A bench of Justice Dinesh Maheshwari and Justice Aniruddha Bose observed in Atbir v State of NCT of Delhi that furlough could not be refused to the convict who has been sentenced to imprisonment for the whole of his natural life without remission and such a prisoner cannot be denied the right that he exuded from good conduct in prison.
Furlough refers to a set period of time when a prisoner is allowed to leave prison. This concept is based on incentive bases for good conduct in prison. However, it is different from parole in which the days spent outside the prison is being counted and added to the prison time.
The appellant, in the instant case, serving imprisonment for the whole of his natural life after getting the death sentence pardoned by the Hon’ble President of India had filed an appeal before the Hon’ble Delhi High Court for granting furlough. The Single Judge dismissed his writ petition.
The reason behind the declination of the appeal for granting furlough was that the Hon’ble President of India, on mercy petition, had modified the death sentence to imprisonment for the whole of his natural life without parole and no remission of the imprisonment term.
The appellant contended that there existed no debarment concerning his entitlement to furlough under the Delhi Prison Rule,2018.
Background of the Case
The appellant was charged u/s 302, IPC, 1860 for brutally killing his stepmother, stepbrother, and stepsister with multiple knifeblows on vital parts of all three people. The court of Additional Sessions Judge, Delhi convicted the appellant of the offense and awarded the death sentence. Subsequently, the case went to High Court and the decision of the Additional Session Judge was upheld and the case was considered as ‘rarest of the rare’.
After dismissal review and curative petition by the concerning court, the appellant filed a petition under Article 72 of the Constitution of India invoking the powers of the Hon’ble President to grant a pardon. The Hon'ble President accepted the recommendation of the Ministry of Home Affairs to modify the death sentence to imprisonment to the whole of natural life without parole and no remission of the term of the imprisonment.
The counsel for the petitioner’s side argued that by referring to Chandra Kant Jha V State of NCT of Delhi, the High Court has viewed the case from a wrong angle and declined the appeal for furlough. The High Court has misconstructed the order passed by the President as they are contrary to fundamental principles that govern the entitlement of furlough to a prisoner.
In Chandra Kant's case, it was affirmed by the Court when a remission of the substantive sentence is granted u/s 432 then only it is credited to earn remission and not otherwise. The learned counsel submitted that a premature release is not a precondition for entitlement of furlough by a prisoner. Hence, the entitlement to furlough is different from getting remission.
Counsel had also placed copies of certificates issued to the appellant for good conduct.
The Counsel for the respondent alleged that furlough is the reduction in the sentence of a prisoner which amounts to remission of sentence and this reduction is simply not permissible in this case because he had been granted a pardon by the president without parole and remission The period of furlough is deducted from the sentence unless the convict commits an offense while on furlough; and such deduction being not permissible, the appellant would not be entitled to be granted furlough. Further, it was contended that merely 3 good conduct reports don't amount to the entitlement of furlough.
The Court observed that furlough cannot be denied as it takes away the incentive for good conduct in the prison that would not only be counter-productive but would be an antithesis to the reformative approach to the Rule of 2018. It was also held that the ‘ Annual good conduct report’ should not be confused with ‘ Annual good conduct remission’.
Thus, the Court disapproved of the denial of furlough.