Delhi High Court
Budhi Singh vs State Of Nct Of Delhi on 15 July, 2025
Bench: Prathiba M. Singh, Amit Sharma
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 29th April, 2025
Date of Decision: 15th July, 2025
+ CRL.REF. 1/2025 in W.P.(CRL) 697/2022
BUDHI SINGH .....Petitioner
Through: Mr. Mohit Mathur, Sr. Adv. With Mr.
Aman Panwar, Mr. Akash Panwar &
Mr. Abhinav Kumar, Advs.
Mr. Sarthak Maggon, Advocate
(M:7045645395).
versus
STATE OF NCT OF DELHI .....Respondent
Through: Mr. Rahul Tyagi, ASC (Crl.) with Mr.
Jatin, Mr. Mathew M. Philip & Mr.
Sangeet Sibou, Advs. for State.
WITH
+ CRL.REF. 2/2025 in W.P.(CRL) 1044/2022
SURESH CHAND SHARMA .....Petitioner
Through: Mr. Rohan J. Alva, (DHCLSC) with Mr.
Anant Sanghi, Adv. (M: 9810365703)
versus
STATE OF NCT OF DELHI .....Respondent
Through: Mr. Rahul Tyagi, ASC (Crl.) with Mr.
Jatin, Mr. Mathew M. Philip & Mr.
Sangeet Sibou, Advs. for State.
WITH
+ CRL.REF. 3/2025 in W.P.(CRL) 1067/2022
JAI PAL SINGH .....Petitioner
Through: Mr. Arjun Malik, Adv. (M:
9873503295)
versus
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By:DHIRENDER KUMAR
Signing Date:15.07.2025
15:05:58
STATE OF NCT OF DELHI .....Respondent
Through: Mr. Rahul Tyagi, ASC (Crl.) with Mr.
Jatin, Mr. Mathew M. Philip & Mr.
Sangeet Sibou, Advs. for State.
WITH
+ CRL.REF. 4/2025 in W.P.(CRL) 997/2022
BASANT VALLABH .....Petitioner
Through: Mr. Zeeshan Diwan & Mr Harsha & Mr.
Akshat Jain, Advs. (M: 9911627354)
versus
STATE OF NCT OF DELHI .....Respondent
Through: Mr. Rahul Tyagi, ASC (Crl.) with Mr.
Jatin, Mr. Mathew M. Philip & Mr.
Sangeet Sibou, Advs. for State
WITH
+ CRL.REF. 5/2025 in W.P.(CRL) 2835/2024
RAMESH @ GUDDU .....Petitioner
Through: Mr. Arjun Malik, Adv.
versus
STATE OF NCT OF DELHI .....Respondent
Through: Mr. Rahul Tyagi, ASC (Crl.) with Mr.
Jatin, Mr. Mathew M. Philip & Mr.
Sangeet Sibou, Advs. for State.
(M:9818460146) with SI Sahil PS
Binda Pur.
WITH
+ CRL.REF. 6/2025 in W.P.(CRL) 299/2024
LOKESH .....Petitioner
Through: Ms. Tanya Agarwal & Mr. Gaurav
Kalra, Advs. (M: 7988916573)
versus
STATE (G.N.C.T. OF DELHI) .....Respondent
Through: Mr. Rahul Tyagi, ASC (Crl.) with Mr.
Jatin, Mr. Mathew M. Philip & Mr.
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Signature Not Verified
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By:DHIRENDER KUMAR
Signing Date:15.07.2025
15:05:58
Sangeet Sibou, Advs. for State with SI
Raj Kumar PS Lodhi Colony.
+ CRL.REF. 7/2025 in W.P.(CRL) 1861/2023
KARAMBIR .....Petitioner
Through: Mr. Rohan J. Alva, (DHCLSC) with Mr.
Anant Sanghi, Adv.
versus
STATE OF NCT OF DELHI .....Respondent
Through: Mr. Amol Sinha, ASC, Criminal with
Mr. Kshitiz Garg, Mr. Nitish Dhawan,
Mr. Ashvini Kumar and Ms. Sanskriti
Nimbekar, Advs.
Mr. Rahul Tyagi, ASC (Crl.) with Mr.
Jatin, Mr. Mathew M. Philip & Mr.
Sangeet Sibou, Advs. for State
WITH
+ CRL.REF. 8/2025 in W.P.(CRL) 18/2024
KISHAN LAL .....Petitioner
Through: Mr. Biswajit Kumar Patra, Adv.
versus
STATE .....Respondent
Through: Mr. Rahul Tyagi, ASC (Crl.) with Mr.
Jatin, Mr. Mathew M. Philip & Mr.
Sangeet Sibou, Advs. for State.
with Insp. Jitender Rana PS Civil Lines
and SI Mohit PS Alipur.
WITH
+ CRL.REF. 9/2025 in W.P.(CRL) 2257/2024
HAMBIR SINGH .....Petitioner
Through: Mr. Rohan J. Alva (DHCLSC) with Mr.
Anant Sanghi, Adv.
versus
STATE OF NCT OF DELHI .....Respondent
CRL.REF. 1/2025 & other connected matters Page 3 of 105
Signature Not Verified
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By:DHIRENDER KUMAR
Signing Date:15.07.2025
15:05:58
Through: Ms. Rupali Bandhopadhya, ASC with
Mr. Abhijeet Kumar, Adv. for State.
+ CRL.REF. 10/2025 in W.P.(CRL)2363/2024 &
CRL.M.A.23063/2024
INDERJEET .....Petitioner
Through: Mr. Archit Upadhyay, Adv. (M:
9990323136)
versus
STATE NCT OF DELHI .....Respondent
Through: Ms. Rupali Bandhopadhya, ASC with
Mr. Abhijeet Kumar, Adv. for State.
Insp. Rahul Roshan and SI Mahesh
Kumar PS Vasant Vihar.
AND
+ CRL.REF. 11/2025 in W.P.(CRL) 4080/2024
YOGESH SHARMA @YOGI .....Petitioner
Through: Mr. Siddharth Yadav, Adv. (M:
9899284083)
versus
STATE (NCT OF DELHI) .....Respondent
Through: Ms. Rupali Bandhopadhya, ASC (Crl.)
for the State with Mr. Abhijeet Kumar,
Advocate.
ASI Om Prakash PS Sarai Rohilla.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE AMIT SHARMA
JUDGMENT
`Can Furlough applications be considered by the Executive during the
pendency of Appeals before the Supreme Court?’
1. The present petitions have been filed under Article 226 of the
Constitution of India read with Section 482 of the Code of Criminal Procedure,
1973, (for short, ‘CrPC‘) on behalf of the captioned respective Petitioners who
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seek furlough under the Delhi Prison Rules, 2018 (hereinafter referred to as
‘Prison Rules’) during the pendency of their appeals before the Hon’ble
Supreme Court.
FACTUAL BACKGROUND
2. Petitioner, Budhi Singh in W.P.(CRL) 697/2022, Basant Vallabh in
W.P.(CRL) 997/2022, Suresh Chand Sharma in W.P.(CRL) 1044/2022 and Jai
Pal Singh in W.P.(CRL) 1067/2022 had preferred the present petitions seeking
first spell of furlough under the Prison Rules from the competent authority
which was rejected on the ground of pendency of their appeals before the
Hon’ble Supreme Court in view of Note 2 to Rule 1224 of the Prison Rules.
Their respective rejection orders were challenged by these petitioners by way
of aforementioned writ petitions which were disposed of by learned Single
Bench of this Court vide judgment dated 3rd July, 2023. Learned Single Bench
framed various issues that had arisen in these matters and while disposing some
of them referred remaining issues in the form of reference to the Division
Bench. The issues framed by the learned Single Judge vide order dated 02nd
December, 2022, reads thus: –
“1. From the preliminary arguments advance on behalf
of the parties, following issues are framed:
“A. Whether the principle of ‘derogation of power’ as
laid down in the judgment of the Hon’ble Supreme Court
of India in K.M. Nanavati v. The State of Bombay, AIR
1961 SC112 is applicable in cases where a prisoner
seeks to apply for release on furlough under the Delhi
Prison Rules, 2018 when an appeal against their order
of conviction is pending adjudication in the Supreme
Court of India?
B. Whether Note 2 to Rule 1224 in the Delhi Prison
Rules, 2018 should be strictly interpreted and thus theCRL.REF. 1/2025 & other connected matters Page 5 of 105
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words High Court cannot be interpreted as including the
Supreme Court of India, even in case of a statutory
appeal before the Supreme Court?
C. 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?
D. Whether the High Court under Article 226 of the
Constitution has the power to grant furlough. If so, can
this power be exercised during the pendency of an
appeal in the Supreme Court of India?
E. 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 furlough, when an appeal against their
order of conviction is pending adjudication in the
Hon’ble Supreme Court of India?
F. 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?
G. Whether the jurisprudence on parole can be applied
to furlough since furlough does not involve suspension
of sentence? ”
3. Learned Single Judge vide order dated 3rd July, 2023, gave the following
findings with respect to the aforesaid issues: –
“Issue A: The principle of derogation of power as per
the decision of Supreme Court in K.M. Nanavati v. The
State of Bombay, AIR 1961 SC112, would be
applicable to Note 2 to Rule 1224 of Prison Rules.
Issue B: The term “High Court” referred in Note 2 to
Rule 1224 of Prison Rules interpreted to ipso jure
mean and include Supreme Court of India, if an appealCRL.REF. 1/2025 & other connected matters Page 6 of 105
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against an order of conviction is pending
consideration before the Supreme Court of India.
Issue D: Exercise of the plenary powers by the High
Court under Article 226 to grant furlough to a prisoner
during pendency of his appeal is not permissible in
terms of Note 2 to Rule 1244 of the Prison Rules. Such
exercise of powers would amount to derogation of
appellate powers.”
4. After deciding the aforesaid issues, learned Single Judge, thereafter, with
respect to issues C, E, F and G, passed the following directions: –
“85. Since these issues may involve possible declaration
of the rule as not a good law, in terms of the 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.
86. In view of the above, the matter be placed before
Hon’ble the Chief Justice for assigning the same to the
roster Bench for rendering decision on Issue -C, Issue
E, Issue-F and Issue-G as framed by this Court by its
order dated 02.12.2022.
87. Subject to orders of Hon’ble the Chief Justice, list
before the roster Bench on 10.07.2023.”
5. Pursuant to the aforesaid reference order, certain more writ petitions
raising similar issues were tagged with the said reference. It is noted that in
W.P.(CRL) 2257/2024 titled as “Hambir Singh vs. State of NCT of Delhi” the
Constitutional validity of Rule 1224 of the Prison Rules has also been
challenged.
6. Two learned Amicus Curiae namely, Mr. Vivek Sood, Senior Advocate
and Mr. V.P. Garg, Advocate, had been appointed to assist this Court.
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Signing Date:15.07.2025
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SUBMISSIONS ON BEHALF OF THE PETITIONERS
W.P.(CRL) 697/2022
7. Mr. Mohit Mathur, learned Senior Counsel appearing on behalf of the
petitioners submits as under:
• In view of the observation made in paragraph 85 of the reference order
with regard to the validity of Rule 1224, which has to be considered by
this Court, even the issues decided by the learned Single Judge would
have to be reconsidered.
• The powers of the Constitutional Court under Article 226 of the
Constitution of India is part of basic structure, and therefore, there cannot
be a bar for a convict to approach this Court invoking writ jurisdiction
by seeking judicial review of the order passed by the competent
authority.
• Note 2 of the Rule 1224 of the Prison Rules only mentions 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.
• That there is a deliberate omission of the term “Supreme Court” in the
said rules, and thus it cannot be read into the Rule.
• that under the Prison Rules reference to the ‘High Court’ or ‘Supreme
Court’, separately or together have been made at various instances
meaning thereby that at the time of framing of the Rules, the authority
framing them was conscious of the fact that Special Leave Petitions and
Special Leave to Appeal are two distinct categories. It was pointed out
that reading of the Prison Rules would reflect that the ‘High Court’ and
‘Supreme Court’ have been addressed distinctively, and therefore,CRL.REF. 1/2025 & other connected matters Page 8 of 105
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reading ‘Supreme Court’ into the Note 2 to Rule 1224 of the Prison Rules
would be contrary to the language of the Prison Rules itself.
• In view of the above, if an appeal is pending before the Supreme Court,
the executive, i.e., the Competent Authority or the High Court would not
be barred from considering the grant of furlough. Reliance has been
placed upon the decision of the Supreme Court in Atbir v. State (NCT of
Delhi)1, to submit that principles governing furlough have been broadly
interpreted and it was held in no certain terms that even when a convict
is suffering a sentence for remainder of natural life, he cannot be barred
from seeking furlough. The question as to whether furlough has to be
granted or not would depend on facts of each case, however, the convicts
whose appeal are pending before the Hon’ble Supreme Court cannot be
held ineligible from seeking furlough from the competent authorities or
by way of judicial review from this Court.
• Any restriction imposed on seeking furlough would be violative of
fundamental rights including the right to life under Article 21 of the
Constitution of India. Furlough being a reward for good conduct while
serving the sentence, cannot be denied merely on the ground that an
appeal is pending before the Hon’ble Supreme Court.
• That the standards and the parameters for grant of furlough are distinct
and different and cannot be equated with those which apply for
suspension of sentence pending appeal.
• In view of the above, the competent authority and this Court in exercise
of its power of judicial review can consider granting furlough, even
1
(2022) 13 SCC 96
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during the pendency of the appeal before the Supreme Court of India of
a convict.
W.P.(CRL) 997/2022
8. Mr. Zeeshan Diwan, learned counsel appearing on behalf of the
petitioner appointed by DHCLSC has made the following submissions:
• The principle of ‘derogation of power’ as held in K.M. Nanavati v. State
of Bombay2, does not apply to furlough.
• The said principle would apply when executive powers are invoked to
suspend or remit a sentence, thus, causing a conflict with the judicial
power under Article 142 of the Constitution of India as held in paragraph
19 of the said judgment.
• Since furlough is neither suspension nor remission, the said principle
would not apply. Reliance was placed on Atbir (supra), wherein the
Supreme Court after interpreting the Prison Rules has held that remission
cannot be a pre-requisite for obtaining furlough. It was observed in the
said judgment that the convict is “deemed to be serving the sentence”
even during the period of furlough. It was held that there is no reduction
of sentence, and hence, there is no question of “remission” and hence, it
was argued that grant of furlough would raise no possible or real conflict
with Article 142 of the Constitution of India.
• that there is no ambiguity in Note 2 to Rule 1224 of the Prison Rules, as
the mention of “High Court” (and no other Court) is clear and
unequivocal and it is submitted that principle of interpretation that the
literal rule of interpretation is the best test of construction unless it is2
(1961) 1 SCR 497CRL.REF. 1/2025 & other connected matters Page 10 of 105
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ambiguous is squarely applicable in the present circumstances. Reliance
has been placed on Sri Venkataramana Devaru v. State of Mysore3, V.
Jagannadha Rao v. State of A.P.4 and B.N. Mutto v. T.K. Nandi (Dr.)5.
• That nothing prevented the authority from framing the Rules to include
the words “Supreme Court” in Note 2 to Rule 1224 of the Prison Rules.
It is pointed out that this becomes clear on bare perusal of the present
Rules which repeatedly referred to an appeal filed in the Supreme Court
wherein various provisions of the present Rules have been highlighted.
It was submitted that even assuming that the admitted reference to the
word “Supreme Court” is a drafting error, this Court cannot supply the
casus omissus. Reliance is placed on Padma Sundara Rao v. State of
T.N.6, in support of this contention. It was submitted that if the word
“Supreme Court” is supplied in Note 2 to Rule 1224 of the Prisons Rule,
the same would lead to following illustrative anomalies: –
“a. Co-convicts would be treated differently based on
whether one chooses to appeal and one does not.
b. Convicts who appeal to Supreme Court will be
discriminated based on the State where they are
incarcerated. In case of transfer of a prisoner from
Delhi to Bombay, he could avail the benefit of Furlough
despite pendency of his appeal before the Supreme
Court.
c. The rule discourages right to appeal to the Supreme
Court
d. The rule is incongruous inasmuch as those convicts,
whose appeals take a long time to be decided, are at a
further disadvantage than those whose appeals are
decided quickly.
3
1958 SCR 895 (paragraph 25)
4
(2001) 10 SC 401 (paragraph 18)
5
(1979) 1 SCC 361 (paragraph 14)
6
(2002) 3 SCC 533 (paragraph 15)CRL.REF. 1/2025 & other connected matters Page 11 of 105
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e. The rule also runs counter to Rule 1199 DPR 2018
which describes the meaning of furlough being an
incentive and motivation for maintaining good conduct.
The definition states that furlough is a release after a
certain “qualified” number of years of incarceration, as
defined further in Rule 1220.
Hence, the rules could never have envisaged a person
who is ordinarily eligible in terms of rules 1220-1223,
and not disentitled in terms of exceptions in Rule 1224,
to have no right to furlough merely because they
exercise their right to seek leave to appeal under Article
136 of the Constitution.”
• That furlough is integral to the concept of reformation and is granted as
a reward and incentive for good behaviour in prison. Thus, any
interpretation of barring furlough to a convict during the pendency of an
appeal in the Supreme Court would render Note 2 to Rule 1224 of the
Prison Rules arbitrary and violative of Articles 14 and 21 of the
Constitution of India.
• That furlough is granted by the competent authority and whose decision
in case of non-granting of the same is always subject to judicial review
under writ jurisdiction of this Court. It was argued that the convict’s only
remedy in such a scenario would be to come to this Court under Article
226 of the Constitution of India which is much wider in scope in this
regard. Reliance was placed on Bandhua Mukti Morcha v. UOI7, to
contend that rather than directly applying to Hon’ble Supreme Court
under Article 32 of the Constitution of India for enforcement of
fundamental right, alternate efficacious remedy must be exhausted.
Thus, the contention of the State that the High Court can only issue a
7
(1984) 3 SCC 16
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writ of Mandamus, and thus, akin to an appeal over the governmental
order, and therefore, circumscribed by Nanavati (supra) is erroneous
and misconceived.
• The High Court in its exercise of writ jurisdiction under Article 226 of
the Constitution of India has power to correct the statutory bar which
may violate a fundamental right or which may by its operation and
interpretation lead the same to be ultra vires to the object of the statute
itself. Reliance has been placed on Common Cause v. UOI 8 , in this
regard.
• Note 2 to Rule 1224 of the Prisons Rules is ultra vires the fundamental
rights enshrined in the Constitution of India, since furlough is a privilege
which is earned by way of good conduct, and a convict who is otherwise
fully eligible for availing the same cannot be barred for the sole reason
that his appeal is pending before the Supreme Court.
