Due to covid-19, the Delhi Government had granted emergency parole where it was evident that release was in the nature of remission as the sentence was being undergone by the convict and not a mere suspension of sentence as in the case of parole. the convict also had to undergo a sentence in default of payment of fine, which cannot be undergone while on emergency parole as the rule clearly prescribes- “that a convict is not entitled to remission while undergoing sentence in default of payment of fine”. A single judge bench comprising Hon’ble Justice Mukta Gupta in the matter of Virendra Vs. State (GNCT) of Delhi (W.P.(CRL.) 798/2021), dealt with an issue where the petitioner seeks a writ of mandamus.
In the present case, the petitioner had approached the court seeking a writ of mandamus directing the respondent to release the petitioner in view of the completion of his substantive sentence as well as the sentence in default of payment of fine, who was convicted for offences punishable under Section 363 IPC and Section 4 of Protection of Children from Sexual Offences Act, 2012 (in short, ‘POCSO Act’). The petitioner was sentenced to undergo rigorous imprisonment for 7 years and a fine of ₹50,000/-. The petitioner was in custody when due to Covid-19 the Delhi government had issued a notification to release the prisoners on emergency parole and thereby the petitioner was released on emergency parole for a period of 8 weeks on 22nd august 2020, which continued from time to time. Later through an order on 8th January 2021, the Govt. of NCT directed all the released convicts to surrender to custody as the emergency parole was not to be extended any further.
The petitioner submitted that the notice of emergency release contained that the period of parole will be counted as the period undergone and in such case, the petitioner’s substantive sentence completed on 27th December 2020 and since then the petitioner was on emergency parole thereafter also, according to the petitioner, he was undergoing sentence in default of payment of fine and thereby the petitioner surrendered himself on 21st February 2021 and was ought to be released on 27th February 2021. The jail superintendent of Tihar jail failed to release the petitioner on 28th February 2021 and to this, the petitioner had got the present petition drafted, which was the superintendent of Tihar jail kept pending before listing it before the court.
A reply affidavit had been filed by the Director-General (Prisons) Tihar, as also the nominal roll of the petitioner, and stated that when the petition was filed by the petitioner the superintendent had no intention to keep it pending, rather the superintendent looked into the petition and found that there was no application made in this regard to the Prison Department and before forwarding the petition to this Court, desired to look into the matter at his own level so that if there was any error, the same could be rectified and in this regard, also took legal opinion.
The court observed that although there was no mala fide intention on the part of the superintendent, but there was an error to keep the petition pending. Further, the court observed that the only issue here was- “whether the period spent by the petitioner on emergency parole outside can be counted not only towards the substantive sentence undergone but also towards the sentence undergone in default of payment of fine.”
The counsel for the respondent relying on section 432(5) of Crpc, contended that the petition should not be granted remission was at that time undergoing sentence in default of payment of fine and hence during the period the emergency parole, the petitioner had undergone the substantive sentence and not the sentence of default of payment of fine.
After going through the government notification and hearing both the counsels, the court held that –“it is evident that release was in the nature of remission as the sentence was being undergone and not a mere suspension of sentence as in the case of parole. The rules clearly prescribe that a convict is not entitled to remission while undergoing sentence in default of payment of fine.”
Thus the court did not accept the contention of the petitioner that the petitioner had undergone substantial sentence in default of payment of fine while on emergency parole and thereby the petition was dismissed.