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Delhi High Court - Orders

Chandra Kant Jha vs State on 1 August, 2022

Author: Satish Chandra Sharma

Bench: Chief Justice, Subramonium Prasad

                          $~1.
                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +      LPA 75/2022 & CM APPL. 32217/2022
                                 CHANDRA KANT JHA                                  ..... Appellant
                                                   Through:     Mr. M.L. Yadav with Mr. Anshul
                                                                Yadav, Advs.

                                                   versus

                                 STATE                                             ..... Respondent
                                                   Through:     Ms.    Nandita    Rao, Additional
                                                                Standing Counsel, GNCTD.

                                 CORAM:
                                 HON'BLE THE CHIEF JUSTICE
                                 HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD

                                                   ORDER

% 01.08.2022

1. At the outset, learned Counsel for the Appellant has drawn the attention of this Court to the Judgment delivered by the Hon'ble Supreme Court in the case of Atbir v. State of NCT of Delhi, Criminal Appeal No.714/2022, decided on 29.04.2022.

2. The aforesaid case was in respect of a convict who had been sentenced to undergo imprisonment for the whole of his natural life after commutation of death sentence by the Hon'ble President of India. He was aggrieved by the Order dated 21.10.2019 issued by the Director General of Prisons, Prison Headquarters, Tihar, Janakpuri, New Delhi declining his prayer to grant parole. The writ petition filed by the petitioner therein was Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:03.08.2022 14:55:56 also rejected by relying on the judgment impugned in the present appeal.

3. In the present case, Chandra Kant Jha, the appellant herein is undergoing a life sentence with a minimum period of 25 years without remission. His application for grant of parole was also turned down and the order declining him the parole was the subject matter of the Writ Petition. The learned Single Judge has dismissed the Writ Petition.

4. However, the Apex Court in the case of Atbir (supra), in paragraph 14 has held that the reasoning of the High Court in the case of Chandra Kant Jha cannot be approved.

5. Paragraphs 14 to 19 of the order passed by the Hon'ble Supreme Court in Atbir (supra) read as under:

"14. When we revert to the reasoning and logic of the High Court in the case of Chandra Kant Jha (supra), it appears that the High Court proceeded on the assumption that the matter was being considered for grant of remission and „consequently‟ for grant of furlough under the Delhi Prison Rules, 2018. In paragraph 4 of the aforesaid judgment, the issue for consideration had been formulated thus: -

"4. The issue which thus arises for consideration in the two petitions is whether a convict who has been awarded sentence for imprisonment for life with the stipulation that no remission would be granted for a particular period or for the remainder of the life is entitled to furlough during the said period while undergoing the sentence."

14.1. The High Court further proceeded to examine the Rules of 2018 with the observations that the Court was „considering the grant of remission and consequently grant of furlough‟ 3 . With this approach, the Court proceeded to examine Rules 1170 to 1175 of the Rules of 2018 dealing with the matters for remission. The reasoning of the Court could be specifically noticed in paragraphs 11 and 12 of the judgment in the case of Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:03.08.2022 14:55:56 Chandra Kant Jha (supra) which read as under: -

11. The note appended to Rule 1171 of the Delhi Prison Rules, 2018 clarifies that if any statute or the court in its order of sentence has denied the remission to the prisoner and thereby not specified the kind of remission to be denied then all kinds of remission will be denied. Therefore, unless the sentencing Court while stipulating the condition of no remission specifies debarment of any particular kind of remission, all kinds of remissions shall be barred to a prisoner. Consequently, as the sentences awarded to the petitioners bar consideration for remission for fixed number of years in the case of Sanjay Kumar Valmiki and for the remainder life in case of Chandra Kant Jha, the petitioners cannot be said to be eligible for grant of remission and consequently furlough. 12.

As laid by the Supreme Court in its various decisions parole is an exercise of discretion whereas furlough is a salutary right of the convict to be considered for release which the convict can claim if he satisfies the requirement of the Act and the Rules. Parole is granted to meet certain emergencies whereas furlough accrues to the petitioner on compliance of the conditions prescribed. From Rules 1171 to 1178 and Rule 1223 of the Delhi Prison Rules, 2018 it is evident that a prisoner is entitled to furlough only if he has earned three Annual Good Conduct reports and consequently three Annual Good Conduct Remission. Where the sentence of the convict bars grant of remission, the pre-requisite of attaining three Annual Good Conduct Remission is not satisfied and hence the threshold required to qualify for grant of furlough is not met. Hence a prisoner who is not entitled to any remission for a particular period or as in the case of Chandra Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:03.08.2022 14:55:56 Kant Jha for the remainder of his life, would not be entitled to furlough as he does not qualify for the threshold requirement."