• That ousting furlough pending an appeal before the Hon’ble Supreme
Court has no rational nexus with the object of furlough, which is to
incentivise good conduct and reformation.
9. Learned counsel further drew the attention of this Court to amendment
dated 16.04.2018 in Rule 4(11), Prisons (Bombay Furlough & Parole) Rules,
wherein prior to amendment, it was provided that if an appeal is pending before
higher forum the prisoner would not be entitled to be released on furlough. The
said rule was deleted on 16.04.2018. The Hon’ble Bombay High Court in
Tanaji Maruti Kolekar v. State of Maharashtra & Ors.9, has categorically held
that the condition restricting grant of furlough in cases where the appeal is
8
(2018) 5 SCC 1
9
2018 SCC OnLine Bom 1146
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pending before the higher forum has been deleted and prisoners were allowed
to avail furlough. It is submitted that the deletion in the Bombay Prison Rules
reflects the intention of the legislature in upholding furlough as a matter of an
earned incentivised privilege, though not an absolute right to be availed, and
therefore, the prison rules ought to be interpreted strictly, not to include
“Supreme Court”.
W.P.(CRL) 32/2023
10. This petition was dismissed a withdrawn as the petitioner’s Special
Leave Petition being SLP (Crl.) 5726/2019 which was pending before the
Hon’ble Supreme Court of India had been converted into criminal appeal vide
order dated 05th September, 2023 and the petitioner was directed to be released
on bail during the pendency of the appeal, and therefore, the aforesaid petition
was dismissed as withdrawn. However, Mr. Shiv Chopra, learned counsel for
the petitioner had placed on record written submissions raising the following
arguments: –
• Note 2 Rule 1224 of the Prison is ultra vires to Article 14 of the
Constitution of India as the concept of imprisonment in India not only
aims to safeguard society from harmful actions of the convicted persons
acting as a deterrent against future criminal acts but is also designed to
facilitate the rehabilitation and reformation of the convict and furlough
and parole play a critical role in the same. Reliance has been placed on
Ashok Kumar v. State of NCT of Delhi10. It is submitted that learned
Division Bench of Bombay High Court in Sharad Bhiku Marchande v.
10
2024 SCC OnLine Del 3297
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State of Maharashtra11, has held that petitioner is entitled to apply for
furlough as per the rules despite pendency of his appeal before the
Hon’ble Supreme Court.
• Grant of furlough by the High Court during pendency of an appeal in
Supreme Court does not amount to derogation of power as the grant of
furlough is neither a suspension nor remission of sentence and is
therefore not in conflict with the judicial powers in any manner. The
principle in K. M. Nanavati‘s case (supra) cannot be applied in relation
to furlough as it would not entail suspension of sentence.
• Unlike parole, there is no provision or remedy equivalent to furlough
provided in CrPC that can be sought by the prisoner during the pendency
of an appeal. Further, it is submitted, from a bare perusal of the Rules, it
is evident that the appellate authority for grant of furlough is the High
Court and not the Supreme Court.
• Statute to be interpreted strictly – The language of Note 2 to Rule 1224
of the Prison Rules, is plain and unambiguous and it is not open for the
authorities to read such limitations which the legislature has in its
wisdom omitted. It is highlighted that in the present case the petitioner
filed an SLP in the year 2019 and the same was allowed in the year 2023,
i.e., after 4 years of filing the same. During this period, the petitioner was
deprived of his right to be released on furlough. It is noted that the
principle behind grant of furlough was to enable the prisoner, an
opportunity to break the monotony of imprisonment and to enable the
convict to maintain ties with family and integration with society. The11
1990 SCC OnLine Bom 197CRL.REF. 1/2025 & other connected matters Page 15 of 105
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Petitioner in the present case has spent almost his entire sentence in
prison during the pendency of his appeal. Attention of this Court was
drawn to various other Rules in Prison Rules to show that the words
‘High Court’ and ‘Supreme Court’ have been specifically used separately
in the said Rules, and therefore, omission of the word ‘Supreme Court’
in Note 2 of Rule 1224 of the Prison Rules was deliberate.
• Note (2) to Rule 1224 is violative of Articles 14 and 21 of the
Constitution of India – Not granting the prisoner furlough merely on the
ground of pendency of appeal especially in a case where the prisoner has
already served more than half of his sentence is violative of Articles 14
and 21 of the Constitution of India as the same creates a disparity
between similarly placed people and differentiates solely on the basis of
pendency of appeal, thereby demotivating prisoners to file an appeal. It
is pointed out that it puts the prisoners challenging their conviction at a
disadvantage in comparison to the prisoners who have acknowledged
and accepted their conviction which is against the principles of Articles
14 and 21 of the Constitution of India.
W.P.(CRL) 1067/2022
11. Learned Counsel, Mr. Arjun Malik, appearing on behalf of the petitioner,
with respect to issues C and E, has made the following submissions:
• That there cannot be any bar to entertain an application for grant of
furlough, since it does not amount to suspension of sentence.
• Note 2 to Rule 1224 of the Rules, refers to “High Court” and not to
“Supreme Court”, and thus, there is no ambiguity in the said provision.
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• that barring the convicts from grant of furlough when appeal is pending
before the Hon’ble Supreme Court would lead to class legislation as the
same amounts to an improper discrimination by conferring privilege of
furlough on the convicts whose appeals are not pending from a large
number of convicts all of whom stand in the same place insofar as the
grant of furlough is concerned.
• there is no reasonable distinction or substantial difference which can be
found justifying the inclusion of convicts who have not challenged their
conviction before the Hon’ble Supreme Court.
• The proviso to Note 2 to Rule 1224 of the Prison Rules does not satisfy
the test of Reasonable Classification, and the same is arbitrary, artificial,
and evasive.
• that furlough is temporary release of the prisoner and if Note 2 to Rule
1224 of the Prison Rules is interpreted to mean that furlough will not be
granted if an appeal is pending before the Hon’ble Supreme Court of
India, the same would be in violation of Article 21 of the Constitution of
India.
• Regarding Issue F, it was submitted that Rule 1199 of Prison Rules
provides that furlough is purely an incentive for good conduct in the
prison. Furlough, being integral to the concept of reformation, is a
reward/incentive for good behaviour in the prison so that convict can
eventually re-amalgamate into the society. Reliance was placed on
judgment of Hon’ble Supreme Court in Atbir (supra), thus, denying of
furlough, on account of pendency of an appeal in the Hon’ble Supreme
Court, despite good conduct earned by the convict, would run contraryCRL.REF. 1/2025 & other connected matters Page 17 of 105
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to the theory of reformative approach, thereby, violating Rules 1199 and
1200 of the Prison Rules.
• With regard to issue G, it was submitted that the concept of furlough and
parole stem from the Rules and are conceptually different. There is no
suspension of sentence in furlough and the sentence continues to run
despite the convict being released from prison for a specified period of
time. Whereas, when the convict is released on parole, the sentence is
suspended and the quantum of sentence remains intact. Reliance was
placed on State of Gujarat v. Narayan 12 and Asfaq v. State of
Rajasthan 13 . Parole amounts to suspension of sentence/bail and
therefore, if the High Court suspends the sentence pending the appeal of
the convict before the Hon’ble Supreme Court, the same would then
amount to derogation of appellate power of the Hon’ble Supreme Court.
It is submitted that in case of furlough, there would be no such derogation
of power of the Hon’ble Supreme Court as furlough does not amount to
suspension of sentence/bail. Reliance is placed on Division Bench
judgment of this Court in Rajesh Kumar v. Govt. Of NCT of Delhi14.
W.P.(CRL) 1044/2022; 1861/2023 & 2257/2024
12. Learned Counsel, Mr. Rohan Alva, for the petitioners has submitted that
the entire basis of the reasoning in the Single Judge’s ruling on 3rd August, 2023
is the decision in K.M. Nanavati (supra), wherein, it was held that the executive
has no duty to perform once the appeal is pending before the Court. He
specifically refers to Article 161 of the Constitution of India to argue that the
12
2021 SCC OnLine SC 949 (paragraphs 20, 21 and 22)
13
(2017) 15 SCC 55
14
2012 (2) Crimes 281 (Delhi)
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power for granting any form of remission is traced back to the said provision
and the same would not be subject to Article 142 of the Constitution. It is
submitted that Article 142 does not override Article 161. Mr. Alva further
makes the following submissions:
• That in K.M. Nanavati (supra) Rule 5 Order 21 of the Supreme Court
Rules which stated specifically that the convict has to either surrender or
seek an exemption was being considered. It was in this context that the
KM Nanavati (supra) judgment was rendered. A harmonious
construction would as per the said judgment, therefore, mean that the
Executive does not have power to suspend the sentence during pendency
of the appeal. The said decision would have no applicability in the
current context.
• In Re Policy Strategy For Grant Of Bail, 15 the Supreme Court has
specifically observed that even when appeals against conviction are
pending, there is no bar on considering applications for permanent
remission as well. The power for permanent remission also traces back
to Article 161 of the Constitution. The Supreme Court’s observations qua
permanent remission would definitely be applicable in cases of furlough
or temporary remission as well. There is no clash between Article 142
and Article 161 of the Constitution in the present case. Reliance is placed
upon paragraph 41 (vi) of the said order.
• Note 2 to Rule 1224 of the Prison Rules deals with two categories of
convicts. First, where the appeals are pending, and second, where the
period for filing the appeal has not expired. In the latter context there can15
Order dated 22.10.2024 in SMWP (Crl.) No. 4/2021CRL.REF. 1/2025 & other connected matters Page 19 of 105
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be no justification to hold back furlough or parole. The power of furlough
flows from Article 21 of the Constitution, though, there is no unfettered
right to be released but the convict always has a right to be considered
for furlough.
• Rule 1224 has no relationship with the object sought to be achieved, i.e.,
grant of furlough. If the interpretation is stretched to such an extent, the
provision would become constitutionally invalid.
• That no State would have the jurisdiction to confer power on the
Supreme Court due to lack of legislative competence. Reference is made
to Entry 77 in List I, Entry 65 in List II and Entry 46 in List III of the VII
Schedule to the Constitution of India. Reliance is placed upon the
decision of the Supreme Court in a matter emanating from the
Chhattisgarh High Court, Rajendra Diwan v. Pradeep Kumar
Ranibala,16 where the Supreme Court set aside a law passed by the State
of Chhattisgarh under its Rent Control Act where appeals against the
order of the Tribunal were to be filed directly before the Supreme Court
under Section 13(2) of the said Rent Control Act. The Supreme Court
held that the State Legislature lacks legislative competence to enact
Section 13(2) of the Rent Control Act as the State Legislature cannot
confer jurisdiction upon the Supreme Court (paragraph 49 to 52).
W.P.(CRL) 4080/2024
13. In the present petition, the present petitioner has sought parole. Mr.
Siddharth Yadav, learned counsel appearing on behalf of the petitioner relied
16
(2019) 20 SCC 143
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upon the decision in Sunil Fulchand Shah v. Union of India17, to submit that
there is a clear distinction between the bail and parole and that suspension of
sentence is not parole. It is submitted that K.M. Nanavati (supra) does not deal
with parole. It was argued that parole is an executive function which is always
subject to judicial review. It is pointed out that even after rejection of appeal by
the High Court, a prisoner is granted parole to file an SLP by the State, and in
case, where it is not granted the same is subject to judicial review by this Court.
Reliance was placed on State of Haryana Ors. v. Mohinder Singh18, State of
Haryana v. Nauratta Singh19 and Dadu @ Tulsidas v. State of Maharashtra20.
SUBMISSIONS BY MR. VIVEK SOOD, LEARNED SENIOR
COUNSEL, AMICUS CURIAE
14. Ld. Amicus Curiae has made detailed submissions which are set out
below:
• The first submission is that the consideration for grant of furlough ought
to be left to the executive as the executive is fully empowered to deal
with the issues that arise in respect of the same. He submits that across
the world, grant of furlough is dealt with by the executive and not by
Courts.
• Note (2) to Rule 1224 of the Prison Rules, in his submission, is violative
of Article 14 of the Constitution of India and there are various grounds
on which it deserves to be struck down or harmoniously construed in
favor of the convict.
17
(2000) 3 SCC 409: AIR 2000 SC 1023
18
(2000) 3 SCC 394: AIR 2000 SC 890
19
AIR 2000 SC 1179
20
(2000) 8 SCC 437CRL.REF. 1/2025 & other connected matters Page 21 of 105
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• the object of furlough which is recognized in Rule 1220 of the Prison
Rules, is primarily to prevent solitude of prisoners due to long period of
incarceration. It is meant to allow the prisoner to have family ties and
under such circumstances Note (2) to the Rule 1224 which seeks to carve
out a distinction between convicts whose appeals are either filed or are
likely to be filed in the High Court and those whose appeals are pending
before the Supreme Court. He submits that there is no intelligible
differentia between the said categories. Clearly, there are two categories
of convicts. One, in his words can be called as the convicts whose
convictions have been confirmed either by the Trial Court or by the High
Court or by the Supreme Court and no appeals are filed in such cases
clearly, furlough is to be mandatorily considered by the executive.
However, on the other hand, in respect of convicts whose appeals are
pending the Note (2) to Rule 1224 seeks to direct that the convict would
have to approach only the High Court. It is argued that there is no remedy
which has been provided for those Appellants whose appeals are pending
before the Supreme Court. This clearly constitutes a distinction which is
not based on any rational or logic. The persons whose appeals are
pending cannot be made worse off than those persons whose conviction
has been upheld. The said Note (2), therefore, inter se discriminates
between two categories of Appellants which cannot be the intention of
the legislature.
• It is further submitted that if for seeking furlough convicts are
mandatorily forced to approach the Supreme Court it would again create
a procedural arbitrariness. It is common knowledge that furlough is a
simple process which does not involve any costs. No lawyers are
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engaged and no detailed grounds are set out. The authorities consider the
petition for furlough on very simple requests moved by convicts with no
legal technicalities involved. However, if for availing furlough an
application has to be filed only before the Supreme Court where appeals
are pending the entire process becomes extremely complex and
burdensome for the convicts. The convict would have to then set out
detailed grounds which are for example considered in the case of interim
suspension or grant of bail. Thus, the Note (2) to Rule 1224 of the Prison
Rules seeks to create a procedural arbitrariness and an impossibility for
convicts which cannot be the purpose of granting furlough.
• Even where appeals are pending in the Supreme Court convicts should
be free to approach for furlough before the High Court. In such an
enquiry, when an application is filed before the High Court the Court
ought to apply the liberal principles of furlough rather than the more
stricter principles for suspension of sentence or grant of interim bail.
Finally, it is submitted that in order to preserve the doctrine of separation
of powers, in serious cases if the High Court is hearing an appeal and
does not wish to give furlough or remission, even then the executive
would not be entitled to exercise the said powers. The High Court always
has the power while admitting the appeal or while finally confirming any
conviction in serious cases to direct specifically that no furlough or
remission would be granted in such a case. The High Court’s powers in
such cases would not be curtailed in any manner and the balance can then
be maintained.
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SUBMISSIONS BY MR. V.P. GARG, ADVOCATE, AMICUS CURIAE
15. Learned Amicus Curiae submitted that the issue of Constitutional
validity of Note 2 to Rule 1124 of the Prison Rules does not arise inasmuch as
a Division Bench of this Court headed by Hon’ble Chief Justice took suo-motu
cognizance of the matter titled as “Court on its own Motion v. State” in
W.P.(CRL) 1121/2009 had approved draft guidelines on 20.01.2010.
Thereafter, on 17.02.2010, Hon’ble Lieutenant Governor of GNCT Delhi
issued a notification framing parole/furlough guidelines 2010. It is pointed out
that paragraph 27 of those Rules is pari materia to Rule 1442 of the Prison
Rules. In view of the fact that the Hon’ble Division Bench of this Court had
already tested the vires of the aforesaid provision, there is no requirement to
test the validity of Note 2 to Rule 1224 of the Prisons Rules. It is pointed out
that in K.M. Nanavati (supra) judgment of the Court was delivered by a
majority by 4:1 and Hon’ble Mr. Justice Kapur wrote a dissenting judgment. It
was pointed out that the judgment was delivered in September 1960 and in the
month of October 1960 a similar question arose in the case of Sarat Chander
Rabba v. Nagender Nath,21 and the same Bench unanimously accepted the
dissenting view of Justice J. L. Kapur. In Sarat Chander Rabba (supra), the
Court had upheld the view that the judicial powers and executive powers over
sentences are distinct since the grant of remission does not affect the order of
conviction and sentence. The grant of remission merely reduces the sentence to
the period undergone without touching upon the judgement of conviction. In
view of the same, it is pointed out that the principle of derogation of power held
in K.M. Nanavati (supra) was impliedly overruled.
21
1960 SCC OnLine SC 130
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16. Ld. Amicus further made the following submissions:
• That by virtue of Article 239AA of the Constitution of India, the Delhi
Legislative Assembly enacted Prison Rules in 2018.
• Prisons is in Entry No. 4 of the State List. It was submitted that Article
72 and Article 161 of the Constitution of India are distinct from the
powers vested by Section 432 of the CrPC. Reliance was placed on
judgment of Hon’ble Supreme Court in State of Haryana & Ors. v.
Mohinder Singh (supra), in which, it was held that under Section 432
of the CrPC the State Government may remit the whole or any part of
the punishment to which a person has been sentenced even though his
appeal against the conviction and sentence was pending. Subsequent
judgments of Hon’ble Supreme Court in Sunil Fulchand Shah (supra)
approved the findings of the judgment in Mohinder Singh (supra).
Reliance was placed on judgment of Hon’ble Supreme Court in Maru
Ram v. Union of India22, wherein it was held that Section 433A of the
CrPC does not forbid parole or other release within 14 years span.
• It was submitted that appeal is a statutory remedy and after the decision
by the High Court, the judgment of High Court dates back retrospectively
to the date of judgment of the Trial Court. It is further submitted that the
High Court is the last fact-finding Court. It is further submitted that the
prisoner becomes a convict and come in the jurisdiction of State after the
judgment of appeal in the High Court. Reliance was placed on Nauratta
Singh (supra) wherein it was held that when a person is convicted in
appeal, it follows that the Appellate Court exercises its powers in place
22
(1981) 1 SCC 107: AIR 1980 SC 2147
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of the Court of original jurisdiction and guilt, conviction and sentence
must be substituted for and shall have retrospective effect from the date
of the judgment of the Trial Court. In this way, appeal to the High Court
may be called as extended trial of a prisoner.
