Furlough applications can be considered during Supreme Court appeals; restrictions in Delhi Prison Rules limiting this right violate constitutional provisions.

JUDGMENT

`Can Furlough applications be considered by the Executive during the pendency of Appeals before the Supreme Court?’

1. The present petitions have been filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 , (for short, ‘CrPC’) on behalf of the captioned respective Petitioners who CRL.REF. 1/2025 & other connected matters Page 4 of 105 Signature Not Verified Digitally Signed seek furlough under the Delhi Prison Rules, 2018 (hereinafter referred to as ‘Prison Rules’) during the pendency of their appeals before the Hon’ble Supreme Court.

FACTUAL BACKGROUND

2. Petitioner, Budhi Singh in W.P.(CRL) 697/2022, Basant Vallabh in W.P.(CRL) 997/2022, Suresh Chand Sharma in W.P.(CRL) 1044/2022 and Jai Pal Singh in W.P.(CRL) 1067/2022 had preferred the present petitions seeking first spell of furlough under the Prison Rules from the competent authority which was rejected on the ground of pendency of their appeals before the Hon’ble Supreme Court in view of Note 2 to Rule 1224 of the Prison Rules. Their respective rejection orders were challenged by these petitioners by way of aforementioned writ petitions which were disposed of by learned Single Bench of this Court vide judgment dated 3^rd July, 2023. Learned Single Bench framed various issues that had arisen in these matters and while disposing some of them referred remaining issues in the form of reference to the Division Bench. The issues framed by the learned Single Judge vide order dated 02^nd December, 2022, reads thus: -

“1. From the preliminary arguments advance on behalf of the parties, following issues are framed:

"A. Whether the principle of 'derogation of power' as laid down in the judgment of the Hon'ble Supreme Court of India in K.M. Nanavati v. The State of Bombay , AIR 1961 SC112 is applicable in cases where a prisoner seeks to apply for release on furlough under the Delhi Prison Rules, 2018 when an appeal against their order of conviction is pending adjudication in the Supreme Court of India?

B. Whether Note 2 to Rule 1224 in the Delhi Prison Rules, 2018 should be strictly interpreted and thus the CRL.REF. 1/2025 & other connected matters Page 5 of 105 Signature Not Verified Digitally Signed words High Court cannot be interpreted as including the Supreme Court of India, even in case of a statutory appeal before the Supreme Court?

C. Is there a violation of Article 14 of the Constitution of India if Note 2 to Rule 1224 of the Delhi Prison Rules is interpreted as barring the right of a prisoner to apply for release on furlough, when an appeal against their order of conviction is pending adjudication in the Hon 'ble Supreme Court of India?

D. Whether the High Court under Article 226 of the Constitution has the power to grant furlough. If so, can this power be exercised during the pendency of an appeal in the Supreme Court of India?

E. Is there a violation of Article 21 of the Constitution of India if Note 2 to Rule 1224 of the Delhi Prison Rules is interpreted as barring the right of a prisoner to apply for release on furlough, when an appeal against their order of conviction is pending adjudication in the Hon'ble Supreme Court of India?

F. Whether denial of furlough, on account of pendency of an appeal in the Supreme Court of India, despite good conduct earned by the convict, would run contrary to the theory of reformative approach and thereby violating Rules 1199 and 1200 of the Delhi Prison Rules, 2018 ?

G. Whether the jurisprudence on parole can be applied to furlough since furlough does not involve suspension of sentence? "

3. Learned Single Judge vide order dated 3^rd July, 2023, gave the following findings with respect to the aforesaid issues: -

“Issue A: The principle of derogation of power as per th