Sarthak Maggon, vs STATE OF NCT OF DELHI

Judgment

1. This hearing has been done through hybrid mode. CRL.M.A. 20467/2025 in W.P.(CRL) 2257/2024

2. This is an application seeking rectification of the judgment passed on 15th July, 2025, in a batch of matters in which the lead matter is CRL.REF. 1/2025 in W.P.(CRL) 697/2022 titled Budhi Singh v. State of NCT of Delhi. The prayer in the present application is for carrying out certain corrections as contained in paragraph 5 of the application.

3. The prayer in this writ petition is for declaring Note 2 to Rule 1224 of the Delhi Prison Rules, 2018 (hereinafter ‘the Prison Rules’), as ultra vires and violative of Articles 14 and 21 of the Constitution of India.

4. A detailed judgment in the batch of matters, along with Budhi Singh (supra), has been passed dealing with the interpretation of Note 2 to Rule 1224 of the Prison Rules, on 15th July, 2025. The decisions were rendered in various criminal references that were sent to this Court by the ld. Single Judge.

5. The present writ petition was independently filed by the Petitioner, inter alia, challenging the constitutional validity of the Rule 1224 of the Prison Rules W.P.(CRL) 2257/2024 Signature Not Verified Digitally Signed By:RAHUL Signing Date:21.07.2025 15:00:06 and the same was tagged with the references pending before this Court.

6. Heard, the ld. Counsel for the Petitioner. The Court has also perused the present application.

7. Accordingly, the prayer for rectification is disposed of with the following directions: i. The mention of ‘CRL. REF. 9/2025’ before W.P.(Crl.) 2257/2024 in the cause title shall stand deleted. ii. The appearance of Mr. Sarthak Maggon, ld. Counsel in W.P.(Crl.) 2257/2024 is taken on record in place of Mr. Rohan J. Alva, ld. Counsel. iii. It is also recorded that Mr. Sarthak Maggon, ld. Counsel had addressed separate arguments in W.P.(Crl.) 2257/2024.

8. Insofar as the challenge to the validity of the Rule 1224 of the Prison Rules is concerned, the interpretation has been rendered in the said judgement in Budhi Singh (supra) and other connected cases. In view of the interpretation given in the said judgment, the challenge to the validity of Rule 1224 of the Prison Rules is disposed of in terms of the said judgment.

9. It also needs to be recorded that the question as to whether parole/furlough can be granted when the appeals are pending before the High Court is also being considered in M.A. No. 1658/2023 in CRL. A. No. 1343/2012 titled Mukesh Kumar v. State (Govt. of NCT of Delhi) by the Hon’ble Supreme Court.

10. Further, in paragraph 71, the answer to Reference Issue (G), shall read as under: “G. Whether the jurisprudence on parole can be applied to furlough since furlough does not involve suspension of sentence? Answer: Yes, jurisprudence on parole can be applied to furlough as well. As held in Sunil Fulchand Shah (supra) and Dadu @ Tulsidas (supra) that parole does not mean W.P.(CRL) 2257/2024 Signature Not Verified Digitally Signed By:RAHUL Signing Date:21.07.2025 15:00:06 suspension of sentence.”

11. The corrected judgment in terms of the above order be uploaded as a corrigendum to the judgment dated 15th July, 2025.

