Delhi High Court
Dinesh Kumar vs Govt. Of Nct Of Delhi on 1 May, 2012
Author: A.K.Sikri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 1229 OF 2012
W.P.(C) 1230 OF 2012
W.P.(C) 1231 OF 2012
W.P.(C) 8279 OF 2010
% Judgments Reserved on:20.3.2012.
Judgment Delivered on:01.5.2012
(1) W.P.(C) 1229 OF 2012
DINESH KUMAR . . . PETITIONER
Through : Mr. Vivek Sood, Advocate.
VERSUS
GOVT. OF NCT OF DELHI ... RESPONDENT
Through: Mr. N.Waziri, Standing Counsel
with Ms.Zubeda Begum and Ms.
Neha Kapoor, Advocates for
Govt. of NCT of Delhi.
Mr. Pawan Sharma, Standing
Counsel (Crl.) for Govt. of NCT
of Delhi.
(2) W.P.(C) 1230 OF 2012
IBRAHIM . . . PETITIONER
Through : Mr. Vivek Sood, Advocate
VERSUS
GOVT. OF NCT OF DELHI ... RESPONDENT
Through: Mr. N.Waziri, Standing Counsel
with Ms.Zubeda Begum and Ms.
Neha Kapoor, Advocates for
Govt. of NCT of Delhi.
Mr. Pawan Sharma, Standing
Counsel (Crl.) for Govt. of NCT
of Delhi.
(3) W.P.(C) 1231 OF 2012
LUV KUSH . . . PETITIONER
Through : Mr. Vivek Sood, Advocate
VERSUS
GOVT. OF NCT OF DELHI ... RESPONDENT
Through: Mr. N.Waziri, Standing Counsel
with Ms.Zubeda Begum and Ms.
Neha Kapoor, Advocates for
Govt. of NCT of Delhi.
Mr. Pawan Sharma, Standing
Counsel (Crl.) for Govt. of NCT
of Delhi.
(4) W.P.(C) 8279 OF 2010
SHASHI SHEKHAR @NEERAJ . . . PETITIONER
Through : Mr. Vivek Sood, Advocate
VERSUS
GOVT. OF NCT OF DELHI ... RESPONDENT
Through: Mr. N.Waziri, Standing Counsel
with Ms.Zubeda Begum and Ms.
Neha Kapoor, Advocates for
Govt. of NCT of Delhi.
Mr. Pawan Sharma, Standing
Counsel (Crl.) for Govt. of NCT
of Delhi.
CORAM :-
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
A.K. SIKRI, ACTING CHIEF JUSTICE:
1. In all these writ petitions challenge is to the constitutional validity of
Clause 26.4 of the Parole/Furlough: Guidelines, 2010. These Guidelines are
approved by the Lt. Governor, Govt. of NCT of Delhi which are applicable
in case of convicts i.e. those who have been convicted by a competent court
under various laws and are undergoing sentencing in prison. The purpose of
the Guidelines is to regulate applications for parole and furlough and to
ensure that they are considered in a fair and transparent manner. Separate
provisions for regular parole as well as furlough are made in these Guidelines.
Insofar as grant of furlough is concerned which is the subject matter of these
writ petitions, Clause 24 states that a prisoner who is sentenced to 5 years or
more of rigorous imprisonment and has undergone imprisonment for 3 years
or more period excluding remission, can be released on furlough. A prisoner
is entitled 7 weeks of furlough in a year. The first spell can be of 3 weeks
while the subsequent spells have to be of 2 weeks each. Clause 26.4
mentions eligibility conditions which a prisoner has to fulfill before he would
be eligible to obtain furlough.
2. Clause 26, in toto, is reproduced as under:-
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;
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 no such a person whose
presence is considered highly dangerous or
prejudicial to the public peace and tranquility by
the District Magistrate by his home district.
3. As is clear from Clause 26.4, any prisoner who has been convicted for
an offence of robbery, dacoity, arson, kidnapping, abduction, rape and
extortion is not eligible for grant of furlough. All the petitioners have been
convicted of one or the other offences which is covered by Clause 26.4 and
for this reason, having regard to the aforesaid Guidelines, they are not
rendered ineligible for grant of furlough. According to the petitioners, this
Clause is arbitrary and unreasonable and not based on any intelligible
differentia and hence violative of Article 14 of the Constitution. It is also
contended that it violates fundamental right of the petitioner to life and liberty
under Article 21 of the Constitution.
4. Before we deal with this contention in detail, we may record the
background of these petitioners, in brief.
W.P.(C) 8279/2010:(Shashi Shekhar @ Neeraj)
5. The petitioner Shashi Shekhar @ Neeraj was convicted under Sections
302, 392, 397 IPC in case FIR No. 538/1995, P.S. Vasant Kunj on 27.2.2002
by the Additional Sessions Judge and sentenced to rigorous imprisonment for
life. The petitioner was also convicted under Sections 302,392,397,216-A
IPC in case FIR No. 76/1996, PS C.R. Park on 23.4.2004 by the Additional
Sessions judge and sentenced to rigorous imprisonment for life on 28.4.2004
The petitioner was also convicted under Section 302 IPC in case FIR No.
509/1995 P.S. Vasant Kunj on 23.4.2004 and sentenced on 28.4.2004 by the
Additional Sessions Judge to rigorous imprisonment for life. The petitioner
claims that as a convict in prison he has maintained a good, disciplined
behaviour and nothing adverse has been reported against him so far. The
petitioner has been granted parole on four occasions by this Court and the
NCT of Delhi in the last three years, the last being from 12.10.2010 to
23.11.2010 which was granted and extended by this Court by 10 days in W.P.
