In a petition filed under Article 226 of the Constitution before the Delhi High Court seeking an extension of parole for twelve months, a Single Judge Bench of Justice Amit Mahajan noted the statutory time limitations of parole and directed the petitioner to be under house arrest until her case is considered for premature release.
The petitioner, along with her husband and son, was convicted of offences under Sections 498A/304B of the Indian Penal Code, 1860. They were sentenced to undergo rigorous imprisonment for seven years. The appeal against the judgment was dismissed by a judgment dated 16-12-2016. Further, the SLP preferred by the convicts was also dismissed.
The petitioner and her husband surrendered on 15-02-2017 after their son passed away on 27-03-2015. Thereafter, the petitioner’s husband also died in jail due to a cardiac arrest. The petitioner fell on the floor in the jail premises and was seriously injured. She was taken to the hospital, where she was given treatment for her fractured thighs, and on 12-10-2017, the Court granted parole to the petitioner for a month.
After her release, the petitioner complained of unbearable pain and went through a re-operation, as it was suggested that the previous surgery was flawed and ineffective. The petitioner was discharged and was advised strict bed rest for 3 months. Considering her medical condition, the petitioner’s parole was extended for three months vide order dated 01-12-2017. Thereafter, the petitioner was constantly on parole due to her medical condition.
On account of her age, the petitioner sought a premature release as an incapacitated convict under Rule 1246A of the Delhi Prison Rules, 2018. The petitioner also submitted that a plea of clemency was pending consideration since 2018, and that on 06-12-2018, the Hon’ble Secretary had forwarded the mercy plea to the Ministry of Home Affairs with a recommendation of the Lt. Governor of Delhi.
It was submitted that the contents of the recommendation were not on record and that if the recommendation is favourable for the petitioner, that should be enough for the grant of pardon to the petitioner as per Article 161 of the Constitution.
The Court noted that the petitioner’s parole had been extended from time to time due to her age as well as her precarious medical condition. It was also noted that parole is not a legal right, but a privilege conferred on a prisoner to enable them to maintain a regular contact with the world and keep up with the latest developments in society. It was stated that Rules 1212 and 1212A of the Rules provided that parole could be granted for a maximum of eight weeks in a conviction year, with an additional eight weeks granted in emergent situations.
Further, it was stated that the courts have no power to legislate and cannot enlarge or reframe legislation. The Court noted that, even though the petitioner was convicted of a grave offence, she was still a human being who deserved dignity, and found it clear that she would not be able to serve her remaining sentence.
The Court considered the pleas put forth by the petitioner and, notwithstanding the delay in the plea of clemency, did not consider it appropriate to exercise judicial review before the authorities had an opportunity to examine the case. It was also said that the power vested in this Court under Article 226 is not comparable to that vested in the Supreme Court under Article 142. Regarding the premature release of the petitioner, the jail authorities sought some time from the Court to check if the same was feasible.
Considering the petitioner’s medical condition and the statutory time limitations on parole, the Court opined that the interests of justice would be served if the petitioner were confined to her home until her case is considered for clemency or premature release. However, after referring to various cases, the Court clarified that it did not propose that house arrest be regularized as an alternative to custody, but stated that it was a cogent alternative for the present case.
Thus, the Court directed the petitioner to be confined in her home under the care of her son until her case is considered for premature release, upon furnishing a personal bond of Rs. 10,000/- with two sureties. The authorities were directed to decide the petitioner’s case for premature release, preferably within four weeks.
The Court noted that multiple convicts may be forced to wait for consideration of their cases for premature release and stated that it was incumbent on the appropriate authorities to frame rules covering such requirements or to amend the Prison Rules to provide for the extension of parole or furlough.
Thus, while disposing of the petition, the Court directed the State Authorities to frame appropriate rules to address situations such as the present case, where convicts are unable to surrender even after the lapse of their period of release.
Appearances:
For Petitioner – Mr. Attin Shankar Rastogi
For Respondent – Mr. Amol Sinha, Mr. Kshitiz Garg, Mr. Ashvini Kumar, Mr. Nitish Dhawan, Ms. Sanskriti Nimbekar, Mr. Vijay Misra, Mr. Abhishek Mahajan, Mr. Vivek Gurnani, Mr. Agni Sen