12. The present application is disposed of in above terms. PRATHIBA M. SINGH, J. AMIT SHARMA, J. JULY 17, 2025 dj/msh W.P.(CRL) 2257/2024 Signature Not Verified Digitally Signed By:RAHUL Signing Date:21.07.2025 15:00:06 $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI [Corrigendum as per order dated 17th July, 2025] Reserved on: 29th April, 2025 Date of Decision: 15th July, 2025 + CRL.REF. 1/2025 in W.P.(CRL) 697/2022 BUDHI SINGH .....Petitioner Through: Mr. Mohit Mathur, Sr. Adv. With Mr. Aman Panwar, Mr. Akash Panwar & Mr. Abhinav Kumar, Advs. Mr. Sarthak Maggon, Advocate (M: 7045645395). versus STATE OF NCT OF DELHI .....Respondent Through: Mr. Rahul Tyagi, ASC (Crl.) with Mr. Jatin, Mr. Mathew M. Philip & Mr. Sangeet Sibou, Advs. for State. WITH + CRL.REF. 2/2025 in W.P.(CRL) 1044/2022 SURESH CHAND SHARMA .....Petitioner Through: Mr. Rohan J. Alva, (DHCLSC) with Mr. Anant Sanghi, Adv. (M: 9810365703) versus STATE OF NCT OF DELHI .....Respondent Through: Mr. Rahul Tyagi, ASC (Crl.) with Mr. Jatin, Mr. Mathew M. Philip & Mr. Sangeet Sibou, Advs. for State. + CRL.REF. 3/2025 in W.P.(CRL) 1067/2022 WITH JAI PAL SINGH .....Petitioner Through: Mr. Arjun Malik, Adv. (M: 9873503295) versus Signature Not Verified CRL.REF. 1/2025 & other connected matters Digitally Signed By:RAHUL Signing Date:21.07.2025 15:00:06 STATE OF NCT OF DELHI .....Respondent Through: Mr. Rahul Tyagi, ASC (Crl.) with Mr. Jatin, Mr. Mathew M. Philip & Mr. Sangeet Sibou, Advs. for State. + CRL.REF. 4/2025 in W.P.(CRL) 997/2022 WITH BASANT VALLABH .....Petitioner Through: Mr. Zeeshan Diwan & Mr Harsha & Mr. Akshat Jain, Advs. (M: 9911627354) versus STATE OF NCT OF DELHI .....Respondent Through: Mr. Rahul Tyagi, ASC (Crl.) with Mr. Jatin, Mr. Mathew M. Philip & Mr. Sangeet Sibou, Advs. for State WITH + CRL.REF. 5/2025 in W.P.(CRL) 2835/2024 RAMESH @ GUDDU .....Petitioner Through: Mr. Arjun Malik, Adv. versus STATE OF NCT OF DELHI .....Respondent Through: Mr. Rahul Tyagi, ASC (Crl.) with Mr. Jatin, Mr. Mathew M. Philip & Mr. Sangeet Sibou, Advs. for State. (M:9818460146) with SI Sahil PS Binda Pur. WITH + CRL.REF. 6/2025 in W.P.(CRL) 299/2024 LOKESH .....Petitioner Through: Ms. Tanya Agarwal & Mr. Gaurav Kalra, Advs. (M: 7988916573) versus STATE (G.N.C.T. OF DELHI) .....Respondent Through: Mr. Rahul Tyagi, ASC (Crl.) with Mr. Signature Not Verified CRL.REF. 1/2025 & other connected matters Digitally Signed By:RAHUL Signing Date:21.07.2025 15:00:06

Jatin, Mr. Mathew M. Philip & Mr. Sangeet Sibou, Advs. for State with SI Raj Kumar PS Lodhi Colony. + CRL.REF. 7/2025 in W.P.(CRL) 1861/2023 KARAMBIR .....Petitioner Through: Mr. Rohan J. Alva, (DHCLSC) with Mr. Anant Sanghi, Adv. versus STATE OF NCT OF DELHI .....Respondent Through: Mr. Amol Sinha, ASC, Criminal with Mr. Kshitiz Garg, Mr. Nitish Dhawan, Mr. Ashvini Kumar and Ms. Sanskriti Nimbekar, Advs. Mr. Rahul Tyagi, ASC (Crl.) with Mr. Jatin, Mr. Mathew M. Philip & Mr. Sangeet Sibou, Advs. for State WITH + CRL.REF. 8/2025 in W.P.(CRL) 18/2024 KISHAN LAL .....Petitioner Through: Mr. Biswajit Kumar Patra, Adv. versus STATE .....Respondent Through: Mr. Rahul Tyagi, ASC (Crl.) with Mr. Jatin, Mr. Mathew M. Philip & Mr. Sangeet Sibou, Advs. for State. with Insp. Jitender Rana PS Civil Lines and SI Mohit PS Alipur. + WITH W.P.(CRL) 2257/2024 HAMBIR SINGH .....Petitioner Through: Mr. Sarthak Maggon, Advocate (M: 7045645395). versus Signature Not Verified CRL.REF. 1/2025 & other connected matters Digitally Signed By:RAHUL Signing Date:21.07.2025 15:00:06 STATE OF NCT OF DELHI .....Respondent Through: Ms. Rupali Bandhopadhya, ASC with Mr. Abhijeet Kumar, Adv. for State. W.P.(CRL)2363/2024 & + CRL.REF. CRL.M.A.23063/2024 INDERJEET .....Petitioner Through: Mr. Archit Upadhyay, Adv. (M: versus STATE NCT OF DELHI .....Respondent 9990323136) Through: Ms. Rupali Bandhopadhya, ASC with Mr. Abhijeet Kumar, Adv. for State. Insp. Rahul Roshan and SI Mahesh Kumar PS Vasant Vihar. AND + CRL.REF. 11/2025 in W.P.(CRL) 4080/2024 YOGESH SHARMA @YOGI .....Petitioner Through: Mr. Siddharth Yadav, Adv. (M: 9899284083) versus STATE (NCT OF DELHI) .....Respondent Through: Ms. Rupali Bandhopadhya, ASC (Crl.) for the State with Mr. Abhijeet Kumar, Advocate. ASI Om Prakash PS Sarai Rohilla. CORAM: JUSTICE PRATHIBA M. SINGH JUSTICE AMIT SHARMA JUDGMENT `Can Furlough applications be considered by the Executive during the pendency of Appeals before the Supreme Court?’

