Delhi High Court Directs Authorities To Frame Appropriate Rules For Convicts Who Can’t Surrender Due To Health Or Age After Lapse Of Parole Period

The Delhi High Court has directed the State authorities to frame appropriate Rules for convicts who are not in a position to surrender due to health or age after lapse of the parole period.

The Court was hearing a Writ Petition filed by a lady seeking grant or extension of parole for a period of 12 months on account of her medical condition.

A Single Bench of Justice Amit Mahajan ordered, “… this Court considers it appropriate to direct the State Authorities to frame appropriate rules to cater to such situations as in the present case where convicts, who are incapacitate by virtue of health or age, are not in a position to surrender even after lapse of the period of release on parole or furlough.”

The Bench noted that as the permissible period of parole can only be up to a maximum of 16 weeks, it is incumbent on the appropriate authorities to frame rules covering such exigencies or to amend the Delhi Prison Rules, 2018 providing for extension of parole or furlough, as the case may be.

Advocate Attin Shankar Rastogi appeared for the Petitioner, while Additional Standing Counsel (ASC) Amol Sinha appeared for the Respondent. Advocate Vivek Gurnani was appointed as the Amicus Curiae.

Case Background

The Petitioner along with her husband and son was convicted for the offence under Sections 498A and 304B of the Indian Penal Code, 1860 (IPC). By an Order in the year 2000, the convicts were sentenced by the Trial Court to undergo rigorous imprisonment for a period of 7 years. The Appeal challenging conviction was dismissed by the High Court and thereafter, a Special Leave Petition (SLP) before the Supreme Court was also dismissed. The Petitioner’s son had expired in 2015 and she along with her husband surrendered in 2017. Subsequently, her husband also died in jail due to a cardiac arrest in June 2017.

On account of her age and weakness, the Petitioner fell on the floor of the jail premises in August 2017 as a result of which she was severely injured. She underwent surgery for her fractured thighs and the Court granted parole to her for one month. Shortly after her release, she complained of unbearable pain and she was re-operated to repair her fractured hip/thigh. Her parole was extended for 3 months and by multiple Orders, she was constantly on parole due to her medical condition. As per the Jail record, she had spent 4 years and 7 days in custody out of the total sentence of 7 years. Hence, she approached the High Court seeking extension of parole.

Reasoning

The High Court in view of the facts and circumstances of the case, said, “It is settled law that Courts have no power to legislate and they cannot enlarge the scope of legislation or reframe the same. The power vested in this Court by way of Article 226 of the Constitution of India is not akin to the one entrusted under Article 142 of the Constitution of India, which empowers the Hon’ble Apex Court to do complete justice. This Court in exercise of writ jurisdiction cannot rewrite the Rules or fundamentally change the same by extending the liberty beyond the prescribed duration.”

The Court remarked that the Petitioner is bedridden and is not in a position to move or surrender and the Court cannot be so inhumane so as to adopt a callous approach which is blind and unfeeling to the plight of an aged woman, who is already suffering from a myriad of ailments.

“By mere virtue of conviction, a convict is not denuded of their fundamental rights and the punishment cannot be one which defiles the dignity of an inmate. While the petitioner has been convicted of a grave offence, she is still a human being deserving of dignity and it is amply clear that she will not be able to undergo the remainder of her sentence, especially since the prison authorities will be unable to provide her with round the clock assistance as well as suitable amenities required for her condition”, it added.

The Court observed that it is faced with a conundrum wherein while it can’t mindlessly extend the parole of the Petitioner beyond the time as provided as provided in Delhi Prison Rules, 2018, it also cannot direct the Petitioner to surrender and undergo her remaining sentence.

“… the petitioner is bedridden and she is not in a position to move or surrender, which necessitates adoption of an alternative approach which doesn’t relegate the petitioner to suffer incarceration till such time as her representation for premature release is considered by the adequate authority”, it noted.

The Court further said that interests of justice will be met if the Petitioner is confined to her home till her case is considered for clemency or premature release in pursuance of the recommendation made by the Amicus.

“While this Court does not seek to propose that house arrest needs to be regularised as an alternative for custody, in the absence of any provisions for extended release from custody for infirm and aged patients, the same appears to be a cogent alternative, especially considering that adjudication of mercy pleas as well as assessment of a convict’s case for premature release are generally time-consuming endeavours”, it clarified.

Conclusion and Directions

Considering the peculiar condition of the Petitioner, the Court directed that the Petitioner shall be confined in her home under the care of her son, who has signed the affidavit in support of the Petition, till such time when her case is considered for premature release.

“The petitioner shall furnish a personal bond for a sum of ₹10,000/- with two sureties of the like amount to the satisfaction of the concerned Jail Superintendent. The petitioner shall not be permitted to leave her residence where she is currently residing, except for the purpose of her medical treatment”, it also directed.

Moreover, the Court directed the concerned authorities to decide the case of the Petitioner for premature release expeditiously, preferably within a period of four weeks.

“Having dealt with the facts of the present case, this Court considers it apposite to take notice of the fact that like the current petitioner, multiple convicts may be forced to suffer the tribulations of legal limbo and left to wait for the consideration of their case for premature release. Such convicts are often required to stay outside beyond the permissible period for reasons that are outside their control”, it concluded.

Accordingly, the High Court disposed of the Writ Petition and directed that the copy of the Order shall be sent to the Government of NCT of Delhi to take appropriate action in this regard.

Cause Title- Kailash Wati v. State of Delhi (Neutral Citation: 2025:DHC:9884)

Appearance:

Petitioner: Advocate Attin Shankar Rastogi

Respondent: ASC Amol Sinha, Advocates Kshitiz Garg, Ashvini Kumar, Nitish Dhawan, Sanskriti Nimbekar, Vijay Misra, Abhishek Mahajan, Vivek Gurnani (Amicus Curiae), and Agni Sen.

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