Delhi High Court: In a writ petition filed by the petitioner under Article 226 of the Constitution read with Section 482 of the Criminal Procedure Code, 1973, Swarana Kanta Sharma, J.*, considering the imprisonment awarded to the petitioner and incarceration period undergone by him, coupled with satisfactory conduct of the petitioner inside the jail, set aside the impugned order dated 04-09-2023 and granted furlough to the petitioner for a period of twenty-one days.
Background
In the instant case, the petitioner was convicted in case registered under Sections 325, 363 and 376(2)(m) of the Penal Code, 1860 and Section 6 of the Protection of Children from Sexual Offences Act, 2012. By virtue of order dated 28-04-2018, the petitioner was sentenced to undergo imprisonment of life. The petitioner filed an appeal against his conviction, which was dismissed by the Court vide judgment dated 04-09-2018.
The petitioner was confined in Central Jail and was serving life sentence of which he had already served nine years and seven months in custody. It was stated that the petitioner had applied to Director General of Prisons for the grant of first spell of Furlough for three weeks. However, vide order dated 04-09-2023, the same was rejected by the concerned authority.
Thereafter, the petitioner filed the present petition to seeking to quash the order dated 04-09-2023 and for the grant of furlough for a period of three weeks on the ground of maintaining social ties with family and friends.
Analysis, Law, and Decision
The Court observed that as per nominal roll, the petitioner had remained in custody for about nine years and seven months, with remission earned of about one year and eight months. The petitioner was earlier granted interim bail on two occasions during the course of trial and this Court had also granted him parole for a period of six weeks from 18-02-2019 to 12-04-2019, and there was no report of any misuse of liberty of interim bail, parole or any complaint of late surrender.
The Court also noted that the petitioner’s overall jail conduct had always been satisfactory and no misconduct had been reported or major punishment had been awarded to him, except a punishment order dated 10-02-2021 related to his six days late surrender. Further, as per the Status Report, the concerned Station House Officer (‘SHO’) had already verified the petitioner’s address where his sister had been residing for the last ten years.
The Court opined that ironically, on one hand, the concerned SHO in his report mentioned that the petitioner’s behaviour was satisfactory, whereas, on the other hand it also mentioned that the petitioner could have adverse impact on law, order and security in the area, without assigning any reasons for recording such an observation. The Court opined that merely because a person had been convicted for committing sexual offences, he could not be denied the benefit of furlough, which he was otherwise eligible for, on such erroneous grounds.
Thus, considering the imprisonment awarded to the petitioner and incarceration period undergone by him, coupled with satisfactory conduct of the petitioner inside the jail, the Court opined that it could not reject the petitioner’s prayer who sought grant of furlough for maintaining social ties with his friends and family. Accordingly, the Court set aside the impugned order dated 04-09-2023 and granted furlough to the petitioner for a period of twenty-one days.
The Court stated that the petitioner should furnish a personal bond of Rs. 10,000 with one surety of the like amount, who should be the petitioner’s family member to the satisfaction of the Jail Superintendent. The petitioner should also provide a telephone or mobile number to the Jail Superintendent on which he could be contacted. Further, after the release of the petitioner, he should provide his telephone or mobile number to the concerned SHO of the Police Station, where the petitioner should reside and if he had a passport, he should surrender the same to the Jail Superintendent. The Court further stated that the furlough period should be counted from the day when the petitioner was released from jail and after the expiry period of his furlough, he should surrender himself before the jail authorities.
[Gopi Nisha Mallah v. State (NCT of Delhi), 2023 SCC OnLine Del 7182, decided on 31-10-2023]
*Judgment authored by- Justice Swarana Kanta Sharma
Advocates who appeared in this case :
For the Petitioner: Faraz Maqbool, DHCLSC;
For the Respondent: Anand V. Khatri, Additional Standing Counsel.
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