Once A Prisoner Obtains Custody Parole In A Case, He Need Not Obtain Permission From Every Court Where He Has Been Convicted Or Is Pending Trial: Delhi HC

The decision was rendered by a single bench of Justice Anup Jairam Bhambhani in a plea filed by former MP Mohd Shahabuddin, who is currently serving a life term in Tihar Jail.

Delhi High Court Grants Conditional Custody Parole To Ex Bihar MP Mohd. Shahabuddin To Meet Relatives

The Court noted that the petitioner is currently in judicial custody for multiple offences, in some of which he is serving a sentence as a convict, while in other cases, he is still undertrial. So, the question that arose for its consideration was whether it necessary for the petitioner to obtain custody parole in each and every case from the concerned trial court, before he can avail custody parole in a given case?

While answering in the negative, the Court referred to a judgement given by the Division Bench of Delhi High Court in the case of Court on its own motion v. State, dated 20.01.2020 (Crl. Ref. 5/2019), where it was held, "since the custody parole is for a limited period, it is not required, that the accused has to obtain custody parole from each and every concerned trial court and as such no permission is required from other concerned courts before sending the under-trial on custody parole."

The Bench elaborated upon the Division Bench's ruling and pointed out that even when a prisoner is granted custody parole, he is still under judicial custody and is not free to go wherever he wants or to do whatever he pleases. The time spent by a prisoner in a custody parole is counted in his total sentence.

It is in this context that the Court asserted, "Custody parole therefore contemplates a situation whereby, for special exigencies mentioned in the jail rules, the prisoner is granted guarded liberty and the jail travels with the prisoner to wherever the prisoner is allowed to go under orders of the court. Since the prisoner continues to remain in judicial custody, the need for taking custody parole or other permission from each and every court in which the prisoner is pending trial or has been convicted does not arise."

The Court added a caveat and stated, "if during the period of custody parole the prisoner is required to be produced by the Jail Superintendent before any court, as per the mandate of the Division Bench in Crl. Ref. 5/2019 (supra), information of the fact that he is on custody parole must of course be given to such court."

The Court further opined, "a very strict balancing is required between the humane considerations for grant of custody parole and the overarching considerations of ensuring judicial custody of the prisoner; his own safety and the safety of others; and ensuring that there is no subversion of, or prejudice to, the legal process."

In this case, Petitioner was originally serving his sentence in a prison in Bihar but the Supreme Court had ordered that he shall to be transferred to the Tihar Jail due to security reasons. So, another question that arose here was should the Petitioner be subject to Delhi Prison Rules 2018 or the Bihar Prison Rules?

The Court, while answering this question, noted that the Petitioner was sent to Delhi on the directions of the Supreme Court. Therefore, the single-Judge was of the opinion that while the Petitioner was in the custody of Tihar Jail, he shall be subject to the guidelines laid down in the Delhi Prison Rules 2018.

The Bench stated, "It is inconceivable that the petitioner, who is in long- term custody in Delhi, would be dealt with under the Bihar Prison Rules since such a situation would be rife with anomalies, impracticalities and day-to-day problems of implementation. It would neither be feasible nor fair nor just that one prisoner in a Delhi prison should be treated differently than others, for any reason."

In this case, the petitioner had entered a plea in the Delhi High Court and had sought a custody parole to go the Siwan district of Bihar on the grounds that his father had passed away on 19^th September. He further hoped to visit his ill and grieving mother, and the rest of his family. He also wished to pay his respects and offer prayer to his late father at his grave.

Here, the State of Delhi and Bihar had opposed his plea. Further, the police departments of both the States had submitted before the Court that they could not guarantee the petitioner's safety and custody. Alternatively, they also stated that they would need to "deploy inordinately vast resources" if the custody and safety of the petitioner is to be secured.

The Court took into consideration all the arguments presented before it and granted a custody parole to the petitioner and issued directions for the same.

The Court also stated, "Though the grant of 'custody parole' would in ordinary circumstances be unexceptionable, even custody parole is not a matter of right." It further laid down the relevant considerations that have to be kept in mind while granting or denying custody parole:

(a) The verified existence of exceptional personal circumstances, which warrant the grant of the guarded liberty of 'custody parole';

(b) The assurance that the grant of 'custody parole' will not (i) compromise the prisoner's judicial custody; (ii) the prisoner's own safety or the safety of others; and/or (iii) subvert or prejudice the legal process in some other way ; and

(c) The court must also never lose sight of the fact that the length of time for which 'custody parole' is granted is ultimately of no consequence, whether it be for short duration or long, if there is palpable and significant risk on any of the counts referred to in

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The Uttarakhand High Court, in a 2018 judgement, had stated, "When a detainee seeks parole or custody parole to perform some rituals to be performed on his part towards his family, the concerned authority should immediately take appropriate decision for grant of parole/custody parole." In this case, the jail authorities and the District Magistrate had denied parole to a murder convict, who wanted to attend the last rites of his father.

Case Title: Md. Shahbuddin v. State Govt Of Nct Of Delhi

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Inputs by Arghia Namboodiri