Full Text
HIGH COURT OF DELHI
W.P.(CRL) 1817/2018
RANA PRATAP SINGH ..... Petitioner
Through Counsel (appearance not given)
Through Ms. Richa Kapoor, ASC for State with Mr. Chaitanya Bansal, Adv.
Mrs. Shiva Lakshmi, CGSC for R2.
VIBHU BAKHRU, J
JUDGMENT
1. The petitioner has filed the present petition, inter alia, praying as under: “a) Direct the DG(Prisons) to follow the procedure established by law viz. Parole/Furlough: Guidelines 2010 for assessing the furlough application of the Petitioner. b) Direct the DG (Prisons) to follow point No. 29 of the Parole/Furlough: Guidelines 2010 for assessing the application of furlough of the Petitioner. 2019:DHC:7026 c) Direct the DG(Prisons) to not to forward the application of the Petitioner for Furlough to the DG(BSF) because that is not a procedure established by law and is thus arbitrary and violative of Articles 14 and 21 of the Constitution of India. d) Compensate the Petitioner for the lost opportunity of availing 13 Furloughs since 2012, when the Petitioner became eligible to apply for Furloughs, due to the rejection of the Petitioner's application of Furlough because the Respondent followed a procedure not prescribed by law.”
2. The petitioner is, essentially, aggrieved by his applications for furlough being forwarded to Director General, Border Security Force (DG, BSF). According to the petitioner, his applications are required to be considered by the Director General (Prisons) and in accordance with the Delhi Prison Rules, 2018 and the relevant guidelines.
3. The learned counsel appearing for the petitioner contended that the procedure adopted by the Prison Authorities to forward his applications for furlough to DG, BSF is without authority of law.
4. In view of the above, the limited controversy to be addressed in this petition is whether the applications of BSF officials/ex-officials for furlough, are required to be considered by DG, BSF.
5. The petitioner was enrolled in BSF as a constable. He underwent his Basic Recruit Training at BTC, CSWT, Indore from 15.05.2006 to 10.02.2007 and thereafter Advance Combat Training from 19.02.2007 to 31.03.2007. He joined 10th Battalion, BSF on 20.05.2007.
6. On 10.05.2008, while the petitioner was deployed at BOP Dangaparra, he was permitted to go to a local market for taking his photographs in order to complete the CPF Forms. He consumed liquor at Daspara and went to a village (village Malipara), which was within the jurisdiction of Police Station Chopra. He tried to molest a girl and was involved in a scuffle with civilians. It is stated that he was thereafter rescued from the custody of civilians that had surrounded him and was brought back to the Battalion Head Quarter. He was tried summarily and was awarded the punishment of Rigorous Imprisonment for a period of twenty-eight days in Force Custody.
7. There was another incident on 24.10.2008, where he is alleged to have caught hand of one girl who was cutting grass. He was punished for this offence as well.
8. On 16.11.2008 at about 2115 hours, while the petitioner was on Ambush duty in AOR, Nayabari, he crossed over to Bangladesh border (Village Moynaguri) by scaling fence gate No.44, Near BP No.435/2-S in contravention of the Standing Operating Procedure. Thereafter, he opened fire indiscriminately from his service rifle. Resultantly, three Bangladeshi civilians were killed and one was grievously injured. He was over powered and beaten up by Bangladeshi villagers. However, Bangladesh Rifle (BDR) personnel rescued him. He sustained injuries on his head and right shoulder. BDR Personnel administered medical treatment.
9. A Sector Commander level border flag meeting was held between the officials of DIG SHQ BSF, Kishangarh and Sector Commander, BDR, Rangpur on 17.11.2008. It is reported that the officials saw the bullet ridden dead bodies of three persons and carcass of one dead cow.
10. The petitioner was charged for committing offence on six counts. He was convicted and awarded life imprisonment and dismissed from service with effect from 26.02.2010. The petitioner is serving sentence in a prison in Delhi.
11. It is contended on behalf of the respondents that the procedure to forward the applications of the petitioner to DG, BSF are in conformity to Section 128 of the Border Security Force Act, 1968 (BSF Act).
12. Section 128 of the BSF Act is set out below:
13. Ms. Richa Kapoor, the learned Additional Standing Counsel appearing for the State also referred Section 78 of the BSF Act, which reads as under:
16. As observed above, the word ‘mitigate’ is of a wide import and this Court finds no reason to hold that the same is used in Section 128 of the BSF Act in a restrictive sense.
17. The term furlough is defined in Shorter Oxford English Dictionary, 6th ed. Oxford University Press, p.1059 as under: “A noun. 1 (A permit for) leave of absence, esp. as granted to a soldier, missionary, etc.
2. A passport; a permit. B verb. Chiefly US. 1 verb trans. Grant (a person) a furlough; give leave of absence to. 2 verb intrans. Spend a furlough.”
18. Clause 17 of Rule 2 of the Delhi Prison Rules, 2018 defines the term ‘Furlough’ as under: “FURLOUGH means leave as 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. Undisputedly, furlough is granted as a reward for good conduct. Whilst furlough may be granted as a reward, there is no denying the fact that it reduces the rigours of the sentence awarded. This would clearly fall within the broad sweep of mitigating the sentence.
20. It is also pointed out that the period of furlough is included in the period of custody and thus, considered as part of the sentence served by the convict. In one sense, the period of punishment stands reduced as the convict does not undergo the rigours of imprisonment when released on a furlough but the said period continues to be counted as sentence served. In this view, grant of a furlough is, undoubtedly, in the nature of remission of sentence to a limited extent.
21. It is also relevant to refer to Section 129 of the BSF Act, which reads as under:
22. It is clear from the plain reading of Section 129 of the BSF Act that release on parole or remission of punishment is also subject to the opinion of the concerned Authority under the BSF Act.
23. In view of the above, this Court finds no infirmity in referring the petitioner’s applications for furlough to the DG, BSF.
24. The prayer made by the petitioner for grant of compensation for not granting furlough is bereft of any merits. It is well settled that furlough is not a matter of right but is awarded on account of person’s good conduct. The petitioner cannot claim compensation for appropriation of any vested right in this regard.
25. The petition is dismissed with the aforesaid observations. It is clarified that the petitioner is not precluded from challenging the order of refusal of furlough on merits.
VIBHU BAKHRU, J DECEMBER 17, 2019 DR