(Crl.) 1667/2010. The petitioner duly fulfilled all the conditions on which he
was granted parole including regular presence at the Police Station as directed
by this Court in W.P.(Crl.) 1667/2010. On each of the aforesaid occasions
when the petitioner was granted parole, he duly surrendered before the Jail
authorities within the stipulated time-frame and no adverse remark has ever
been reported against the petitioner during the said period. The petitioner, in
the month of September, 2010, filed an application for being released on
furlough. However, his application for furlough has not been considered
because of the bar stipulated in Clause 26.4.
W.P.(C) 1229/2012: (Dinesh Kumar)
6. The petitioner is a convict who is undergoing life imprisonment in
connection with case FIR No. 361/2001 under Section 363/364-A/120-B IPC,
P.S. Kotwali, New Delhi. The petitioner was sentenced by the ld. ASJ, Tis
Hazari, Delhi on 11/13.10.2004. The petitioner has been in jail for about 11
years and 7 months i.e. since 19.6.2001. Adding the period of remission
earned by the petitioner for his good conduct, the time period of the
petitioner‟s incarceration is over 13 years. It is claimed that the petitioner‟s
conduct in jail has been unblemished and without any complaint whatsoever.
The petitioner has been released on parole on three occasions and was granted
interim bail for 3 months by this Court vide order dated 14.2.2006 in Crl. A.
No. 181/2005. The petitioner duly surrendered after enjoying parole and
interim bail that was granted by this Court. It is submitted that the petitioner
did not misuse his liberty in any manner whatsoever. The petitioner, recently,
attempted to file an application for being released on furlough. However, his
application for furlough has not been considered because of the bar stipulated
in Clause 26.4 in view of his conviction under Section 364A IPC.
W.P.(C)1230/2012: (Ibrahim)
7. The petitioner is a convict who is undergoing life imprisonment having
being convicted for the offences punishable under Section 392 & 302 IPC in
connection with case FIR No. 200/2002, P.S. Sultan Puri, Delhi. The
petitioner was sentenced by the Ld. ASJ, Rohini on 18.12.2007. Initially the
case FIR against the petitioner was registered under Section 394 & 302 IPC.
The relevant portion of the judgment of conviction of the petitioner is as
follows:-
"Since it cannot be said definitely if the accused
caused injuries to the deceased at the time of
committing the robbery or later on, therefore, it is
held that the accused committed the offence
punishable under Section 392 IPC, instead of 394
IPC. Both the charges have been established
beyond shadow of doubt. Hence, accused Ibrahim
is convicted for the offences punishable under
Section 392 and 302 IPC."
The petitioner has been languishing in jail for about 10 years since
3.3.2002. Adding the period of remission earned by the petitioner for his
good conduct, the time period of the petitioner‟s incarceration is well over 11
years. It is submitted that the petitioner‟s conduct in jail has been
unblemished and without any complaint. The petitioner, attempted to obtain
furlough. However, his application for furlough has not been considered
because of the bar stipulated in Clause 26.4 in view of his conviction under
Section 392 IPC.
W.P.(C) 1231/2012: (Luv Kush)
8. The petitioner is a convict who is undergoing rigorous imprisonment
for 10 years and fine in connection with case FIR no. 214/2006 under Section
376 IPC, P.S. Anand Vihar, Delhi. The petitioner was sentenced by the ld.
ASJ, Karkardooma Courts, Delhi on 12.10.2007. The petitioner is in Jail for
about 5 years and 8 months i.e. since 12.4.2006. Adding the period of
remission earned by the petitioner for his good conduct, the time period of
the petitioner‟s incarceration is about 7 years. The petitioner was released on
parole by this Court for a period of 4 weeks in W.P.(Crl.) 994/2011. The
petitioner duly surrendered after enjoying parole that was granted by this
Court and the petitioner did not misuse his liberty in any manner whatsoever.
The petitioner‟s application for furlough has not been considered because of
the bar stipulated in Clause 26.4 in view of his conviction under Section 376
IPC.
The Submissions:
9. Mr. Vivek Sood, Advocate appeared for all these petitioners. His
submission was that Clause 26.4 does not only violate right to freedom and
liberty, it is unreasonable and discriminatory as well. He submitted that
barring prisoners convicted for the offence stipulated in this Sub- Clause 26.4
was totally illogical and arbitrary when in more serious offences like murder
or even multiple murder cases; furlough or parole could be granted. He also
submitted that those persons who are given parole and/or furlough, it becomes
a good ground for them to review of sentences by the Review Board which
also would be denied in the event prisoner is denied furlough. He also
submitted that there was solitary objective behind grant of furlough namely
the unification of the prisoner with his family members, friends and society
and that purpose would be defeated in case the prisoner is denied furlough
altogether and is to suffer long incarceration by serving entire sentence before
he is in a position to come out of the prison. His submission was that good
conduct in the prison should be the only relevant criteria.
10. Learned counsel for the State responded by pointing out that Rules in
question were framed at the directions of this Court given in Writ Petition
(Crl.) 112/2009 and after framing of these Rules, the same were shown to the
Court which would amply that the Court had imprimatur over these
guidelines and it was not permissible for the petitioners to challenge these
guidelines now. It was further submitted that the Classification was made on
rational and intelligible differentia with a purpose behind it. It was argued
that having regard to the serious nature of offences, these were rightly
excluded from the grant of furlough.
11. We had requested Mr. Pawan Sharma, Standing Counsel (Crl.) for
Govt. of NCT of Delhi to assist us. He placed before us the judgment of
Gujarat High Court in Juvan Singh Lakhubhai Jadeja Vs. State of Gujarat
(1973) 14 GLR 104 and submitted that issue was squarely covered thereby.
