Furlough And Parole Can Be Granted Even During Supreme Court Appeal | Delhi High Court Strikes Down Bar Under Rule 1224 As Arbitrary And Unconstitutional
Safiya Malik
The High Court of Delhi Division Bench of Justice Prathiba M. Singh and Justice Amit Sharma has stated that the mere pendency of a Criminal Appeal or Special Leave Petition before the Hon'ble Supreme Court of India does not bar a convict from applying for furlough under the Delhi Prison Rules, 2018. The Court clarified that Note 2 to Rule 1224 cannot be interpreted to mean that prisoners are automatically disqualified from seeking furlough due to the pendency of proceedings before the Supreme Court. The Court set aside the contrary view taken by a learned Single Judge and directed that applications for furlough be considered by the competent authority on a case-by-case basis. The Division Bench further stated that furlough is not tantamount to suspension of sentence and, therefore, does not interfere with appellate powers of superior courts. The judgment directed that each petition should be listed before the appropriate Roster Bench for decision on merits.
The matter before the Court arose from a reference of legal questions by a learned Single Judge regarding the interpretation of Note 2 to Rule 1224 of the Delhi Prison Rules, 2018. Several writ petitions had been filed under Article 226 of the Constitution read with Section 482 CrPC by convicts seeking furlough while their appeals were pending before the Hon'ble Supreme Court. The competent authority had rejected their applications on the ground that the pendency of their cases before the Supreme Court disentitled them from being considered for furlough due to Note 2 of Rule 1224.
The petitioners included Budhi Singh, Basant Vallabh, Suresh Chand Sharma, and Jai Pal Singh, among others. The Single Judge held that "High Court" in Note 2 must include "Supreme Court" and concluded that granting furlough while the matter was pending before the Apex Court would amount to derogation of appellate powers. The Single Judge referred several issues to the Division Bench for authoritative interpretation.
The questions referred included whether Note 2 to Rule 1224 should be interpreted strictly to mean only the High Court, whether denial of furlough in such cases violated Articles 14 and 21 of the Constitution, whether the principle of derogation of power applied to furlough applications, and whether the High Court had powers under Article 226 to grant furlough during pendency before the Supreme Court. Other issues included whether jurisprudence on parole could be applied to furlough and whether the rule was consistent with reformative principles of penology.
In response, the petitioners' counsel submitted that the right to approach the High Court under Article 226 could not be curtailed. Mr. Mohit Mathur, Senior Advocate, submitted that "there cannot be a bar for a convict to approach this Court invoking writ jurisdiction by seeking judicial review of the order passed by the competent authority." He pointed out that Note 2 to Rule 1224 refers only to "High Court" and not the Supreme Court and that this deliberate omission could not be ignored. He contended that denying furlough for such reasons violates Article 21.
Mr. Zeeshan Diwan argued that furlough is not equivalent to suspension of sentence and therefore the principle of derogation of power did not apply. He submitted that adding "Supreme Court" to the text of Note 2 would be an artificial expansion. Mr. Shiv Chopra submitted that such an interpretation was contrary to Articles 14 and 21 and stressed the reformative purpose of furlough.
The petitioners also relied on judgments of the Bombay High Court, where similar restrictions were struck down, and where furlough had been granted even during the pendency of appeals before the Supreme Court. Mr. Arjun Malik reiterated that the bar to furlough due to pendency of Supreme Court appeals was discriminatory.
Mr. Vivek Sood, Senior Advocate and Amicus Curiae, submitted that furlough is an executive function and is distinct from suspension of sentence. He argued that Note 2 was unconstitutional for creating unreasonable classification between prisoners with cases in the High Court and those in the Supreme Court. He cited Rule 1220, noting that furlough aims to reduce solitude due to prolonged incarceration.
Mr. V.P. Garg, Amicus Curiae, submitted that the constitutional validity of Note 2 was not in question, as the rule had been approved in 2010 by a Division Bench. He argued that the principle of derogation as laid down in K.M. Nanavati had been diluted by subsequent rulings recognizing the distinct functions of judiciary and executive in sentence remission.
The State, represented by Mr. Rahul Tyagi, Additional Standing Counsel, argued that the Single Judge's interpretation was correct and had attained finality. He stated that granting furlough while the matter was sub judice before the Supreme Court would amount to interference with the Apex Court's appellate powers.
The Division Bench re-examined the findings of the learned Single Judge and noted that the question of whether "High Court" should include "Supreme Court" must be resolved through statutory interpretation.
The Court observed: "A reading of Note 2 to Rule 1224 clearly shows that it uses the expression ‘High Court’ and not ‘Supreme Court.’" The Bench recorded that the omission of the term "Supreme Court" was deliberate: "In our view, the fact that the term ‘Supreme Court’ is not included in the said Note cannot be held to be a casual oversight or an error."
The Court addressed the applicability of the principle of derogation of power by stating: "The concept of ‘derogation of power’ is not attracted in the case of furlough, as furlough does not involve any suspension of sentence." It further stated: "There is a fundamental difference between parole/furlough and suspension of sentence. In case of furlough, the sentence is not suspended during the period for which the prisoner is released."
