IMPORTANT POINT
The court considered the petitioner's conduct, previous judgments, and the medical condition of the petitioner in allowing the petition and setting aside the impugned order.

JUDGMENT

Navin Chawla, J. (Oral)

CRL.M.A. 2832/2024 (Exemption)

1. Allowed, subject to all just exception.

W.P.(CRL) 312/2024

2. This petition has been filed seeking quashing of the order No.F.10(3465048)/CJ/LEGAL/2023/31015 dated 17.05.2023, by which the application filed by the petitioner for grant of furlough has been rejected by the respondent on the following grounds:

"I. He was released on emergency parole on 11.04.2020 to 07.06.2020 and further extended time to time in view COVID-19 and his due date of surrender was fixed for 28.02.2021 but he did not surrender and re-arrested on 08.09.2021 vide DD No.71A/Dated 07.09.2021, u/s 41.1 Cr.P.C., PS-Jamia Nagar, Delhi.

II. Rule 1224(iii) of Delhi Prison Rules-2018 states that "the prisoner who abscond while released on parole or furlough shall not be eligible to be released on furlough.

III. His application was not recommended by Superintendent Jail."

3. Issue notice.

4. Notice is accepted by Ms.Rupali Bandhopadhya, the learned APP for the State.

5. The learned counsel for the petitioner submits that after the purported delay in surrender in the year 2021, the petitioner was later granted furlough by the judgment/order of this Court date 03.06.2022 passed in W.P.(Crl.) 764/2022, wherein again similar grounds were taken by the respondent for refusing furlough to the petitioner, but were not accepted by this Court. He further submits that the petitioner was also granted parole for a period of 45 days vide order dated 19.10.2023 passed by this Court in W.P.(Crl.) 2819/2023. No complaint was made against the petitioner during the period of the above release.

6. I have considered the submissions made by the learned counsel for the petitioner.

7. This Court, vide its judgment dated 03.06.2022 passed in WP(Crl) 764/2022, had rejected the grounds similar to the one given in the Impugned Order, while granting furlough to the petitioner, by observing as under:

"3. I have also seen the nominal roll which shows that the petitioner has undergone about 11 years actual incarceration and he has also earned about 2 years remission; the petitioner was given life imprisonment in case FIR No. 315/2009 under Sectios 302/392 IPC. Nominal roll shows that as and when the petitioner was granted furlough, he had surrendered on time except when he was granted emergency parole on 11.04.2020 and the same was extended from time to time but he did not surrender after the expiry of the said period. The petitioner has stated that he never had notice of the date on which he was supposed to surrender before the Jail Authorities. No document has been placed on record by the jail authorities to prove that petitioner was informed about his date of surrender and in spite of that he did not surrender.

4. Keeping in view the above facts and especially the conduct of the petitioner always surrendering on time, except on one occasion, after expiry of the furlough period, I am inclined to quash the order/notice dated 12.10.2021 and to further direct the respondent to release the present petitioner on first spell of furlough of three weeks..."

8. Keeping in view the medical condition of the petitioner, the petitioner was also granted parole by the order dated 19.10.2023, observing as under:

"10. This Court has also considered the nominal roll placed on record. The nominal roll shows that the petitioner was released almost 8-10 times previously on furlough and parole.

11. Learned counsel submits that though the petitioner so far is being administered Radiotherapy and Chemotherapy on regular intervals, however, he submits that it is the aftercare of the petitioner in jail which is main reason for the petitioner's present writ petition.

12. There is no doubt that the after effects/side effects of the Radiotherapy and Chemotherapy are deleterious and debilitating. There are times when the patient is unable to have ordinary food and it could be possible that the petitioner may be undergoing nauseous feeling and may be vomiting at times also.