He also placed reliance on the judgment of Supreme Court in Avtar Singh
Vs. State of Haryana AIR 2002 SC 1109 which drew distinction between
parole and furlough and Supreme Court recognized in that judgment that
furlough cannot be claimed by certain classes of prisoners.
12. We have considered the respective submission of the learned counsel
on either side.
Effect of the orders in W.P.(W) 1121/2009:
\
13. This Court had taken suo moto cognizance of the fact that the then
existing guidelines for parole/furlough had not been reviewed or revised for
over 50 years. It was registered as W.P.(Crl.) 1121/2009. Pursuant thereto in
consultation with Delhi Legal Services Authority, the Parole/Furlough
Guidelines-2010 were framed. These Guidelines were placed before the
Court on 21.1.2010 and taking note thereof the petition was disposed with the
following order:-
"A draft of guidelines for parole/furlough have been
handed over in Court and is taken on record. The
guidelines have been framed by the Delhi
Government in consultation with the Member
Secretary, Delhi Legal Services Authority. Learned
Counsel for the Delhi Government states that the
guidelines will be placed before the Lieutenant
Governor for his approval and after taking the
approval of the Lieutenant Governor will be
published within six weeks.
The petition is accordingly disposed of.".
After the approval of the Lt. Governor, orders dated 17.2.2010 were
passed approving these guidelines.
14. No doubt, the guidelines have been revised by the Government in
consultation with the Member Secretary, DLSA and these were placed before
the Court in the aforesaid writ petition as well. However, there was no
specific consideration to the validity of certain clauses of these guidelines
which is the issue raised in the present petition. Therefore, learned counsel
for the respondent may not be right in submitting that even the validity of
these guidelines on merits was approved by this Court and, therefore, said
guidelines cannot be challenged at all. We are of the opinion that this Court
would be entitled to examine the validity of portion of the guidelines relating
to furlough as raised by the petitioners.
Parole and Furlough: Meaning and purpose:
15. Guidelines relate to parole as well as furlough. There is a subtle
distinction between the two which has been explained by the Courts from
time to time. 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. Under the aforesaid guidelines, such a release of the prisoner is
temporarily on some basic grounds. 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. Such paroles are normally granted in certain situations some of
which may be as follows:-
(i) A member of the prisoner‟s family has died or is
seriously ill or the prisoner himself is seriously ill; or
(ii) The marriage of the prisoner himself, his son, daughter,
grandson, grand daughter, brother, sister, sister‟s son or
daughter is to be celebrated; or
(iii) The temporary release of the prisoner is necessary for
ploughing, sowing or harvesting or carrying on any other
agricultural operation o his land or his father‟s undivided
land actually in possession of the prisoner; or
(iv) It is desirable to do so for any other sufficient cause
(v) Parole can be granted only after a portion of sentence is
already served
(vi) If conditions of parole are not abided by the parolee he
may be returned to serve his sentence in prison, such
conditions may be such as those of committing a new
offence
(vii) Parole may also be granted on the basis of aspects related
to health of convict himself.
16. In the Guidelines, 2010 two kinds of paroles are mentioned, namely,
custody parole and regular parole. The circumstances in which custody
parole can be granted are stipulated in Clause 5 and the circumstances for
grant of regular parole is stipulated in clause 9 which are as under:-
"5. Custody Parole- "Custody parole" would be granted in
emergent circumstances as follows:
5.1 Death of a family member;
5.2 Marriage of a family member;
5.3 Serious illness of a family member; or
5.4 Any other emergent circumstances."
xxx
"9. Regular Parole: 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 Deliver 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."
17. Bail and parole have different connotation in law. Bail is granted to a
person who has been arrested in a non-bailable offence and has been
convicted of an offence after trial. The effect of granting bail is to release the
accused from interment custody though the Court would still retain
constructive control over him through sureties. Parole, on the other hand, is
the release of a person from the detention of custody even though substantial
legal effect may be the same as bail. It is a temporary release from custody
which does not suspend the sentence or period of detention.
18. Furlough, on the other hand, is a brief release from the 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. 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 atleast some time provided they maintain good conduct
consistently during incarceration and show a 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.
19. The Supreme Court through various pronouncements has laid down the
difference between parole and furlough. Some of them are as follows:-
(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 where as in the
case of furlough; it extends to 14 days maximum.
(iv) Parole is granted by Divisional Commissioner and
furlough is granted by Deputy Inspector General Prison.
(v) For parole specific reason is required where as 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, where as it is vice-
versa in furlough.
(vii) Parole can be granted a 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."
(See also State of Maharashtra Vs. Suresh Panduram, 2006, AIR SC 2471,
State of Haryana and Ors. Vs. Mohinder Singh, 2000 (3) SCC 394)
20. Further, in the land mark judgment of Charanjit Lal Vs. State of Delhi
28 (1985) DLT 92 it was held:-
(i) The four main objectives which a state intends to achieve
by punishing an offender are-Deterrence, prevention,
Retribution and Reformation.
(ii) Life convicts‟ release from jail off and on for short
periods has to be considered and opportunities have to be
afforded to them not only to solve their personal and
family problems but also to maintain their links with
society.
(iii) They must breathe fresh air for at least sometime
provided, of course, they maintain good conduct
consistently during incarceration and they show a
tendency to reform them and become good citizens.
(iv) Redemption and rehabilitation of such prisoners for the
good of the society must receive due weight while they
are undergoing sentence of imprisonment."
Relevant Considerations governing grant of Furlough:
21. What follows from the above is that the four main objects which
punishment of an offender by the state is intended to achieve are deterrence,
prevention, retribution and reformation. There has been substantial diversion
from the previously existing popular concept of „retribution‟. Of late the
focus has shifted upon the „reformation‟. The earlier criminal law concept of
an „eye for eye‟ and „a tooth for tooth‟ has been replaced by a more humane
concept which emphasizes upon the re-allocation of an accused into the
society. The concept of parole and furlough are in fact a step towards the
accomplishment of this very purpose.
