The Delhi High Court recently clarified that when a convict’s appeal against conviction is pending before the Supreme Court, any direction to grant furlough under the Delhi Prison Rules must be sought from the Apex Court. This determination was made in light of Rules 1199 and 1200 of the Delhi Prison Rules, which address the grant of parole and furlough to prisoners. Note 2 to Rule 1224 specifies that if a convict’s appeal is pending before the High Court or if the period for filing an appeal has not expired, furlough cannot be granted without appropriate directions from the Court.
Justice Amit Mahajan concluded that when an appeal from a conviction order passed by the High Court is pending before the Supreme Court, the term “High Court” in Note 2 to Rule 1224 includes the Supreme Court as the appellate court. Therefore, any direction for furlough must be obtained from the Supreme Court in such situations.
The court also examined whether the principle of derogation of power, as established in the K.M. Nanavati case, applies to situations where a prisoner seeks release on furlough under the Delhi Prison Rules while an appeal against the conviction is pending before the Supreme Court. Justice Mahajan held that the principle of derogation of power does not apply if the Rules do not prohibit the executive from considering the furlough application during the pendency of the appeal before an appellate court, whether it is the High Court or the Supreme Court. However, if the Rules do forbid the executive from considering the application during such pendency, the principle of derogation of power would be fully applicable, as in the case of Note 2 to Rule 1244.
Justice Mahajan further ruled that in cases of furlough and parole, where an appeal is pending before an appellate court, the Delhi Prison Rules remove the jurisdiction of the executive to consider the application and vest it with the High Court where the appeal is pending. The superior court, upon admitting an appeal, exercises all the powers vested in the lower courts, as all proceedings of the lower courts merge with the appeal.
The court emphasized that the intention of the framers of the Rules is evident in their plain language, stating that furlough applications will not be entertained when an appeal against conviction is pending. The power to consider the grant of furlough is statutorily vested in the appellate court, whether it is the High Court or the Supreme Court.
Regarding the constitutional rights of convicts under Articles 14 and 21, the court framed four questions for decision by the division bench, as per the requirements of the High Court Rules. These questions revolve around the interpretation of Note 2 to Rule 1224 and its potential violation of the rights of prisoners when their conviction appeals are pending before the Supreme Court.
While the court acknowledged that accepting the petitioner’s arguments could lead to a declaration of Note 2 as ultra vires, it stated that the issue of challenging the constitutionality or seeking the striking down of Rule 1224 must be placed before the division bench, as mandated by the High Court Rules.
The matter will be heard by the roster bench on July 10.
