Mr. Arjun Malik, Adv v. STATE OF NCT OF DELHI

Judgment

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, 1973, (for short, ‘CrPC’) on behalf of the captioned respective Petitioners who Signature Not Verified CRL.REF. 1/2025 & other connected matters Digitally Signed By:DHIRENDER KUMAR Signing Date:15.07.2025 15:05:58 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? B. Whether Note 2 to Rule 1224 in the Delhi Prison Rules, 2018 should be strictly interpreted and thus the Signature Not Verified CRL.REF. 1/2025 & other connected matters Digitally Signed By:DHIRENDER KUMAR Signing Date:15.07.2025 15:05:58 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 mean and include Supreme Court of India, if an appeal Signature Not Verified CRL.REF. 1/2025 & other connected matters Digitally Signed By:DHIRENDER KUMAR Signing Date:15.07.2025 15:05:58 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:DHIRENDER KUMAR Signing Date:15.07.2025 15:05:58 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 ‘Supreme Court’ have been addressed distinctively, and therefore, Signature Not Verified CRL.REF. 1/2025 & other connected matters Digitally Signed By:DHIRENDER KUMAR Signing Date:15.07.2025 15:05:58 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. • In view of the above, the competent authority and this Court in exercise of its power of judicial review can consider granting furlough, even 1 (2022) 13 SCC 96 Signature Not Verified CRL.REF. 1/2025 & other connected matters Digitally Signed By:DHIRENDER KUMAR Signing Date:15.07.2025 15:05:58 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 unequivocal and it is submitted that principle of interpretation that the literal rule of interpretation is the best test of construction unless it is 2 (1961) 1 SCR 497 Signature Not Verified CRL.REF. 1/2025 & other connected matters Digitally Signed By:DHIRENDER KUMAR Signing Date:15.07.2025 15:05:58 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 d. The rule is incongruous inasmuch as those convicts, whose appeals take a long time to be decided, are at a further disadvantage than those whose appeals are decided quickly.