The denial of parole solely based on pending cases or the availability of free legal aid violates the constitutional rights of the accused. Filing a Special Leave Petition (SLP) before the Supreme Court can be recognized as a special circumstance for granting parole.

JUDGMENT

Dinesh Kumar Sharma, J. (Oral)--The present petition has been filed seeking following prayer:

a. Issue a writ in the nature of Mandamus directing the respondent to release the petitioner on parole for a period of two months;

2. The writ petition has been filed under Article 226 of the Constitution of India for a grant of two months of parole to find an efficient and experienced lawyer and arrange resources for filing SLP before the Hon'ble Supreme Court against the impugned judgment of the Hon'ble Delhi High Court.

3. Learned counsel for the petitioner submits that the petitioner has been in custody for the last 14 years and his request for grant of parole for filing SLP has been rejected wrongly by the concerned authority.

4. Learned counsel for the respondent has submitted that the request for parole has been rejected in accordance with the Parole Rules. It has further been submitted that the accused is involved in the following cases:

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5. Learned counsel for the respondent submits that the request for parole has been rejected vide communication dated 25.01.2023 which reproduced as under:

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6. Learned counsel for the respondent submits that therefore, there is no ground to grant the benefit of parole to the petitioner.

7. At the outset, this Court does not agree with the submissions made by the learned counsel for the respondent. The petitioner has a constitutional right to approach the Hon'ble Supreme Court against the order of conviction passed against the petitioner and such right cannot be denied only on the ground of other pending cases against him. The Co-ordinate of this Court in Rakesh v. State of NCT of Delhi, 2022 SCC OnLine Del 1346 has inter alia held as under:

"8. As regards the observation that filing of SLP constitutes no "special circumstance" as there is free legal aid available, suffice it to note that the courts have not agreed with this stance of the Government. Under Article 22(1) of the Constitution as well as Section 303 Cr.P.C., an accused person has been guaranteed with a Constitutional right to engage a counsel/pleader of his own choice. It is no doubt true that the Legal Services Authorities at all levels endeavour to provide excellent legal assistance to those in prison. But, to deny the convict an opportunity to engage with other counsel to enable him to make up his mind freely, as to whom he would wish to engage, would violate his constitutional rights to legal representation. In fact, it is because of the recognition of this right that the State Prison Rules, 2018 dealing with parole and furlough, recognizes that regular parole under Rule 1208 can be granted to a convict, to pursue filing of a Special Leave Petition before the Supreme Court."

8. Similarly, the coordinate bench of this court in Neeraj Bhatt v. State (Govt. Of NCT) of Delhi, 2023 SCC OnLine Del 32 has inter alia held as under:

"6. It would be useful to reproduce Rule 1211 for ready reference, as below:

"1211. In the following cases, parole shall not be granted, except, if in the discretion of the competent authority special circumstances exist for grant of parole; I. to VI. xxx xxx VII. If the prisoner is convicted under POCSO."

7. The bar in the said rule is not absolute since the competent authority has the discretion, even in such cases, to grant parole, provided there exist special circumstances. Though the special circumstances were to be considered by the competent authority, the impugned order does not refer to the special circumstances and that they were found insufficient for grant of parole, rather it only mentions that the SLP can be filed from the jail itself and that the conduct of the applicant was not satisfactory.

8. In this Court's opinion, the right of a citizen to avail a legal remedy in the final court of country, which may often be the last ray of hope, cannot be denied on such ground.

9. As per Rule 1211 of Delhi Prison Rule, 2018, it clearly mentions that parole in the circumstances mentioned