• That in the new era of Correction Reformation – Rehabilitation –
Reintegration, parole / furlough is not a charity but part of national and
international obligations, in view of the International Minimum
Standards Rules For The Treatment of Prisoners, now known as Nelson
Mandela Rules, to which India is a signatory and domestic Courts are
bound to follow the same.
• Finally, it was submitted that against an Executive order of Parole or
Furlough, this Court sits in Judicial Review under Article 226 of the
Constitution and thus, in no way amounts to any encroachment on the
powers of Supreme Court. It is submitted that Judicial Review can only
be undertaken under Article 226 and Article 32 of the Constitution of
India.
• During the course of hearing, Mr. VP Garg, learned Amicus Curiae had
handed up in Court a judgment of the Full Bench of Hon’ble Madras
High Court in T. Ramalakshmi v. The State Represented by its Principal
Secretary to Government of Tamil Nadu & Ors., along with other
connected matters,23 wherein, it was held that under Rule 35 of the Tamil
Nadu Suspension of Sentence Rules, 1982, the Competent Prison
Authority is empowered to grant ordinary leave or emergency leave to a
23
Reference decided vide order dated 24.01.2025 in W.P. (MD). Nos. 9491, 9321, 9465, 9646 & 17228 of
2024 and W.M.P.(MD). Nos. 8612, 16834, 8590, 8748 & 16833 of 2024 passed by Full Bench of Madras High
Court Principal Bench at Chennai
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prisoner during the pendency of a criminal appeal before any of the
Appellate Courts.
• Reliance is placed upon Chapter XVIII titled as “Prison Leave,
Remission and Pre-Mature Release” of Model Prisons and Correctional
Services Act, 2023, to lay emphasis on the fact that no such
restraint/restriction as provided in Note 2 to Rule 1224 of the Prison
Rules has been incorporated in the said proposed Act.
SUBMISSIONS ON BEHALF OF THE STATE
17. Mr. Rahul Tyagi, learned Additional Standing Counsel appearing for the
State submits that the decision of the learned Single Judge on Issue No.(b) has
attained finality and in terms of the said finding, Rule 1244 Note 2 has to be
interpreted as meaning to include “Supreme Court of India”. According to Mr.
Tyagi, with this finding in paragraph 83, nothing remains to be decided,
inasmuch as the expression High Court has been interpreted by the ld. Single
Judge as to include the Supreme Court as well.
18. Coming to Question No.(C) of the reference order, the view of the ld.
Single Judge is that an appeal can lie but merely because the appeal has been
filed and is being contested, it does not mean that they cannot seek furlough.
The argument that furlough can be sought even when the guilt is challenged
based on the reformative approach is wholly untenable, inasmuch as so long
the person continues to remain in jail, the theory of reformative approach
cannot be applied. The learned Single Judge has clearly held that the exercise
of power by the Executive in terms of paragraph 81 of the judgment under issue
no.(A), would be in derogation, when the matter is pending in the Supreme
Court.
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19. It is further highlighted that under Section 71 read with Section 2(h) of
the Delhi Prisons Act, the Government has the power to make Rules and it is
under these Rules, that the Delhi Prison Rules have been enacted. Section 2(h)
defines furlough. Appendix 1 of the Rules clearly provides under the heading
‘Leave – Parole-Furlough’ that the leave period is counted as a remission of
sentence. The concept of furlough and parole are nothing but species of
remission, and therefore, it is his submission that the Executive has some role
to play. Under Rule 1173, types of remission have been set out, which include
ordinary remission, good conduct remission, special remission, and remission
by Government. Furlough and parole are also similar remissions under Rules
(a) & (b) under Delhi Prison Act. The special remission and remission by
Government would come under Section 432 of the CrPC. Since there are
separate category of remissions, exercise of power under Section 432 of the
CrPC cannot be confused for furlough and parole.
20. Learned ASC, Mr. Tyagi, for the State has relied upon the following
judgments: –
iv) Rakesh Kumar Pandey v. Udai Bhan Singh & Anr.27,
v) Ramesh Kumar v. State of Rajasthan & Ors.28
24
AIR 2017 SC 4986 [paragraph 11]
25
2011 SCC OnLine Del 5467: 2011:DHC:6538-DB [paragraphs 7 to 12]
26
2016:DHC:1680-DB [paragraph 11]
27
(2008) 17 SCC 764 [paragraph 2]
28
2013 SCC OnLine Raj 1380: 2013 Cri LJ 2376: MANU/RH/0133/2013 [paragraph 28, 44 and conclusion]CRL.REF. 1/2025 & other connected matters Page 28 of 105
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21. Mr. Tyagi points out that Rule 9 of the Rajasthan Prison Rules is identical
to the furlough under Delhi Prison Rules, and therefore, he commends the Full
Bench decision of the Rajasthan High Court, in support of his submissions.
ANALYSIS AND FINDINGS
22. Heard learned counsels for the parties, the ld. Amici Curiae and perused
the records.
23. The issues, which have been referred by the learned Single Judge as per
the judgment making the Reference, for determination are as under: –
“C. 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?
*** ***
E. 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 furlough, when an appeal against their
order of conviction is pending adjudication in the
Hon’ble Supreme Court of India?
F. 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?
G. Whether the jurisprudence on parole can be applied
to furlough since furlough does not involve suspension
of sentence?”
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24. In the considered opinion of this Court, to determine the aforesaid issues,
the findings given by the learned Single Judge that the word “Supreme Court”
should be read into Note 2 to Rule 1224 of the Prison Rules needs to be
examined afresh.
25. Learned Single Judge while holding that the word “Supreme Court”
should be read into the aforesaid Rule, relied upon the principle of “Derogation
of Powers” as held by the Hon’ble Supreme Court in judgment of Hon’ble
Court in K. M. Nanavati (supra), by observing as under: –
“Interpretation of Note 2 and whether application for
Furlough can be considered when appeal is pending
before Hon’ble Supreme Court
45. Before going into the question as to whether the
word ‘High Court’ appearing in the of Chapter XIX of
the Rules would also mean and include the Hon’ble
Supreme Court or not, this Court will first have to
examine as to whether the principles laid down by the
Hon’ble Apex Court in KM Nanavati (supra) judgment,
which are in the context of suspension of sentence / bail
and are also applicable in the cases of furlough in view
of the peculiar statutory scheme which exist in National
Capital Territory of Delhi.
46. The Constitution Bench of the Hon’ble Apex Court
in K.M. Nanavati (supra) was considering whether the
powers conferred upon the Governor of State under
Article 161 of the Constitution of India, impinges upon
the judicial power of the Hon’ble Apex Court enshrined
under Article 142 of the Constitution of India. The
appellant, K.M. Nanavati, was convicted by the High
Court and even before the appeal could be filed before
the Hon’ble Apex Court, the Governor exercising power
under Article 161 of the Constitution of India was
pleased to suspend the sentence. The Hon’ble Apex
Court, in such circumstances, held that the order ofCRL.REF. 1/2025 & other connected matters Page 30 of 105
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Governor, granting suspension of sentence could only
operate till such time the matter became sub-judice
before the Hon’ble Apex Court. However, once the
appeal is filed, it is for the Hon’ble Apex Court to pass
such orders as it deems fit, as to whether the convict
should be granted bail or his sentence is to be suspended
or any further order as the Hon’ble Apex Court deems
fit. The Governor has no power to grant the suspension
of sentence during the period when the matter is sub-
judice before the Hon’ble Apex Court.
47. The rationale of the rule incorporated in the Rules
which disentitles a prisoner from filing application for
grant of Parole originated rightly from the decision
rendered by the Hon’ble Apex Court in K.M. Nanavati
(supra).
48. It is not in doubt that the authorities cannot be
permitted to exercise the power of grant of parole when
the Appellate Court is seized of the appeal. The same
would amount to derogation of appellate powers of the
Court. The grant of parole has an effect of suspension of
sentence/ bail for the period such parole has been
granted. Allowing such application during the pendency
of the appeal would amount to derogation of appellate
powers of the Court.
49. It has specifically been held that the Executive
cannot be permitted to exercise such powers when the
Court is seized of the matter in a statutory appeal and
the same, if permitted, would be in derogation of the
appellate powers of the Court and may lead to a conflict.
When the Court is considering the appeal against the
conviction, it also considers along with the appeal,
application for interim suspension of sentence or bail if
filed by a convict in a pending appeal. It is always open
to the convict to seek suspension/bail from the Court on
the grounds as provided for regular parole. There is
nothing in the Code of Criminal Procedure or otherwise
in law, barring the appellate Court from granting
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interim bail or suspending the sentence on
considerations as for parole. The power to suspend
sentence, therefore, is available to the Appellate court
when the Appeal is pending and the Executive is not
allowed to abrogate such appellate powers of the courts.
50. However, as discussed above, there is a
fundamental difference between parole and furlough. In
case of furlough the sentence is not suspended during
the period for which the prisoner is released. There is
merit in the argument advanced by the learned counsel
for the petitioners that the furlough does not, in any
manner, suspend the sentence and is not in conflict with
the judicial powers of the Court.”
26. In K.M. Nanavati (supra), the Hon’ble Governor under Article 161 of
the Constitution of India suspended the sentence of the appellant therein, while
his appeal was sub judice before the Hon’ble Supreme Court. Under Article
142 of the Constitution of India, the Hon’ble Supreme Court could pass any
order including suspension of sentence pending appeal. Apart from that, Rules
made by the Hon’ble Supreme Court in exercise of powers under Section 145
of the Constitution of India, and in particular, Order 21, Rule 5 of Supreme
Court Rules, 1966, provided that any person filing a special leave to petition
shall either surrender or seek exemption from surrender. The relevant
observations of the Hon’ble Supreme Court read as under: –
“22. In the present case, the question is limited to the
exercise by the Governor of his powers under Article 161
of the Constitution suspending the sentence during the
pendency of the special leave petition and the appeal to
this court; and the controversy has narrowed down to
whether for the period when this court is in seizin of the
case the Governor could pass the impugned order, having
the effect of suspending the sentence during that period.
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grant a full pardon at any time even during the pendency
of the case in this court in exercise of what is ordinarily
called “mercy jurisdiction”. Such a pardon after the
accused person has been convicted by the court has the
effect of completely absolving him from all punishment or
disqualification attaching to a conviction for a criminal
offence. That power is essentially vested in the head of the
Executive, because the judiciary has no such “mercy
jurisdiction”. But the suspension of the sentence for the
period when this court is in seizin of the case could have
been granted by this court itself. If in respect of the same
period the Governor also has power to suspend the
sentence, it would mean that both the judiciary and the
executive would be functioning in the same field at the
same time leading to the possibility of conflict of
jurisdiction. Such a conflict was not and could not have
been intended by the makers of the Constitution. But it
was contended by Mr Seervai that the words of the
Constitution, namely, Article 161 do not warrant the
conclusion that the power was in any way limited or
fettered. In our opinion there is a fallacy in the argument
insofar as it postulates what has to be established,
namely, that the Governor’s power was absolute and not
fettered in any way. So long as the judiciary has the
power to pass a particular order in a pending case to
that extent the power of the Executive is limited in view
of the words either of Sections 401 and 426 of the Code
of Criminal Procedure and Articles 142 and 161 of the
Constitution. If that is the correct interpretation to be
put on these provisions in order to harmonise them it
would follow that what is covered in Article 142 is not
covered by Article 161 and similarly what is covered by
Section 426 is not covered by Section 401. On that
interpretation Mr Seervai would be right in his contention
that there is no conflict between the prerogative power of
the sovereign state to grant pardon and the power of the
courts to deal with a pending cage judicially.”
(emphasis supplied)
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27. It was that held that the power to suspend the sentence under Article 161
and Article 142 of the Constitution of India are operating in the same field, and
therefore, in order to avoid any conflict, harmonious rule of construction was
adopted. It was held that the power under Article 161 of the Constitution of
India vested with the Hon’ble Governor is exclusive. However, such power
cannot be exercised in criminal matters which are sub judice before the Hon’ble
Supreme Court. The relevant observations read thus: –
“24. In this connection it would be relevant to consider
what would be the logical consequence if Mr Seervai’s
argument is accepted. In the present case the Governor’s
order has been passed even before the petitioner’s
application for special leave came to be heard by this
court; indeed it was passed before the said application
was filed and the reason for passing the order is stated
to be that the petitioner intended to file an appeal before
this court. Let us, however, take a case where an
application for special leave has been filed in this court,
and on a motion made by the petitioner the court has
directed him to be released on bail on executing a
personal bond of Rs 10,000 and on furnishing two
sureties of like amount. According to Mr Seervai, even if
such an order is passed by this court in a criminal matter
pending before it, it would be open to the petitioner to
move the Governor for suspension of his sentence
pending the hearing of his application and appeal
before this court and the Governor may, in a proper
case, unconditionally suspend the sentence. In other
words, Mr Seervai frankly conceded that, even in a
pending criminal matter before this court, an order
passed by this court may in effect be set aside by the
Governor by ordering an unconditional suspension of
the sentence imposed on the petitioner concerned. This
illustration clearly brings out the nature of the
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case. If Mr Seervai’s argument is accepted it would
inevitably mean that by exercising his power under
Article 161 the Governor can effectively interfere with
an order passed in the same matter by this court in
exercise of its powers under Article 142. It is obvious
that the field on which both the powers are operating
is exactly the same. Should the sentence passed against
an accused person be suspended during the hearing of
an appeal on the ground that an appeal is pending?
That is the question raised both before this court and
before the Governor. In such a case it would be idle to
suggest that the field on which the power of the
Governor under Article 161 can be exercised is
different from the field on which the power of this
court can be exercised under Article 142. The fact that
the powers invoked are different in character, one
judicial and the other executive, would not change the
nature of the field or affect its identity. We have given
our anxious consideration to the problem raised for
our decision in the present case and we feel no
hesitation in taking the view that any possible conflict
in exercise of the said two powers can be reasonably
and properly avoided by adopting a harmonious Rule
of construction. Avoidance of such a possible conflict
will incidentally prevent any invasion of the Rule of
law which is the very foundation of our Constitution.”
(emphasis supplied)
28. It is pertinent to note that the aforesaid judgment for the majority was
authored by Chief Justice B.P. Sinha, as he then was, and Justice J.L. Kapur
gave a dissenting minority judgment. In the minority judgment it was observed
that the power to suspend the sentence was part of the larger power of pardoning
vested with Hon’ble Governor under Article 161 of the Constitution of India
and could be exercised at any time and the same would be in not conflict with
the power of Hon’ble Supreme Court for granting suspension of sentence
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because the said powers are exercisable on different considerations. The
relevant observations of the minority judgment passed by Justice J.L. Kapur
reads as under: –
“61. It was argued that the power of the court under
Articles 142 & 145 and of the Governor under Article
161 are mutually inconsistent and therefore the power
of the Governor does not extend to the period the appeal
is pending in this court because law does not
contemplate that two authorities i.e. executive and
judicial should operate in the same field and that it is
necessary that this court should put a harmonious
construction on them. Article 142 of the Constitution, it
was contended, is couched in language of the widest
amplitude and comprises powers of suspension of
sentences etc. The argument that the power of the
executive to suspend the sentence under Article 161
and of the judiciary to suspend the sentence under
Article 142 and Article 145 are in conflict ignores the
nature of the two powers. No doubt the effect of both is
the same but they do not operate in the same field; the
two authorities do not act on the same principles and
in exercising their powers they do not take the same
matters into consideration. The executive exercises the
power in derogation of the judicial power. The
executive power to pardon including reprieve, suspend
or respite a sentence is the exercise of a sovereign or
governmental power which is inherent in the State
power. It is a power of clemency, of mercy, of grace
“benign prerogative” of the highest officer of the State
and may be based on policy. It is to be exercised on the
ground that public good will be as well or better
promoted by suspension as by the execution but it is
not judicial process. The exercise of this power lies in
the absolute and uncontrolled discretion of the
authority in whom it is vested.
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62. The power of the courts to suspend sentences is to
be exercised on judicial considerations. At Common
Law, it was held in Ex parte U.S. [61 L Ed 129 at P 141]
courts possessed and asserted the right to exert judicial
discretion in the enforcement of the law to temporarily
suspend either the imposition of sentence or its
execution when imposed to the end that pardon might be
procured or that the violation of law in other respects
might be prevented. It was also held that a Federal
District Court exceeds its power by ordering that
execution of a sentence imposed by it upon a plea of
guilty be suspended indefinitely during good behavior
upon considerations wholly extraneous to the legality of
the conviction : Ex parte U.S. [(1920) AC 508] .
*** ***
64. The judicial power therefore is exercisable on
judicial considerations. The courts would approach
every question in regard to suspension with a judicial
eye. They are unable to look to anything which is
outside the record or the facts which are proved before
them. It is not their sphere to take into consideration
anything which is not strictly judicial. A court knows
nothing of a case except what is brought before it in
accordance with the laws of procedure and evidence
and consequently this is a power distinct from the
power of the executive which may act, taking into
consideration extra-judicial matters even on the
ground that suspension, remission and commutation
may be more for public good and welfare than no
interference. These are all matters of public policy and
matters which are not judicial and are within the
power of the executive and therefore it cannot be said
that the two powers operate in the same field. No doubt
they may have the same effect but they operate in
distinct fields, on different principles taking wholly
irreconcilable factors into consideration.
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*** ***
67. As to suspension of sentence again in Section 426 of
the Criminal Procedure Code it is expressly stated that
an appellate court can suspend the sentence for reasons
to be stated; no such limitation is imposed on the
executive under Section 401 of the Code. The language
of the two sections themselves shows the field in which
the two powers operate although the effect may be the
same. It is relevant to consider in this connection the
grounds on which a court acts in regard to offences
punishable with death or imprisonment for life (section
497 of CrPC) but no such restrictions impede executive
action. Similarly when the Supreme Court acts under
Article 142 it acts judicially and takes only those facts
into consideration which are sufficient in the judicial
sense to justify the exercise of its power; so would be the
case when the power is exercised under the Rules
framed by the court. Thus it appears that the power of
the executive and of the judiciary to exercise the power
under Articles 161 and 142 or under Sections 401 and
426 are different in nature and are exercised on different
considerations and even may have different effect.
(emphasis supplied)
29. This distinction between Judicial and Executive power was further
recognized by the Hon’ble Supreme Court in State of Haryana Ors. v.
