No bar for convict to seek furlough when appeal pending in HC, SC: Delhi HC

The Delhi high court has ruled that there is no restriction for a convict to seek furlough from the jail authorities even if his or her appeal against conviction is pending. The high court noted that since the period of sentence is not suspended during a furlough, it does not overreach the jurisdiction of the appellate court.

The ruling came on pleas by four convicts in a murder case, whose furloughs were rejected by the jail authorities, contending that since their appeals against the conviction were pending before the Supreme Court, they should approach the court for grant of furlough.

Advocate Aman Panwar, counsel for the petitioners, had contended that since there was no suspension of sentence, there was no derogation of powers of the court as argued by the additional standing counsel for the Delhi government.

Justice Amit Mahajan, however, said that since these issues may involve possible declaration of the rule as not a good law, any challenge to the constitutionality or any prayer for striking down of Rule 1224 of the Delhi Prison Rules is required to be placed before the division bench.

The court ordered that the matter be listed before a division bench, subject to the orders of the chief justice, for further consideration.

Justice Mahajan noted that even though both parole and furlough grants temporary relief to the convicts in the form of temporary release from prison as a progressive measure of correctional services and is aimed as an opportunity for a prisoner to maintain familial relations, and to act as a motivation for maintaining good conduct while in prison, the basic difference between them is that parole entails suspension of sentence during the period of release whereas in furlough the sentence continues to run during the period of release.

“The jurisprudence as enunciated by the apex court cannot be applied in relation to furlough, since it does not entail suspension of sentence and passing of any order of such grant either by the executive or by the high court and would not amount to derogation of power when the appeal is pending before the apex court,” the court said.

“Therefore, the principle enumerated in the case of KM Nanavati (supra), in my opinion, does not apply in relation to consideration of application for grant of furlough, in the absence of any rule to the contrary,” it added.

Granting relief to four prisoners, the court held that the principle of derogation of power as laid down in the judgment of Supreme Court in KM Nanavati (supra), is not applicable in cases where the applicable prison rules do not forbid the executive from considering the application for furlough pending an appeal against conviction before an appellate court be it high court or apex court.

It, however, clarified that where the applicable prison rules forbid the executive from considering the application for furlough pending an appeal against conviction before an appellate court and mandates seeking of appropriate direction by the convict from an appellate court in which the appeal of the convict against the order of his/her conviction is pending, the principle of derogation of power as laid down in the judgment of Supreme Court in KM Nanavati (supra), would be applicable with full vigour.

In this judgment (KM Nanavati), the Supreme Court dealt with the suspension of sentence of KM Nanavati who was convicted by the high court. However, his sentence was suspended even before an appeal was filed in the Supreme Court. In this context, the apex court had held that the Governor has no power to grant the suspension of sentence during the period when the matter is sub-judice before the apex court.

The Supreme Court had held that the order of the Governor, granting suspension of sentence could only operate till such time the matter became sub-judice before the apex court. However, once the appeal is filed, it is for the 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 apex court deems fit.

In its judgment, the high court noted that “furlough is a reward which is granted to the convict on his good conduct while in prison and it is a manner of motivation for maintaining the good conduct and to remain disciplined in the prison”.

“The same, however, is subject to the criteria as prescribed in the Rules. The courts have repeatedly held that the convicts too must breathe fresh air for some time, provided they maintain good conduct during the incarceration and show a tendency to reform themselves. Thus, the redemption and rehabilitation of such prisoners for the good of the society must receive due weightage,” justice Mahajan added.