22. The provisions of parole and furlough provide for a humanistic
approach towards those lodged in jails. Main purpose of such provisions is to
afford to them an opportunity to solve their personal and family problems and
to enable them to maintain their links with society. Even citizens of this
country have a vested interest in preparing offenders for successful re-entry
into society. Those who leave prison without strong networks of support,
without employment prospects, without a fundamental knowledge of the
communities to which they will return, and without resources, stand a
significantly higher chance of failure. When offenders revert to criminal
activity upon release, they frequently do so because they lack hope of
merging into society as accepted citizens. Furloughs can help prepare
offenders for success.
23. While on the one hand, the aforesaid reformative theory of sentencing
is to be kept in mind, on the other hand, the interest of the society is also a
necessary concomitant. As already mentioned above, there are four main
objects of punishment which includes even deterrence and prevention as well.
The other side of the coin is the experience that great number of crimes are
committed by offenders who have been put back in the street after conviction.
Therefore, while exercising the discretion in granting furlough such aspects
are to be kept in mind namely whether the convict is such a person who has
tendency to commit such a crime or he is showing tendency to reform himself
to become good citizen.
24. Not all people in prison are appropriate for grant of furlough.
Obviously, society must isolate those who show patterns of preying upon
victims. Yet administrators ought to encourage those offenders who
demonstrate a commitment to reconcile with society and whose behaviour
shows that aspire to live as law-abiding citizens. Thus, furlough program
should be used as a tool to shape such adjustments.
The Issue:
25. In order to maintain the balance between the aforesaid two competing
and conflicting interest and in order to harmonize the same, what is the
yardstick to be adopted, is the poser. Whether the commission of a serious
crime by itself be treated as an embargo to the grant of furlough, as is done
vide Clause 26.4 of the Guidelines, 2010 ? Or it should be the propensity of
such a convict to commit a crime again which has to be judged from some
other standards like the good conduct of the prisoner in the prison?
Relevant case law on the issue revisited:
26. Before we answer these questions, it would be necessary to place on
record that provisions like Clause 26.4 on furlough is framed by different
States. We may also record that such provisions have been noticed by the
Courts earlier. In Avtar Singh (supra) the provisions of Haryana Good
Conduct Prisoners (Temporarily Release) Act, 1988 were the subject matter
of discussion. Section 4 thereof provides for temporary release of prisoners
on furlough and excludes the categories of the habitual offenders as defined
in Punjab Habitual Offenders (Control and Reform) Act, 1952 as well as
those convicted of dacoity or such other offences as the State Government
may by notification specifies. Comparing this provision with Section 3 of
the said Act which provides for parole, the Court observed that conditions for
releasing a prisoner on furlough were more rigorous than that of parole,
which is clear from the following passage in the said judgment:-
"As noted above, under this section any prisoner
irrespective of his period of sentence of detention can be
released on parole to meet such problem, whereas the
condition for releasing a prisoner on furlough under
Section 4 is rigorous and such release on furlough
cannot be claimed by certain classes of prisoners as
mentioned in the section. On close look at both the
sections it would appear that these sections operate on
different fields. Section 3 has been enacted to meet
certain situation of the prisoner but Section 4 has been
enacted as a reformative measures as a prisoner has to
show good conduct while in incarceration. In our
consideration opinion this classification is based on
rational criteria and cannot be said to be discriminatory
in nature. We, therefore, find no force in the first
contention of the learned counsel for the appellant."
27. We may record that these observations were made in the context of
argument of the appellant that Section 3(3) of the said Act was
unconstitutional as the period of parole was not counted towards the sentence
whereas in the case of furlough the benefit of that period was given. Thus,
the Court was not seized of and discussed the issue which has arisen in the
present petition. However, this very issue is directly dealt with by the
Gujarat High Court in Juvan Singh Lakhubhai Jadeja (supra). The
argument in that case was identical namely exclusion of certain classes of
convicts of particular offences was discriminatory. The Court while
upholding the validity of such a provision remarked:-
"But in introducing penal reforms, the State that runs the
administration on behalf of the society and for the benefit
of the society at large cannot be unmindful of
safeguarding the legitimate rights of the citizens in regard
to their security in the matters of life and liberty. It is for
this reason that in introducing such reforms the authorities
cannot be oblivious of the obligation to the society to
render it immune from those who are prone to criminal
tendencies and have proved their susceptibility to indulge
in criminal activities by being found guilty (by a Court) of
having perpetrated a criminal act. One of the discernible
purposes of imposing the penalty of imprisonment is to
render the society immune from the criminal for a
specified period. It is, therefore, understandable that
while meting out humane treatment to the convicts
care is taken to ensure that kindness to the convicts
does not result in cruelty to the society. Naturally
enough the authorities would be anxious to ensure that the
convict who is released on furlough does not seize the
opportunity to commit another crime when he is at large
for the time-being under the furlough leave granted to him
by way of a measure of penal reform."
28. While dealing with the cases of "habitual prisoners" as exclusionary
category the court justified their exclusion observing:-
"This appears to be the object underlying Rule 4 which
enjoins that prisoners of the specified categories shall not
be enlarged on furlough. And that is why Rule 4(1)
provides that "habitual prisoners" should not be
considered for furlough leave. If committing the offence
has become a habit, a prisoner is less likely to respond to
the corrective treatment aimed at his reform while he is
undergoing the sentence to the extent that he can safely
(safely for the society) be set at large before the expiration
of his term of imprisonment. If released, he is more prone
to the temptation to commit a crime because in his case
the crime is committed not merely under compulsion of
circumstances or in a moment of passion but on account
of his having become habituated to that way of life. Until
there is evidence that he has been able to break the chains
of habit and master his habitual impulses, it would not be
safe from the point of view of the society to throw him in
the midst of it thereby exposing the society to further
crimes by him."