Mohinder Singh 29 . In this case, while upholding the power of the State
Government under Section 432 of the CrPC to remit the whole or any part of
the punishment of the person who has been sentenced, even though, his appeal
against conviction and sentence was pending at that relevant time, it was
observed and held as under: –
“10. The terms bail, furlough and parole have different
connotations. Bail is well understood in criminal29
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jurisprudence. Provisions of bail are contained in
Chapter XXXIII of the Code. It is granted by the officer
in charge of a police station or by the court when a
person is arrested and is accused of an offence other
than a non-bailable offence. The court grants bail when
a person apprehends arrest in case of a non-bailable
offence or is arrested for a non-bailable offence. When
a person is convicted of an offence he can be released
on bail by the appellate court till his appeal is decided.
If he is acquitted his bail bonds are discharged and if
appeal dismissed he is taken into custody. Bail can be
granted subject to conditions. It does not appear to be
quite material that during the pendency of appeal
though his sentence is suspended he nevertheless
remains a convict. For the exercise of powers under
Section 432 it may perhaps be relevant that the State
Government may remit the whole or any part of the
punishment to which a person has been sentenced
even though his appeal against conviction and
sentence was pending at that time. Appeal in that case
might have to abate inasmuch as the person convicted
has to accept the conditions on which the State
Government remits the whole or part of his
punishment.”
(emphasis supplied)
30. In the considered opinion of this Court, however, the nature of relief by
way of parole/furlough would be distinct from the exercise of judicial power of
suspension of sentence by the High Court. As can be seen, that the grant of
parole/furlough has always been vested with the executive. The distinction
between the aforesaid two powers have been repeatedly recognised by the
Hon’ble Supreme Court. In Sunil Fulchand Shah v. Union of India and
Others30, the Constitution Bench of Hon’ble Supreme Court while dealing with
30
(2000) 3 SCC 409
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the issue of granting parole to a detenu therein under the COFEPOSA, agreed
with the judgment in Mohinder Singh (supra) and had observed as under: –
“24. Bail and parole have different connotations in law.
Bail is well understood in criminal jurisprudence and
Chapter XXXIII of the Code of Criminal Procedure
contains elaborate provisions relating to grant of bail.
Bail is granted to a person who has been arrested in a
non-bailable offence or has been convicted of an
offence after trial. The effect of granting bail is to
release the accused from internment though the court
would still retain constructive control over him
through the sureties. In case the accused is released on
his own bond such constructive control could still be
exercised through the conditions of the bond secured
from him. The literal meaning of the word “bail” is
surety. In Halsbury’s Laws of England [ Halsbury’s
Laws of England, 4th Edn., Vol. 11, para 166.] , the
following observation succinctly brings out the effect of
bail:
The effect of granting bail is not to set the
defendant (accused) at liberty but to release him from
the custody of law and to entrust him to the custody of
his sureties who are bound to produce him to appear at
his trial at a specified time and place. The sureties may
seize their principal at any time and may discharge
themselves by handing him over to the custody of law
and he will then be imprisoned.
25. “Parole”, however, has a different connotation
than bail even though the substantial legal effect of
both bail and parole may be the release of a person
from detention or custody. The dictionary meaning of
“parole” is:
The Concise Oxford Dictionary — (New Edition)
“The release of a prisoner temporarily for a special
purpose or completely before the expiry of a sentence,CRL.REF. 1/2025 & other connected matters Page 40 of 105
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on the promise of good behaviour; such a promise; a
word of honour.”
Black’s Law Dictionary — (6th Edition)
“Release from jail, prison or other confinement after
actually serving part of sentence; Conditional release
from imprisonment which entitles parolee to serve
remainder of his term outside confines of an institution,
if he satisfactorily complies with all terms and
conditions provided in parole order.”
According to The Law Lexicon [ P. Ramanatha Aiyar’s
The Law Lexicon with Legal Maxims, Latin Terms and
Words & Phrases, p. 1410] , “parole” has been defined
as:
“A parole is a form of conditional pardon, by which the
convict is released before the expiration of his term, to
remain subject, during the remainder thereof, to
supervision by the public authority and to return to
imprisonment on violation of the condition of the
parole.”
According to Words and Phrases [ Words & Phrases
(Permanent Edition), Vol. 31, pp. 164, 166, 167, West
Publishing Co.] :
” ‘Parole’ ameliorates punishment by permitting convict
to serve sentence outside of prison walls, but parole
does not interrupt sentence. People ex rel
Rainone v. Murphy [135 NE 2d 567, 571, 1 NY 2d 367,
153 NYS 2d 21, 26] .
‘Parole’ does not vacate sentence imposed, but is merely
a conditional suspension of
sentence. Wooden v. Goheen [ Ky, 255 SW 2d 1000,
1002] .
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A ‘parole’ is not a ‘suspension of sentence’, but is a
substitution, during continuance of parole, of lower
grade of punishment by confinement in legal custody
and under control of warden within specified prison
bounds outside the prison, for confinement within the
prison adjudged by the court. Jenkins v. Madigan [ CA
Ind, 211 F 2d 904, 906] .
A ‘parole’ does not suspend or curtail the sentence
originally imposed by the court as contrasted with a
‘commutation of sentence’ which actually modifies it.”
26. In this country, there are no statutory provisions
dealing with the question of grant of parole. The Code
of Criminal Procedure does not contain any provision
for grant of parole. By administrative instructions,
however, rules have been framed in various States,
regulating the grant of parole. Thus, the action for
grant of parole is generally speaking, an
administrative action. The distinction between grant of
bail and parole has been clearly brought out in the
judgment of this Court in State of
Haryana v. Mohinder Singh [(2000) 3 SCC 394 : JT
(2000) 1 SC 629] to which one of us (Wadhwa, J.) was
a party. That distinction is explicit and I respectfully
agree with that distinction.
27. Thus, it is seen that “parole” is a form of
“temporary release” from custody, which does not
suspend the sentence or the period of detention, but
provides conditional release from custody and changes
the mode of undergoing the sentence. COFEPOSA
does not contain any provision authorising the grant
of parole by judicial intervention. As a matter of fact,
Section 12 of COFEPOSA, which enables the
administration to grant temporary release of a
detained person expressly lays down that
the Government may direct the release of a detenu for
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any specified period either without conditions or upon
such conditions as may be specified in the order
granting parole, which the parolee accepts. Sub-
section (6) of Section 12 lays down:
“12. (6) Notwithstanding anything contained in any
other law and save as otherwise provided in this section,
no person against whom a detention order made under
this Act is in force shall be released whether on bail or
bail bond or otherwise.”
28. Section 12(6) starts with a non obstante clause and
mandates that no person against whom a detention
order made under COFEPOSA is in force shall be
released “whether on bail or bail bond or otherwise”.
The prohibition is significant and has a purpose to
serve. Since the object of preventive detention is to keep
a person out of mischief in the interest of the security of
the State or public order, judicial intervention to release
the detenu during the period an order of detention is in
force has to be minimal. Under Section 12(1) or Section
12(1-A), it is for the State to see whether the detenu
should be released temporarily or not keeping in view
the larger interest of the State and the requirements of
detention of an individual. Terms and conditions which
may be imposed while granting order of temporary
release are also indicated in the other clauses of Section
12 for the guidance of the State. Sub-section (6) in terms
prohibits the release of a detenu, during the period an
order of detention is in force, “on bail or bail
bond or otherwise”. The expression “or otherwise”
would include release of the detenu even on parole
through judicial intervention.
29. Thus, parole, stricto sensu may be granted by way of
a temporary release as contemplated by Section 12(1)
or Section 12(1-A) of COFEPOSA by the Government
or its functionaries, in accordance with the parole rules
or administrative instructions, framed by the
Government which are administrative in character andCRL.REF. 1/2025 & other connected matters Page 43 of 105
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shall be subject to the terms of the rules or the
instructions, as the case may be. For securing release
on parole, a detenu has, therefore, to approach the
Government concerned or the jail authorities, who
may impose conditions as envisaged by Section 12(2)
etc. and the grant of parole shall be subject to those
terms and conditions. The courts cannot, generally
speaking, exercise the power to grant temporary
release to detenus, on parole, in cases covered by
COFEPOSA during the period an order of detention is
in force because of the express prohibition contained
in sub-section (6) of Section 12. Temporary release of
a detenu can only be ordered by the Government or an
officer subordinate to the Government, whether
Central or State. I must, however, add that the bar of
judicial intervention to direct temporary release of a
detenu would not affect the jurisdiction of the High
Courts under Article 226 of the Constitution or of this
Court under Article 32, 136 or 142 of the Constitution
to direct the temporary release of the detenu, where
request of the detenu to be released on parole for a
specified reason and/or for a specified period, has
been, in the opinion of the Court, unjustifiably refused
or where in the interest of justice such an order of
temporary release is required to be made. That
jurisdiction, however, has to be sparingly exercised by
the Court and even when it is exercised, it is appropriate
that the Court leave it to the administrative or jail
authorities to prescribe the conditions and terms on
which parole is to be availed of by the detenu.
30. Since release on parole is only a temporary
arrangement by which a detenu is released for a
temporary fixed period to meet certain situations, it does
not interrupt the period of detention and, thus, needs to
be counted towards the total period of detention unless
the rules, instructions or terms for grant of parole,
prescribe otherwise. The period during which parole is
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maximum period of detention indicated in the order of
detention. The period during which a detenu has been
out of custody on temporary release on parole, unless
otherwise prescribed by the order granting parole, or by
rules or instructions, has to be included as a part of the
total period of detention because of the very nature of
parole. An order made under Section 12 of temporary
release of a detenu on parole does not bring the
detention to an end for any period — it does not
interrupt the period of detention — it only changes the
mode of detention by restraining the movement of the
detenu in accordance with the conditions prescribed in
the order of parole. The detenu is not a free man while
out on parole. Even while on parole he continues to
serve the sentence or undergo the period of detention in
a manner different than from being in custody. He is not
a free person. Parole does not keep the period of
detention in a state of suspended animation. The period
of detention keeps ticking during this period of
temporary release of a detenu also because a parolee
remains in legal custody of the State and under the
control of its agents, subject at any time, for breach of
condition, to be returned to custody. Thus, in cases
which are covered by Section 12 of COFEPOSA, the
period of temporary release would be governed by the
conditions of release whether contained in the order or
the rules or instructions and where the conditions do not
prescribe it as a condition that the period during which
the detenu is out of custody, should be excluded from the
total period of detention, it should be counted towards
the total period of detention for the simple reason that
during the period of temporary release the detenu is
deemed to be in constructive custody. In cases falling
outside Section 12, if the interruption of detention is by
means not authorised by law, then the period during
which the detenu has been at liberty, cannot be counted
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while computing the period of detention. The answer to
the question, therefore, is that the period of detention
would not stand automatically extended by any period
of parole granted to the detenu unless the order of parole
or rules or instructions specifically indicates as a term
and condition of parole, to the contrary. The period
during which the detenu is on parole, therefore, requires
to be counted towards the total period of detention.”
(emphasis supplied)
31. In Dadu @ Tulsidas v. State of Maharashtra (supra), the three Judge
Bench of the Hon’ble Supreme Court held that Section 32A of the NDPS Act31
is unconstitutional to the extent that it took away the right of the Court to
suspend the sentence of the convict under the said Act. The three Judge Bench
while noting the decisions in Mohinder (supra) and Sunil Fulchand (supra)
observed and held as under: –
“5. Before dealing with the main issue regarding the
validity of Section 32-A, a side issue, projected in Writ
Petition No. 169, is required to be dealt with. The writ
petition appears to be based upon the misconception of
the provisions of law and in ignorance of the various
pronouncements of this Court.
6. Parole is not a suspension of the sentence. The
convict continues to be serving the sentence despite
granting of parole under the statute, rules, jail manual
or the Government Orders. “Parole” means the release
of a prisoner temporarily for a special purpose before
the expiry of a sentence, on the promise of good
behaviour and return to jail. It is a release from jail,
prison or other internment after actually being in jail
serving part of sentence.
7. Grant of parole is essentially an executive function
to be exercised within the limits prescribed in that31
The Narcotic Drug and Psychotropic Substances Act, 1985CRL.REF. 1/2025 & other connected matters Page 46 of 105
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behalf. It would not be open to the court to reduce the
period of detention by admitting a detenu or convict on
parole. The court cannot substitute the period of
detention either by abridging or enlarging it. Dealing
with the concept of parole and its effect on period of
detention in a preventive detention matter, this Court
in Poonam Lata v. M.L. Wadhawan [(1987) 3 SCC 347
: 1987 SCC (Cri) 506] held: (SCC p. 354, para 8)
“8. There is no denying of the fact that preventive
detention is not punishment and the concept
of serving out a sentence would not legitimately be
within the purview of preventive detention. The grant
of parole is essentially an executive function and
instances of release of detenus on parole were
literally unknown until this Court and some of the
High Courts in India in recent years made orders of
release on parole on humanitarian considerations.
Historically ‘parole’ is a concept known to military
law and denotes release of a prisoner of war on
promise to return. Parole has become an integral part
of the English and American systems of criminal
justice intertwined with the evolution of changing
attitudes of the society towards crime and criminals.
As a consequence of the introduction of parole into
the penal system, all fixed-term sentences of
imprisonment of above 18 months are subject to
release on licence, that is, parole after a third of the
period of sentence has been served. In those
countries, parole is taken as an act of grace and not
as a matter of right and the convict prisoner may be
released on condition that he abides by the promise.
It is a provisional release from confinement but is
deemed to be a part of the imprisonment. Release on
parole is a wing of the reformative process and is
expected to provide opportunity to the prisoner to
transform himself into a useful citizen. Parole is thus
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change the status of the prisoner. Rules are framed
providing supervision by parole authorities of the
convicts released on parole and in case of failure to
perform the promise, the convict released on parole is
directed to surrender to custody. (See The Oxford
Companion to Law, edited by Walker, 1980 Edn., p.
931; Black’s Law Dictionary, 5th Edn., p.
1006; Jowitt’s Dictionary of English Law, 2nd Edn.,
Vol. 2, p. 1320; Kenny’s Outlines of Criminal Law;
17th Edn., pp. 574-76; The English Sentencing
System by Sir Rupert Cross at pp. 31-34, 87 et.
seq.; American Jurisprudence, 2nd Edn., Vol. 59, pp.
53-61; Corpus Juris Secundum, Vol. 67; Probation
and Parole, Legal and Social Dimensions by Louis P.
Carney.) It follows from these authorities that parole
is the release of a very long-term prisoner from a
penal or correctional institution after he has served a
part of his sentence under the continuous custody of
the State and under conditions that permit his
incarceration in the event of misbehaviour.”
8. This position was again reiterated in State of
Haryana v. Mohinder Singh [(2000) 3 SCC 394 : 2000
SCC (Cri) 645] .
9. The Constitution Bench of this Court in Sunil
Fulchand Shah v. Union of India [(2000) 3 SCC 409 :
2000 SCC (Cri) 659] considered the distinction between
bail and parole in the context of reckoning the period
which a detenu has to undergo in prison and held: (SCC
pp. 429-31, paras 24-25)
*** ***
10. Again in State of Haryana v. Nauratta
Singh [(2000) 3 SCC 514 : 2000 SCC (Cri) 711] it was
held by this Court as under: (SCC p. 520, para 14)
“Parole relates to executive action taken after the
door has been closed on a convict. During parole
period there is no suspension of sentence but the
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sentence is actually continuing to run during that
period also.”
11. It is thus clear that parole did not amount to the
suspension, remission or commutation of sentences
which could be withheld under the garb of Section 32-
A of the Act. Notwithstanding the provisions of the
offending section, a convict is entitled to parole, subject
however, to the conditions governing the grant of it
under the statute, if any, or the jail manual or the
government instructions. The Writ Petition No. 169 of
1999 apparently appears to be misconceived and filed
in a hurry without approaching the appropriate
authority for the grant of relief in accordance with the
jail manual applicable in the matter.”
(emphasis supplied)
32. Similarly, in Atbir (supra), the Hon’ble Supreme Court while dealing
with an issue of granting furlough to a convict whose death sentence had been
commuted on the orders of Hon’ble President of India on the condition that he
shall remain in prison for the whole of the remainder of his natural life without
parole and further that there should be no remission of the term of
imprisonment, had observed and held as under: –
“14. While dealing with the issue raised in this matter
i.e. as to whether the appellant is entitled to furlough
under the Delhi Prison Rules, 2018 despite bar over any
remission in the term of imprisonment for the whole of
his natural life, it is necessary, in the first place, to take
note of the relevant applicable provisions.
*** ***
18. The principles relating to different provisions
dealing with the matter of release of a prisoner by way
of bail, furlough and parole have been considered and
the distinction has been explained by this Court in
several of its decisions. We need not multiply on theCRL.REF. 1/2025 & other connected matters Page 49 of 105
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authorities but, relevant it would be to take note of the
observations and enunciations by this Court
in Asfaq [Asfaq v. State of Rajasthan, (2017) 15 SCC 55
: (2018) 1 SCC (Cri) 390] , where it was observed, inter
alia, as under : (SCC pp. 60-62, paras 11 & 14-16)
“11. There is a subtle distinction between parole and
furlough. A parole can be defined as conditional release
of prisoners i.e. an early release of a prisoner,
conditional on good behaviour and regular reporting to
the authorities for a set period of time. It can also be
defined as a form of conditional pardon by which the
convict is released before the expiration of his term.
Thus, the parole is granted for good behaviour on the
condition that parolee regularly reports to a supervising
officer for a specified period. Such a release of the
prisoner on parole can also be temporarily on some
basic grounds. In that eventuality, it is to be treated as
mere suspension of the sentence for time being, keeping
the quantum of sentence intact. Release on parole is
designed to afford some relief to the prisoners in certain
specified exigencies. …
***
14. Furlough, on the other hand, is a brief release from
prison. It is conditional and is given in case of long-term
imprisonment. The period of sentence spent on furlough
by the prisoners need not be undergone by him as is
done in the case of parole. Furlough is granted as a
good conduct remission.
15. A convict, literally speaking, must remain in jail for
the period of sentence or for rest of his life in case he is
a life convict. It is in this context that his release from
jail for a short period has to be considered as an
opportunity afforded to him not only to solve his
personal and family problems but also to maintain his
links with society. Convicts too must breathe fresh air
for at least some time provided they maintain good
conduct consistently during incarceration and show aCRL.REF. 1/2025 & other connected matters Page 50 of 105
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tendency to reform themselves and become good
citizens. Thus, redemption and rehabilitation of such
prisoners for good of societies must receive due
weightage while they are undergoing sentence of
imprisonment.
16. This Court, through various pronouncements, has
laid down the differences between parole and furlough,
few of which are as under:
(i) Both parole and furlough are conditional release.
(ii) Parole can be granted in case of short-term
imprisonment whereas in furlough it is granted in case
of long-term imprisonment.