1. The present petitions have been filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, Signature Not Verified CRL.REF. 1/2025 & other connected matters Digitally Signed By:RAHUL Signing Date:21.07.2025 15:00:06 1973, (for short, ‘CrPC’) on behalf of the captioned respective Petitioners who seek furlough under the Delhi Prison Rules, 2018 (hereinafter referred to as ‘Prison Rules’) during the pendency of their appeals before the Hon’ble Supreme Court. FACTUAL BACKGROUND

2. Petitioner, Budhi Singh in W.P.(CRL) 697/2022, Basant Vallabh in W.P.(CRL) 997/2022, Suresh Chand Sharma in W.P.(CRL) 1044/2022 and Jai Pal Singh in W.P.(CRL) 1067/2022 had preferred the present petitions seeking first spell of furlough under the Prison Rules from the competent authority which was rejected on the ground of pendency of their appeals before the Hon’ble Supreme Court in view of Note 2 to Rule 1224 of the Prison Rules. Their respective rejection orders were challenged by these petitioners by way of aforementioned writ petitions which were disposed of by learned Single Bench of this Court vide judgment dated 3rd July, 2023. Learned Single Bench framed various issues that had arisen in these matters and while disposing some of them referred remaining issues in the form of reference to the Division Bench. The issues framed by the learned Single Judge vide order dated 02nd December, 2022, reads thus: - “1. From the preliminary arguments advance on behalf of the parties, following issues are framed: "A. Whether the principle of 'derogation of power' as laid down in the judgment of the Hon'ble Supreme Court of India in K.M. Nanavati v. The State of Bombay, AIR 1961 SC112 is applicable in cases where a prisoner seeks to apply for release on furlough under the Delhi Prison Rules, 2018 when an appeal against their order of conviction is pending adjudication in the Supreme Court of India? Signature Not Verified CRL.REF. 1/2025 & other connected matters Digitally Signed By:RAHUL Signing Date:21.07.2025 15:00:06 B. Whether Note 2 to Rule 1224 in the Delhi Prison Rules, 2018 should be strictly interpreted and thus the words High Court cannot be interpreted as including the Supreme Court of India, even in case of a statutory appeal before the Supreme Court? C. Is there a violation of Article 14 of the Constitution of India if Note 2 to Rule 1224 of the Delhi Prison Rules is interpreted as barring the right of a prisoner to apply for release on furlough, when an appeal against their order of conviction is pending adjudication in the Hon 'ble Supreme Court of India? D. Whether the High Court under Article 226 of the Constitution has the power to grant furlough. If so, can this power be exercised during the pendency of an appeal in the Supreme Court of India? E. Is there a violation of Article 21 of the Constitution of India if Note 2 to Rule 1224 of the Delhi Prison Rules is interpreted as barring the right of a prisoner to apply for release on furlough, when an appeal against their order of conviction is pending adjudication in the Hon'ble Supreme Court of India? F. Whether denial of furlough, on account of pendency of an appeal in the Supreme Court of India, despite good conduct earned by the convict, would run contrary to the theory of reformative approach and thereby violating Rules 1199 and 1200 of the Delhi Prison Rules, 2018? G. Whether the jurisprudence on parole can be applied to furlough since furlough does not involve suspension of sentence? "