29. In that case those convict of offence under the Bombay Prohibition Act
were also made ineligible for grant of furlough under Rule 4 (3) and this
exclusion was justified in the following manner:-
"The same idea appears to run through most of the clauses
of Rule 4. For instance, Rule 4(3) concerns persons
convicted of offences under the Bombay Prohibition Act,
1949. Apparently persons who indulge in offences under
the Prohibition Act either by consuming liquor or by
trading in liquor become slaves of the habit or way of life
and find it difficult to free themselves from the bondage
of habit. That appears to be the reason why it is provided
that they should not be considered for release on furlough
because a break from the prison life will expose them to
the same temptation and the purpose of keeping them
away from the habit for sufficient time to enable them
loosen the hold of the habit would not be served."
30. Rule 4 (5) of the Prisons (Bombay Furlough and Parole) Rules, 1959,
rendered such convicts ineligible for grant of furlough who show a tendency
towards crime. This inclusion was also found justified in the following
manner:
""Similarly Clause (5) of Rule 4 provides that
those who show a tendency towards crime should
not be so released. The idea would appear to be
that in view of their manifest tendency it would not
be advisable to expose them to the temptation and
expose the society to the risk."
31. Insofar as those convicts whose conduct had not been found to be
satisfactory and who had in the past escaped or attempted to escape from
lawful custody or who have defaulted in any way in surrendering themselves
were as rightly excluded from the benefit of grant of furlough.
32. To this extent namely exclusion of the aforesaid categories may not
pose a problem. Even in the Guidelines, 2010 same kind of provisions are
made in Clause 26 which inter alia lay down that in order to obtain the
furlough, the petitioner should not be a habitual offender; the release of the
prisoner should not be considered dangerous or deleterious to the interest of
national security or involvement in a pending investigation; in a case
involving serious crime; he should not be a person whose presence is
considered highly dangerous or prejudicial to the public peace and tranquility
by the District Magistrate by his home district etc.
33. Coming to the exclusion of those convicted of robbery and dacoity
(which is one of the offences made in Clause 26.4 of the Guidelines, 2010 as
well) the Court held that even this was not discriminatory. A detailed
discussion in this behalf is contained in para 9 of the said judgment.
"9.Sections 392 to 402 occur in Chapter XVII of the
Indian Penal Code and relate to offences of robbery and
dacoity. The question is : is there any rational basis for
selecting this class of offences for being included in the
list of the offences for which convicts should not be
enlarged on furlough ? Now, in robbery an element of
violence is present along with theft or extortion. Violence
is either actually used or attempted to be used either for
carrying away of the property or for making the victim
part with the property. And when five or more persons
conjointly commit or attempt to commit robbery, the
offence falls within the description of dacoity. It is
obvious that in dacoity five or more persons come
together with the avowed object of obtaining property
unlawfully by resort to violent means. When so many
persons enter upon a life of crime and form a group
which is likely to become an organized gang, it is clear
that there is great danger in letting them loose. In
order to maintain themselves they take to robbery in
an organized fashion and it tends to become a habit or
a way of life from which it is difficult to make a break.
If one who has been found guilty of such an offence is
released on furlough, there is no guarantee that he will
not indulge in similar activity as soon as he is let large.
None of the twin objects of punishment of imprisonment
would then be served. Neither would he be reformed nor
would the society remain immunized from his criminal
activity for the specified period. It would be dangerous to
the society to release him on furlough merely out of
considerations of penal reform and humane treatment. As
observed earlier, consideration of sympathy for him
cannot be permitted to overshadow the consideration
regarding security of the society. Similarly with regard to
the lesser offence of robbery, it would be extremely
hazardous to let the prisoner loose before the expiry of
the term of imprisonment. It would be hazardous to do
so because when one abandons honest labour for the
career of theft or intimidation coupled with violence
(which brings easy money though at some risk) it
tends to become a way of life and the temptation is too
great to resist when the prisoner is at large. The
offences of robbery and dacoity, therefore, fall within
a class by themselves. The classification is based on the
danger inherent in releasing on furlough those who are
proved to have unhesitatingly committed crimes against
person as well as property and such crimes by their very
nature are habit forming and repetitive. It is, therefore,
not possible to say that the classification is irrelevant or
that it has no nexus with the objective sought to be
achieved. It will be recalled that the object is two-fold (1)
to enable the convict to break the shackles of his habit
and (2) to immunize the society atleast for a specified
period. It was, however, argued by counsel that if a more
serious crime like murder was not included in the list,
there was no rational basis for including the offences
relating to robbery and dacoity within the fold. Here
again, the argument ignores the fact that by and large an
offence of murder is committed by a person under some
real or imagined provocation or in a moment of passion
and the perpetrator of the crime usually has a motive or
animus against a particular individual or individuals and
not against the society at large. There is, therefore, less
danger of his committing a similar crime when he is on
leave on furlough. Robbery and dacoity are offences
which are directed against the entire society at large and
the entire society is exposed to the danger emanating
from them. In case of murder only that person against
whom the perpetrator has a motive or animus alone is
exposed to danger from him and not others. So far as
robbery and dacoity are concerned, any victim is a
good victim and the entire society is exposed to the
risk. It is, therefore, clear that the offences of robbery
and dacoity fall in a different category. Whether or not
the offence is more serious is not the relevant
consideration for withholding furlough. The relevant
consideration is whether his release will hamper his
reform or expose the society to the vary danger to
shield from which the criminal is imprisoned.
