Case BriefsSupreme Court

Supreme Court: In an appeal relating to the assassination of Rajiv Gandhi in 1991, the division bench of B.R. Gavai and B.V. Nagarathna, JJ. has said that the conduct of all the appellants is satisfactory, thus, directed that all the appellants be deemed   to   have   served   their   respective   sentences and to be set at liberty.

In the case at hand, the appellants have been convicted for offences under the Penal Code, 1860, the Arms Act, 1951, the Explosive Substances Act, 1908, the Passport Act, 1967, the Foreigners Act, 1946, the Indian Wireless Telegraphy Act, 1933   and   the   Terrorist   and Disruptive Activities (Prevention) Act, 1987 for the assassination of the former Prime Minister of India -Rajiv Gandhi, and others on 21-05-1991.

The Court noted that out of the six, the death sentence was confirmed in the case of appellants S. Nalini,  Suthendraraja  and Sriharan, which was subsequently converted to life imprisonment on account of inordinate delay in deciding their mercy petition, and the   rest   of   the   appellants were convicted   and   sentenced   to   life imprisonment.

Further, on 09-09-2018, the State Cabinet passed a resolution recommending the release of all the appellants including   the   original   convict   A.G. Perarivalan.

The Court relied on A.G. Perarivalan v. State, 2022 SCC OnLine SC 635, where the Court while dealing with the issue that whether the Governor was bound by the decision of the State Cabinet, or he could refer the matter to the Union of India for its opinion, has held that “Governor, in the matter of remission of an appellant convicted under Section 302, was bound by the advice of the State Cabinet” and observed that indisputably, in the present case also, the State Cabinet   had   resolved   to   grant   remission   to all   the appellants.

The Court examined   the   case   of   each   of   the appellants in light of A.G. Perarivalan (supra) and said that the conduct of all the appellants was satisfactory, as some of them during the period of incarceration, have obtained degrees, did charity work and some were also suffering from various ailments. Further, the Court said that S.   Nalini,    is   a woman and has been incarcerated for a period of more than three decades and her conduct has also been found to be satisfactory.

Thus, the Court directed that all the appellants be deemed   to   have   served   their   respective   sentences and to   be   set at liberty.

[R.P. Ravichandran v State of Tamil Nadu, Criminal Appeal No.  1974   of 2022, order dated 11-11-2022]


Appearances:

Senior Advocate Sanjay Hedge, Advocate G. Ananda Selvam, Advocate Thiru Murugan, Advocate S. Muthu Krishnan, Advocate-On –Record P. Soma Sundaram, Advocate Arunagiri, Advocate Kishor Hussain, Advocate G. Ananda Selvam, Advocate G Muthu, Advocate Sanchit Maheshwari, Advocate Mayilsamy. K, Advocate Raghav Gupta, Advocate Shahrukh Ali, Advocate Mahabir Singh, Advocate-On –Record Anand Dilip Landge, Senior Advocate Rakesh Dwivedi, Additional Advocate General V. Krishnamurthy, Additional Advocate General Amit Anand Tiwari, Advocate-On –Record Joseph Aristotle, Advocate S. Shakeena A.G., Advocate Eklavya Dwivedi, Advocate Monika Dwivedi, Advocate Devyani Gupta, Advocate Tanvi Anand, Advocate Nupur Sharma, Advocate Shobhit Dwivedi, Advocate Vaidehi Rastogi, Advocate Sanjeev Kr. Mahana, Advocate Vaidehi Rastogi, Advocate Riha Vishwakarma, Senior Advocate Gopal Sankaranarayanan, Advocate N. Chandrasekaran, Advocate Prabu Ramasubramanian, Advocate Shivani Vij, Advocate Alagu Raja Bharathi. B, Advocate Bharathimohan. Advocate Priya R, Advocate S. Sabari Bala Pandian, Advocate Avinash Kumar, Advocate-On –Record T. Harish Kumar


Apoorva Goel, Editorial Assistant has reported this brief   


Case BriefsSupreme Court

Supreme Court: In a landmark ruling, the Division Bench of Dinesh Maheshwari* and Aniruddha Bose, JJ., reversed Delhi High Court’s judgment holding that the Presidential order banning benefit of parole and remission to the appellant will also disentitle him of benefit of furlough.

By a detailed judgment the Bench clarified differences between remission, parole and furlough. Opening that the High Court had misunderstood furlough for remission, the Bench expressed,

“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.”

Factual Background

The appellant – a life convict whose death sentence was commuted by the President of India vide order dated 15-11-2012 – had preferred the instant appeal on being aggrieved by the Delhi High Court’s order, dismissing his writ petition and declining his prayer to grant furlough. The High Court had held that the appellant was not entitled to furlough owing to the conditions of the order issued by the President of India in mercy petition that the appellant’s death sentence be converted to the one of imprisonment for life with additional direction that he would remain in prison ‘for the whole of the remainder of his natural life without parole and there shall be no remission of the term of imprisonment’.

The High Court opined that that the appellant was not entitled to seek furlough because he was not entitled to remission of any kind. However, the contention of the appellant was that the aforesaid terms of the order dated 15-11-2012 were of no debarment, so far as his entitlement to furlough under the Delhi Prison Rules, 20181 was concerned.

Decision of Death Sentence

The appellant was sentenced to death for the offence under Section 302 of the Penal Code, 1860 on accusation that he caused the death of his step-mother, step-brother and step-sister by multiple knife-blows. Finding it to be a case falling in ‘rarest of the rare category’, the High Court as well as the Supreme Court had confirmed the sentence of death awarded to him.

