It is really good to learn that the Supreme Court has as recently as on April 29, 2022 in a learned, laudable, landmark and latest judgment titled Atbir vs State of NCT of Delhi in Criminal Appeal No. 714 of 2022 (Arising out of SLP(Crl.) No. 7887 of 2021) and cited in 2022 LiveLaw (SC) 427 observed that eligibility for getting remission is not a pre-requisite for obtaining furlough. It must be mentioned here that the Bench comprising of Justice Dinesh Maheshwari and Justice Aniruddha Bose observed unequivocally that, “The whole of the scheme of granting furlough is based on the approach of reformation and as incentive for maintaining good conduct.” Very rightly so.
To start with, this brief, brilliant and balanced judgment authored by Justice Dinesh Maheshwari for a Bench of Apex Court comprising of himself and Justice Aniruddha Bose sets the ball rolling by first and foremost putting forth in para 2 that, “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 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.”
While clearing the air on imprisonment for life, the Bench then stipulates in para 2.1 that, “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 of the remainder of his natural life without parole and there shall be no remission of the term of imprisonment’.”
It is then stated in para 2.2 that, “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 debarment, so far as his entitlement to furlough under the Delhi Prison Rules, 2018 (Hereinafter also referred to as ‘the Rules of 2018’) is concerned.”
To put things in perspective, the Bench then envisages in para 3 that, “With reference to the foregoing broad outline of the present case, the relevant background aspects could be briefly noticed as follows:
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, stepbrother and step-sister by multiple knife-blows. After trial, the Court of Additional Sessions Judge, Delhi convicted the appellant of 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 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 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 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 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 and materials, it is crystal clear that the entire act of Atbir amounts 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 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 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.
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 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 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 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.””
Resultantly, the Bench then enunciates in para 4 that, “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.”
Briefly stated, the Bench then specifies in para 4.1 that, “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).”
As it turned out, the Bench then discloses in para 5 that, “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 Jha v. State of NCT of Delhi, found that the appellant was not entitled 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, 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.””
It deserves mentioning that the Bench then points out in para 9 that, “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, 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: –
“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 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 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.
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 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.
1199. Furlough means release of a prisoner for a short period of 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 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,
ii. To enable him to maintain and develop his self-confidence,
iii. To enable him to develop constructive hope and active interest in life,
iv. To help him remain in touch with the developments in the 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
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 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 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.
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.
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 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.
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 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 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 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.
Note: – (1) Simultaneous furlough to co-accused convicts are 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 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 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.
(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 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.
(c) Three spells of furlough like all other convicts in the subsequent years.” (emphasis supplied).”
It is worth noting that the Bench then observes in para 10 that, “The principles relating to different provisions dealing with the matter of release of a prisoner by way of bail, furlough and parole have 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: –
“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 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 quantum of sentence intact. Release on parole is designed to afford some 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. 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 long-term 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 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.
(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. (See State of Maharashtra v. Suresh Pandurang Darvakar and State of Haryana v. Mohinder Singh)” (emphasis supplied)
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 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 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;
(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).”
Most forthrightly, the Bench then holds in para 11 that, “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 available in the Rules of 2018 stand foreclosed.”
Be it noted, the Bench then maintains in para 12 that, “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 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.
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 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.”
While drawing distinction between parole and furlough, the Bench then stipulates in para 13 that, “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.
13.1. 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.”
It is worth paying attention that the Bench then enunciates in para 15 that, “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. 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 Rules of 2018.”
Quite pertinently, the Bench then observes in para 17 that, “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.”
For clarity’s sake, the Bench then clarifies in para 17.1 that, “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 parameters delineated therein or not is a matter to be examined by the authorities in accordance with law.”
As a corollary, the Bench then mentions in para 18 that, “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.”
Finally, the Bench then concludes by holding in para 19 that, “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, 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 decision in the matter expeditiously, preferably within two months from today. ……..”
In sum, the Apex Court has thus made it abundantly clear that the prisoner is definitely entitled to seek furlough even if he is not eligible for sentence remission. We have discussed this hereinabove in detail. Of course, all the lower courts must abide by what the Apex Court has held in this case so very clearly, cogently and convincingly!
Sanjeev Sirohi