Therefore, the fact that murder may be by and large
considered to be a more serious crime is not a
circumstance which in any way impairs the reasoning
underlying the selection of the offences falling under the
specified class viz. the offences relating to robbery and
dacoity. Again, the mere fact that some other offences
also deserve to be included in the list of offences in
respect of which furlough should not be granted (even if
the argument is valid) is not a good ground for not
including the offences of robbery and dacoity. By
experimentation, and by gaining experience the list may
be enlarged or modified from time to time. A
classification which is otherwise rational and purposeful
and bears a nexus with the underlying object of the
legislation cannot be branded as obnoxious merely
because another class also ought to be brought within the
sweep of the legislation. It is not true to say that all evils
must be remedied by the same legislation in order to be
immune from the charge of discrimination. It is not a
valid argument that the Legislature can legislate in
respect of all evils or none. Legislation can be
implemented by stages. The mere circumstance, that
other class of offences may also be included within the
list will not render the class which is actually included
devoid of rational basis. Under the circumstances, it is
not possible to uphold the contention that Rule 4(2) is
discriminatory in character and is violative of Article 14
of the Constitution of India. We are of the opinion that
the classification has a rational basis and has a distinct
nexus with the underlying object of the legislation and
that it does not introduce any element of hostile
discrimination.
34. It becomes clear from the aforesaid that the Court treated the offences
of robbery and dacoity in a different class altogether and this classification
was found justified i.e. rational and purposeful which bears a nexus with the
underlying object sought to be achieved. The reason given by the Court was
that by very nature those who commit dacoity with objective of obtaining
property unlawfully and resorting to violent means, in an organized fashion, it
tends to become a habit or a way of life from which it is difficult to take a
break. Therefore, it would be dangerous for the society to release such
prisoners on furlough merely out of considerations of penal reform and
human treatment. Even in respect of the lesser offence of robbery the Court
was of the opinion that these are the prisoners who objected to honest labour
for the career of theft coupled with violence which brings easy money though
at some risk and that tends to become a way of life.
35. The moot question is as to whether there can be a presumption that for
all such persons who have committed the offence of robbery and dacoity and
convicted thereof are to be treated as "hardened criminals" for whom it has
become a habit or way of life and they would necessarily tend to commit the
same crime again and again.
36. Interestingly, while contrasting the cases of robbery and dacoity, with
the offence of murder which is more heinous crime, the Court observed that
there was less danger of a convict committing similar crime of murder when
he is on leave or on furlough as the offence of murder is committed by a
person under some real or imagined provocation or in a moment of passion
and the perpetrator of the crime usually has a motive or animus against a
particular individual (s) and not against the society at large as in the case of
dacoity and robbery. More interestingly, the justification for inclusion of
convicts for offence of murder for furlough was given by observing that:-
" Whether or not the offence is more serious is not the
relevant consideration for withholding furlough. The
relevant consideration is whether his release will hamper
his reform or expose the society to the vary danger to
shield from which the criminal is imprisoned. Therefore,
the fact that murder may be by and large considered to
be a more serious crime is not a circumstance which in
any way impairs the reasoning underlying the selection
of the offences falling under the specified class viz. the
offences relating to robbery and dacoity."
Would this reasoning not apply in the case of dacoity and robbery as
well?.
It would be interest to note that Full Bench of Gujarat High Court itself
in a later case titled Bhikhabhai Devshi Vs. State of Gujarat and Ors. AIR
1987 Guj 136 discussed the provisions of furlough though in that matter Rule
4 (10) was the subject matter of the discussion, which stipulated that those
prisoners who have at any time escaped or attempted to escape from lawful
custody or have defaulted in any way in surrendering themselves at the
appropriate time after release on parole or furlough would not be granted
furlough. The Full Bench held that such a provision was not inconsistent with
Section 48A of the Prisons Act, 1894. The Court held that as far as the first
part of Rule 4(1) is concerned, in respect of prisoners who have escaped or
attempted to escape, such prisoners, a class by themselves, cannot be trusted
for being released on furlough and, therefore, in such cases, the prison
authority would be justified in not considering their request for furlough.
However, in cases of late surrender, where there is no element of escape, but
merely there is a delay in surrendering, the question will have to be examined
on the facts and circumstances and merits of each case. A given case of a
prisoner defaulting in timely surrender, who is wanted by the jail authorities
and who is not available at the place where ordinarily he should be and who is
apprehended by the police or who surrenders because of the chase by the
authority, may fall under the first part where he cannot be trusted to be
released on furlough again. But such cases are at the other extreme. The
Court also opined that other cases of late surrender may be of voluntary
surrenders and the lateness may not be unduly long and not without sufficient
cause or reason. In such cases sufficiency of such a cause related to time will
certainly have to be considered by the authority. The Court found this
provision to be violative of Section 48A of the aforesaid Prisons Act, 1894.
