Only Supreme Court Can Grant Furlough Under Delhi Prison Rules When Convict’s Appeal Is Pending There: Delhi High Court

The Delhi High Court has ruled that where a convict’s appeal against the conviction is pending before the Supreme Court, a direction to grant furlough under Delhi Prison Rules has to be necessarily taken from the Apex Court.

Rules 1199 and 1200 of the Delhi Prison Rules deal with the grant of parole and furlough to prisoners. Note 2 to Rule 1224 states that, "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."

“Thus, where an appeal from an order of conviction passed by the High Court has been preferred by the convict before the Hon’ble Apex Court and the same is pending before it, then ipso jure, the word High Court as appearing in the Note 2 to Rule 1224 of the Rules, would mean and include Supreme Court being the appellate court before which the appeal of the convict is pending. In such situation any direction for furlough as contemplated under Note 2 to Rule 1224 of the Rules would have to be necessarily be taken from the Hon’ble Apex Court,” Justice Amit Mahajan held.

On Principle Of Derogation of Power As Held In KM Nanavati Case

The court also answered the question if the principle of derogation of power as laid down by the Supreme Court in K.M. Nanavati v. State of Bombay, is applicable in cases where a prisoner seeks to apply for release on furlough under the Delhi Prison Rules when an appeal against the conviction is pending adjudication before the Supreme Court.

Justice Mahajan held that the principle of derogation of power as laid down in K.M. Nanavati case is not applicable in cases where the Rules do not forbid the executive from considering the application for furlough pending an appeal against conviction before an appellate court, be it High Court or Supreme Court.

However, it added that where the Rules forbid the Executive from considering such an application pending the conviction appeal before an appellate court, the principle of derogation of power would be applicable with full vigour, as in the case of Note 2 to Rule 1244.

Can Application For Furlough Be Considered When Conviction Appeal Is Pending Before Supreme Court? Justice Mahajan’s Interpretation of Note 2 Of Rule 1224

Justice Mahajan ruled that in both the cases of furlough and parole, where an appeal of the convict is pending before the appellate court, the Delhi Prison Rules have taken away the jurisdiction of the executive to consider the same and has vested it upon the High Court where the appeal is pending consideration.

“Once a superior court admits an appeal, it exercises all the powers as are statutorily vested in the courts below for the reason that all the proceedings of the courts below get merged with the appeal and all the powers of the subordinate court gets vested in the appellate Court,” the court said.

It added that intention of the framers is apparent from a bare perusal of the Rules that the application of furlough will not be entertained in cases where appeal against conviction is pending.

Justice Mahajan also said that the power to consider the application for grant of furlough has been statutorily been vested upon the appellate court which can be either the High Court or the Supreme Court.

“Therefore, in my opinion, Note 2 of Rule 1224 of the Rules, which refers “High Court” has to be read to also mean and include “Supreme Court”,” the court ruled.

Does Note 2 to Rule 1224 Violate Articles 14 and 21 of Constitution of India? Division Bench to Decide

During the course of hearings, Justice Mahajan also framed the question as to whether a convict’s rights under Article 14 and 21 will be violated if note 2 of Rule 1224 is interpreted in a manner that it bars the right to be released on furlough when the conviction appeal is pending before the Supreme Court. 

However, since any challenge regarding the constitutionality of Rule 1224 is required to be placed before a Division Bench in terms of the High Court Rules, the court referred the following four questions for a decision by the division bench:

- Is there a violation of Article 14 of the Constitution of India if Note 2 to Rule 1224 of the Delhi Prison Rules is interpreted as barring the right of a prisoner to apply for release on furlough, when an appeal against their order of conviction is pending adjudication in the Hon'ble Supreme Court of India?

- Is there a violation of Article 21 of the Constitution of India if Note 2 to Rule 1224 of the Delhi Prison Rules is interpreted as barring the right of a prisoner to apply for release on furloughwhen an appeal against their order of conviction is pending adjudication in the Hon'ble Supreme Court of India?

- Whether denial of furlough, on account of pendency of an appeal in the Supreme Court of India, despite good conduct earned by the convict, would run contrary to the theory of reformative approach and thereby violating Rules 1199 and 1200 of the Delhi Prison Rules, 2018?

“If the arguments advanced on behalf of petitioner are accepted, the same would have an effect of declaration of Note 2 as ultra vires and the same would have to be struck down. However, as per Clause (i) of sub-rule (xviii)(a) of Part B of Chapter 3 of the High Court Rules & Orders Volume V, any challenge to the constitutionality or any prayer for striking down of Rule 1224 of the Rules, is required to be placed before the Hon’ble Division Bench and this court in exercise of powers vested under Article 226 of the Constitution of India, cannot entertain the said issue,” the court said.

The matter will now be heard by the roster bench on July 10.

Title: BUDHI SINGH v. STATE OF NCT OF DELHI and other connected matters

Citation: 2023 LiveLaw (Del) 543

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