(iii) Duration of parole extends to one month whereas in
the case of furlough it extends to fourteen days
maximum.
(iv) Parole is granted by the Divisional Commissioner
and furlough is granted by the Deputy Inspector
General of Prisons.
(v) For parole, specific reason is required, whereas
furlough is meant for breaking the monotony of
imprisonment.
(vi) The term of imprisonment is not included in the
computation of the term of parole, whereas it is vice
versa in furlough.
(vii) Parole can be granted number of times whereas
there is limitation in the case of furlough.
(viii) Since furlough is not granted for any particular
reason, it can be denied in the interest of the society.
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(See State of Maharashtra v. Suresh Pandurang
Darvakar [State of Maharashtra v. Suresh Pandurang
Darvakar, (2006) 4 SCC 776 : (2006) 2 SCC (Cri) 411]
and State of Haryana v. Mohinder Singh [State of
Haryana v. Mohinder Singh, (2000) 3 SCC 394 : 2000
SCC (Cri) 645] .)”
(emphasis supplied)
19. Further, in Narayan [State of Gujarat v. Narayan,
(2021) 20 SCC 304 : 2021 SCC OnLine SC 949] , this
Court has summarised the principles in the following
terms : (SCC OnLine SC para 24)“24. The principles may be formulated in broad,
general terms bearing in mind the caveat that the
governing rules for parole and furlough have to be
applied in each context. The principles are thus:
(i) Furlough and parole envisage a short-term
temporary release from custody;
(ii) While parole is granted for the prisoner to meet a
specific exigency, furlough may be granted after a
stipulated number of years have been served without any
reason;
(iii) The grant of furlough is to break the monotony of
imprisonment and to enable the convict to maintain
continuity with family life and integration with society;
(iv) Although furlough can be claimed without a reason,
the prisoner does not have an absolute legal right to
claim furlough;
(v) The grant of furlough must be balanced against the
public interest and can be refused to certain categories
of prisoners.”
(emphasis supplied)
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20. Having examined the matter in its totality, we find
it difficult to agree with the reasoning in the order
impugned and with the contentions that once it has
been provided by the Hon’ble President of India that
the appellant would remain in prison for whole of the
remainder of his natural life without parole and
without remission in the term of imprisonment, all his
other rights, particularly those emanating from good
jail conduct, as available in the 2018 Rules stand
foreclosed.
21. As has rightly been pointed out, in the 2018 Rules,
the eligibility requirement to obtain furlough is of “3
annual good conduct reports” and not “3 annual good
conduct remissions”. The expressions employed in
clause (I) of Rule 1223 of the 2018 Rules are that the
prisoner ought to maintain “Good conduct in the
prison and should have earned rewards in last 3
annual good conduct report” and further that he
should continue “to maintain good conduct”. Even
these expressions cannot be read to mean that the
prisoner ought to earn “good conduct remissions”. In
the scheme of the 2018 Rules it cannot be said that
earning rewards is equivalent to earning remissions.
22. It has also rightly been pointed out that when
furlough is an incentive towards good jail conduct,
even if the person is otherwise not to get any remission
and has to remain in prison for whole of the remainder
of his natural life, that does not, as a corollary, mean
that his right to seek furlough is foreclosed. Even if he
would spend some time on furlough, that will not come
to his aid so as to seek remission because of the fact
that he has to remain in prison for whole of the
remainder of his natural life.
*** ***
31. In other words, even if the appellant is to remain in
prison for the whole of the remainder of his life, the
expectations from him of good conduct in jail would
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always remain; and the lawful consequences of good
conduct, including that of furlough, cannot be denied,
particularly when the same has not been prohibited in
the order dated 15-11-2012. We need not elaborate to
say that depriving of even the concession of furlough
and thereby taking away an incentive/motivation for
good conduct would not only be counterproductive but
would be an antithesis to the reformative approach
otherwise running through the scheme of the 2018
Rules.
*** ****
33. Thus, looking to the concept of furlough and the
reasons for extending this concession to a prisoner lead
us to hold that even if a prisoner like the appellant is not
to get any remission in his sentence and has to serve the
sentence of imprisonment throughout his natural life,
neither the requirements of his maintaining good
conduct are whittled down nor the reformative approach
and incentive for good conduct cease to exist in his
relation. Thus, if he maintains good conduct, furlough
cannot be denied as a matter of course.
34. We would hasten to observe that whether furlough
is to be granted in a given case or not is a matter
entirely different. Taking the case of the appellant, he
is a person convicted of multiple murders. Therefore,
the requirement of Rule 1225 of the 2018 Rules may
come into operation. However, it cannot be said that
his case would never be considered for furlough.
Whether he is to be given furlough on the parameters
delineated therein or not is a matter to be examined by
the authorities in accordance with law.
35. In view of the above, while disapproving blanket
denial of furlough to the appellant in the orders
impugned, we would leave the case of the appellant for
grant of furlough open for examination by the
authorities concerned in accordance with law.”
(emphasis supplied)
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33. Principles of parole being granted by the Executive has been recognized
internationally. In the United States of America, parole is granted by the Parole
Board on certain considerations and the paroled prisoner remains in the custody
and control of the Parole Board. By way of reference, it is apposite to refer to
the decision of the Supreme Court of United States in John R. Jones v. W.K.
Cunningham, Jr. Superintendent of Virginia State Penitentiary32, wherein,
the same principle was recognised in a habeas corpus petition filed by the
petitioner therein. The petitioner therein had filed habeas corpus petition before
the United States District Court against the dismissal of which he was granted
certificate of probable cause and leave to appeal in forma pauperis to challenge
the same before Court of Appeals. Before the case could have come for oral
arguments before the Court of Appeals, he was paroled by the Virginia Parole
Board and was released from Virginia State Penitentiary and consequently, his
leave to appeal was dismissed as moot by Court of Appeals as he was released
from State Penitentiary and no longer in custody of State Penitentiary.
Thereafter, the matter was taken before Supreme Court of United States which
held that the petitioner was in custody of the Virginia Parole Board. The
Supreme Court of United States observed and held as under: –
“[1 A United States District Court has jurisdiction
under 28 U. S. C. § 2241 to grant a writ of habeas
corpus ” to a prisoner . . . in custody in violation of the
Constitution . . . of the United States.” The question in
this case is whether a state prisoner who has been
placed on petitioner was placed on parole, “in custody”
within the meaning of this section so that a Federal
District Court has jurisdiction to hear and determine his
charge that his state sentence was imposed in violation
of the United States Constitution.
32
371 U.S. 236: 83 S. Ct. 373 (1963) in Supreme Court Reporter
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In 1953 petitioner was convicted in a Virginia state
court of an offense re- quiring confinement in the state
penitentiary, and as this was his third such offense he
was sentenced to serve 10 years in the state penitentiary.
In 1961 he filed this petition for habeas corpus in the
United States District Court for the Eastern District of
Virginia, alleging that his third-offender sentence was
based in part upon a 1946 larceny conviction which was
invalid because his federal constitutional right to
counsel had been denied at the 1946 trial. The District
Court dismissed the petition but the Court of Appeals for
the Fourth Circuit granted a certificate of probable
cause and leave to appeal in forma pauperis. Shortly
before the case came on for oral argument before the
Court of Appeals petitioner was paroled by the Virginia
Parole Board. The parole order placed petitioner in the
“custody and control” of the Parole Board and directed
him to live with his aunt and uncle in LaFayette,
Georgia. It provided that his parole was subject to
revocation or modification at any time by the Parole
Board and that petitioner could be arrested and returned
to prison for cause. Among other restrictions and
conditions, petitioner was required to obtain the per-
mission of his parole officer to leave the community, to
change residence, or to own or operate a motor vehicle.
He was further required to make monthly re-ports to his
parole officer, to permit the officer to visit his home or
place of employment at any time, and to follow the
officer’s instructions and advice. When petitioner was
placed on parole, the Superintendent of the Virginia
State Penitentiary, who was the only respondent in the
case, asked the Court of Appeals determine his charge
that his statement to dismiss the case as moot since
petitioner was no longer in his custody. Petitioner
opposed the motion to dismiss but, in view of his parole
to the custody of the Virginia Parole Board, moved to
add its members. The Court of Appeals dismissed,
holding that the case was moot as to the superintendent
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because he no longer had custody or control over
petitioner “at large on parole.” It refused to permit the
petition-er to add the Parole Board members as
respondents because they did not have “physical
custody” of the person of petitioner and were therefore
not proper parties. 4 Cir, 294 D.2d 608. We granted
certiorari to decide whether a parolee is “in custody”
within the meaning of 28 U.S.C. § 2241, 28 U.S.C.A. §
2241 and is therefore entitled to invoke the habeas
corpus jurisdiction of the United States District Court.
369 U.S. 809 82 S. Ct. 687 L.Ed.2d 611.
**** **** ****
[4] Respondent strongly urges upon us that however
numerous the situations in which habeas corpus will lie
prior decisions of this Court conclusively determine that
the liberty of a person released on parole is not so
restrained as to permit the parolee to attack his
conviction in habeas corpus proceedings. In some of
those cases, upon which the Court of Appeals in this
case also relied, the petitioner had been completely and
unconditionally released from custody; such cases are
obviously not controlling here where petitioner has not
been unconditionally released. Other cases relied up on
by respondent held merely that the dispute between the
petitioner and the named respondent in each case had
become moot because that particular respondent no
longer held the petitioner in his custody.15 So here, as in
the cases last mentioned, when the petitioner was placed
on parole, his cause against the Superintendent of the
Virginia State Penitentiary became moot because the
superintendent’s custody had come to an end, as much
as if he had resigned his position with the State. But it
does not fellow that this petitioner is wholly without
remedy. His motion to add the members of the Virginia
Parole Board as parties respondent squarely raises the
question, not presented in our earlier cases, of whether
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“custody” within the meaning of 28 U.S.C. 2241, 28
U.S.C.A. 2241 so that he can by habeas corpus require
the Parole Board to point to and defend the law by which
it justifies any restraint on his liberty.
[5] The Virginia statute provides that a paroled
prisoner shall be released “into the custody of the
Parole Board,” and the parole order itself places
petitioner “under the custody and control of the
Virginia Parole Board.” And in fact, as well as in
theory, the custody and control of the Parole Board
involves significant restraints on petitioner’s liberty
because of his conviction and sentence, which are in
addition to those imposed by the State upon the public
generally. Petitioner is confined by the parole order to
a particular community, house, and job at the sufferance
of his parole officer. He cannot drive a car without
permission. He must periodically report to his parole
officer, permit the officer to visit his home and job at any
time, and follow the officer’s advice. He is admonished
to keep good company and good hours, work regularly,
keep away from undesirable places, and live a clean,
hon eat, and temperate life. Petitioner must not only
faithfully obey these restrictions and conditions but he
must live in constant fear that a single deviation,
however slight, might be enough to result in his being
returned to prison to serve out the very sentence he
claims was imposed upon him in violation of the United
States Constitution. He can be rearrested at any time the
Board or pa role officer believes he has violated a term
or condition of his parole, and he might be thrown back
in jail to finish serving the allegedly invalid sentence
with few, if any, of the procedural safe guards that
normally must be and are provided to those charged
with crime. It is not relevant that conditions and
restrictions such as these may be desirable and
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liberty to do those things which in this country free men
are entitled to do. Such restraints are enough to invoke
the help of the Great Writ. Of course, that writ always
could and still can reach behind prison walls and iron
bars. But it can do more. It is not now and never has
been a static, narrow, formalistic remedy its scope has
grown to achieve its grand purpose — the protection of
individuals against erosion of their right to be free from
wrongful restraints upon their liberty. While petitioner’s
parole releases him from immediate physical
imprisonment, it imposes conditions which
significantly confine and restrain his freedom; this is
enough to keep him in the “custody” of the members
of the Virginia Parole Board within the meaning of the
habeas corpus statute, if he can prove his allegations
this custody is in violation of the Constitution, and it
was therefore error for the Court of Appeals to dismiss
his case as moot instead of permitting him to add the
Parole Board members as respondents.
[6] Respondent also argues that the District Court had
no jurisdiction because the petitioner had left the
territorial confines of the district. But this case is not
like Ahrens v. Clark, 335 U.S. 188, 68 B.CL. 1443, 92 L.
Ed. 1898 (1948), upon which respondent relies, because
in that case petitioners were not even detained in the
district when they originally filed their petition. Rather,
this case is controlled by our decision in Ex parte Endo,
323 U.S. 283, 304-307, 65 S.Ct. 208, 219-220, 89 L.Ed.
243 (1944). which held that a District Court did not lose
its jurisdiction when a habeas corpus petitioner was
removed from the district so long as an appropriate
respondent with custody remained. Here the members of
the Parole Board are the still within the jurisdiction of
the District Court, and they can be required to do all
things necessary to bring the case to a final
adjudication.
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The case is reversed and remanded to the Court of
Appeals with directions to grant petitioner’s motion to
add the members of the Parole Bench as respondents
and proceed to a decision on the merits of petitioner’s
case.”
(emphasis supplied)
In the above decision, the US Supreme Court thus held that the Federal District
Court had jurisdiction to hear and determine the petition of habeas corpus filed
by the Petitioner even when he was released on parole, since the conditions of
parole severely restrict and confine the freedom enjoyed by him. Thus, despite
being released from the physical imprisonment the Petitioner continued to
remain in the custody of the Virginia Parole Board due to the restrictions placed
upon his freedom.
34. The principle that can be culled out from the aforesaid decision(s) is that
parole and furlough are distinct from granting bail or suspension of sentence
by a Court and operate in different fields. The end result of both is common to
the effect that the convict gets released from physical imprisonment, however,
the convict continues to be in custody of the concerned authorities in view of
the restrictions imposed on his freedom for the duration of his release. The
period of release in parole and furlough differ as in the case of former the period
may be up to a month and in case of the latter it may extend up to only 15 days.
However, the considerations for exercising such powers are, again, distinct.
Powers of the Court to grant bail or suspension of sentence are governed by
judicial considerations which may not be the case for the executive while
exercising power to grant parole or furlough. The said distinction can be seen
from the Rules itself. For instance, parole is granted as per Rule 1198 of the
Prisons Rules which reads thus: –
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“CHAPTER -XIX
PAROLE & FURLOUGH
1197. Parole and Furlough to inmates are progressive
measures of correctional services. The release of
prisoner on parole not only saves him from the evils of
incarceration but also enables him to maintain social
relations with his family and community. It also helps
him to maintain and develop a sense of self-confidence.
Continued contacts with family and the community
sustain in him a hope for life. The release of prisoner on
furlough motivates him to maintain good conduct and
remain disciplined in the prison.
1198. Parole means temporary release of a prisoner for
short period so that he may maintain social relations
with his family and the community in order to fulfill his
familial and social obligations and responsibilities. It is
an opportunity for a prisoner to maintain regular
contact with outside world so that he may keep himself
updated with the latest developments in the society. It is
however clarified that the period spent by a prisoner
outside the prison while on parole in no way is a
concession so far as his sentence is concern. The
prisoner has to spend extra time in prison for the period
spent by him outside the Jail on parole.
1199. Furlough means release of a prisoner for a short
period of time after a gap of certain qualified numbers
of years of incarceration by way of motivation for
maintaining good conduct and to remain disciplined in
the prison. This is purely an incentive for good conduct
in the prison. Therefore, the period spent by the prisoner
outside the prison on furlough shall be counted towards
his sentence.
1200. The objectives of releasing a prisoner on parole
and furlough are:
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i. To enable the inmate to maintain continuity with
his family life and deal with familial and social
matters,
ii. To enable him to maintain and develop his self-
confidence,iii. To enable him to develop constructive hope and
active interest in life,iv. To help him remain in touch with the developments
in the outside world,v. To help him remain physiologically and
psychologically healthy,vi. To enable him to overcome/recover from the stress
and evil effects of incarceration, andvii. To motivate him to maintain good conduct and
discipline in the prison.”
35. A reading of the aforesaid Rules shows that the objective of releasing the
prisoner on parole or furlough does not concern the merits of a case against the
prisoner. As provided in the aforesaid Rules, the grant or non-grant of
parole/furlough to a prisoner would depend on the facts and circumstances of
each case and would be subject to the restrictions contained in the said Rules
with regard to the individual prisoner who is seeking parole or furlough.
However, the general restriction irrespective of the eligibility of a prisoner to
be released on parole or furlough by way of a rule restricting the executive’s
own power to grant such a relief, in the considered opinion of this Court, would
have no reasonable nexus with the objective which is sought to be achieved in
granting parole or furlough to prisoners/convicts. The issue of States not
granting parole or furlough to a convict whose appeal is pending in the High
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Court has been taken note of by the Supreme Court in Criminal Appeal No.
1343/2012 titled as “Mukesh Kumar v. State“33. Ld. Amicus and ld. Counsel
have informed the Court that in the said case, the issue is only in respect of the
bar when appeals are pending before the High Court. The relevant observation
of the Hon’ble Supreme Court with respect to the said issue are as under: –
“1. In continuation of the previous orders and pursuant
to the personal visit to Tihar Jail, Mr. Gaurav Agrawal,
learned Senior Counsel representing the National Legal
Services Authority (NALSA), in his brief note has, inter
alia, pointed out that :
**** ****
(ii) Some of the States do not provide parole/furlough to
a convict during the pendency of his appeal before the
High Court against conviction. The parole and furlough
is denied on the premise that such a convict can seek
appropriate orders from the High Court. Learned Senior
Counsel points out that parole and furlough are distinct
and different than the order of suspension of sentence
and/or release of a convict on interim/regular bail.
While the later can be granted by the High Court, the
convict can be released on parole/furlough only by the
competent authority of the State Government in
accordance with the rules/policy.”
