A convict's right to pursue legal remedies, including filing an SLP, cannot be denied solely on the basis of past conduct or availability of legal aid.

JUDGMENT

Swarana Kanta Sharma, J.

1. The present Writ Petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 ("Cr.P.C.") has been filed by petitioner for issuance of writ in the nature of Certiorari for quashing of the order dated 03.11.2022 passed by the respondent rejecting the application of the petitioner seeking parole and also for issuance of writ in the nature of Mandamus, directing the respondent to release the petitioner on parole for a period of four (04) weeks on the ground of filing Special Leave Petition ("SLP") before the Hon'ble Supreme Court of India against the judgment dated 04.07.2022 passed by this Court in Criminal Appeal No. 391/2021 whereby the conviction and order on sentence was passed by learned Additional Sessions Judge, Saket Courts, New Delhi.

2. In the present case, the petitioner was arrested in FIR bearing No. 60/2014 registered at Police station Ambedkar Nagar, Delhi and vide judgment dated 05.12.2019, he was convicted under Sections 363/376(2) of Indian Penal Code, 1860 read with Section 6 of POCSO Act by learned ASJ-05, Special Court (POCSO), Saket Court, New Delhi and vide order on sentence dated 19.12.2019, the petitioner was sentenced to undergo rigorous imprisonment for ten years alongwith fine of Rs.5,000/- and in default, further rigorous imprisonment for 30 days under Section 376(2) of IPC, and to undergo rigorous imprisonment for seven years and fine of Rs.5,000/- and in default, further rigorous imprisonment for 30 days.

3. Learned Counsel for the petitioner states that the petitioner is presently confined in Central Jail No. 14, Mandoli, New Delhi and has already undergone incarceration of about 8 years and 6 months (excluding remission) out of R.I. for ten (10) years and fine. It is stated by learned counsel for the petitioner that petitioner desires to file an SLP for which he has sought parole. It is further stated that an application dated 23.09.2022 was filed before the Home Department, Government of NCT of Delhi and the same was dismissed by respondent vide letter dated 03.11.2022, observing that there were no special circumstances that existed for grant of parole and the convict could file SLP from the jail itself where free legal aid is available to all prisoners.

4. On the other hand, learned APP for the State submits that considering his conduct in the jail as per Rules, parole cannot be granted to the petitioner.

5. Attention of this Court has been drawn by learned APP for the State to the fact that the present applicant is not entitled to parole in view of Rule 1210 sub rule (II) and Rule 1211 of Delhi Prison Rule, 2018. It is stated that as per the nominal roll, the present applicant has been awarded multiple punishments on 09.10.2021, 15.02.2022 and 07.06.2022. He therefore states that there is no illegality in the order passed by the competent authority i.e. Deputy Secretary, Home, NCT of Delhi and, therefore, the petition be rejected.

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 circumstance