The denial of parole based on the availability of free legal aid violated the petitioner's constitutional right to engage a counsel of his choice, and the competent authority has discretion to grant parole to a convict under special circumstances.

JUDGMENT :

Asha Menon, J.

1. This petition has been filed under Section 226 of the Constitution of India read with Section 482 Cr.P.C. for issuance of writ in the nature of mandamus directing the respondent to release the petitioner on parole for a period of eight weeks on the grounds of filing Special Leave Petition (for short “SLP”).

2. Mr. Faraz Maqbool, learned counsel for petitioner, submitted that the petitioner has been convicted for the offence under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act”) vide judgment dated 19th December, 2019 and has been sentenced to undergo rigorous imprisonment for a period of 14 years vide order on the sentence dated 18th January, 2020 in case FIR No. 513/2013, registered at P.S. Okhla, Delhi. This conviction was challenged before this court vide CRL.A. No. 454/2020. However, the same was dismissed vide judgment dated 10th August, 2021 and this Court upheld both, the conviction as well as the sentence.

3. Learned counsel for petitioner submitted that the petitioner is presently confined in Central Jail No. 5, Tihar and has already undergone incarceration of about 8 years out of rigorous imprisonment for 14 years and fine. He desires to file an SLP for which he sought parole. He also sought parole on the ground of maintaining social-ties with the family. However, this application for parole filed before the Home Department, Govt. of NCT of Delhi on 19th August, 2021 was dismissed by the respondent on 18th January, 2022, observing that there were no special circumstances that existed for grant of parole as the convict could file the SLP from the jail itself where free legal aid was available to all prisoners. This order of dismissal has been placed on the record as Annexure A.

4. Learned counsel for petitioner has placed reliance on several decisions i.e., Chhedi Paswan v. State (NCT of Delhi), 2021 SCC Online Del 2230, Ravi v. State of Rajasthan, 2019 SCC Online Raj 5911 & Mangal v. State of Rajasthan, 2019 SCC Online Raj 5912 [on the point of grant of parole to POCSO convicts]; Surender Kumar v. State, 2016 SCC Online Del 3260, Gurmeet Singh v. State, 2016 SCC Online Del 3704, Sanjay Arora v. State of NCT of Delhi, 2013 SCC Online Del 3196 & Tika Ram v. State, 2009 SCC Online Del 356 [on the point of grant of Parole in cases involving sentence of life imprisonment]; Somesh Gupta v. State of the NCT of Delhi, 2010 SCC Online Del 76, Sharda Jain v. State, 2010 SCC Online Del 633, Ramesh Kumar v. State, 2009 SCC Online Del 3757 and Vimal Kumar Bahl v. State (NCT of Delhi), (2010) 93 AIC 597 (Del) [on the point of grant of Parole for filing SLP]; and, Order dated 2nd November, 2020 titled Pilluwa @ Pappu vs. State [WP (Crl.) 1780/2020] & Samuel Onyema Anyanwu v. State (GNCT of Delhi), 2021 SCC Online Del 302 [regarding "Special Circumstances" as per Delhi Prison Rules 2018], to submit that parole has been granted to POCSO convicts or those undergoing life imprisonment, also for the purposes of filing SLP.

5. Ms. Kamna Vohra, learned Additional Standing Counsel for the State, on the other hand, submitted that the reason for dismissal was very clear and the Parole Rules have been followed. The denial of parole is not whimsical and could not be faulted. The Status Report has verified the petitioner’s address.

6. The Nominal Roll has been also received from the jail, which records that the petitioner has been allotted work as “Lungar Sahayak” and has not been found violating any prison rule and his conduct for the last one year has been satisfactory. It is also to be noted that the Nominal Roll discloses that the petitioner has never been released on bail, parole or furlough.

7. The order rejecting the parole application of the petitioner gives the following grounds for rejection:-

“1. As per Rule 1211 (VII) of Delhi Prison Rules 2018, which states that: In the following cases, parole shall not be granted, except, if in the discretion of the competent author