14.2. In our view, in the case of Chandra Kant Jha (supra), the High Court essentially formulated the question in converse and that has resulted in its conclusion against grant of furlough. The Court was of the view that since the convict in question would not get remission, he would not be entitled to furlough. The Court assumed that remission was a prerequisite for furlough. In our view, the entitlement of furlough cannot be decided in the case of the present nature with reference to the question as to whether any remission would be available or not. Even if the appellant would get furlough (of course, on fulfilment of other conditions) that would not result into any remission because whatever be the remission, he has to spend the whole of the life in prison. But that does not debar him from furlough if he is of good jail conduct and fulfils other eligibility requirements.

14.3. On a close look at the decision in the case of Chandra Kant Jha (supra), it appears that the observations of this Court in the case of Asfaq (supra) to the effect that „Furlough is granted as a good conduct remission‟ were taken by the High Court as decisive of the matter and leading to the conclusion that furlough is available only if remission is available. With respect, we are unable to agree with this line of reasoning of the High Court. Those observations of this Court in paragraph 14 on the decision in Asfaq (supra) cannot be read in isolation and cannot be read to mean that getting remission is a pre-requisite for obtaining furlough. The whole of the scheme of granting furlough is based on the approach of reformation and as incentive for maintaining good conduct.

14.4. Furthermore, reference to the Constitution Bench decision in V. Sriharan (supra) by the High Court as regards the types of remission and the operation of Section 432 CrPC, again, has no application to the question of grant of furlough in the present case.

14.5. Viewed from any angle, we are satisfied that the logic and reasoning of the High Court in the case of Chandra Kant Jha (supra), which has been followed in the order impugned, cannot be approved.

15. In other words, even if the appellant is to remain in prison for the whole of remainder of his life, the expectations from him of good conduct in jail would 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 counter-productive but would be an antithesis to the reformative approach otherwise running through the scheme of Rules of 2018.

16. We may also observe that in the impugned order passed by the Director General of Prisons, it has been stated in paragraph 2 that the appellant had not earned the last 3 Annual good conduct reports. Such observations, prima facie, appear to be of mixing up the „Annual good conduct report‟ with „Annual good conduct remissions‟. Be that as it may, we would leave all other aspects of entitlement of the appellant to furlough open for consideration of the authorities concerned. However, the appellant cannot be denied furlough with reference to the order dated 15.11.2012. The said order cannot be construed to take away the requirements on the appellant to maintain good conduct; and to take away the rights, if flowing from his maintaining good conduct.

17. 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.

17.1. 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 Rules of 2018 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.

18. 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.

19. For what has been observed, discussed and held hereinabove, this appeal succeeds and is allowed; the impugned order dated 02.08.2021 as passed by the High Court of Delhi and the order dated 21.10.2019 as passed by the Director General of Prisons, Prison Headquarters, Tihar, Janakpuri, New Delhi are set aside; and the case of the appellant for grant of furlough is restored for reconsideration of the said Director General of Prisons. For that matter, a fresh report may be requisitioned from the jail authorities and the matter may be proceeded in accordance with law. We would expect the Director General of Prisons to take a decision in the matter expeditiously, preferably within two months from today."

6. In the light of the findings arrived at by the Hon'ble Supreme Court, the appeal is allowed. The order passed by the learned Single Judge dated 03.07.2020 is set aside. The case of the appellant is restored for re- consideration of the Director General of Prisons, Prison Headquarters, Tihar, Janakpuri. The judgment delivered by the Hon'ble Supreme Court shall apply mutatis mutandis in the present case also.

7. The Appeal stands disposed of in the aforesaid terms.

8. The date already fixed stands cancelled.

SATISH CHANDRA SHARMA, CJ SUBRAMONIUM PRASAD, J AUGUST 1, 2022 N.Khanna Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:03.08.2022 14:55:56