the case from an altogether wrong angle andhave declined the prayer of the appellant on a misconstruction of theorder passed by the Hon’ble President of India as also the relevantprovisions in the Rules of 2018. Learned counsel would submit that theimpugned orders run rather contrary to the fundamental principlesgoverning the entitlement of prisoner to be granted furlough and moreparticularly, the rights available to the appellant in the Rules of 2018.

6.1. The learned counsel for the appellant has contended thatfurlough is an obvious consequence of a prisoner maintaining good conductin prison; and cannot be denied to the appellant only on the ground thathe 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 eligibilityconditions 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 offurlough 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 of2018 has been wrongly equated by the authorities and by the High Courtwith the expression “Annual good conduct remission”. Learned counselwould submit that the appellant has last 3 Annual good conduct reportsin his favour and thus, fulfils the basic requirement for grant of furlough.Learned counsel would further submit that even if the Hon’ble President A

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Aof India has curtailed remission, which could have been granted in exerciseof powers under Article 72 of the Constitution of India; or for that matter,even if the concession of premature release under Section 432 of theCode of Criminal Procedure, 1973[2] may not be available, that would notcurtail the power of the jail authorities - Director General of Prisons inthe present case - under the Rules of 2018 to grant furlough to theBappellant.

6.3. Learned counsel would further submit that the appellant islanguishing in jail for about 26 years. The remissions which ought tohave been granted for maintaining good conduct and for the workundertaken by him, even when added to his sentence, may not have anyCimpact unless the sentence is remitted/commuted by the competentauthority. But that does not lead to the corollary that the appellant ceasesto earn remission altogether; and whether he gets advantage of releasebecause of such remission or not is a matter different and is not decisiveof the question of furlough. The submission has been that eligibility forDgrant of remission is not relevant for the purpose of considering the caseof a prisoner for grant of furlough.

6.4. Learned counsel has argued that taking away the right of theappellant to be granted furlough runs contrary to the reformative approachand extension of incentives. This apart, according to learned counsel,Ethe most important right of a prisoner is to the integrity of his physicalperson and mental personality; and no prisoner can be personallysubjected to deprivations not necessitated by the fact of incarcerationand the term of sentence.

6.5. Learned counsel for the appellant has also referred to theFdecision of Delhi High Court in Chandra Kant Jha (supra) and hassubmitted that reliance therein to the decision of the Constitution Benchof this Court in the case of Union of India v. V. Sriharan & Ors.:(2016) 7 SCC 1 has been rather misplaced because the enunciationsby this Court that “when a remission of the substantive sentence isgranted under Section 432, then and then only giving credit to theGearned remission can take place and not otherwise” cannot meanthat furlough could be availed by the appellant only if his case isconsidered for premature release. It is submitted that furlough is a facilityavailable only during the period of custody and the co-relation, as assumed H2 Hereinafter referred to as ‘CrPC’.

by the High Court, with remission in the manner that furlough would beavailable only if remission is available, is not correct.

6.6. Learned counsel has also placed before us the copies ofcertificates said to have been issued to the appellant towards recognition,good conduct, earned qualifications and even appreciation for fight againstCOVID-19.

7. The Additional Solicitor General Mr. S. V. Raju, appearing forthe 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, asexplained 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 comprehensiveconsideration of the applicable provisions of law and the enunciations bythis Court, furlough is that of reduction in sentence of prisoner whichamounts to remission of sentence and this reduction is simply notpermissible in this case, in view of the order dated 15.11.2012 of theHon’ble President of India. The period of furlough is deducted from thesentence unless the convict commits an offence while on furlough, perRule 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 learnedASG has submitted that furlough could be granted only when the appellanthas good conduct in prison and has earned rewards in the last 3 Annualgood conduct reports and continues to maintain good conduct. Therebeing no entitlement of Annual good conduct remission under Rule 1178of the Rules of 2018, the appellant may not be admitted to furlough.

7.3. The learned ASG has also referred to the observations of thisCourt in State of Gujarat & Anr. v. Narayan: (2021) SCC OnLineSC 949 and has submitted that a prisoner like appellant has no absolutelegal right to claim furlough; and in the present case, where good conductremission is not available, furlough would not be available to the appellant.However, and even while maintaining the stance of respondent, thelearned ASG, in all fairness, has not joined issue on the principlesunderlying the concept of furlough, as envisaged by the Rules of 2018and as explained by this Court.

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A8. We have given anxious consideration to the rival submissionsand have examined the record of the case with reference to the lawapplicable.