37. This judgment of Full Bench was relied upon by the another Division
Bench of Gujarat high Court in Govindbhai Mansing Dabhi Vs. State of
Gujarat 2005 (3) GLH 169 . In this case the Court held that where a person
had suffered incarceration for long time irrespective of the nature of offence
for which he was sentenced, he should be granted furlough. The Court, while
taking this view, relied upon the judgment of a Division Bench of Bombay
High Court in Sharad Keshav Mehta Vs. State of Mahrasthra 1989 Crl. LJ
681 which was to the effect that right to be released on furlough is a
substantial and legal right of the prisoner and he cannot be denied the same
if it is permissible under the law. The Court considering the Scheme of
Furlough Rules, in that State held as under:-
"It is not open to the Home Department of the State
Government to prescribe rules giving facility of release
of the prisoner on furlough by one hand and then
providing that the prisoner has no legal right to be
released on furlough. In our judgment, R. 17 cannot
deprive the prisoner of the substantial right to be
released on furlough provided the requirements of the
rule are complied with. The submission advanced on
behalf of the State Government overlooks the distinction
between the right to be released on parole and the right
to be released on furlough. Parole is granted for certain
emergency and release on parole is a discretionary right
while release on furlough is a substantial right and
accrues to a prisoner on compliance with certain
requirements. The idea of granting furlough to a prisoner
is that the prisoner should have an opportunity to come
out and mix with the society and the prisoner should not
be continuously kept in jail for a considerably long
period. The interaction with the society helps the
prisoner in realising the folly which he has committed
and the liberty which he is deprived of. In modern times
the effort is to improve the prisoner and the punishment
is to be considered as an action for reformation of an
individual. It is futile to suggest that a prisoner should be
kept behind the bars continuously and should not be
permitted to come out on furlough unless the authorities
think wise. In our judgment, the State Government has
framed rules in exercise of the powers conferred by Cl.
(5) and (28) of Section 59 of the Prisons Act, 1894 and
on framing of such rules, R. 17 cannot deprive the
prisoner of the right to be released on furlough. In spite
of the enactment of R. 17, we hold that the right to be
released on furlough is a substantial and legal right
conferred on the prisoner."
38. There can be no cavil in saying that a society that believes in the worth
of the individuals can have the quality of its belief judged, at least in part, by
the quality of its prisons and services and recourses made available to the
prisoners. Being in a civilized society organized with law and a system as
such, it is essential to ensure for every citizen a reasonably dignified life. If a
person commits any crime, it does not mean that by committing a crime, he
ceases to be a human being and that he can be deprived of those aspects of
life which constitutes human dignity. For a prisoner all fundamental rights
are an enforceable reality, though restricted by the fact of imprisonment.
39. In Sunil Batra versus Delhi Administration, (1980) 3 SCC 488,
Justice D.A.Desai, speaking for himself, the Hon‟ble Chief Justice of India
and two Hon‟ble Judges observed that a convict is in prison under the order
and direction of the Court and the Court has, therefore, to strike a just balance
between the dehumanizing prison atmosphere and the preservation of interval
order and discipline, the maintenance of institutional security against escape,
and rehabilitation of the prisoners. Article 21 guarantees protection of life
and personal liberty. Though couched in the negative it confers the
fundamental right to life and personal liberty.
40. In Maneka Gandhi versus Union of India, AIR 1978 SC 579, Justice
Bhagwati observed that if a law depriving a person of personal liberty and
prescribing a procedure for that purpose within the meaning of Article 21 has
to stand the test of one or more of the fundamental rights conferred under
Article 19, which may be applicable in a given situation, exhyopthesis it must
also be liable to be tested with reference to Article 14.
41. Justice V.R. Krishna Iyer in Charles Sobraj v. Supdt., Central Jail,
AIR 1978 SC 1514, observed that imprisonment does not spell farewell to
fundamental rights although, by a realistic re-appraisal, Courts will refuse to
recognize the full panoply of part III enjoyed by free citizens. Further,
observed that the axiom of prison justice is the Court‟s continuing duty and
authority to ensure that the judicial warrant which deprives a person of his life
or liberty is not exceeded, subverted or stultified. It is a sort of solemn
covenant running with the power to sentence. Referring to the decision of
Supreme Court in Rustom Cowvasjee Cooper v. Union of India, AIR 1970
SC 1318, and Maneka Gandhi (Supra), it was observed that Prisoner‟s retain
all rights enjoyed by free litigants except those lost necessary as an incident of
confinement, the rights enjoyed by prisoner‟s under Article 14, 19 and 21
though limited, are not static and will rise to human heights when challenging
situation arise.
42. The Supreme Court in Sunil Batra versus Delhi Administration
(Supra) observed "Prisons are built with stones of law", and sort behooves
the Court to insist that, in the eye of law, prisoners are persons, not animals
and punish the deviant "guardians" of the prison system where they go
berserk and defile the dignity of the human inmate. Prison houses are part of
Indian earth and the Indian Constitution cannot be held at bay by Jail officials
" dressed in a little, brief although when part III is invoked by a convict. For
when a prisoner is traumatized, the constitution suffers a shock. The Supreme
Court further held that the Court has power and responsibility to intervene
and protect the prisoner against may how, crude behaviour.
Our Analysis:
43. The most relevant aspect which needs to be focused is as to whether
offences specified n Clause 26.4 are to be treated per se ineligible for the
grant of furlough. As mentioned above, this exclusion presumes that the
convict would have a tendency to commit such an offence again. According
to us, generalizing this underlying presumption may not be valid and it
should be examined on case to case basis. By no means it is suggested that
convicts of the offences specified in Clause 26.4 are to be granted furlough.
If this category is not excluded, at the most, they become eligible for
consideration. Still such persons will have to satisfy the conditions of
furlough mentioned in other provisions of Clause 26. After all the competent
authority will still have discretion to deny furlough in particular cases. It
would still be seen as to whether the prisoner depicted good conduct and
behaviour in the prison and continues to maintain good conduct. The
furlough can also be denied if he is a habitual offender or is involved in a
pending investigation in a case involving serious crime. As per Clause 26.4
or 26.7 furlough can be denied even to that convict whose presence is
considered highly dangerous or prejudicial to the public peace and tranquility
by the District Magistrate by his home district. Thus, there are sufficient
safeguards provided in clause 26, on an application of which a person can be
denied furlough even if he is convicted of lesser offences. While examining
a particular case, the competent authority can definitely consider the matter as
to whether a particular convict is on the path of reformation or he still has
the tendency to commit the crime if he is released on furlough. Reports
from the Counsellors, psychiatrists and other concerned officials of Jail who
are closely monitoring him can always be obtained for this purpose. On the
other hand what Clause 26.4 does is to make convicts of such offences per se
ineligible for furlough on the basis of farfetched and illogical presumption
that they have become „habitual offenders" and are incapable of being
reformed.. There have been numerous instances of reformation of those
prisoners convicted of the offences of dacoity and robbery.
