IMPORTANT POINT
A convict is not entitled to remission while undergoing sentence in default of payment of fine.

JUDGMENT

Mukta Gupta, J.—By this petition, the petitioner seeks a writ of mandamus directing the respondent to release the petitioner forthwith in view of completion of his substantive sentence as well as sentence in default of payment of fine.

2. The petitioner was convicted for offences punishable under Section 363 IPC and Section 4 of Protection of Children from Sexual Offences Act, 2012 (in short, ‘POCSO Act’) vide the judgment dated 24th October, 2019 and sentenced to undergo rigorous imprisonment for 7 years and a fine of ?50,000/-, in default whereof, to undergo simple imprisonment for 2 months for offence punishable under Section 4 of the POCSO Act and rigorous imprisonment for a period of 1 year for offence punishable under Section 363 IPC vide order dated 25th October, 2019.

3. The petitioner was in custody when due to Covid-19, the Delhi Government issued a notification dated 23rd March, 2020, constituting a High Powered Committee which decided to release prisoners on emergency parole and pursuant thereof, the petitioner was released on emergency parole for a period of eight weeks on 22nd August, 2020 which was continued from time to time. Vide the order of the Home Department, Govt. of NCT dated 8th January, 2021, all convicts released on emergency parole were directed to surrender to custody as the emergency parole was not extended further. Thus the petitioner surrendered on 21st February, 2021. As per the petitioner, since the notification of the Govt. of NCT releasing the prisoners on emergency parole noted that the period of parole will be counted as period undergone, petitioner’s substantive sentence completed on 27th December, 2020 and since the petitioner was on emergency parole thereafter also, according to the petitioner, he was undergoing sentence in default of payment of fine and when the petitioner surrendered on 21st February, 2021, he had undergone substantial sentence in default of fine and he ought to have been released on 27th February, 2021 having undergone simple imprisonment for a period of 2 months in default of payment of fine as well. Since the Superintendent, Tihar Jail failed to release the petitioner on 28th February, 2021, the petitioner preferred the present petition which was got drafted on 10th March, 2021. However, the Superintendent Jail took his own time and kept the petition pending which was finally listed before this Court on 9th April, 2021 when this Court issued notice to the Director General (Prisons) and also sought his presence through video conferencing.

4. Grievance of the petitioner in the present petition is two-fold. Firstly; that his petition challenging the inaction of the Superintendent Jail was not got listed and deliberately kept back by the Superintendent jail so as to frustrate the filing of the petition and Secondly; since the petitioner had undergone substantial sentence in default of payment of fine as well while on emergency parole, the petitioner ought to have been released on 28th February, 2021 immediately after his surrender. The petitioner also has a grievance that though every jail petition, as per the Rules, is required to be accompanied by the nominal roll, the present petition was not even accompanied by the nominal roll.

5. A reply affidavit has been filed by the Director General (Prisons), Tihar as also the nominal roll of the petitioner. At the outset, the Director General (Prisons) states that when the petition was filed by the petitioner claiming that he was entitled to be released, the Superintendent Jail looked into the petition and found that there was no application made in this regard to the Prison Department and before forwarding the petition to this Court, desired to look into the matter at his own level so that if there was any error, the same could be rectified and in this regard, also took legal opinion. After the legal opinion was received that the in default sentence cannot be said to have been undergone, the present petition w