9. While dealing with the issue raised in this matter, i.e., as towhether the appellant is entitled to furlough under the Delhi Prison Rules,B2018 despite bar over any remission in the term of imprisonment for thewhole of his natural life, it is necessary, in the first place, to take note ofthe 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 prisonerwho has been sentenced to RI for 5 years or more and has undergone 3years thereof”

9.2. Chapter XIX of the Delhi Prison Rules, 2018 deals with theDmatters concerning parole and furlough. The objectives of parole andfurlough are set forth in Rules 1197 to 1200 thereof and the same maybe usefully reproduced as under: - “1197. Parole and Furlough to inmates are progressive measuresof correctional services. The release of prisoner on parole notEonly saves him from the evils of incarceration but also enableshim to maintain social relations with his family and community. Italso helps him to maintain and develop a sense of self-confidence.Continued contacts with family and the community sustain in hima hope for life. The release of prisoner on furlough motivates himto maintain good conduct and remain disciplined in the prison.F

1198. Parole means temporary release of a prisoner for shortperiod so that he may maintain social relations with his family andthe community in order to fulfill his familial and social obligationsand responsibilities. It is an opportunity for a prisoner to maintainGregular contact with outside world so that he may keep himselfupdated with the latest developments in the society. It is howeverclarified that the period spent by a prisoner outside the prisonwhile on parole in no way is a concession so far as his sentence isconcern. The prisoner has to spend extra time in prison for theperiod spent by him outside the Jail on parole.

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1199. Furlough means release of a prisoner for a short period oftime after a gap of certain qualified numbers of years ofincarceration by way of motivation for maintaining good conductand to remain disciplined in the prison. This is purely an incentivefor good conduct in the prison.Therefore, the period spent by theprisoner outside the prison on furlough shall be counted towardshis sentence.

1200. The objectives of releasing a prisoner on parole and furloughare:

i. To enable the inmate to maintain continuity with his familylife 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 activeinterest in life, dd

iv. To help him remain in touch with the developments in theoutside world,

v. To help him remain physiologically and psychologicallyhealthy,

vi. To enable him to overcome/recover from the stress andevil effects of incarceration, and

vii. To motivate him to maintain good conduct and discipline inthe prison”

9.3. The specific subject of furlough is further dealt with in Rules1220 to 1225 of the said Rules of 2018, which could also be usefullyreproduced as under: - “1220. A prisoner who is sentenced to 5 years or more of rigorousimprisonment and has undergone 3 years imprisonment afterconviction with unblemished record become eligible for grant offurlough.

1221. A prisoner, as described above, may be granted 7 weeks offurlough in three spells in a conviction year with maximum of 03weeks in one spell.

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Note: -Every eligible convict may be granted one spell offurlough in the month of his birthday, subject to fulfillment ofthe other conditions, without any application for furloughmovedby the convict. If the prisoner does not want to avail thisfurlough then written undertaking may be taken from him inthis regard.

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1222. If the prisoner commits an offence during the period, he isreleased on Furlough then the period will not be counted as sentenceundergone.

1223. In order to be eligible to obtain furlough, the prisoner must-Cfulfill the following criteria:

I. Good conduct in the prison and should have earned rewardsin last 3 Annual good conduct report and continues to maintaingood conduct.

II. The prisoner should not be a habitual offender.

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III. The prisoner should be a citizen of India.

1224. The following categories of prisoners shall not be eligiblefor release on furlough:

i. Prisoners convicted under sedition, terrorist activities andNDPS Act.

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ii. Prisoners whose immediate presence in the society may beconsidered dangerous or otherwise prejudicial to public peaceand order by the District Magistrate of his home district orthere exists any other reasonable ground such as a pendinginvestigation in a case involving serious crime.

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iii. Prisoners who are considered dangerous or have beeninvolved in serious prison violence like assault, outbreak of riot,mutiny or escape, or rearrested who absconded while releasedon parole or furlough or who have been found to be instigatingserious violation of prison discipline as per the reports in his/her annual good conduct report.

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iv. Convicted foreigners.

v. Prisoners suffering from mental illness, if not certified bythe Medical Officer to have recovered.

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Note: - (1) Simultaneous furlough to co-accused convicts areordinarily not permissible. However, when co-accused convictsare family members, simultaneous release may be consideredin exceptional circumstances only.

Note: - (2) If an appeal of a convict is pending before the HighCourt or the period for filing an appeal before the High Courthas not expired, furlough will not be granted and it would beopen to the convict to seek appropriate directions from theCourt.

