Sandeep alias Sandy v. State Govt. of NCT of Delhi

12. On the other hand, the learned Additional Standing Counsels for the respondents submit that parole/furlough cannot be claimed as a fundamental right; rather they are granted basis the discretionary power vested in the competent authority. In support, they placed reliance on the judgments of the Supreme Court in State of Gujarat and Another v. Narayan (2021) 20 SCC 304, and Atbir (supra).

13. They submit that the grant of parole/furlough being discretionary, is governed by the Rules which inter alia have the object of balancing two competing interests, that is, reformation of the convict and the public policy of securing the interest of the society, and, therefore, the impugned condition/Rules prohibiting co-accused being released on parole/furlough simultaneously, is justified. In support, they placed reliance on the judgment of the Supreme Court in State of Maharashtra & Anr. v. Suresh Pandurang Darvakar, (2006) 4 SCC 776.

14. They submit that the object of the Impugned Rules is to prevent any law and order situation which may be created on simultaneous release of co-accused and therefore, only in exceptional cases of family members being co-accused, are they entitled to be released on parole/furlough simultaneously, if they otherwise make out the required conditions.

15. Placing reliance on the judgment of the Supreme Court in Mohd. Hanif Qureshi & Ors. v. State of Bihar, AIR 1958 SC 731, they submit that the Rules have been framed keeping in mind the Model Prison Rules, 2016 and with the experience gained and therefore, do not deserve to be set aside. In support, they also placed reliance on the judgments of the Supreme Court in Charanjit Lal Chowdhary v. Union of India & Ors., 1950 SCC 833; BR Enterprises (supra); and, Union of India v. Elphinstone Spinning And Weaving Co. Ltd. & Ors., (2001) 4 SCC 139.

ANALYSIS AND FINDINGS

16. We have considered the submissions made by the learned counsels for the parties.

17. At the outset, we would note that the distinction between the parole and furlough has been explained by the Supreme Court in its judgment in Asfaq (supra), as under:

(i) death of a family member;

(ii) marriage of a family member;

(iii) serious illness of a family member;

(iv) any other emergent circumstances.

13. As far as “regular parole” is concerned, it may be given in the following cases:

(i) serious illness of a family member;

(ii) critical conditions in the family on account of accident or death of a family member;

(iii) marriage of any member of the family of the convict;

(iv) delivery of a child by the wife of the convict if there is no other family member to take care of the spouse at home;

(v) serious damage to life or property of the family of the convict including damage caused by natural calamities;

(vi) to maintain family and social ties;

(vii) to pursue the filing of a special leave petition before this Court against a judgment delivered by the High Court convicting or upholding the conviction, as the case may be.

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. 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 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 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 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 longterm imprisonment.

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

(iv) Parole is granted by Divisional

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

(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.

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

18. The term „Furlough‟ is defined by Section 2(h) of the Delhi Prison Act, 2000 (hereinafter referred to as „the Act‟), as under: “(h) „Furlough‟ means leave as a reward granted to a convicted prisoner who has been sentenced to rigorous imprisonment for five years or more and has undergone three years thereof.”

19. Furthermore, Rule 1199 of the Rules has also explained the meaning of furlough, as under:

20. Though there is no definition of „parole‟ in the Act, Rule 1198 of the Rules has explained the said concept as under:

21. As far as the object of grant of parole and furlough is concerned, Rules 1197 and 1200 of the Rules explain the same as under:

22. Similarly, the Model Prison Manual, 2016, spells out the object of grant of parole and furlough in Rule 19.01 as under: “19.01 Parole and furlough to inmates are progressive measures of correctional services. The release of a prisoner on parole not only saves him from the evils of incarceration but also enables him to maintain social relations with his family and the community. It also helps him 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. The provisions relating to release of the prisoner on parole and furlough should be liberalised to help a prisoner maintain a harmonious relationship with his family and the society and to be of good conduct during the period of incarceration. The privilege of release on parole and furlough should, of course, be allowed to selective prisoners on the basis of well-defined norms of eligibility and propriety.”

