The Delhi High Court on Friday held that a convict who has been awarded sentence for a particular period or for life with the stipulation that no remission will be granted to him in that period is not entitled to furlough during the said period while undergoing the sentence.
The petioners before the Single Bench of Justice Mukta Gupta were a rape and murder convict (namely Sanjay Kumar Valmiki), convicted for offences punishable under Section 302/376(2)(f)/363/201 IPC and sentenced to rigorous imprisonment for life with stipulation of a minimum period of 25 years of incarceration without remission, and the second (namely Chandra Kant Jha), a serial killer, convicted in three different FIRs for offence punishable under Section 302 IPC and in two of the FIRs, awarded sentence of death by the Trial Court. In the case of the latter, however, the death penalty was not confirmed by the High Court in the Reference and instead this Court awarded sentence of rigorous imprisonment for life with the direction that the convict shall not be released on remission for remainder of his natural life except for the exercise of power under Articles 72 and 161 of the Constitution of India.
"When in custody a prisoner is entitled to reprieve by three different remedies i.e. bail during trial or during the pendency of appeal and by parole and furlough after the conviction and sentence are passed and upheld in appeal", said the bench, proceeding to note the relevant provisions of the Delhi Prisons Act, 2000 and Delhi Prison Rules 2018 for the grant of remission and consequently grant of furlough.
It noted that ordinary remission is defined under Rule 1174 and eligibility therefore is spelt out in Rule 1175. A reading of these Rules in conjunction reveals that once a prisoner is not eligible for grant of ordinary remissions, when so ordered by a Court, he would not eligible for grant of Annual Good Conduct Remission (in short AGLR) as in terms of Rule 1178, for getting AGCR, a prisoner should be first eligible for grant of ordinary remissions.
"Consequently, a prisoner awarded a fixed term sentence would not be entitled to Annual Good Conduct Report, which, as explained above, is an eligibility criteria for grant of furlough", stated the Court.
Further, it observed that the note appended to Rule 1171 of the Delhi Prison Rules, 2018 clarifies that if any statute or the court in its order of sentence has denied the remission to the prisoner and thereby not specified the kind of remission to be denied then all kinds of remission will be denied. Therefore, unless the sentencing Court while stipulating the condition of no remission specifies debarment of any particular kind of remission, all kinds of remissions shall be barred to a prisoner.
"Consequently, as the sentences awarded to the petitioners bar consideration for remission for fixed number of years in the case of Valmiki and for the remainder life in case of Jha, the petitioners cannot be said to be eligible for grant of remission and consequently furlough", opined the bench.
The Single Judge observed that as laid down by the Supreme Court in its various decisions parole is an exercise of discretion whereas furlough is a salutary right of the convict to be considered for release which the convict can claim if he satisfies the requirement of the Act and the Rules. Parole is granted to meet certain emergencies whereas furlough accrues to the petitioner on compliance of the conditions prescribed. From Rules 1171 to 1178 and Rule 1223 of the Delhi Prison Rules, 2018 it is evident that a prisoner is entitled to furlough only if he has earned three Annual Good Conduct reports and consequently three Annual Good Conduct Remission. Where the sentence of the convict bars grant of remission, the pre-requisite of attaining three Annual Good Conduct Remission is not satisfied and hence the threshold required to qualify for grant of furlough is not met. "Hence a prisoner who is not entitled to any remission for a particular period or for the remainder of his life, would not be entitled to furlough as he does not qualify for the threshold requirement", iterated the bench.
The Court noted that the petitioners have neither challenged the validity of the provisions of the Delhi Prisons Act and Delhi Prison Rules, 2018 nor have brought out that the Rule 1171 creating a distinction, in respect of a class of cases, where the courts adopt the third category of sentence i.e. more than 14 years imprisonment without remission, is an arbitrary exercise of power.
The bench proceeded to express the view that "As the period on furlough is counted towards the sentence undergone as provided under Rule 1199, grant of furlough to a convict who cannot be granted remission for a particular period would amount to granting the relief as forbidden by the order on sentence". "It is trite law that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all".
The Court noted that the power of remission under Articles 72 and 161 of the President and the Governor, is unaffected by provisions of any statute or even by a judgment of a Court prescribing sentence of life without remission. The two other kinds of remissions available to a prisoner are one under Section 432 Cr.P.C. and the other earned by a prisoner under the Prison Rules, based on his/her good behaviour and/or such other stipulations prescribed in the Prison Rules. Though the sources of these two remissions are different statutes, however, grant of remission earned by a prisoner under the Prison Rules, whether for good behaviour or for complying other conditions has bearing on remission of the substantive sentence granted under Section 432 Cr.P.C., as while considering grant of remission under Section 432 Cr.P.C., the earlier remission granted are taken into consideration. "This is evident from Rule 1189 of the Delhi Prison Rules, 2018, which reads that 'In the case of a prisoner serving more than one life sentence, twenty years shall be treated as the total of all his sentences for calculating remission'", said the bench.
It continued to observe that "though in the present decision this Court is not dealing with the issue of grant of parole, however, it would be appropriate to note that as per the Delhi Prison Rules, a convict can be considered for parole for one month after six months have elapsed from the first parole". "Thus a convict can be considered for roughly two paroles in a year to meet to exigency including to re-establish social ties".
Agreeing that the availability of parole to re-establish social ties and family links is a reformative approach, the bench expressed the opinion that "merely because a category of convicts with specific stipulation in the order on sentence being not entitled to three furloughs in a year totaling to seven weeks cannot be said to be a non-reformative approach as the remedy of parole is still available to them including to re-establish family ties".
The bench noted that section 302 IPC prescribes two kinds of punishment i.e. with death or imprisonment for life, and that the sentencing courts are often faced with a dilemma when the offence does not fall in the category of rarest of rare case or considering the other mitigating circumstances sentence of death is too excessive and sentence of imprisonment of life which would be fourteen years actual imprisonment in terms of Section 433A Cr.P.C. too inadequate, the courts resort to the third category,
"By awarding the sentence to the petitioners in the third category the courts have already adopted a reformative approach. Further, as noted above, petitioners would be entitled to seek parole even for re-establishing social and family ties. Hence, the contention of learned counsels for the petitioners that in case furlough is not granted, the petitioners will be denied consideration of their case from a reformative angle is incorrect", concluded the bench.
W.P.(CRL.) 2049/2019 SANJAY KUMAR VALMIKI versus STATEW.P.(CRL.) 682/2019CHANDRA KANT JHA versus STATE OF NCT OF DELHI
SANJAY KUMAR VALMIKI versus STATE
CHANDRA KANT JHA versus STATE OF NCT OF DELHI
Click Here To Download Judgment