A Single Judge Bench of the Delhi High Court consisting of- Justice Anup Jairam, in the case of Mohd Shahabuddin vs State Govt Of NCT Delhi & Anr, has while espousing the basic legal rights of a prisoner ruled that: once a prisoner obtains custody parole in a case, he need not obtain permission from every court where he has been convicted or is pending trial.
Factual Background
The petitioner, who was a convict and an undertrial in custody in Tihar Jail in Delhi in case arising from an FIR registered /Ss. 302/120-B/34 IPC and section 27 Arms Act - sought custody parole.
Notice in this petition was issued- whereupon status report was filed by the concerned Jail Superintendent, Central Jail, Tihar and nominal roll was received from the prison authorities. A separate status report was filed by the S.H.O. since the petitioner’s case was being overseen by that police station in Delhi.
The petitioner had moved the Hon’ble Supreme Court for seeking effectively the same relief as was sought in the present petition; which writ petition was however dismissed as withdrawn.
Since the petitioner was serving sentence in Delhi for a case in which he was convicted by a court in Bihar and there were also several other criminal cases pending against him in Bihar, by an order, the State of Bihar was impleaded as party-respondent to the present petition; and notice was issued. The IG Prison and Correctional Services, Home (Prison) Department, Government of Bihar thereupon filed counter-affidavit, setting-out in detail their position vis-a-vis the petitioner.
Case of the Petitioner
It was contended that: petitioner’s father passed away on 19.09.2020; and in view thereof, the petitioner wished to spend time with his grieving mother, who herself was extremely unwell; and also to offer prayers at the grave of his late father, to attend and perform religious rites and ceremonies for the departed soul; and to spend time with his family in this time of grief.
It was further contended that: the petitioner was undertrial in case an FIR registered in Bihar and It was further contended that thereafter transferred by the Hon’ble Supreme Court- to be in custody at the Central Jail, Tihar, New Delhi.
It was further contended that further submitted that though the petitioner It was further contended that implicated in multiple criminal cases, he was granted bail/interim bail, which he availed and did not misuse the liberty granted.
By an application, petitioner’s wife sought parole from Government of Bihar; and also simultaneously moved an application before DG (Prisons) Central Jail, Tihar seeking the same relief. However, during pendency petitioner’s father was laid to rest Thereafter, by e-mail- petitioner’s counsel sought custody parole for him; in response to which he received a reply from the Jail Superintendent stating that:-
“ ….. It is further informed that Custody Parole may be granted to the convict by an order in writing, issued by the Superintendent Prison and to the under trial prisoners by the Hon’ble Court. Further the accused Md. Shahabuddin s/o S. M. Hasibullah has been informed about the sudden demise of his father.”
Reasoning and Decision of the Court
The Court noted that: Court’s attention was drawn to Rule 1203 of the Delhi Prison Rules 2018, which provides for grant of custody parole to a convict in case of death of a family member; and to Rule 1205 which postulates grant of custody parole to visit any place outside the NCT of Delhi but within the territorial limits of India subject to fulfilling the other requirements contained in that rule.
The Court noted that: there was no contest on either side that since the petitioner has been transferred by the Hon’ble Supreme Court to serve sentence and remain in custody as an undertrial in prison in Delhi and has been subject to the prison regime in force under the Delhi Prison Rules 2018, the said rules would also govern the grant or denial of custody parole to him.
Hence, the Court found it neither feasible nor fair nor just that one prisoner in a Delhi prison should be treated differently than others, for any reason. Also, the petitioner has been transferred by the Hon’ble Supreme Court out of Bihar to suffer sentence and remain as an undertrial in Delhi for security considerations but without any direction that he is to be dealt with under the Bihar Prison Rules.
Accordingly, Court held that “the Delhi Prison Rules that would apply to the petitioner’s plea for custody parole.