Referring to the judgment in State of Haryana Ors. v. Mohinder Singh, the Court noted: "The State Government may remit the whole or any part of the punishment to which a person has been sentenced even though his appeal against conviction and sentence was pending at that time."
The Court held that furlough is an executive action and does not impinge upon the judiciary’s power: "The nature of relief by way of parole/furlough would be distinct from the exercise of judicial power of suspension of sentence by the High Court."
Citing Sunil Fulchand Shah v. Union of India, the Court stated: "Parole is a form of temporary release from custody which does not suspend the sentence or the period of detention but provides conditional release from custody and changes the mode of undergoing the sentence."
The Bench referred to Dadu @ Tulsidas v. State of Maharashtra to note: "Parole did not amount to suspension, remission or commutation of sentences which could be withheld under the garb of Section 32-A of the Act."
In Atbir v. State (NCT of Delhi), the Supreme Court had stated that: "Furlough is a brief release from 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."
The Court remarked: "Depriving even the concession of furlough and thereby taking away an incentive/motivation for good conduct would not only be counterproductive but would be an antithesis to the reformative approach otherwise running through the scheme of the 2018 Rules."
The legislative history of the Rule was also considered. The Court stated: "This restriction regarding pendency before the High Court was first introduced in 2010 and later incorporated into the 2018 Rules. The omission of ‘Supreme Court’ was a conscious legislative choice."
The Court concluded its analysis by stating: "It is an altogether different question as to whether, in the facts of a specific case, the prison authorities ought to grant parole or furlough, if the Supreme Court is seized of the matter. But there is no absolute bar."
The Court issued a series of final directions to settle the matter. It stated: "Note 2 to Rule 1224 of the Delhi Prison Rules, 2018 cannot be interpreted to mean that the right of prisoners to apply for parole or furlough is barred while their Criminal Appeal or Special Leave Petition is pending adjudication before the Hon’ble Supreme Court of India."
The Bench further directed: "Note 2 to Rule 1224 of the Delhi Prison Rules, 2018 cannot be interpreted to hold that the right of prisoners to apply for furlough is barred while their Criminal Appeal or Special Leave Petition is pending adjudication before the Hon’ble Supreme Court of India."
With regard to the power of the prison authorities, the Court stated: "The mere pendency of a Criminal Appeal or Special Leave Petition before the Hon’ble Supreme Court cannot be taken as a bar for release on furlough. Each case would be determined on its own eligibility criteria as per the Rules by the Competent Authority, and such decisions would be subject to judicial review under Article 226 of the Constitution of India by the High Court."
On the jurisprudence governing parole and furlough, the Court clarified: "Jurisprudence on parole can be applied to furlough, as furlough does not involve the suspension of sentence."
In view of the above, the findings of the learned Single Judge in the order dated 3rd July, 2023 qua Issue B, as formulated vide order dated 2nd December, 2022, interpreting the term “High Court” in Note (2) to Rule 1224 of the Prison Rules ipso jure to include ‘Supreme Court’, is set aside.
Being conscious of the fact that there is divergent opinion between different High Courts and also considering the significance of the questions raised in this Reference, this Court deems appropriate to grant Certificate of Appeal to the Supreme Court under Article 132/134A of the Constitution of India.
The Bench directed that all petitions be listed before the appropriate Roster Bench for decision on merits in terms of the present judgment.
Advocates Representing the Parties:
For the Petitioners: Mr. Mohit Mathur, Senior Advocate with Mr. Aman Panwar, Mr. Akash Panwar & Mr. Abhinav Kumar, Advocates; Mr. Sarthak Maggon, Advocate; Mr. Rohan J. Alva, (DHCLSC) with Mr. Anant Sanghi, Advocate; Mr. Arjun Malik, Advocate; Mr. Zeeshan Diwan & Mr. Harsha & Mr. Akshat Jain, Advocates; Mr. Siddharth Yadav, Advocate; Mr. Biswajit Kumar Patra, Advocate; Ms. Tanya Agarwal & Mr. Gaurav Kalra, Advocates; Mr. Archit Upadhyay, Advocate
For the Respondents: Mr. Rahul Tyagi, ASC (Crl.) with Mr. Jatin, Mr. Mathew M. Philip & Mr. Sangeet Sibou, Advocates for State; Mr. Amol Sinha, ASC, Criminal with Mr. Kshitiz Garg, Mr. Nitish Dhawan, Mr. Ashvini Kumar and Ms. Sanskriti Nimbekar, Advocates; Ms. Rupali Bandhopadhya, ASC with Mr. Abhijeet Kumar, Advocate for State
Amici Curiae: Mr. Vivek Sood, Senior Advocate and Mr. V.P. Garg, Advocate
Case Title: State of NCT of Delhi vs Budhi Singh & Ors
Neutral Citation: 2025: DHC:5598-DB
Case Number: CRL.REF. 1/2025
Bench: Justice Prathiba M. Singh and Justice Amit Sharma