23. In Asfaq (supra), the Supreme Court also explained the object of grant of parole and furlough as under:

24. Having noted the above object and purpose of grant of parole/furlough as being in conformity with the Fundamental Rights guaranteed under Article 21 of the Constitution of India, the Supreme Court in Asfaq (supra) also highlighted the balance that needs to be achieved between conflicting rights of the convicts vis-a-vis the society as a whole, by observing as under:

25. As far as the Rules are concerned, Rule 1208 and 1210 of the Rules give the conditions on which parole may be granted by the Competent Authority. They are reproduced herein-under:

26. Similarly, Rule 1220 of the Rules gives the condition to be fulfilled for being granted furlough, 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 furlough.”

27. Rules 1211, 1224 and 1225 of the Rules give the categories of prisoners who shall not be entitled to be released on parole/furlough. They are quoted herein-below:

28. The Supreme Court in Asfaq (supra) was considering the challenge to the rejection of grant of parole on the ground that the appellant therein had been convicted under the Terrorist and Disruptive Activities (Prevention) Act, 1987. The Supreme Court noted that in the matter of grant of parole/furlough, a balance needs to be achieved between the competing interests of the prisoners vis-a-vis the society, and held that mere nature of the offence committed by the convict should not be the factor to outright deny the parole and the Competent Authority must keep in view the other factors as well such as the period already undergone by the convict, his conduct in jail, whether the convict is habitual offender or is otherwise considered highly dangerous or prejudicial to the public peace and tranquillity etc. We quote from the judgment as under:

25. We are not oblivious of the fact that there may be hard core criminals who by reason of their crime and the methods of dealing with the crime, form associations, loyalties and attitudes which tend to persist. There may be even peer pressure when such convicts are out to commit those crimes again. There may be pressure of being ostracised from delinquent groups which may lead them to commit the crime again. Persistence in criminal behaviour may also be due to personality traits, most frequently due to pathological traits of personality, such as mental defectiveness, emotional instability, mental conflicts, egocentrism and psychosis. In regard to relapse or recidivism, Frank Exner, a noted criminologist and sociologist, points out that the chances of repeating increase with the number of previous arrests and the interval between the last and the next offence becomes shortened as the number of previous crimes progresses [ Frank Exner, Kriminologie, pp. 115-120]. The purpose of the criminological study is the prognosis of the improvable occasional offenders and that of the irredeemable habitual offender and hard core criminal. To differentiate the recidivists from non-recidivists and dangerous and hard-core criminals from occasional criminals had been enumerated by Exner in the following flowsheet:

(i) Hereditary weakness in the family life.

(ii) Increasing tempo of criminality.

(iii) Bad conditions in the parental home.

(iv) Bad school progress (especially in deportment and industriousness).

(v) Failure to complete studies once begun.

(vi) Irregular work (work shyness).

(vii) Onset of criminality before 18 years of age.

(viii) More than four previous sentences.

(ix) Quick relapse of crime.

(x) Interlocal criminality (mobility).

(xi) Psychopathic personality (diagnosis of institutional doctor).

(xii) Alcoholism.

(xiii) Release from institution before 36 years of age.

(xiv) Bad conduct in the institution.

(xv) Bad social and family relations during period of release.

At the same time, as criminality is the expression of the “symptom” of certain disorder in the offenders, they can be easily reformed if they are rightly diagnosed and correct treatment is administered to them.”

29. In Atbir (supra), the Supreme Court while considering the entitlement for being released on furlough of a convict whose sentence of death had been reduced to life imprisonment with a stipulation that he would remain in prison „for the whole of the remainder of his natural life without parole and there shall be no remission of the term of imprisonment‟, taking note of the Rules, held as under:

22. 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 remainder of his natural life, that does not, as a corollary, mean 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 remainder of his natural life.