3. Learned Single Judge vide order dated 3rd July, 2023, gave the following findings with respect to the aforesaid issues: - “Issue A: The principle of derogation of power as per the decision of Supreme Court in K.M. Nanavati v. The State of Bombay, AIR 1961 SC112, would be applicable to Note 2 to Rule 1224 of Prison Rules. Issue B: The term “High Court” referred in Note 2 to Rule 1224 of Prison Rules interpreted to ipso jure Signature Not Verified CRL.REF. 1/2025 & other connected matters Digitally Signed By:RAHUL Signing Date:21.07.2025 15:00:06 mean and include Supreme Court of India, if an appeal is pending against an order of conviction consideration before the Supreme Court of India. Issue D: Exercise of the plenary powers by the High Court under Article 226 to grant furlough to a prisoner during pendency of his appeal is not permissible in terms of Note 2 to Rule 1244 of the Prison Rules. Such exercise of powers would amount to derogation of appellate powers.”

4. After deciding the aforesaid issues, learned Single Judge, thereafter, with respect to issues C, E, F and G, passed the following directions: - “85. Since these issues may involve possible declaration of the rule as not a good law, in terms of the Clause (i) of sub-rule (xviii)(a) of Part B of Chapter 3 of the High Court Rules & Orders Volume V any challenge to the constitutionality or any prayer for striking down of Rule 1224 of the Rules is required to be placed before the Hon'ble Division Bench. 86. In view of the above, the matter be placed before Hon'ble the Chief Justice for assigning the same to the roster Bench for rendering decision on Issue -C, Issue E, Issue-F and Issue-G as framed by this Court by its order dated 02.12.2022. 87. Subject to orders of Hon'ble the Chief Justice, list before the roster Bench on 10.07.2023.”

5. Pursuant to the aforesaid reference order, certain more writ petitions raising similar issues were tagged with the said reference. It is noted that in W.P.(CRL) 2257/2024 titled as “Hambir Singh vs. State of NCT of Delhi” the Constitutional validity of Rule 1224 of the Prison Rules has also been challenged.

6. Two learned Amicus Curiae namely, Mr. Vivek Sood, Senior Advocate and Mr. V.P. Garg, Advocate, had been appointed to assist this Court. Signature Not Verified CRL.REF. 1/2025 & other connected matters Digitally Signed By:RAHUL Signing Date:21.07.2025 15:00:06 SUBMISSIONS ON BEHALF OF THE PETITIONERS W.P.(CRL) 697/2022

