A prisoner has the right to request permission to leave even if he is not eligible for a reduced sentence: Supreme Court
The Supreme Court observed that eligibility for remission is not a prerequisite for obtaining leave.
The entire furlough scheme is based on the reform approach and as an incentive to maintain good conduct, observed the bench consisting of Justices Dinesh Maheshwari and Aniruddha Bose.
Director General of Prisons, Prison Headquarters, Tihar refused a prisoner‘s (sentenced for several murders) plea for leave. Previously, the President of India, on a pardon petition filed by him, changed the death penalty to life imprisonment. But in said order, it was stipulated that he would remain in prison “for the remainder of his natural life without the possibility of parole and that there would be no remission of the prison sentence”. One of the reasons for denial of leave is the above clause in the President’s Order. Another ground given was that the prisoner did not meet the criteria mentioned in Section 1223 (I) of the Delhi Prison Rules 2018 as the convict had not obtained the last three annual good behavior reports. Disputing this, the prisoner approached the High Court, which dismissed the motion for an injunction. The High Court, referring to a judgment in WP (Crl.) No. 682 of 2019: Chandra Kant Jha v. State of Delhi NCT, concluded that he was not entitled to apply for leave because he was not entitled to a discount of any kind. .
At the Apex Court, the prisoner-appellant argued that furlough is an obvious consequence of a prisoner maintaining good behavior in prison; and can only be denied him on the ground that he must remain in prison for the rest of his natural life, which in any case he would serve. In other words, the argument raised was that eligibility for the grant of remission is irrelevant for the purposes of considering a prisoner’s case for the grant of leave. Release. On the other hand, the respondent maintained that the appellant has no absolute legal right to claim leave; and in the present case, where the discount for good behavior is not available, the leave would not be available to the appellant.
The right to request leave is forfeited
Referring to the relevant provisions of the Delhi Prisons Act 2000, the court disagreed with the opinion of the High Court and the order of the Chief Prisons Officer that once the President of India would have ensured that the appellant would remain in prison for the duration of the recall of his natural life without parole and without remission in the sentence of imprisonment, all his other rights, in particular those arising from good conduct penitentiary, as provided for by the 2018 Rules, are time-barred.
“Where the leave is an incentive for good behavior in prison, even if the person otherwise obtains no remission and must remain in prison for the entire recall of his natural life, this does not mean, as a corollary, that his right to ask for leave is foreclosed Even if he would spend some time on leave, it would not help him to ask for forgiveness because he must remain in prison for the rest of his life. natural.
..Unlike conditional release, on leave, the inmate is deemed to be serving his sentence to the extent that the period of leave is not reduced in relation to the actual length of the sentence. And, driving is mainly decisive for the right to leave. Thus, even if the appellant were on leave, he would be deemed to serve his sentence forever”
The entire leave scheme is based on the reform approach and as an incentive to maintain good behavior
The court noted that the presidential order prohibits parole as well as remission, but there is no mention of the leave entitlement treatment. The bench noted that in Chandra Kant Jha, the High Court was of the view that since the convict in question would not get a remission, he would not be entitled to leave. Disagreeing with said view, he observed:
If one examines closely the decision in the Chandra Kant Jha case (supra), it appears that the observations of this Court in the Asfaq case (supra) to the effect that “permission is granted as a remission for good conduct” were taken by the High Court as determinative of the case and leading to the conclusion that leave is only available if postponement is available. With respect, we cannot agree with this reasoning of the High Court. The Court’s observations at paragraph 14 on the Asfaq judgment (supra) cannot be read in isolation and cannot be interpreted to mean that obtaining a remission of sentence is a precondition for obtaining leave . The entire leave system is based on the reform approach and as an incentive to maintain good conduct. Further, the reference to the Constitutional Court’s decision in V. Sriharan (supra) by the High Court regarding the types of surrender and the operation of Section 432 CrPC, again, does not apply to the question of the granting of leave in this case.
Removing an incentive/motivation for good behavior would not only be counterproductive
The tribunal observed that depriving the concession even of a leave and thereby removing an incentive/motivation for good behavior would not only be counterproductive, but would be antithetical to the reformative approach otherwise prevailing in the regime of the 2018 rules. Allowing the appeal, the court observed as follows:
“Even if an inmate like the appellant gets no remission and must serve his term of imprisonment throughout his natural life, neither the requirements of his good behavior are reduced nor the reformative approach and the incitement to good behavior. Thus, if he maintains good behavior, temporary absence cannot be refused outright. In the appellant’s case, he is a person convicted of multiple murders Therefore, the requirement of Rule 1225 of the 2018 Regulations may come into effect, however, it cannot be said that his case would never be considered for leave. the parameters set out therein is a matter for review by the authorities in accordance with the law.The Appellant in the orders challenged, we would leave the Appellant’s case for the grant of leave open for consideration by the relevant authorities in accordance with to the law.”
Atbir vs Delhi NCT State | 2022 LiveLaw (SC) 427 | CrA 714 FROM 2022 | April 29, 2022
Coram: Judges Dinesh Maheshwari and Aniruddha Bose
Counsel: Adv Neha Kapoor for the Appellant, ASG SV Raju for the Respondent
Delhi Prisons Act, 2000; 2(h) – Delhi Prison Rules, 2018; Rule 1222-1223- Obtaining a remission is not a prerequisite for obtaining a temporary absence – Even if a prisoner should not benefit from any remission and must serve his prison sentence Throughout his natural life, neither the demands of his good conduct are reduced nor the reforming approach and the incentive to good conduct cease to exist in his relationship. Thus, if he maintains good behavior, the leave cannot be systematically denied – To deprive even the concession of the leave and thus remove an incentive/motivation for good behavior would not only be counterproductive but would be an antithesis to the reformist approach otherwise going through the 2018 Rules scheme (paragraphs 14-15)
Delhi Prison Rules, 2018; Rule 1223- The eligibility condition for obtaining leave is “3 annual good conduct reports” and not “3 annual good conduct reports”. The expressions employed in clause (I) of Rule 1223 of the 2018 Regulations are that the inmate must maintain “good conduct in the prison and must have merited awards in the last 3 annual good conduct reports” and further that he must continue to “maintain good conduct”. Even these expressions cannot be interpreted to mean that the prisoner must earn “remissions for good behavior” – It cannot be said that earning awards is equivalent to earning remissions. (Paragraph 12)
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