44. Furthermore, the competent authority while examining such cases can
be well advised to have stricter standards in mind while judging their cases
on the parameters of good conduct, habitual offender or while judging
whether he could be considered highly dangerous or prejudicial to the public
peace and tranquility etc. On the other hand, if such a convict is rendered
totally ineligible for furlough, it would negate the very purpose of grant of
furlough viz affording him opportunity to maintain links with society; to
solve personal and family problems; breath fresh air for at least some time;
and opportunity to become good citizen.
45. The aforesaid reasoning of ours applies with much force where
conviction is for offence of rape as in such a case by no means there can be a
presumption that in all circumstance, the convict would repeat this crime.
The prediction of criminal behaviour is ubiquitous. However, it is not very
difficult to comprehend. If the extent of criminal behaviour is predicted, then
it can be prevented as well. Mainly there are two methods for the prediction
of criminal behaviour:
(i) Experience tables (statistical method); and
(ii) Clinical or intuitive method.
46. It is also to be kept in mind that by the time an application for furlough
is moved by a prisoner, he would have spent some time in the Jail. During
this period, the various reformatory methods must have been applied. We can
take judicial note of this fact, having regard such reformation facilities
available in Tihar Jail. One would know by this time as to whether there is a
habit of relapsing into crime inspite of having administered correctional
treatment. This habit known as "recidivism" reflects the fact that the
correctional therapy has not brought in the mind of the criminal. It also
shows that criminal is a hard core who is beyond correctional therapy. If the
correctional therapy has not made in itself, in a particular case, such a case
can be rejected on the aforesaid ground i.e. on its merits.
47. We are not oblivious of the fact that there may be hard core criminals
who by reason of their crime and the methods of dealing with the crime, form
associations, loyalties and attitudes which tend to persist. There may be even
peer pressure when such convicts are out to commit those crimes again.
There may be pressure of ostracised from delinquent groups which may
lead them to commit the crime again. Persistence in criminal behaviour may
also be due to personality traits, most frequently due to pathological traits of
personality, such as mental defectiveness, emotional instability, mental
conflicts, ecocentrism and psychosis. In regard to relapse or recidivism,
Frank Exner a noted criminologist and sociologist, points out that the chances
of repeating increase with the number of previous arrests and the interval
between the last and the next offence becomes shorted as the number of
previous crimes progresses(Frank Exner. Kriminologie pp.115-120). The
purpose of the criminological study is the prognosis of the improvable
occasional offenders and that of the irredeemable habitual offender and hard-
core criminal. To differentiate the recidivists from non-recidivists and
dangerous and hard-core criminals from occasional criminals had been
enumerated by Exner in the following flow-sheet:-
1. Hereditary weaknesses in the family life.
2. Increasing tempo of criminality.
3. Bad conditions in the parental home.
4. Bad school progress (especially in deportment and
industriousness)
5. Failure to complete studies once begun.
6. Irregular work(work shyness).
7. Onset of criminality before 18 years of age
8. More than four previous sentences.
9. Quick relapse into crime.
10. Interlocal criminality (mobility).
11.Psychopathic personality (diagnosis of institutional
doctor).
12.Alcoholism
13.Release from institution before 36 years of age
14.Bad conduct in the institution.
15.Bad social and family relations during period of release.
At the same time, as criminality is the expression of the „symptom‟ of
certain disorder in the offenders, they can be easily reformed if they are
rightly diagnosed and correct treatment is administered to them.
48. These are, thus, the parameters which can be looked into while denying
the furlough in a particular case and particularly those convicted of the
offences mentioned in Clause 26.4. We may record that the authorities may
be extra cautious in granting a furlough to an inmate convicted of a serious
crime against the person and/or whose presence in the community could
attract undue public attention, create unusual concern, or depreciate the
seriousness of the offense. If the authority approves a furlough for such an
inmate, it must place a statement of the reasons for this action. However,
their exclusion per se making them ineligible at the outset even from
consideration to obtain furlough becomes discriminatory and arbitrary and it
cannot have any rational nexus. We find ourselves in difficulty to agree with
the reasoning given by the Gujarat High Court in Juvan Singh Lakhubhai
Jadeja (supra).
49. To sum up, we hold that the provision contained in Clause 26.4 of
Guidelines, 2010 in the present form does not stand judicial scrutiny which
makes persons ineligible for furlough merely on the basis of the nature of
crime committed by them. It would amount to snatching their right to at
least consider their cases for grant of furlough. We thus, strike down this
provision as unconstitutional and infringing the Article 14 as well as Article
21 of the Constitution. At the same time, having regard to the nature of
offences specified therein, we are of the view that there may be strict and
stringent conditions attached for consideration of cases of such convicts for
grant of furlough some of which have been outlined by us in the preceding
paragraphs. The appropriate authority shall, accordingly, make suitable
amendments while redrafting Clause 26.4 of the Guidelines, 2010. This
exercise shall be completed within a period of two months from today.
Based on the amended provision, the cases of the petitioners shall be
considered for grant of furlough.
50. These writ petitions stand disposed of in the aforesaid terms.
ACTING CHIEF JUSTICE
(RAJIV SAHAI ENDLAW)
JUDGE
MAY 1, 2012
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