36. It is further noted that the definition of “prisoner” who is entitled to
parole for convict prisoner as per Section 2 (c) of the Delhi Prisons Act, 2000
is as under: –
“Section 2(c): ‘Convicted criminal prisoner’ means any
criminal prisoner under sentence of a court or court
material, and includes a person detained in prison
under the provisions of Chapter VII of the Code of
Criminal Procedure, 1973 (2 of 1974);”
33
Order dated 02.04.2024 in Miscellaneous Application No. 1658/2023 in Criminal Appeal No. 1343/2012
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37. The reading of the aforesaid provision makes no distinction between a
convicted criminal prisoner whose appeal is pending in any forum or not. It is
further pertinent to note that the Rules with regard to parole and furlough as
contained in Chapter XIX of Prison Rules have been made and the powers
regarding the same has been prescribed Section 71 (2) (xxx). Power to make
law with respect to “Prisons” is provided in Entry 4 in List II of the VII th
Schedule of the Constitution of India. At this stage, it is apposite to refer to
judgment of a Constitution Bench of the Hon’ble Supreme Court in Rajendra
Diwan v. Pradeep Kumar Ranibala and Anr. (supra), wherein, it was held that
the State Legislature of Chhattisgarh was not competent to assign any
adjudicative powers to a Constitution Court like High Court or Supreme Court
and could not have created right of direct appeal to the Supreme Court. The
Hon’ble Supreme Court in Rajendra Diwan (supra) observed and held as
under: –
“39. The entries in the three Lists, relevant to the issues
referred to this Bench, that is, Entry 77 of the Union List,
Entries 18 and 65 of the State List and Entry 46 of the
Concurrent List are set out hereinbelow for
convenience:
“List I — Union List
“77. Constitution, organisation, jurisdiction and
powers of the Supreme Court (including contempt of
such Court), and the fees taken therein; persons entitled
to practise before the Supreme Court.”
List II — State List
“18. Land, that is to say, rights in or over land, land
tenures including the relation of landlord and tenant,
and the collection of rents; transfer and alienation of
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agricultural land; land improvement and agricultural
loans; colonization.
***
65. Jurisdiction and powers of all courts, except the
Supreme Court, with respect to any of the matters in this
List.”
List III — Concurrent List
“46. Jurisdiction and powers of all courts, except the
Supreme Court, with respect to any of the matters in
this List.”
**** ****
49. Section 13(2) of the Rent Control Act, providing for
direct appeal to the Supreme Court from orders passed
by the Rent Control Tribunal, is not ancillary or
incidental to the power of the Chhattisgarh State
Legislature to enact a Rent Control Act, which provides
for appellate adjudication of appeals relating to tenancy
and rent by a Tribunal. In enacting Section 13(2) of the
Rent Control Act, the Chhattisgarh State Legislature has
overtly transgressed the limits of its legislative power, as
reiterated and discussed hereinafter.
50. While the widest amplitude should be given to the
language used in one entry, every attempt has to be
made to harmonise its contents with those of other
Entries, so that the latter may not be rendered nugatory.
51. As observed above, both the Union legislature and
the State Legislature derive their power to legislate from
Article 245 of the Constitution of India. It is axiomatic
that the legislature of a State may only make laws for the
whole or any part of the State, while Parliament may
make laws for the whole or any part of the territory of
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India. There is no provision in the Constitution which
saves State laws with extra-territorial operation, similar
to Article 245(2) which expressly saves Union laws with
extra-territorial operation, enacted by Parliament. The
Chhattisgarh State Legislature, thus, patently lacks
competence to enact any law which affects the
jurisdiction of the Supreme Court, outside the State of
Chhattisgarh.
52. Entry 18 of the State List only enables the State
Legislature to legislate with regard to landlord-tenant
relationship, collection of rents, etc. This Entry does not
enable the State Legislature to circumvent Entry 65 of
the State List or Entry 46 of the Concurrent List which
enable the State Legislature to enact laws with respect
to the jurisdiction and powers of Courts, except the
Supreme Court, or to render otiose, Entry 77 of the
Union List, which expressly confers law-making power
in respect of the jurisdiction of the Supreme Court,
exclusively to Parliament.
**** ****
61. An appeal, on the other hand, is a continuation of
the original proceedings. Where there is a statutory
appeal from an appellate order of the Tribunal, the
appellate court is obliged to rehear the case, re-
appreciate and re-analyse the evidence on record,
adjudicate the correctness of the order impugned and
correct errors both of fact and of law, that the Tribunal
may have made.”
The aforesaid judgment also highlights the distinction between the statutory
appeal and special leave to appeal under Article 136 of the Constitution of
India.
38. It is noted by the Court that the Competent Authorities were granting
parole and furlough to prisoners whose appeals were pending before the
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Hon’ble Supreme Court. During the course of hearing, upon being directed, an
affidavit dated 22.01.2025 has been filed by Mr. Prem Singh Meena,
Superintendent-II, Prisons Headquarter, Janak Puri, New Delhi, to the
following effect: –
“III. That the present affidavit is being filed in
compliance of the Order dated 08.01.2025 passed by
this Hon’ble Court in the above noted Writ Petition.
That this Hon’ble Court vide order 08.01.2025 has
directed to file an affidavit indicating therein about (i)
furlough granted to the convicts in last 10 years whose
Criminal Appeals/Special Leave Petitions are pending
or were pending during the relevant period before the
Hon’ble Supreme Court of India and (ii) the number of
convicts whose Criminal Appeals/Special Leave
Petitions are pending before the Hon’ble Supreme
Court.
1. As per the information retrieved from prison records:-
i) That 26 convicts were granted furlough during last
10 years when their Criminal Appeals (Crl. A.)/Special
Leave Petitions (SLP) are/were pending till the
directions dated 03.07.2023 of Hon’ble Court in Budhi
Singh matter. A list of these 26 convicts is enclosed
herewith and marked as Annexure-A.
ii) At present there 68 convicts in the Delhi Prisons,
whose Criminal Appeals/ Special Leave Petitions are
pending before the Supreme Court. The list is enclosed
and marked as Annexure-B.
2. It is pertinent to mention here that Rule 1199 of Delhi
Prison Rules, 2018 provides the purpose of Furlough is
as follows:
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Furlough means release of a prisoner for short
period of time after a gap of certain qualified
numbers of years of incarceration by way of
motivation for maintaining good conduct and to
remain discipline in the prison. This is purely an
incentive for good conduct in the Prison.
Therefore, the period spent by the prisoner outside
the Prison on furloughs shall be counted towards
his sentence.”
Note 2 of Rule 1224 of Delhi Prison Rules, 2018 is
reproduced as under:
“Note. – (2) 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.”
3. That the decision for inserting the aforesaid note has
been consciously taken by the Government of NCT of
Delhi taking away the jurisdiction vested in the
Executive to consider an application for furlough, when
the appeal of the convict is pending before the Appellant
Court/High Court. A similar restriction has also been
imposed on release of the prisoners on parole.
4. That Parole / Furlough Guidelines, 2010 which was
approved by the Hon’ble LG, Delhi vide order No.
18/91-2009/HG dated 17.02.2010 also vide para 27
states as under:
“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 Court. ”
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6. The said position has been taken as it is in the Delhi
Prison Rules, 2018 as mentioned in the above paras.”
7. It is pertinent to mention here that a similar issue on
considering and granting Parole/Furlough during the
pendency of appeal has also been taken and pending
before the Hon’ble Supreme Court of India in the matter
of Mukesh Kumar Vs. State (NCT of Delhi) in MA
No.1658/2023 in Crl. Appeal No.1343/2012.”34
(emphasis supplied)
39. Further, the reasoning adopted by the learned Single Judge in the
reference order was to the effect that since furlough is subject to the restriction
that if an appeal of a convict is pending before the High Court, therefore, the
same ipso jure would include “Supreme Court” as well, is primarily on the
ground that if an appeal is pending in the higher forum, then, any relief in the
nature of parole or furlough would involve suspension of sentence, and thus,
the said power should be exercised by the concerned Appellate Court.
40. At this stage, it is apposite to refer to the history of the Prison Rules with
respect to parole and furlough. The oldest rules/instructions/guidelines in
existence are to be found in the Punjab Jail Manual which were applicable to
State of Punjab, Haryana, Delhi, and Himachal Pradesh and continued to
operate in post-Independence era. The Rules/instructions/guidelines in the said
Manual were made in exercise of powers conferred by the Prisons Act, 1894,
as amended by the Prisons Punjab (Amendment) Act No. 1929 (Punjab Act IX
of 1926). These Rules were supplemented with various instructions and
notifications passed by the concerned administration time to time. The Rules as
contained in Chapter XV (IX) are as follows: –
34
There is no para 5 in the said affidavit and same is a clerical error
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” IX: Instructions Regarding Parole/Furlough-(1)
According to the instructions of the Govt. no prisoner
can avail of parole/furlough twice in a year, but in many
cases a new parole/furlough case is initiated before the
disposal of the Ist case which does not comply with the
instructions of State Govt. For initiating a new
parole/furlough case minimum 11 months must have
passed after the date of initiating the first parole so that
his case is not finalised within a year. The work of the
jail initiating parole/furlough case before the time
invites displeasure.
2. Only those prisoners are entitled for parole/furlough
whose conduct in the jail is good. For initiating the
parole/furlough case after the commission of jail offence
minimum one year must have passed so that the conduct
of the concerned prisoner be considered good. Initiating
the parole/furlough case before one year is totally wrong
and against the law. This needs special attention, so that
bad character prisoners could not get the benefit of
parole/furlough.
3. If in any case any prisoner needs parole/furlough
because of death of some near relative or serious illness
of the near relative in such cases the certificate of illness
by the Govt. doctor or by the Panchayat or by M.L.A. or
any concerned authority must be sent with the cases.
Because without such certificate the parole/furlough
case could not be disposed of. If due to some serious
illness the patient is to be operated upon the fixed date
of operation be also sent.
4. The prisoner can be given parole/furlough because of
the reasons mentioned u/s 3 of Good Conduct Prisoners
Temporary Release Act, 1962. Before initiating the
parole/furlough cases of every prisoner the reason
mentioned u/s 3 of Good Conduct Prisoners Temporary
Release Act, 1962 must be enquired while sending the
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parole/furlough cases to the concerned must be
enquired while sending the parole/furlough cases to the
concerned District Magistrate it should also be
mentioned that he should certify the causes of
parole/furlough cases given in the application of the
prisoner. If any prisoner tries to get parole/furlough by
making false statement then that should be considered a
jail offence u/para 609(6) of Punjab Jail Manual and he
stands to be punished under para 712/613 of Punjab Jail
Manual. For Agricultural purpose the parole should not
be recommended less than six weeks. I. G Prisons
Punjab Letter No. 25916 I.G/84-8.2A dated 28-7-69.
Emergency Parole & First Ordinary Parole- In view of
the provisions of Section 6 of the Punjab Good Conduct
Prisoners (Temporary Release) Act, 1962, in cases
where a prisoner has once been released on emergency
parole (by jail authorities) and the prisoner concerned
has maintained good conduct during that period of
emergency parole, it is for the State Government to
decide before taking final decision on his application for
the first ordinary parole, whether comments of the
District Magistrate should be called or not.
Reports from Police/District Magistrate cannot be
called in routine manner by the State Government or by
any officer working under it (I.G. Prisons or Jail
authorities in the case of application for first ordinary
parole) of any such prisoner, as had once been released
on emergency parole. The State Government is required
to take conscious decision about obtaining reports from
police/District Magistrate in all such cases. In order to
enable the Government to take such decision whether
such a report is necessary there should be some reliable
material before the Government. That material can be
in the form of report, if any, received by the Jail
authorities, from the police or from the District
Magistrate about the conduct of prisoner concerned
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during the emergency parole of two weeks availed by
him. Such reports should invariably be attached by you
with the roll of the prison prepared for his first ordinary
parole. However, in such cases, you are not required to
obtain fresh reports from the police and the District
Magistrate.
In the case of application for first ordinary parole
submitted by such prisoners as have not availed of any
parole (including emergency parole before reports from
police and the District Magistrate may continue to be
obtained by you as heretofore Punjab Government
(Dept of Home Affairs and Justice) Letter no. 7583-3JL-
80/20306 dated 26-11-1980 read with case Nand Singh
v. State of Punjab decided on 8-10-1980 P & H High
Court. “
41. Subsequently by way of various notifications, instructions were amended
and first, in this regard, is Delhi Administration Instructions Letter No. F-
18/(27)55 Home dated 07.03.1958 as modified upto 16.09.1963, which reads
as under: –
“PART-1 (Parole)
Amended vide letter No. F.18/59/60-Home dt. 16-9-63-
(i) A prisoner may be released on parole for such period
as the Chief Commissioner, Delhi, may order; parole
shall be admissible for:-
(a) Seeing any sick or dying member of the family.
(b) Any other sufficient cause such as marriage of the
prisoner or any other member of the family i.e. son,
daughter, sister, brother etc.
(c) for construction of a house.
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For purpose of (a) above, the prisoner’s family means
his/her parents, brothers, sister, wife/husband and
children.
(ii) The period spend on parole will not count as part of
the sentence.
2. On receiving an application form a prisoner or for
his relatives or friend for release on parole the
Superintendent of Jail shall verify personally from the
prisoner facts stated in this application and forward the
same together with the prisoners discreption roll to the
District Magistrate, Delhi for further verification of the
grounds for which release on parole is sought and his
recommendations as to the prisoner on parole, in
relation to public peace and tranquility, but irrespective
of the nature of prisoner’s offence. The District
Magistrate will send his recommendation directly to the
Delhi Administration who will, if the release is
recommended by the Chief Commissioner, Delhi
forward the case to the overment of India, for their
orders. The orders of the Government of India, will be
communicated to the :-
a) Inspector General of Prisons, Punjab, Ambala.
b) District Magistrate, Delhi.
c) Superintendent of the Jail concerned.
So that formalities, related to the release order i.e.
execution of a personal bond and sureties, the amount
of which will be fixed by the District Magistrate keeping
in view the status of the prisoner, the nature of the
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offence and period of imprisonment, may be completed
expeditiously at the District Headquarters and the and
the release of the prisoner of parole or effected at the
jail where he is then confined.
(ii) The expense of journey from and to the Jail will
be borne by the prisoner himself.
3. The prisoner and his sureties will execute bonds for
maintenance of good behaviour during the period of
parole and for return to Jail on expiry of parole to the
satisfaction of the District Magistrate. The amount of
personal bond and bonds to be executed by the sureties
will be recommended by the District Magistrate keeping
in view the status of the prisoner Magistrate keeping in
view the status of the prisoner the nature of the offence
and the period of imprisonment.
PART-II (Furlough)
1 (i) A prisoner who is sentenced to 5 years or more
rigorous imprisonment and who has actually undergone
three years imprisonment excluding remission may be
released on furlough. The first spell may be of three
weeks and subsequent spells of two weeks each per
annum, provided that:
(a) his conduct in jail has been good: he has
earned three annual good conduct remissions and
provided further that he continues to earn good conduct
remissions or maintain good conduct.
(b) that he is not a habitual offender.
(c) that he is not convicted of robbery with
violence, dacoity and arson.
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(d) that his not such a person whose presence is
considered highly dangerous or prejudicial to the public
peace and tranquillity by the District Magistrate of his
home district.
(ii) The period of furlough will count as sentence
undergone except any such period during which the
prisoner commits an offence outside.
2. Same as at serial no. 2 under part-I (Parole) except
that that orders sanctioning the furlough will be passed
by Government of India will be necessary.
3. The expenses of the jouney from and to the jail will be
borne by the prisoner himself, but government will bear
the cost of journey of the prison if the family of the
prisoner is so poor that it cannot meet the travelling
expenses provided it is verified by the District
Magistrate.
4. The period of furlough will be treated as a part of the
sentence undergone in Jail.”
42. The aforesaid notification was the subject matter of a decision of learned
Single Judge of this Court in Charanjit Lal v. State 35 . In the said case,
convicts/petitioners therein moved this Court against refusal on part of the
Delhi Administration to grant them furlough. This was on account of the
judgment of Hon’ble Supreme Court in Maru Ram (supra) wherein, the
validity of Section 433A of the CrPC was upheld to the effect that a prisoner
serving life sentence will not be released till the completion of 14 years in
custody. It was noted in the said judgment at that time that the stand of the Delhi
Government was that as a matter of policy, in view of Section 433A of the
35
1985 SCC OnLine Del 67
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CrPC, they were not releasing anybody on furlough. The learned Single Judge
observed and held as under: –
“2. On a bare juxtaposition of the aforesaid guidelines
pertaining to parole and furlough it is manifest that they
are quite distinct in their nature, scope and content.
While a prisoner can be released on parole when he is
undergoing a sentence of imprisonment for any offence
whatsoever and irrespective of the duration of the
imprisonment awarded to him, furlough can be granted
only in those cases where a prisoner has been sentenced
to long imprisonment i.e. five years or more. Further, it
is evident that release on parole is designed to afford
some relief to the prisoner in certain specified
contingencies, for instance, illness or death of member
of his family or marriage of the prisoner himself or any
member of the family etc. whereas furlough is in the
nature of a remission earned by a prisoner by consistent
good conduct for over a number of years and it is
granted to him as a matter of course if other conditions
laid in Part-II of aforesaid the letter are satisfied. One
of the postulates which must weigh with the authorities
while granting furlough is that the prisoner’s release
will not be hazardous or prejudicial to the public peace
and tranquillity. Further the period of furlough counts
as sentence undergone unless, of course, the prisoner
released on furlough commits an offence outside the
prison. In other words, while parole is tantamount to
more suspension of the sentence for the time being
keeping the quantum of sentence awarded to a prisoner
in fact, furlough affords double relief in the sense that it
gives no only an opportunity to the prisoner to breath
fresh air and enjoy the society of his kith and kin etc.
outside the prison but also counts towards the total
sentence awarded to him, i.e. his total sentence is
reduced to the extent he earns remission in the form of
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the Supreme Court in Maru Ram, Bhiwana Ram v.
Union of India, AIR 1980 SC 2147:
“‘Remission’ limited in time, helps computation but
does not ipso jure operate as release of the prisoner.
But when the sentence awarded by the judge is for a
fixed term the effect of remissions may be to scale
down the term to be endured and reduce it to nil, while
leaving the factum and quantum of the sentence in
tact. That is the ration of Rabha (AIR 1961 SC 334).
Here, again, if the sentence is to run until life lasts,
remissions, quantified in time, cannot reach a point of
zero. This is the ration of Godse. The inevitable
conclusion is that since in Section 433-A we deal only
with life sentences, remissions lead nowhere and
cannot entitle a prisoner to release.”
*** *** ***
11. Therefore, it inevitably follows that every person
who has been convicted by the sentencing court before
December 18, 1978, shall be entitled to benefits
accruing to him from the remission scheme or short
sentencing rules as if Section 433A did not stand in his
way.
12. The upshot of the whole discussion, therefore, is that
the guidelines formulated by the Delhi Administration in
the aforesaid letter with regard to release of prisoners
including life convicts cannot be said to militate against
the provisions of Section 433A subject, of course, to the
over-riding condition that the life convicts falling within
two sinister categories of Section 433A must undergo
mandatory minimum of 14 years of imprisonment and
an order of release is then made either under Section
432 or Article 72/161 of the Constitution. In other
words, remission by way of reward or otherwise cannot
cut down the sentence to less than a minimum period of
14 years. However, that does not mean that even a lifeCRL.REF. 1/2025 & other connected matters Page 77 of 105
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convict falling within the ambit of Section 433A cannot
be set free on parole or furlough during the currency of
his sentence of imprisonment. As said by Krishna Iyer,
J. in Maru Ram‘s Case at page 2174:
“There was some argument that Section 433A is
understood to be a ban on parole. Very wrong. The
Section does not obligate continuous fourteen years
in jail and so parole is permissible.”