7. Mr. Mohit Mathur, learned Senior Counsel appearing on behalf of the petitioners submits as under: • In view of the observation made in paragraph 85 of the reference order with regard to the validity of Rule 1224, which has to be considered by this Court, even the issues decided by the learned Single Judge would have to be reconsidered. • The powers of the Constitutional Court under Article 226 of the Constitution of India is part of basic structure, and therefore, 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. • Note 2 of the Rule 1224 of the Prison Rules only mentions that, if an appeal of a convict is pending before the High Court or the period for filing an appeal before the High Court has not expired, furlough will not be granted. • That there is a deliberate omission of the term “Supreme Court” in the said rules, and thus it cannot be read into the Rule. • that under the Prison Rules reference to the ‘High Court’ or ‘Supreme Court’, separately or together have been made at various instances meaning thereby that at the time of framing of the Rules, the authority framing them was conscious of the fact that Special Leave Petitions and Special Leave to Appeal are two distinct categories. It was pointed out that reading of the Prison Rules would reflect that the ‘High Court’ and Signature Not Verified CRL.REF. 1/2025 & other connected matters Digitally Signed By:RAHUL Signing Date:21.07.2025 15:00:06 ‘Supreme Court’ have been addressed distinctively, and therefore, reading ‘Supreme Court’ into the Note 2 to Rule 1224 of the Prison Rules would be contrary to the language of the Prison Rules itself. • In view of the above, if an appeal is pending before the Supreme Court, the executive, i.e., the Competent Authority or the High Court would not be barred from considering the grant of furlough. Reliance has been placed upon the decision of the Supreme Court in Atbir v. State (NCT of Delhi)1, to submit that principles governing furlough have been broadly interpreted and it was held in no certain terms that even when a convict is suffering a sentence for remainder of natural life, he cannot be barred from seeking furlough. The question as to whether furlough has to be granted or not would depend on facts of each case, however, the convicts whose appeal are pending before the Hon’ble Supreme Court cannot be held ineligible from seeking furlough from the competent authorities or by way of judicial review from this Court. • Any restriction imposed on seeking furlough would be violative of fundamental rights including the right to life under Article 21 of the Constitution of India. Furlough being a reward for good conduct while serving the sentence, cannot be denied merely on the ground that an appeal is pending before the Hon’ble Supreme Court. • That the standards and the parameters for grant of furlough are distinct and different and cannot be equated with those which apply for suspension of sentence pending appeal. 1 (2022) 13 SCC 96 Signature Not Verified CRL.REF. 1/2025 & other connected matters Digitally Signed By:RAHUL Signing Date:21.07.2025 15:00:06 • In view of the above, the competent authority and this Court in exercise of its power of judicial review can consider granting furlough, even during the pendency of the appeal before the Supreme Court of India of a convict. W.P.(CRL) 997/2022

8. Mr. Zeeshan Diwan, learned counsel appearing on behalf of the petitioner appointed by DHCLSC has made the following submissions: • The principle of ‘derogation of power’ as held in K.M. Nanavati v. State of Bombay2, does not apply to furlough. • The said principle would apply when executive powers are invoked to suspend or remit a sentence, thus, causing a conflict with the judicial power under Article 142 of the Constitution of India as held in paragraph 19 of the said judgment. • Since furlough is neither suspension nor remission, the said principle would not apply. Reliance was placed on Atbir (supra), wherein the Supreme Court after interpreting the Prison Rules has held that remission cannot be a pre-requisite for obtaining furlough. It was observed in the said judgment that the convict is “deemed to be serving the sentence” even during the period of furlough. It was held that there is no reduction of sentence, and hence, there is no question of “remission” and hence, it was argued that grant of furlough would raise no possible or real conflict with Article 142 of the Constitution of India. • that there is no ambiguity in Note 2 to Rule 1224 of the Prison Rules, as the mention of “High Court” (and no other Court) is clear and 2 (1961) 1 SCR 497 Signature Not Verified CRL.REF. 1/2025 & other connected matters Digitally Signed By:RAHUL Signing Date:21.07.2025 15:00:06 unequivocal and it is submitted that principle of interpretation that the literal rule of interpretation is the best test of construction unless it is ambiguous is squarely applicable in the present circumstances. Reliance has been placed on Sri Venkataramana Devaru v. State of Mysore3, V. Jagannadha Rao v. State of A.P.4 and B.N. Mutto v. T.K. Nandi (Dr.)5. • That nothing prevented the authority from framing the Rules to include the words “Supreme Court” in Note 2 to Rule 1224 of the Prison Rules. It is pointed out that this becomes clear on bare perusal of the present Rules which repeatedly referred to an appeal filed in the Supreme Court wherein various provisions of the present Rules have been highlighted. It was submitted that even assuming that the admitted reference to the word “Supreme Court” is a drafting error, this Court cannot supply the casus omissus. Reliance is placed on Padma Sundara Rao v. State of T.N.6, in support of this contention. It was submitted that if the word “Supreme Court” is supplied in Note 2 to Rule 1224 of the Prisons Rule, the same would lead to following illustrative anomalies: - “a. Co-convicts would be treated differently based on whether one chooses to appeal and one does not. b. Convicts who appeal to Supreme Court will be discriminated based on the State where they are incarcerated. In case of transfer of a prisoner from Delhi to Bombay, he could avail the benefit of Furlough despite pendency of his appeal before the Supreme Court. c. The rule discourages right to appeal to the Supreme Court