Prisoner Has Right To Seek Furlough Even If He Is Not Eligible For Sentence Remission : Supreme Court

The Supreme court observed that eligibility for getting remission is not a pre-requisite for obtaining furlough.

The whole of the scheme of granting furlough is based on the approach of reformation and as incentive for maintaining good conduct, the bench comprising Justices Dinesh Maheshwari and Aniruddha Bose observed.

Background

Director General of Prisons, Prison Headquarters, Tihar declined a prisoner's (convicted of multiple murders) prayer to grant furlough. Earlier, the President of India on a mercy petition filed by him had modified the sentence of death to imprisonment for life. But in the said order it was provided 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'. One of the reasons for declining furlough is the above clause in the President' order. Yet another ground stated was that the prisoner is not fulfilling criteria referred in Para 1223(I) of Delhi Prison Rules 2018 as the convict has not earned last three Annual Good Conduct Report. Challenging this, the prisoner approached the High Court, which dismissed the writ petition. The High Court, referring to a judgment in W.P. (Crl.) No. 682 of 2019: Chandra Kant Jha v. State of NCT of Delhi, found that he was not entitled to seek furlough because he was not entitled to remission of any kind. 

Contentions

Before the Apex Court, the appellant- prisoner contended that furlough is an obvious consequence of a prisoner maintaining good conduct in prison; and cannot be denied to him only on the ground that he has to remain in prison for whole of the remainder of his natural life, which in any case he would serve. In other words, the contention raised was that the eligibility for grant of remission is not relevant for the purpose of considering the case of a prisoner for grant of furlough. On the other hand, the respondent contended that the appellant has no absolute legal right to claim furlough; and in the present case, where good conduct remission is not available, furlough would not be available to the appellant.

Right to seek furlough is foreclosed

Referring to relevant provisions of Delhi Prison Act, 2000, the court disagreed with the view taken by the High Court and the order of Director General of Prisons that once it has been provided by the 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.

"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..

..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"

The whole of the scheme of granting furlough is based on the approach of reformation and as incentive for maintaining good conduct

The court noted that presidential order bars parole as also remission but there is no mention of the treatment of entitlement towards furlough. The bench noted that in Chandra Kant Jha, the High Court was of the view that since the convict in question would not get remission, he would not be entitled to furlough. Disagreeing with the said view, it observed:

On a close look at the decision in the case of Chandra Kant Jha (supra), it appears that the observations of this Court in the case of Asfaq (supra) to the effect that 'Furlough is granted as a good conduct remission' were taken by the High Court as decisive of the matter and leading to the conclusion that furlough is available only if remission is available. With respect, we are unable to agree with this line of reasoning of the High Court. Those observations of this Court in paragraph 14 on the decision in Asfaq (supra) cannot be read in isolation and cannot be read to mean that getting remission is a pre-requisite for obtaining furlough. The whole of the scheme of granting furlough is based on the approach of reformation and as incentive for maintaining good conduct. Furthermore, reference to the Constitution Bench decision in V. Sriharan (supra) by the High Court as regards the types of remission and the operation of Section 432 CrPC, again, has no application to the question of grant of furlough in the present case

Taking away an incentive/motivation for good conduct would not only be counter-productive

The court observed 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. Allowing the appeal, the court observed thus:

"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.  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. 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."

Case details

Atbir vs State of NCT Of Delhi | 2022 LiveLaw (SC) 427 | CrA 714 OF 2022 | 29 April 2022

Coram: Justices Dinesh Maheshwari and Aniruddha Bose

Counsel: Adv Neha Kapoor for appellant , ASG S. V. Raju for respondent

Headnotes

Delhi Prison Act, 2000 ; 2(h) - Delhi Prison Rules, 2018 ; Rule 1222-1223- Getting remission is not a pre-requisite for obtaining furlough - Even if a prisoner 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 - 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 (Para 14-15)

Delhi Prison Rules, 2018 ; Rule 1223- 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' - It cannot be said that earning rewards is equivalent to earning remissions. (Para 12)

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