1225. That the prisoners convicted of murder after rape, underPOCSO Act, convicted for multiple murderswhether in singlecase or several cases, Dacoity with murder and murder afterkidnapping for ransom, may be considered by the competentauthorityon the following parameters: -

(i) Deputy Inspector General (Range) of prisons shall putspecific recommendation for considering the said case.

(ii) Social Welfare/ Probation officer’s report/ recommendationshall be considered while deciding such furlough application.

(iii) Subject to the conditions/rules mentioned in Rule 1221 toRule 1223 above, the spell of furlough for such category wouldbe 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 otherfor 2 weeks in the second convict year of eligibility.

(c) . Three spells of furlough like all other convicts in thesubsequent years.”

10. The principles relating to different provisions dealing with thematter of release of a prisoner by way of bail, furlough and parole havebeen considered and the distinction has been explained by this Court inseveral of its decisions. We need not multiply on the authorities but,relevant it would be to take note of the observations and enunciations bythis Court in the case of Asfaq (supra), where it was observed, interalia, as under: - A

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1182SUPREME COURT REPORTS

A“11. There is a subtle distinction between parole and furlough. Aparole can be defined as conditional release of prisoners i.e. anearly release of a prisoner, conditional on good behaviour andregular reporting to the authorities for a set period of time. It canalso be defined as a form of conditional pardon by which theconvict is released before the expiration of his term. Thus, theBparole is granted for good behaviour on the condition that paroleeregularly reports to a supervising officer for a specified period.Such a release of the prisoner on parole can also be temporarilyon some basic grounds. In that eventuality, it is to be treated asmere suspension of the sentence for time being, keeping theCquantum of sentence intact. Release on parole is designed to affordsome relief to the prisoners in certain specified exigencies…

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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.DThe period of sentence spent on furlough by the prisoners neednot be undergone by him as is done in the case of parole. Furloughis granted as a good conduct remission.

15. A convict, literally speaking, must remain in jail for the periodof sentence or for rest of his life in case he is a life convict. It is inEthis context that his release from jail for a short period has to beconsidered as an opportunity afforded to him not only to solve hispersonal and family problems but also to maintain his links withsociety. Convicts too must breathe fresh air for at least some timeprovided they maintain good conduct consistently duringFincarceration and show a tendency to reform themselvesandbecome good citizens. Thus, redemption and rehabilitation of suchprisoners for good of societies must receive due weightage whilethey are undergoing sentence of imprisonment.

16. This Court, through various pronouncements, has laid downGthe differences between parole and furlough, few of which are asunder:

(i) Both parole and furlough are conditional release.(ii) Parole can be granted in case of short-term imprisonmentwhereas in furlough it is granted in case of long-termHimprisonment.

(iii) Duration of parole extends to one month whereas in thecase of furlough it extends to fourteen days maximum.

A

(iv) Parole is granted by Divisional Commissioner and furloughis granted by the Deputy Inspector General of Prisons.

(v) For parole, specific reason is required, whereas furlough isBmeant for breaking the monotony of imprisonment.

(vi) The term of imprisonment is not included in the computationof the term of parole, whereas it is vice versa in furlough.

(vii) Parole can be granted number of times whereas there islimitation in the case of furlough.

C

(viii) Since furlough is not granted for any particular reason, itcan be denied in the interest of the society.

(See State of Maharashtra v. Suresh Pandurang Darvakarand State of Haryana v. Mohinder Singh)”

D(emphasis supplied)

10.1. Further, in the case of Narayan (supra), this Court hassummarised the principles in the following terms: - “24. The principles may be formulated in broad, general termsbearing in mind the caveat that the governing rules for parole andfurlough have to be applied in each context. The principles arethus:

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(i) Furlough and parole envisage a short-term temporary releasefrom custody;

(ii) While parole is granted for the prisoner to meet a specificexigency, furlough may be granted after a stipulated number ofyears have been served without any reason; F

(iii) The grant of furlough is to break the monotony of imprisonmentand to enable the convict to maintain continuity with family lifeand integration with society; G

(iv) Although furlough can be claimed without a reason, theprisoner does not have an absolute legal right to claim furlough;

(v) The grant of furlough must be balanced against the publicinterest and can be refused to certain categories of prisoners.”

H

A

A11. Having examined the matter in its totality, we find it difficult toagree with the reasoning in the order impugned and with the contentionsthat once it has been provided by the Hon’ble President of India that theappellant would remain in prison for whole of the reminder of his naturallife without parole and without remission in the term of imprisonment, allhis other rights, particularly those emanating from good jail conduct, asBavailable in the Rules of 2018 stand foreclosed.