23. We may examine the matter from yet another angle and perspective. The Presidential Order dated 15-11-2012 bars parole as also remission but significantly, there is no mention of the treatment of entitlement towards furlough. Noteworthy it is that parole is akin to temporary suspension of execution of sentence. There cannot be any temporary suspension of execution of sentence qua the appellant inasmuch as the sentence awarded to him has to run in perpetuity and during the whole of his natural life. Moreover, for parole, conduct is not a decisive factor. In fact, some cause or event predominantly decides the question whether the person is to be admitted to parole or not? When the appellant is to undergo the sentence for whole of his natural life, any cause or event may not give him any right to claim parole.

24. 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. xxx

33. 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 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.

34. 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 2018 Rules 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.

35. 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 authorities concerned in accordance with law.”

30. From the above, it is apparent that, as was held by the Supreme Court in Suresh Pandurang Darvakar (supra) and Narayan (supra), while there can be no cavil to the legal plea that parole and furlough cannot be claimed as a matter of right and that the power vested with the competent authority to grant parole/furlough is discretionary in nature, however, from the above discussion, it is also evident that parole and furlough also serve the objective of having a humanitarian approach towards those lodged in jail. This is a salutary objective in conformity with the Fundamental Rights of a prisoner under Article 21 of the Constitution and the Human Rights of such a prisoner. Therefore, a balance needs to be maintained between the rights and duty of the State, on the one hand, to ensure that a person who has violated law and is punished with imprisonment undergoes such punishment and does not cause further threat to society, and on the other hand, the right of such prisoner to live a life of dignity by having a chance to maintain his social ties and to be able to breathe free air, albeit for some time.

31. Applying the above principles, in case NOTE:-(2) of Rule 1212 and NOTE:-(1) of the Rule 1224 are to be read as completely prohibiting simultaneous parole/furlough being granted to co-accused persons, it may defeat the very object for which the provisions of parole and furlough have been introduced. As explained by the learned counsels for the petitioners, and not seriously disputed by the learned counsels for the respondents, in the present petitions itself, there can be a grave possibility that the petitioners would not get an opportunity to be released on furlough for years together as one or the other coaccused may have been released on parole or furlough at the same time.

32. The said provisions, therefore, advisedly use the expression “ordinarily”, which in itself implies that while there is discretion to grant of simultaneous parole/furlough to a co-accused, “ordinarily” it is not permissible. Therefore, while there is no complete embargo on the Competent Authority to grant simultaneous parole/furlough to coaccused persons, however, ordinarily the Competent Authority should ensure that simultaneous parole/furlough is not granted to co-accused persons.

33. Grant of parole being for specific reasons, in case such reasons are being made out by the co-accused, parole can be granted simultaneously to the co-accused. Similarly, in case there are large number of co-accused and it is otherwise not possible to grant furlough to such co-accused at different times, the furlough can be granted to co-accused simultaneously.

34. In considering the application for parole/furlough, the Competent Authority would keep in view, apart from other relevant circumstances, whether grant of simultaneous parole/furlough to coaccused is a threat of them combining together to commit fresh crime or threaten witnesses or victims or such other like relevant circumstances. The Competent Authority may also examine whether any such threat can be averted by imposing conditions on such coaccused.

35. As far as the mention in the Impugned Rules of the grant of simultaneous parole/furlough to co-accused who are family members, the same is only to highlight one such condition where simultaneous parole/furlough can be granted to co-accused, that is, where they are family members. Mere mention of this exception, however, cannot curtail the general permissible provisions contained in the Impugned Rules. The Impugned Rules are only to restrict and not prohibit the simultaneous grant of parole/furlough to the co-accused.

36. In view of the above, we dispose of these petitions by clarifying that there is no prohibition in the Competent Authority granting simultaneous parole/furlough to co-accused, however, the same is restricted and the Competent Authority while considering such application would examine the same more strictly in accordance with the Rules and keeping in view the competing objectives as have been explained by us hereinabove. The challenge laid by the petitioners to the above Rules, therefore, has no merit.

37. Pending application(s), if any, are also disposed of.

38. There is no order as to costs.

NAVIN CHAWLA, J. RAVINDER DUDEJA, J. APRIL 29, 2026/Arya/ik