***
***
16. It is not the case of the Delhi Administration that the
instructions contained in the aforesaid letter with regard
to furlough have been withdrawn, modified or altered in
any way. The admission made by the counsel for the
State is that of late the Delhi Administration has
discontinued release of life convicts on furlough
irrespective of whether they were convicted prior to or
subsequent to the introduction of Section 433A in the
Code of Criminal Procedure. It is indeed regretable
that the Delhi Administration should have taken such
a stance notwithstanding the fact that the instructions
contained in the aforesaid letter still subsist and have
not undergone any change. It is well settled that a
public authority cannot disable itself by a self-imposed
policy from exercising a discretion it is required to
exercise. No doubt, an authority is entitled to adopt a
policy but the policy will be invalid where it disables
the authority from exercising a discretion it is required
to exercise. It cannot fetter its discretion in this way
and disable itself from considering the application of a
prisoner for his release on parole or furlough. Indeed
it amounts to refusal on the part of the authority to
exercise the discretion vesting in it. In the well-known
book “de Smith’s Judicial Review of Administrative
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Action”, 4th Edition, the law on the subject is stated as
under at page 285:
“The authority in which a discretion is vested can be
compelled to exercise that discretion, but not to
exercise it in any particular manner. In general, a
discretion must be exercised only by the authority to
which it is committed. That authority must genuinely
address itself to the matter before it : it must not act
under the dictation of another body or disable itself
from exercising a discretion in each individual
case………….It must act in good faith, must have
regard to all relevant considerations and must not be
swayed by irrelevant considerations……….”
(emphasis supplied)
It is pertinent to note that there was no restriction similar to Note 2 to Rule 1224
of Prison Rules. Thus, the ld. Single Judge noted the distinct nature of parole
and furlough i.e., parole is granted for meeting certain exigencies such as illness
or death, furlough is granted to the convict for good behaviour. Further, the
parole is tantamount to suspension of sentence whereas furlough is a form of
remission. The ld. Single Judge has also observed that the prison authorities
cannot refrain from exercising a discretion i.e., grant of furlough, which they
are required to exercise.
43. Thereafter, it seems furlough and parole were being granted or denied
without any comprehensive guidelines by the Delhi Government which was
brought to the notice of the then Hon’ble Chief Justice who took suo motu
cognizance of the matter in Court on its own motion v. State in W.P. (CRL)
1121/2009. Consequently, draft guidelines for parole and furlough were made
by the Delhi Government in consultation with Member Secretary, Delhi Legal
Services Authority and the same were then notified in the Gazette by way of
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Order No. 5.18/91-2009/HG dated 17.02.2010, titled “Parole/Furlough
Guidelines, 2010”. The relevant provisions with regard to parole and furlough
in the said guidelines are as under:
“REGULAR PAROLE
9. It would be open to the Government to consider
applications for parole on other grounds such as :-
9.1 Serious illness of a family member;
9.2 Critical conditions in the family on account of
accident or death of a family member:
9.3 Marriage of any member of the family of the
convict;
9.4 Delivery of a child by the wife of the convict if
there is no other family member to take care of the
spouse at home;
9.5 Serious damage to life or property of the
family of the convict including damage caused by
natural calamities:
9.6 To maintain family and social ties;
9.7 To pursue the filing of a Special Leave Petition
before the Supreme Court of India against a judgment
delivered by the High Court convicting or upholding the
conviction, as the case may be.
10. It is clarified that where an appeal of a
convict is pending before the High Court, parole will
not be granted since the convict can seek appropriate
orders from the High Court.
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**** **** ****
21. While granting parole, it would be open to the
competent authority to impose suitable conditions such
as execution of personal bonds with or without sureties
and including conditions to report to the local police
station and/or restricting the movement of the convict to
a limited area.
FURLOUGH
24. A prisoner who is sentenced to 5 years or more
or rigorous imprisonment but has undergone 3 years of
imprisonment excluding remission can be released on
furlough.
25. A prisoner, as described above, would be
entitled to I weeks of furlough in a year. The first spell
could consist of 3 weeks, while the subsequent spells
would consist of 2 weeks each.
26. In order to be eligible to obtain furlough, the
prisoner must fulfill the following criteria:-
26.1 Good conduct in the prison and should have
earned three ‘Annual Good Conduct Remissions’ and
continues to maintain good conduct;
26.2 The prisoner should not be a habitual offender;
26.3 The prisoner should be a citizen of India.
26.4 The prisoner should not have been convicted of
robbery, dacoity, arson, kidnapping, abduction, rape
and extortion;
26.5 The prisoner should not have been convicted of
any offence relating to any offence against the State such
as sedition;
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26.6 The release of the prisoner should not be
considered dangerous or deleterious to the interest of
national security or there exists reasonable ground to
believe that the convict is involved in a pending
investigation in a case involving serious crime;
26.7 The convict is not such a person whose
presence is considered highly dangerous or prejudicial
to the public peace and tranquility District Magistrate
by his home district.
27. 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 Court.
28. While forwarding an application for furlough.
the Superintendent of Jail will submit the following:-
1. Name of the convict
2. Father’s name
3. Last address
4. Conduct in prison
5. Nominal roll”
(emphasis supplied)
44. It is pertinent to note that Note 2 to Rule 1224 in the Prison Rules is
exactly the same as the guidelines referred to hereinabove which were duly
notified with the permission of this Court. It is pertinent to note that this
restriction in grant of parole and furlough to a convict whose appeal is pending
before High Court was introduced for the first time in guidelines dated
17.02.2010. Prior to that, as can be seen from the relevant rules quoted
hereinabove, no such restrictions were in existence. The said restriction of
approaching the High Court where the appeal is pending, stems from the
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principle that the first statutory appeal is extension of trial, and therefore, for
various reasons for which a prisoner can be granted parole/furlough can be
sought by way of an application before the High Court where the appeal is
pending.
45. The aforesaid Rule 10 of the 2010 guidelines was challenged before this
Court and the learned Division Bench of this Court in Rajesh Kumar (supra)
dismissed the challenge by observing and holding as under: –
“7. We are however of the opinion that even when
application for interim suspension of sentence or bail is
filed by a convict in a pending appeal, it is always open
to the convict to seek suspension/bail from this Court on
the grounds as provided for regular parole and the High
Court can always take those grounds in consideration
while entertaining applications for suspension and/or
interim suspension of the sentence. There is nothing in
Section 389 or otherwise in law, barring the appellate
Court from granting interim bail or suspending the
sentence on considerations as for parole. Clause 10 very
clearly stipulates that the “convict can seek appropriate
orders from the High Court” which means that the
convict can seek the order on parity of grounds for
regular parole. Thus, the premise on which the
petitioners impugn Clause 10, i.e of grounds as for
regular parole being not available while seeking
“appropriate orders from the High Court” is erroneous
and thus the challenge to the vires of Clause 10 has no
merit. On the contrary, we are rather of the view that the
Govt./Jail Authorities cannot be permitted to exercise
the powers to grant parole when this Court is seized of
the matter in statutory appeal and the same if permitted
would be in derogation of the Appellate Powers of this
Court and may lead to a conflict.
8. We are of the view that the period when the Court is
in seisin of the case, any other executive authority oughtCRL.REF. 1/2025 & other connected matters Page 83 of 105
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not to be allowed to pass any order with respect to what
the Court is seized of. We, in this regard are guided
by K.M. Nanavati v. State of Bombay AIR 1961 SC 112
which was concerned with the exercise of power by the
Executive to suspend the sentence during the pendency
of the matter before the Supreme Court. It was held that
suspension of the sentence when the Supreme Court was
in seisin of the case could have been granted by the
Supreme Court itself and if in respect of the same period
the Executive were also to be held to have the power to
suspend sentence, it would mean that both the Judiciary
and the Executive would be functioning in the same field
at the same time leading to the possibility of conflict of
jurisdiction which could not have been intended.
9. We may however notice that a similar view taken by
the Division Bench of the Bombay High Court was set
aside by a Full Bench of that Court in S. Sant Singh @
Pilli Singh v. Secretary, Home Deptt, Govt. of
Maharashtra, 2006 Crl. L.J. 1515. It was held that the
considerations in grant of bail and parole are different
and the two have different connotations and operate in
different spheres; that the powers of the Executive of
parole can be exercised notwithstanding refusal of bail
or suspension of sentence; the right of parole is
attracted as soon as a person is in prison governed by
the Prisons Act, 1894 irrespective of the pendency of the
appeal. K.M. Nanavati (supra) was distinguished by
holding that the same dealt with the power of the
Government under Section 432 Cr.P.C. to remit or
suspend the sentence and has no application to parole
which does not fall under remission of sentence.
10. With due respect to the Full Bench of the Bombay
High Court, we are unable to concur. The ratio of K.M.
Nanavati (supra) is that the Executive is barred from
granting the same relief which the Court is entitled to,
when seized of the matter and possibility of a conflict if
the same were to be permitted. Once the said ratio isCRL.REF. 1/2025 & other connected matters Page 84 of 105
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found to be applicable to a situation as before us, we fail
to see as to how it matters whether the conflict is owing
to exercise of power by the Executive under Section 432
Cr.P.C. or to grant parole. What we are concerned with
is that what the Court has denied to the convict/accused
cannot be permitted to be granted by the Executive and
the same if permitted would be totally subversive of rule
of law. We may notice that the Supreme Court in Rakesh
Kumar Pandey v. Udai Bhan Singh (2008) 17 SCC
764 deprecated the High Court for releasing an accused
whose bail had earlier been cancelled by the Apex
Court, in the garb of parole. It would thus be seen that
the Courts have always looked down upon something
which the Court seized of the matter has refused, being
allowed to be done otherwise. As noticed above, the
effect of both bail/suspension of sentence and parole is
the release of person from detention or custody. If this
Court seized of the appeal, in the facts deems it proper
to keep the accused/convict behind bars, the Executive
cannot be permitted to allow such sentence to run
outside the bars.
12. Insofar as challenge to the conviction order in the
Supreme Court is concerned, the difference is that
such an order is challenged by filing SLP under Article
136 of the Constitution and Leave to appeal has to be
obtained whereas filing an appeal in the High Court is
a statutory right given to a convict; therefore the two
situations are not akin to each other.”
(emphasis supplied)
Thus, the learned Division Bench, recognised the principle of appeal pending
in the High Court to be an extension of a trial, and therefore, it was observed
that challenge to conviction in the Hon’ble Supreme Court is by way of Special
Leave Petition under Article 136 of the Constitution of India and leave to appeal
has to be obtained, however, appeal before the High Court is a statutory right
given to the convict. Thus, the validity of the Rule was upheld by the ld.
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Division Bench, on the foundation of this distinction, between appeals which
come to the High Court and the Petitions that are filed before the Supreme
Court.
46. The Full Bench of the Rajasthan High Court in Ramesh Kumar v. State
of Rajasthan (supra), while answering a reference as to whether a right of an
accused/prisoner/convict to be released on parole can be considered by the
State Government under the provisions of Rajasthan Prisoners Release on
Parole Rules, 1958 during the pendency of any appeal filed by him/her against
his/her conviction, after analysing the judgment of Hon’ble Supreme Court in
K.M. Nanavati (supra), observed and held as under: –
“37. It is of course, true that after the aforementioned
discussion, the Hon’ble Supreme Court essentially
considered the matter of balance between Article 161
and 142 and ruled as under:
“25. As a result of these considerations we have come
to the conclusion that the order of the Governor
granting suspension of the sentence could only
operate until the matter became sub judice in this
Court on the filing of the petition for special leave to
appeal. After the filing of such a petition this Court
was seized of the case which would be dealt with by it
in accordance with law. It would then be for this
Court, when moved in that behalf, either to apply R.
5 of O. XXI or to exempt the petitioner from the
operation of that rule. It would be for this Court to
pass such orders as it thought fit as to whether the
petitioner should be granted bail or should surrender
to his sentence or to pass such other or further order
as this Court might deem fit in all the circumstances
of the case. It follows from what has been said that
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of sentence for the period during which the matter
was sub judice in this Court.”
The Principles in K.M. Nanavati Cover Whole of the
Issue at Hands
38. As we have already noticed, on essential features
relevant for the present purpose, Section 401 of the Code
of 1898 is equivalent to Section 432 of the Code of 1973;
and Section 426 of the Code of 1898 is equivalent to
Section 389 of the Code of 1973. Thus, the law declared
by the Hon’ble Supreme Court in the foregoing passages
in K.M. Nanavati‘s case, when to be applied for the
purpose of the Code of 1973, Section 432 (of the Code
of 1973) could be read in place of Section 401 (of the
Code of 1898); and Section 389 (of the Code of 1973)
could be read in place of Section 426 (of the Code of
1898). The dictum of the Hon’ble Supreme Court,
coming out of Nanavati‘s case, in our view could be
understood, explicit and clear, in the following lines
with clarification about the present provisions of the
Code of 1973. The Supreme Court has ruled:
“….So long as the judiciary has the power to pass a
particular order in a pending case to that extent the
power of the Executive is limited in view of the words
either of ss. 401 and 426 of the Code of Criminal
Procedure (i.e., of Ss. 432 and 389 of Code of 1973)
and Arts. 142 and 161 of the Constitution.” (italicized
words in parenthesis supplied)The Hon’ble Supreme Court has harmonized the two
provisions dealing with the powers of the executive
and those of the judiciary as regards the matters
concerning the convicts in the following:–
“…. They can be harmonised without any difficulty, if
S. 426 (Section 389 of Code of 1973) is held to deal
with a special case restricted to the period while theCRL.REF. 1/2025 & other connected matters Page 87 of 105
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appeal is pending before an appellate court while S.
401(Section 432 of the Code of 1973) deals with the
remainder of the period after conviction.
…. …. …. ….
“….what is covered by Section 426 (Section 389 of
Code of 1973) is not covered by Section 401 (Section
432 of the Code of 1973).” (italicized words in
parenthesis supplied)In our view, with the abovementioned enunciation by the
Hon’ble Supreme Court, there remains nothing to doubt
that howsoever wide might be the expanse of the power
of the executive under Section 432 of the Code of 1973,
it cannot be exercised while the Court is seized of the
same matter. Section 389 of the Code of 1973 deals with
the period until the appeal is pending before an
appellate Court; and Section 432 deals with the
remainder of the period after conviction and when the
appeal is not pending.
39. Now, the Rules of 1958 have been framed precisely
under sub-Section (6) of Section 401 of the Code of
Criminal Procedure, 1898 (equivalent to Section 432 of
the Code of 1973). Therefore, whatever is the name
given to the indulgence granted to the convict under the
Rules of 1958, the source of such a power has to be
traced to Section 432 Cr. P.C., 1973 only; and for this,
the dictum of the Supreme Court is clear that the same
cannot be exercised so long the matter is in the seizin of
the Court.
40. Much has been sought to be suggested that
in Nanavati‘s case, the question before the Supreme
Court was only as to whether the Governor under
Article 161 of the Constitution of India can exercise his
power of suspension of sentence during the period when
the Supreme Court is in seizin of the case; and,
therefore, this decision does not apply to the question at
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hands about the power of grant of parole. The argument,
in our view, has several shortcomings.
41. In the first place, it could be noticed clearly that
Article 161 of the Constitution in fact occurs in Chapter
II of Part VI of the Constitution of India providing for
the executive power of the States; and therein, Article
161 confers plenary powers on the Governor to grant
pardons and to suspend, remit or commute sentences.
With respect, we are clearly of the view that what has
been laid down by the Hon’ble Supreme Court in respect
of the power of the Governor under Article 161 of the
Constitution of India that the same could be exercised
until the matter is not sub judice before the Court,
applies with greater force on the powers of the State
Government under Section 432 of the Code of 1973. It
follows rather as a necessary consequence that such
powers of the State Government under Section 432 can
be exercised only so long the matter is not sub judice in
the Court.
42. Secondly, the scope of powers under the relevant
provisions of the Code of Criminal Procedure directly
arose for consideration; or at any rate, it was an innate
issue, which was considered and pronounced upon by
the Hon’ble Supreme Court. The issue arose precisely in
the circumstances that the Governor’s order was likely
to interfere or meddle with the exercise of jurisdiction
by the Hon’ble Supreme Court; and that was held
impermissible. In all its parameters and features, the
decision in K.M. Nanavati relates to the question at
hands and the answer therein, in our view, governs the
entire field.
43. Though as observed hereinabove, pronouncement
on law by the Hon’ble Supreme Court in K.M.
Nanavati is directly applicable to the case at hands but,
even if it be assumed for the sake of hypertechnical
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argument that the scope of particular statutory
provision was not as such before the Hon’ble Supreme
Court and even if it be assumed that what the Hon’ble
Supreme Court has said in K.M. Nanavati‘s case as
regards the provisions of the Code of Criminal
Procedure is in the nature of obiter-dictum (though such
assumptions would not be justified as noticed above), we
have no hesitation in repelling such arguments too with
a simple reference to the fundamental principle that
even an obiter of the Hon’ble Supreme Court is required
to be followed and obeyed [vide observations in
paragraph 17 in Sarwan Singh Lamba v. UOI : (1995)
4 SCC 546).
44. Thus, respectfully following the dictum in Nanavati,
we are clearly of the view that the answer to the referred
question is in the negative.”
47. It is pertinent to note that the Rules which were placed before the Full
Bench of the Rajasthan High Court for interpretation were framed by the State
Government under the provisions of Code of Criminal Procedure under Section
401(6) of the CrPC, 1898 (corresponding provision to Section 432 of the CrPC,
1973) and in this view of the matter, it was held, following the dictum of the
Hon’ble Supreme Court in K.M. Nanavati (supra), the exercise of powers
under Section 401 of the CrPC, 1898 could not be exercised by the executive
so long as the matter is in seisin of the Court. However, the judgment of the
Hon’ble Supreme Court in Mohinder Singh (supra) has held that power of
remission under Section 432 of the CrPC can be exercised by the Executive
even when the appeal is pending before the Hon’ble Supreme Court which was
subsequently noted by the Constitutional Bench in Sunil Fulchand Shah
(supra).