12. As has rightly been pointed out, in the Rules of 2018, theeligibility requirement to obtain furlough is of ‘3 Annual good conductreports’ and not ‘3 Annual good conduct remissions’. The expressionsemployed in Clause (I) of Rule 1223 of the Rules of 2018 are that theCprisoner ought to maintain ‘Good conduct in the prison and shouldhave earned rewards in last 3 Annual good conduct report’ andfurther that he should continue ‘to maintain good conduct’. Even theseexpressions cannot be read to mean that the prisoner ought to earn ‘goodconduct remissions’. In the scheme of the Rules of 2018 it cannot beDsaid that earning rewards is equivalent to earning remissions.

12.1. It has also rightly been pointed out that when furlough is anincentive towards good jail conduct, even if the person is otherwise notto get any remission and has to remain in prison for whole of the reminderof his natural life, that does not, as a corollary, means that his right toEseek 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 factthat he has to remain in prison for whole of the reminder of his naturallife.

13. We may examine the matter from yet another angle andFperspective. The presidential order dated 15.11.2012 bars parole as alsoremission but significantly, there is no mention of the treatment ofentitlement towards furlough. Noteworthy it is that parole is akin totemporary suspension of execution of sentence. There cannot be anytemporary suspension of execution of sentence qua the appellantGinasmuch as the sentence awarded to him has to run in perpetuity andduring the whole of his natural life. Moreover, for parole, conduct is nota decisive factor. In fact, some cause or event predominantly decidesthe question whether the person is to be admitted to parole or not? Whenthe appellant is to undergo the sentence for whole of his natural life, anycause or event may not give him any right to claim parole.H

13.1. However, in contradistinction to parole, in furlough, theprisoner is deemed to be serving the sentence inasmuch as the period offurlough is not reduced from actual serving period. And, the conduct ispredominantly decisive of entitlement towards furlough. Thus, even ifthe appellant would be on furlough, he would be deemed to be servingthe sentence for all time to come.

14. When we revert to the reasoning and logic of the High Courtin the case of Chandra Kant Jha(supra), it appears that the High Courtproceeded on the assumption that the matter was being considered forgrant of remission and ‘consequently’ for grant of furlough under theDelhi Prison Rules, 2018. In paragraph 4 of the aforesaid judgment, theissue for consideration had been formulated thus: - “4. The issue which thus arises for consideration in the two petitionsis whether a convict who has been awarded sentence forimprisonment for life with the stipulation that no remission wouldbe granted for a particular period or for the remainder of the lifeis entitled to furlough during the said period while undergoing thesentence.”

14.1. The High Court further proceeded to examine the Rules of2018 with the observations that the Court was ‘considering the grantof remission and consequently grant of furlough’[3]. With this approach,the Court proceeded to examine Rules 1170 to 1175 of the Rules of 2018dealing with the matters for remission. The reasoning of the Court couldbe specifically noticed in paragraphs 11 and 12 of the judgment in thecase 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 sentencehas denied the remission to the prisoner and thereby not specifiedthe kind of remission to be denied then all kinds of remission willbe denied. Therefore, unless the sentencing Court while stipulatingthe condition of no remission specifies debarment of any particularkind of remission, all kinds of remissions shall be barred to aprisoner. Consequently, as the sentences awarded to the petitionersbar consideration for remission for fixed number of years in thecase of Sanjay Kumar Valmiki and for the remainder life in case 3 Vide paragraph 9 of the judgement in Chandra Kant Jha(supra)

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of Chandra Kant Jha, the petitioners cannot be said to be eligiblefor grant of remission and consequently furlough.

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12. As laid by the Supreme Court in its various decisions parole isan exercise of discretion whereas furlough is a salutary right ofthe convict to be considered for release which the convict canBclaim if he satisfies the requirement of the Act and the Rules.Parole is granted to meet certain emergencies whereas furloughaccrues to the petitioner on compliance of the conditionsprescribed. From Rules 1171 to 1178 and Rule 1223 of the DelhiPrison Rules, 2018 it is evident that a prisoner is entitled to furloughonly if he has earned three Annual Good Conduct reports andCconsequently three Annual Good Conduct Remission. Where thesentence of the convict bars grant of remission, the pre-requisiteof attaining three Annual Good Conduct Remission is not satisfiedand hence the threshold required to qualify for grant of furlough isnot met. Hence a prisoner who is not entitled to any remission forDa particular period or as in the case of Chandra Kant Jha for theremainder of his life, would not be entitled to furlough as he doesnot qualify for the threshold requirement.”