Mercy Petition

When the curative petition filed by the appellant was dismissed, the appellant approached the President in a mercy petition to grant pardon and to suspend, remit or commute his sentence. By the order dated 15-11-2012, the President modified the sentence of death awarded to the one of imprisonment for life with the requirements that he would remain in prison for the whole of remainder of his natural life without parole and there shall be no remission of the term of imprisonment.

Law on Furlough

Furlough is defined in Section 2(h) of the Delhi Prison Act, 2000 as: –

“Furlough means leave as a reward granted to a convicted prisoner who has been sentenced to RI for 5 years or more and has undergone 3 years thereof”

The objectives of parole and furlough are set forth in Rules 1197 to 1200 of the Delhi Prison Rules, 2018; Rule 1199 states that furlough means release of a prisoner for a short period of time after a gap of certain qualified numbers of years of incarceration by way of motivation for maintaining good conduct and to remain disciplined in the prison. This is purely an incentive for good conduct in the prison. Therefore, the period spent by the prisoner outside the prison on furlough shall be counted towards his sentence.

Rule 1223 states following requirements to be eligible for furlough:

  1. Good conduct in the prison and should have earned rewards in last 3 Annual good conduct report and continues to maintain good conduct.
  2. The prisoner should not be a habitual offender.
  3. The prisoner should be a citizen of India.

The ideology behind granting furlough is that convicts too must breathe fresh air for at least some time provided they maintain good conduct consistently during incarceration and show a tendency to reform themselves and become good citizens.

High Court Misunderstood Furlough for Remission

Rejecting the reasoning of the High Court that once it had been provided by the President that the appellant would remain in prison for whole of the reminder of his natural life without parole and without remission, all his other rights, particularly those emanating from good jail conduct, as available in the Rules, 2018 would stand foreclosed, the Bench stated that in the Rules, 2018, the eligibility requirement to obtain furlough is of ‘3 Annual good conduct reports’ and not ‘3 Annual good conduct remissions’.

The Bench opined that in the scheme of the Rules, 2018 it cannot be said that earning rewards is equivalent to earning remissions and even if he (the appellant) would spend some time on furlough, that will not come to his aid so as to seek remission because of the fact that he has to remain in prison for whole of the reminder of his natural life.

Difference between Parole, Remission and Furlough

Further, the Bench noted that the presidential order dated 15-11-2012 bars parole as also remission but significantly, there is no mention of the treatment of entitlement towards furlough. While differentiating between remission, parole and furlough, the Bench observed that parole is akin to temporary suspension of execution of sentence. There cannot be any temporary suspension of execution of sentence qua the appellant inasmuch as the sentence awarded to him has to run in perpetuity and during the whole of his natural life. Moreover, for parole, conduct is not a decisive factor.

However, in contradistinction to parole, in furlough, the prisoner is deemed to be serving the sentence inasmuch as the period of furlough is not reduced from actual serving period. And, the conduct is predominantly decisive of entitlement towards furlough. Thus, even if the appellant would be on furlough, he would be deemed to be serving the sentence for all time to come. The Bench opined 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. 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.”

Hence, the Bench held that 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.

Noticing that the whole of the scheme of granting furlough is based on reformation and is an incentive for maintaining good conduct, the Bench held that 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.

Verdict

In the above backdrop, the Bench concluded that since the appellant had 3 Annual good conduct reports in his favour, he could not be denied furlough with reference to the order dated 15-11-2012, as the said order could not be construed to take away the rights flowing from his maintaining good conduct; 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.

Therefore, the Bench disapproved blanket denial of furlough to the appellant in the orders impugned, and directed the authorities concerned to decide the case of the appellant for grant of furlough in accordance with law. The impugned judgment and orders were set aside; and the case of the appellant for grant of furlough was restored for reconsideration of the Director General of Prisons, to be decided preferably within two months.

[Atbir v. State (NCT of Delhi), 2022 SCC OnLine SC 527, decided on 29-04-2022]


*Judgment by: Dinesh Maheshwari


Appearance by:

For the Appellant: Advocate Neha Kapoor

For the State: Additional Solicitor General S. V. Raju


Kamini Sharma, Editorial Assistant has put this report together 

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: The order modifying the sentence of respondents-convicts passed by the learned Additional Sessions Judge wherein he directed the release of the convicts on probation of good conduct was upheld in a revision petition filed under Section 401 CrPC, by a Single Judge Bench comprising of Shekher Dhawan, J.

The respondents were accused in a criminal case registered under Sections 324 and 341 read with Section 34 IPC. They were convicted under the said sections by the learned Judicial Magistrate and sentenced accordingly. However, on appeal against the said order, the Additional Sessions Judge upheld the order of conviction but modified the sentence and released the convicts on probation of good conduct by imposing conditions. The petitioner submitted that the injured in the case has sustained grievous injuries and the order of the Additional Sessions Judge should be set aside.

In order to settle the controversy, the High Court referred to various decisions of the Supreme Court as well as the same Court. The Court observed that there was no illegality in the impugned order. The offences alleged against the convicts were recorded under Sections 324/341/34 of IPC; and the accused persons involved in such like cases who were not previous convicts and not habitual offenders, could be extended the benefit of probation under the Act. In the instant case, the respondents were not previous convicts and the Additional Sessions Judge passing the said order had taken into consideration the fact that in case the convicts were released on probation, that shall afford an opportunity to the parties to live peacefully; also the conditions imposed on the convicts were reasonable and in accordance with law. Thus, the revision petition was dismissed. [Phuman Singh v. State of Punjab, 2017 SCC OnLine P&H 3504, dated 01-12-2017]