The right to procreation and parenthood is protected under Article 21 of the Constitution, and prior misconduct should not negate a convict's current compliance and genuine needs for parole.

ORDER :

1. This petition has been filed seeking quashing of the rejection order dated 18.10.2024 (‘impugned order’) and further seeking parole for a period of four (4) weeks in light of the Petitioner’s right to procreation and parenthood.

2. Learned counsel for the Petitioner states that though a parole application was duly filed on 10.09.2024, the same has been dismissed by the competent authority vide rejection order dated 18.10.2024 (‘impugned order’) on grounds, which have no bearing on the contents of the application.

3. He states that the grounds referred to in the impugned order dated 18.10.2024 were not the basis of the request of the parole.

4. He states that the Nominal Roll reflects that the Petitioner vide orders dated 29.01.2024 and 01.05.2024 was granted parole by this Court and the Petitioner duly complied with the said orders and surrendered on the expiry of the parole.

5. He states, however, the effect of the said orders passed by the High Court has not been taken into consideration by the Competent Authority in the impugned order dated 18.10.2024 and it continues to rely upon the incident of 2019, which has become stale.

6. He states that Petitioner during parole will be residing at the address located in Delhi, as mentioned in the application filed by his wife on 10.09.2024, which is filed as annexure A-1 herein. The said address reads as under:

303, First Floor, Gali No. 9, Garhi East of Kailash Near Iskon Temple New Delhi-110065

7. Learned Additional Standing Counsel for the State, states that though the Nominal Roll, as issued on 09.12.2024 records that the period of sentence undergone is 12 years 11 months and 5 days; he states that, however, a punishment dated 30.08.2024 has been imposed upon the Petitioner for his misconduct. He states it is a matter of record that the said punishment has been challenged by the Petitioner in W.P.(CRL) 2977/2024 and it is yet to be confirmed by this Court.

8. Learned counsel for the Petitioner has relied upon the judgement of the Coordinate Bench of this Court in Kundan Singh vs. State Govt. of NCT of Delhi (2023 SCC OnLine Del 8364) for seeking parole and relies upon paras 13 and 16 herein, which reads as under:-

“13. This Court is of the opinion that Article 21 of the Constitution of India, which guarantees the fundamental right to life and personal liberty is not completely obliterated by a person’s incarceration. Though, the human right of personal liberty of convict has to be surrendered in favour of the safety of the State and for the purpose of establishing rule of law, the convict cannot be denied the protection of fundamental right to life, which is expansive, and in this Court’s opinion, will also include right to have a child, in peculiar facts and circumstances of a case. While a constitutional Court has to ensure rule of law, it also has to ensure social justice. …

16. Though parole can be granted to maintain social ties, which is a larger concept, the ground for grant of parole for the reason as in the present case cannot be considered less important. The accused is aged about 41 years, whereas his wife is about 38 years of age, who have been married for last three years. The accused has been in judicial custody for the last 15 years, and was married while he was granted parole/furlough. The concern of the convict and his wife seems to be genuine that their age and the biological clock cannot wait for the period of incarceration to be over. The convict and his wife need medical assistance to have a child and for the same the convict also needs to undergo certain diagnostic tests.”

[Emphasis Supplied]

9. It requires mention that after the earlier incident of year 2019, when the Petitioner had failed to surrender upon expiry of the furlough and was re- arrested on 03.09.2021, the Petitioner has since been granted parole by this Court vide order dated 26.04.2024 passed in W.P.(Crl.) No. 1215/2024 as well as judgment dated 22.12.2023 passed in W.P.(Crl.) No. 3445/2023.