Convict Not Entitled To Remission While Undergoing Sentence In Default Of Payment Of Fine Delhi High Court

The Delhi High Court has held that a convict is not entitled to remission of sentence while he is undergoing sentence in default of payment of fine under the scheme of Delhi Prison Rules.

A single judge bench comprising of Justice Mukta Gupta also observed that the grant of emergency parole for release of prisoners as per the Delhi Government's notification, was in the nature of remission of sentence being undergone and not mere suspension of the sentence as in case of parole.

The development came while dealing with a petition filed by a convict seeking release in view of completion of his substantive sentence and sentence in default of payment of fine.

The petitioner was convicted for offences under sec. 363 IPC and sec. 4 of POCSO Act vide judgment dated 24th October 2019 and was sentenced to undergo rigorous imprisonment for 7 years and fine of Rs. 50,000 in default to undergo simple imprisonment for 2 months under the POCSO Act. He was also sentenced for rigorous imprisonment for 1 year under sec. 363 of IPC.

The Delhi Government had vide notification dated 23rd March 2020 constituted a High Powered Committee which had directed the release of prisoners on emergency parole.

In pursuant of the aforesaid directions, the petitioner was granted emergency parole for 8 weeks on 22nd August last year.

Earlier this year, the Home Department of the Delhi Government vide order dated 8th January 2021 directed all convicts released on emergency parole to surrender their custody as the emergency parole was not extended further. The petitioner therefore surrendered on 21st February 2021.

It was thus the case of the petitioner that since the notification of the Delhi Government noted that the period of parole will be counted as period undergone, in the event of his substantive sentence which had completed on 27th December last year but was still undergoing sentence in default of payment of fine, he ought to have been released on 27th February 2021 having undergone the period of sentence and also default in payment of fine.

It was also the petitioner's case that after preferring the aforesaid petition, the Superintendent of Tihar Jail took his own time and kept the petition pending which was listed on 9th April thereafter.

Pursuing the reply filed by the Jail Superintendent, the Court opined that although there was no mala fide in not forwarding the petition to the Court immediately, however, there was an error of the Superintendent for having kept the petition pending with him and not filing it expeditiously.

Opining so, the Court dwelled upon the issue as to whether the period spent by the petitioner on emergency parole outside can be counted not only towards the substantive sentence undergone but also towards the sentence undergone in default of payment of fine.

Analyzing the notification of the Delhi government dated 27th March 2020, the Court observed thus:

"It is thus evident that the Govt. of NCT of Delhi vide order dated 27th March, 2020, considering the emergent situation caused due to Covid-19 and in exercise of the powers conferred under Rule 1212A of the Delhi Prison Rules decided to release certain categories of prisoners on emergency parole and that the period of emergency parole shall be counted towards the sentence of the prisoners. This period of emergency parole was extended from time to time and the order granting extensions, noted that the period of emergency parole shall be counted towards the sentence of the prisoners."

The Court also relied on the Remission provisions under the Delhi Prison Rules and concluded thus:

"Thus from the notification issued by the Government granting emergency parole it is evident that release was in the nature of remission as the sentence was being undergone and not mere suspension of sentence as in the case of parole. The rules clearly prescribe that a convict is not entitled to remission while undergoing sentence in default of payment of fine."

"Thus the contention of learned counsel for the petitioner that the petitioner had undergone substantial sentence in default of payment of fine while on emergency parole cannot be accepted." The Court said.

The petition was dismissed accordingly.

Title: VIRENDER v. State of GNCTD

Click Here To Read Order