14.2. In our view, in the case of Chandra Kant Jha (supra), theHigh Court essentially formulated the question in converse and that hasEresulted in its conclusion against grant of furlough. The Court was of theview that since the convict in question would not get remission, he wouldnot be entitled to furlough. The Court assumed that remission was a pre-requisite for furlough. In our view, the entitlement of furlough cannot bedecided in the case of the present nature with reference to the questionas to whether any remission would be available or not. Even if theFappellant would get furlough (of course, on fulfilment of other conditions)that would not result into any remission because whatever be theremission, he has to spend the whole of the life in prison. But that doesnot debar him from furlough if he is of good jail conduct and fulfils othereligibility requirements.G

14.3. On a close look at the decision in the case of ChandraKant Jha (supra), it appears that the observations of this Court in thecase of Asfaq (supra) to the effect that ‘Furlough is granted as agood conduct remission’ were taken by the High Court as decisive ofthe matter and leading to the conclusion that furlough is available only ifHremission is available. With respect, we are unable to agree with this line ATBIR v. STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.]

of reasoning of the High Court. Those observations of this Court inparagraph 14 on the decision in Asfaq (supra) cannot be read in isolationand cannot be read to mean that getting remission is a pre-requisite forobtaining furlough. The whole of the scheme of granting furlough isbased on the approach of reformation and as incentive for maintaininggood conduct.

14.4. Furthermore, reference to the Constitution Bench decisionin V. Sriharan (supra) by the High Court as regards the types of remissionand the operation of Section 432 CrPC, again, has no application to thequestion of grant of furlough in the present case.

14.5. Viewed from any angle, we are satisfied that the logic andreasoning 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 forthe whole of remainder of his life, the expectations from him of goodconduct in jail would always remain; and the lawful consequences ofgood conduct, including that of furlough, cannot be denied, particularlywhen 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 offurlough and thereby taking away an incentive/motivation for goodconduct would not only be counter-productive but would be an antithesisto the reformative approach otherwise running through the scheme ofRules of 2018.

16. We may also observe that in the impugned order passed bythe Director General of Prisons, it has been stated in paragraph 2 thatthe appellant had not earned the last 3 Annual good conduct reports.Such observations, prima facie, appear to be of mixing up the ‘Annualgood conduct report’ with ‘Annual good conduct remissions’. Be that asit may, we would leave all other aspects of entitlement of the appellantto furlough open for consideration of the authorities concerned. However,the appellant cannot be denied furlough with reference to the order dated15.11.2012. The said order cannot be construed to take away therequirements on the appellant to maintain good conduct; and to takeaway the rights, if flowing from his maintaining good conduct.

17. Thus, looking to the concept of furlough and the reasons forextending this concession to a prisoner lead us to hold that even if aprisoner like the appellant is not to get any remission in his sentence and A

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Ahas to serve the sentence of imprisonment throughout his natural life,neither the requirements of his maintaining good conduct are whittleddown nor the reformative approach and incentive for good conduct ceaseto exist in his relation. Thus, if he maintains good conduct, furlough cannotbe denied as a matter of course.

B17.1. We would hasten to observe that whether furlough is to begranted in a given case or not is a matter entirely different. Taking thecase of the appellant, he is a person convicted of multiple murders.Therefore, the requirement of Rule 1225 of the Rules of 2018 may comeinto operation. However, it cannot be said that his case would never beconsidered for furlough. Whether he is to be given furlough on theCparameters delineated therein or not is a matter to be examined by theauthorities in accordance with law.

18. In view of the above, while disapproving blanket denial offurlough to the appellant in the orders impugned, we would leave thecase of the appellant for grant of furlough open for examination by theDauthorities 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 02.08.2021as passed by the High Court of Delhi and the order dated 21.10.2019 aspassed by the Director General of Prisons, Prison Headquarters, Tihar,EJanakpuri, New Delhi are set aside; and the case of the appellant forgrant of furlough is restored for reconsideration of the said DirectorGeneral of Prisons. For that matter, a fresh report may be requisitionedfrom the jail authorities and the matter may be proceeded in accordancewith law. We would expect the Director General of Prisons to take aFdecision in the matter expeditiously, preferably within two months fromtoday.

Divya Pandey

Appeal allowed.

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