Observation as to when ‘custody parole’ is granted
To further elaborate on this issue, court added, that conceptually, when a prisoner is granted ‘custody parole’, the prisoner is not freed from judicial custody, in that he is not allowed to leave prison on his own or to come and go where he pleases. During 'custody parole’ the prisoner continues to remain in the custody of the court.
The Court observed that:
“It is for this reason that the period spent on custody parole is counted towards period spent in prison. Custody parole therefore contemplates a situation whereby, for special exigencies mentioned in the jail rules, the prisoner is granted guarded liberty and the jail travels with the prisoner to wherever the prisoner is allowed to go under orders of the court. Since the prisoner continues to remain in judicial custody, the need for taking custody parole or other permission from each and every court in which the prisoner is pending trial or has been convicted does not arise.
Accordingly, once a prisoner obtains custody parole in a given case, he does not need to obtain separate custody parole orders from every other court which has convicted him or in which he is pending trial, except that if during the period of custody parole the prisoner is required to be produced by the Jail Superintendent before any court, information of the fact that he is on custody parole must of course be given to such court.”
Custody parole and present case
“In the present case there is no doubt that the petitioner’s personal circumstances at this time, namely the passing-on of his father and his need to be with his family and perform rites and rituals, stands verified and requires humane consideration, yet the other considerations referred to above require closer scrutiny.”
“The police departments of the States of Bihar and Delhi are both saying in unison that they cannot assure the petitioner’s custody and safety. Alternatively, they are saying that they would need to deploy inordinately vast resources, if the petitioner’s custody and safety is to be ensured. Rare is it to come-upon a case where State Governments are unsure and dithering to make a commitment that they can ensure the custody of a prisoner. This however, is definitely such a case.”
Maintaining balance between humane considerations for grant of custody parole and overarching considerations of ensuring judicial custody of prisoner, the Court held:
"In view of the above, this court has given its painful consideration to the prayers made in the petition and is of the opinion that a very strict balancing is required between the humane considerations for grant of custody parole and the overarching considerations of ensuring judicial custody of the prisoner; his own safety and the safety of others; and ensuring that there is no subversion of, or prejudice to, the legal process. After all, the Hon’ble Supreme Court has in exercise of its extraordinary judicial powers, transferred the petitioner to Delhi to undergo sentence as well as trials outside the State of Bihar for compelling considerations. It is evident that the very presence of the petitioner within the State of Bihar was perceived by the Hon’ble Supreme Court as a grave threat and interference in the course of justice.”
Following directions issued by the Court:
"a. The petitioner is granted ‘custody parole’ for a period of 06 (six) hours at a time on any 03 (three) days of his choice, whether consecutive days or otherwise, within a period of 30 (thirty) days from the date of this order;
b. On each of these 03 days, the petitioner would be taken ‘in custody’ with adequate police security and protection, to a single address of his choice to be indicated by him in writing to the Jail Superintendent in advance, but only within the State of Delhi; which address and location would be verified and secured appropriately by the State;
c. On each of these 03 days of his choosing, the petitioner shall be taken ‘in custody’ to the verified address for a maximum of 06 hours, excluding the time of travel to and from that address, between 6.00 a.m. and 4.00 p.m. on each such day;
d. During the period of custody parole, the petitioner shall be free to meet only his mother, wife and any other blood relatives but no one else; and the petitioner shall be afforded sufficient privacy to interact with such persons as he pleases;
e. It is made clear that in the course of custody parole, the petitioner shall not be entitled to the presence of his personal guards or other such persons;
f. In order to execute the aforesaid directions, the petitioner is directed to furnish to the Jail Superintendent the address which he would like to visit during custody parole within 03 days of this order, which address may accordingly be verified in advance.”
Case Details
Name: Mohd Shahabuddin vs State Govt Of NCT Delhi & Anr
Case No.: W.P. (CRL) 1558/2020 & Crl. M.A. No.14691/2020
Date of Decision: December 2, 2020
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