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48. A Full Bench of Hon’ble Madras High Court in T. Ramalakshmi along
with other connected matters (supra), was dealing with the following
questions under a Reference: –
“3. The reference has been made to answer the
following two issues:
(1) Whether during pendency of the appeal before the
High Court/Special Leave Petition before Apex Court,
the prisoner can be extended the benefit of Ordinary
Leave or Emergency Leave under the Tamil Nadu
Suspension of Sentence Rules, 1982, by exercising the
powers under Article 226 of the Constitution of India?
(2) Whether the Tamil Nadu Suspension of Sentence
Rules, 1982 as amended by G.O.(MS)No.205, Home
(Prison-V) Department dated 25.04.2022 places an
embargo on grant of ordinary leave under Rule 22 as
explanation to Rule 22 states that the period of actual
imprisonment shall be counted from the date of
admission to prison as convict and not the date of arrest
and whether the period of incarceration during remand
or during trial could be counted while determining the
length of sentence suffered by the convict?”
(emphasis supplied)
After considering the conflicting views of Division Benches, the Full Bench of
the Madras High Court observed and held as under: –
“7. Thus, we have no hesitation in holding that under
Rule 35 of the Tamil Nadu Suspension of Sentence
Rules, 1982, the competent Prison Authority is
empowered to grant ordinary leave or emergency leave
to a prisoner during the pendency of a criminal appeal
before any of the Appellate Courts.”
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It is pertinent to note here that The Tamil Nadu Suspension of Sentence Rules,
1982, were notified in exercise of the powers conferred under Section 432(5)
of the CrPC36.
49. Under the Prisons (Bombay Furlough & Parole) Rules, Rule 4(11) prior
to its amendment provided for a similar restriction as provided in Note 2 to
Rules 1224 of the Prison Rules. The said Rule provided that, if the appeal of a
convict is pending adjudication before higher forum, he shall not be eligible to
be released on furlough. However, the said Rule was amended vide notification
dated 16.04.2018. The Division Bench of Hon’ble Bombay High Court in
Tanaji Maruti Kolekar (supra) duly noted the amendment and observed as
under: –
“3. The only ground on which the application of the
petitioner for furlough is rejected is that the appeal
preferred by the petitioner against his conviction is
pending before the higher forum. Thus, according to the
Authorities, the case of the petitioner falls in Category
4(11) of the Prisons (Bombay Furlough & Parole)
Rules. Rule 4(11) of the Rules stated that a prisoner
whose appeal is pending before the higher forum shall
not be eligible to be released on furlough. However, it is
seen that the Government has issued a new notification
dated 16.4.2018 in relation to Rule 4. As per the new
notification, the criteria that the prisoner whose appeal
is pending before the higher forum shall not be eligible
for furlough, has been deleted from the Rules. Thus, this
ground now cannot be a good ground to deny furlough
to the petitioner. In this view of the matter, we set aside
both the orders dated 14.6.2017 and 3.11.2017 and
grant furlough to the petitioner for a period of 28 days.”
36
Corresponding to Section 473 of the Bharatiya Nagarik Suraksha Sanhita, 2023
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50. Recently, the Central Government through the Ministry of Home
Affairs has drafted Model Prisons and Correctional Services Act, 2023,
and circulated the same via letter dated 25.05.2023 issued by Home
Secretary, with all the States and Union Territories for the adoption of the
provisions of the said Act in their jurisdictions with any modification
which they may consider necessary. The relevant provision, relating to
parole/furlough, of the said Act drafted by the Central Government reads
as under: –
“CHAPTER-XVIII
PRISON LEAVE, REMISSION AND PRE-MATURE
RELEASE
51. Parole and Furlough – (1) Prison leave may be
granted to eligible convicted prisoners as an incentive
for good behaviour and responsiveness to correctional
treatment with the objective of their rehabilitation, as
may be prescribed under the rules.
(2) There may be the following types of prison leave,
namely:
a) Regular Parole
b) Emergency Parole
c) Furlough
(3) Regular Parole may be granted to eligible convicts
by the competent authority under such conditions and
for such purposes as may be prescribed under the rules.
The period spent on regular parole may not exceed
thirty days at a time and may not be granted more than
two times in a year. The period spent on regular parole
shall not be counted as part of sentence.
(4) Emergency Parole may be granted by the competent
authority to eligible convicts in rare or emergent
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situations, under police protection for a period
extending upto 48 hours, as prescribed under the rules.
The period spent under this parole shall be counted
towards part of sentence.
(5) Furlough may be granted to eligible convicts
by the competent authority, as an incentive for
maintaining good conduct and discipline in the prison
after the completion of three years of incarceration for
a period not more than 14 days in a year. The period
spent on furlough shall be counted as part of sentence
served by the prisoner.
(6) For prisoners governed by any of the laws
relating to the Armed Forces of the Union, the grant of
leave shall be subject to the provisions of those laws.
(7) For public safety and preventing parole
jumping, prisoners may be granted prison leave on the
condition of their willingness to wear electronic
tracking devices for monitoring the movement and
activity of such prisoners. Any violation by the prisoner
shall attract cancellation of prison leave, in addition to
disqualification from any prison leave being granted in
future, as may be prescribed under the Rules.
(8) If a prisoner on parole or furlough fails to
surrender on the due date, upon intimation by the
officer-in-charge of the Prison, the police shall arrest
the prisoner under the provisions of section 224 of the
Indian Penal Code 1860 and take action as per the
provisions of law.”
It is pertinent to note that no such restriction as provided in Note 2 to Rule 1224
of the Prison Rules has been inserted in the aforesaid proposed Act.
51. As can be seen from the legislative history of parole/furlough, the
restriction with regard to grant of parole/furlough during pendency of appeals
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before the High Court was introduced for the first time in 2010 guidelines
which was then incorporated in the Prison Rules, 2018. The fact that the term
“Supreme Court” was not included in the aforesaid Rules cannot be said to be
a casual oversight. In the judgment of the ld. Division Bench of this Court in
Rajesh Kumar (supra) as well as the learned Full Bench of Rajasthan High
Court in Ramesh Kumar (supra), the issue whether the prisoner would be
denied parole or furlough while the appeal is pending before the Hon’ble
Supreme Court was not considered. In fact, this position was also noted by the
ld. Division Bench in Rajesh Kumar (supra) and the said Bench observed that
appeals before the High Court and Special Leave Petitions to Appeal before the
Hon’ble Supreme Court are a on different footing.
52. As noted hereinabove, even the Hon’ble Supreme Court in Rajendra
Diwan (supra) has held that Entry 65 in List II of the VIIth Schedule to the
Constitution of India has given power to State Legislatures to legislate with
regard to jurisdiction and powers of all Courts except the Supreme Court in
respect to any matters specified in the said List (State List). The relevant entry
in respect of prisons is Entry 4 in List II of the VIIth Schedule to the
Constitution. Note 2 to Rule 1224 of the Prison Rules, not only just lays down
the restriction with regard to non-grant of parole/furlough but it further states
that if any such relief is sought for, then the convict can approach the High
Court. In view of the restrictions provided in Entry 65 of List II of the VIIth
Schedule to the Constitution of India, the words “Supreme Court” cannot be
included in Note 2 to Rule 1224 of the Prison Rules by means of any
interpretation.
53. The decisions discussed above as also some of the legislative material on
the Rules governing parole and furlough would show that both the said
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measures have evolved as part of the process of reformative justice. The clear
legislative intent is to enable even hardened criminals who are sentenced to
long imprisonment terms ought to be given a chance to connect with Society in
general, their friends and family and, as observed by the Supreme Court in
Asfaq37, to “breathe fresh air”. Thus, these measures are exercised in favour of
persons who are serving long sentences with an intent to grant redemption and
rehabilitation.
54. The distinction between parole and furlough is not relevant for deciding
the present reference. However, it is sufficient to state that both these measures
are part of executive functioning and the power vests with the prison
authorities, under applicable prison rules, as to whether parole or furlough
ought to be granted or not. The periods of parole and furlough vary from State
to State and for grant of parole, a specific reason would be required, however,
furlough may be granted to break the monotony of the convict. The object
behind parole and furlough stems from rights, which are Constitutional Rights
derived from Article 21 of the Constitution of India. The said Right is one
which recognizes the dignity of convicts & prisoners. Exercise of these
measures is usually when a convict exhibits good conduct during incarceration
or there is an emergent need. There is one view that grant of parole and furlough
is an act of grace as part of the reformative process.
55. The purpose of the present Reference by the ld. Single Judge is to clarify
as to whether prison authorities can exercise the power of granting parole and
furlough when a Special Leave Petition or an Appeal is pending before the
Supreme Court in respect of the conviction of the concerned convict. The
37
Asfaq v. State of Rajasthan, (2017) 15 SCC 55
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question that is to be addressed in this reference is – the existence of power to
grant parole and furlough and not as to whether in individual cases the same is
merited or not.
56. The decision in K.M. Nanavati (supra) is at the core of this reference. In
the said decision, the question was whether the Hon’ble Governor could have
suspended the sentence when the appeal was pending before the Supreme
Court. The Supreme Court held therein that Articles 142 and 161 of the
Constitution need to be harmonised. Similarly, Sections 401 and 426 also of
the CrPC need to be harmonised. Thereafter, in Mohinder Singh (supra), the
Supreme Court observed that the State Government could permit whole or part
of the punishment under Section 432 of CrPC.
57. In Sunil Fulchand Shah (supra), the Supreme Court distinguished
between these measures and held that parole is nothing but a conditional release
from custody and merely changes the manner in which sentence is to be
undergone. In Dadu @ Tulsidas (supra), it was held that parole did not amount
to suspension, remission or connotation of sentence.
58. Further, in Atbir (supra), again the Hon’ble Supreme Court observed
that a furlough is a brief release from prisons and is a good conduct remission.
Even in a case where the President had remitted the death sentence and had
converted the sentences is one for the remainder of his natural life, the Supreme
Court held that furlough would still be applicable.
59. The question as to whether parole or furlough could be considered when
the matter is pending before the Supreme Court has been considered by
different High Courts. The Madras High Court in T. Ramalakshmi along with
other connected matters (supra) has held that ordinary leave or emergency
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leave under the prison rules can be granted during the pendency of the appeals
before the Appellate Courts.
60. The Rajasthan High Court in Ramesh Kumar (supra), held that it would
not be permissible to exercise poweSrs under Section 432 CrPC for granting
parole while the appeal is pending against conviction. The Bombay High Court
Tanaji Maruti Kolekar (supra) discussed the entire issue and noted the fact
that the Rule 4 (11) of the Prisons (Bombay Furlough & Parole) Rules was
removed vide notification dated 16th April, 2018, and after the said amendment,
the bar on consideration of furlough and parole has been removed even if an
appeal is pending before a higher forum.
61. In so far as the Delhi High Court is concerned, the decision in Rajesh
Kumar (supra) of the Ld. Division Bench of this Court gives some guidance
when it observes that the pendency of an appeal before the High Court and a
Special Leave Petition before the Supreme Court are two distinct situations.
The Bench observed that a Special Leave Petition is filed under Article 136 of
the Constitution of India and the same cannot be treated as a statutory appeal
unless leave to appeal is granted. The said observation is very relevant and is
set out below:
“12. Insofar as challenge to the conviction order in the
Supreme Court is concerned, the difference is that such
an order is challenged by filing SLP under Article 136
of the Constitution and Leave to appeal has to be
obtained whereas filing an appeal in the High Court is
a statutory right given to a convict; therefore the two
situations are not akin to each other.”
62. Thus, the Bench, dismissed the challenge to Clause 10 of the
Parole/Furlough Guidelines, 2010 which categorically provided that if an
appeal is pending before the High Court, then no parole would be granted.
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63. In the opinion of the Court the decision in Rajesh Kumar (supra) would
be clearly applicable in deciding the present Reference being a decision of the
Coordinate Bench of this Court. The distinction drawn in Rajesh Kumar
(supra) would apply to the questions raised herein. Note 2 to Rule 1224 of the
Delhi Prison Rules which uses the expression Delhi High Court cannot be read
as intending to include even the Supreme Court. There is nothing that barred
the use of the expression ‘Supreme Court’ in this Note in clear terms especially
when in other Rules, the High Court and the Supreme Court are mentioned in
different contexts.
64. The fact that “Supreme Court” had not been incorporated in Note 2 to
Rule 1224 of the Prison Rules is further fortified from the fact that various other
provisions in the Prison Rules have referred to “Supreme Court” in various
circumstances, and therefore, non-mentioning of “Supreme Court” in the Note
2 to Rule 1224 of the Prison Rules cannot be considered as an omission. The
intention of the Competent Authority while drafting the Rules is clear from the
plain language itself that what was restricted was grant of parole/furlough to
convicts whose appeal are pending adjudication before the High Court and not
Hon’ble Supreme Court.
65. Thus, the Delhi Prison Rules do not bar consideration of parole and
furlough if the matter is pending before the Supreme Court. It is an altogether
different question as to whether in the facts of a specific case, the prison
authorities ought to grant parole or furlough, if the Supreme Court is seized of
the matter either in a Special Leave Petition or in an Appeal. The grant or non-
grant of the parole and furlough on merits would depend on the facts of each
case. There could be a situation wherein the Supreme Court may have
specifically refused to grant suspension of sentence or refused bail to a
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particular convict. In such cases a deeper scrutiny would be required by the
prison authorities as to whether parole or furlough could be granted to the
convict. However, the mere fact that the authorities can exercise power would
not mean that parole or furlough ought to be granted as a matter of right. The
authorities would have to bear in mind the non-grant of suspension or bail by
the Supreme Court or other relevant circumstances and the same may have an
impact on the consideration of parole/furlough.
66. The question in this reference is whether there is a bar on the
consideration of parole/furlough while pendency of Special Leave Petition or
Appeal before the Supreme Court, which clearly as per Note 2 of Rule 1224,
there is none. The prison authorities can consider a particular case for grant of
parole/furlough if the Special Leave Petition or Appeal is pending in the
Supreme Court, however, whether the same could be granted or not is an
altogether different issue which would be depend on the facts of each case.
67. In view of the above position, it is clear that the power to suspend
sentence and grant bail is distinct from the power to grant parole or furlough.
Thus, while appeals are pending before a higher forum, grant of parole and
furlough can be considered as per the applicable prison rules by the jail
authorities.
68. Both the ld. Amicus Curiae have also agreed with this legal position in
their oral and written submissions. To impose a bar on consideration of
parole/furlough if a Special Leave Petition or Appeal is pending in the Supreme
Court could have completely unpredictable consequences and could also result
in practical difficulties for convicts who may require to be granted
parole/furlough due to emergent situations. It cannot be expected that every
convict would have to compulsorily approach the Supreme Court for temporary
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release or emergent release in grave situations including medical exigencies of
the convict, demise in the family, any emergency involving children of the
convict, etc. There is divergence of opinion between High Courts on this issue
and in most cases the interpretation has depended on the relevant local prison
rules. The Delhi Prison Rules are categorical and clear that Rule 1224 bars
parole/furlough being granted only if the appeal is pending in the High Court.
This bar cannot be extended to the Supreme Court by way of judicial
interpretation when the language does not read as such.
69. As already noted hereinabove, in the affidavit filed on behalf of the
Competent Authority, it is stated that parole and furlough were granted to the
convicts while their Criminal Appeals/Special Leave Petitions were pending
before the Hon’ble Supreme Court and which continued till the decision of the
learned Single Judge of this Court, in the present reference, was pending.
70. In these circumstances, if some convicts were denied parole or furlough
on account of pendency of their Criminal Appeals/Special Leave Petitions
before the Hon’ble Supreme Court before the judgment of learned Single
Judge, the same was discriminatory and violative of Articles 14 and 21 of the
Constitution of India. In such circumstances, it was open to such convicts to
approach this Court under Article 226 of the Constitution of India on the ground
of violation of their fundamental right by seeking judicial review of said
rejection order(s).
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CONCLUSION
71. In view of the aforesaid discussion of law and facts and circumstances,
the answer to the references is as follows: –
“C. 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?
Answer: In the opinion of this Court, Note 2 to Rule
1224 of the Delhi Prison Rules, 2018, cannot be
interpreted to hold that the right of prisoners to apply for
parole or furlough is barred, while their Criminal
Appeal/Special Leave Petition is pending adjudication
before the Hon’ble Supreme Court of India.
*** ***
E. 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 furlough, when an appeal
against their order of conviction is pending
adjudication in the Hon’ble Supreme Court of India?
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Answer: In the opinion of this Court, Note 2 to Rule
1224 of the Delhi Prison Rules, 2018, cannot be
interpreted to hold that the right of prisoners to apply for
furlough is barred, while their Criminal Appeal/Special
Leave Petition is pending adjudication before the
Hon’ble Supreme Court of India.
F. 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?
Answer: Since mere pendency of Criminal
Appeal/Special Leave Petition before the Hon’ble
Supreme Court cannot be taken as a bar for release on
furlough, each case would be determined on its own
eligibility criteria as per Rules by the Competent
Authority and the same would be subject to judicial
review under Article 226 of the Constitution of India by
the High Court.
G. Whether the jurisprudence on parole can be
applied to furlough since furlough does not involve
suspension of sentence?
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Answer: Yes, jurisprudence on parole can be applied to
furlough as well. As held in Sunil Fulchand Shah
(supra) and Dadu @ Tulsidas (supra) that parole does
mean suspension of sentence.”
72. The questions referred to adjudication by the learned Single Judge are
answered accordingly.
73. In view of the above, the findings of the learned Single Judge in the order
dated 3rd July, 2023 qua Issue B, as formulated vide order dated 2nd December,
2022, interpreting the term “High Court” in Note (2) to Rule 1224 of the Prison
Rules ipso jure to include ‘Supreme Court’, is set aside.
74. Being conscious of the fact that there is divergent opinion between
different High Courts and also considering the significance of the questions
raised in this Reference, this Court deems appropriate to grant Certificate of
Appeal to the Supreme Court under Article 132/134A of the Constitution of
India.
75. The Court records its appreciation for both Amici Curiae – Mr. Vivek
Sood, Senior Advocate and Mr. V.P. Garg, Advocate as also to all the other ld.
Counsels who appeared in these matters for rendering effective assistance to
the Court in the adjudication of the reference.
76. The reference petitions are disposed of in the above terms.
77. Each of the writ petitions may now be listed before the Roster Bench for
decision on the prayer for parole and furlough, on the facts of each case in terms
of today’s judgment.
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78. Judgment be uploaded on the website of this Court forthwith.
PRATHIBA M. SINGH
JUDGE
AMIT SHARMA
JUDGE
JULY 15, 2025/sn/bsr/ns/msh
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