ASFAQversusSTATE OF RAJASTHAN & ORS.

                        [2017] I 1 S.C.R. 571



                              ASFAQ                                     A

                                  v.
                 STATE OF RAJASTHAN & ORS.
                  (Civil Appeal No. I 0464 of2017)
                       SEPTEMBER 11, 2017                               B

          [A. K. SIKRI AND ASHOK BHUSHAN, JJ.J.
      Parole:
        Application for regu/m· parole for 20 days - By the convict
 [convicted under provisions of Terrorists and Disruptive Activities C
 Act (TADA)} - Rejected by Government of India as well as the State
 Government - Writ petition challenging the rejection of parole was
 dismissed by High Court holding that since the Supreme Court had
 decided the appeal affirming conviction, it would be inappropriate
for the High Court to exercise discretion in favour of the convict- D
 appellant - On appeal, held: The issue in the present appeal was
 entirely different from the issue in the appeal wherein conviction
 under provisions of TADA was affirmed by Supreme Court -
  Therefore, the observation of the High Court that it was
  inappropriate for it to exercise its discretion in favour of the
  appellant, amounts to abdication of the power vested in the High E
  Court - However, the parole of20 days was rejected in view of the
. adverse reports of concerned authorities - The authorities have
  taken into account relevant considerations while rejecting the
  request of parole - Therefore, it is not a flt case for grant of parole.
       Purpose df, and ground5 for granting parole - Held: Release F
of a life convictfrom jail for a short period has to be considered as
an opportunity not only fo serve his personal and family problems,
but also to maintain his links with the society - Redemption and
rehabilitation of prisoners for th~ good of the society must receive
due weightage, while they are undergoing sentence of
imprisonment.- Apart from the public purpose ingrained in the G
reformation theory of sentencing, other competing public interest
has also to be kept in mind while deciding grant of parole - The
public interest demand~ that habitual offenders and those who have
tendency to. become threat to law and order of societv, should not
be released on.parole - Mere nature of the ojjence committed shout</ H
                                 571
572            SUPREME COURT REPORTS                      (2017] ll S.C.R.


A  not be a factor to deny the parole outrightIv though in such cases
   stricter standards are to be applied while judging parameters uf
   good c:onduct - There is immediate need to update the Rules }ramed
   by Central Government which regard to parole so as to provide
  suitable guidelines tu those who have to consider such upplicatiuns
B for grant ofparole.
            Parole - ,Distinction from fi1rlough - Discussed.
            Words and Phrases:
            "Habitual Offender' - Meaning of - Discussed.

c           Dismissing the appeal, the Court
            HELD: L. The observation of the High Court that since
      Supreme Court had decided the appeal of the appellant affirming
      the conviction, jt would not be appropriate for the High Court to
      exercise its discretion in favour of the appellant and if he so
D
      desired, he m1ight approach the Supreme Court for the said
      purpose, amounts to abdication of the power vested in the High
      Court. Insofar as conviction for the offence for which he was
      charged, i.e. under the provisions of Terriorists and Disruptive
      Activities Act i~ concerned, no doubt that has been upheld till
      Supreme Court. However, the issue before the High Court was
E     entirely differeJiit. It was as to whether the appellant was entitled
      to the grant of parole for twenty days which he was claiming.
      Merely because the matter of conviction of the appellant had
      come up to this Court would not mean that the appellant has to
      be relegated to this Court every time, even when he is seeking
      the reliefs unconnected with the main conviction. It is more so
F
      when in the first instance it is the High Court which is supposed
      to decide such a prayer for parole made by the appellant. (Para 7]
       [581-B-Ef
            2.1 Titer~ is a subtle distinction between parole and
G     furlough. A parole can be defined as conditional release of
      prisoners i.e. a11 early release of a prisoner, conditional on good
      behaviour and regular reporting to the authorities for a set period
      of time. It can also be defined as a form of conditional pardon by
      which the convict is released before the expiration of his term.
      Such a release Qf the prisoner on parole can also be temporarily
H     on some basic grounds. In that eventuality, it is to be treated as
           ASFAQ v. STATE OF RAJASTHAN & ORS.                          573



mere suspension of the sentence for time being, keeping the            A
quantum of sentence intact .. Release on parole is designed to
afford some relief to the prisoners in certain specified exigencies.
Such paroles arc normally granted in certain situations. (Para 91
[581-F-H; 582-A]
       2.2 Many State Governments have formulated guidelines B
on parole in order to bring out objectivity in the decision making
and to decide as to whether parole needs to be granted in a
particular case or not. Such a decision in those cases is taken in
accordance with the guidelines framed. Guidelines of some of
the States stipulate two kinds of paroles, namely, custody parole
and regular parole. 'Custody parole' is generally granted in c
emergent circumstances like death of a family member; marriage
of a family member; serious illness of a family member; or any
other emergent circumstances. As far as 'regular parole' is
concerned, it may be given in the cases such as: {i) serious illness
of a family member; (ii) critical conditions in the family on account D
of accident or death of a family member; {iii) marriage of any
member of the family of the convict; {iv) delivery of a child by the
wife of the convict if there is no other family member to take care
of the spouse at home; (v) serious damage to life or property of
the family of the convict including damage caused by natural
calamities; (vi) to maintain family and social ties; (vii) to pursue E
the filing of a special leave petition before this Court against a
judgment delivered by the High Court convicting or upholding
the conviction, as the case may be, [Para 10](582-E-H; 583-A-C]
      2.3 Furlongh, on the other hand, is a brief release from the
prison. It is conditional and is given in case of long term            F
imprisonment. The period of sentence spent on furlough by the
prisoners need not be undergone by him as is done in the case of
parole. Furlough is granted as a good conduct remission. [Para
11] [583-D]
       2.4 Both parole and furlough are conditional release. Parole    G
 can be granted in case of short term imprisonment whereas in
·furlough it is granted in case of long term imprisonment. Duration
 of parole extends to one month whereas in the case of furlough it
 extends to fourteen days maximum. Parole is granted by Divisional
 Commissioner and furlough is granted by the Deputy Inspector          H
574            SUP~EME COURT REPORTS                     (2017] II S.C.R.


A     General of Prisons. For parole, specific reason is required,
      whereas furlough is meant for breaking the monotony of
      imprisonment, The term of imprisonment is not included in the
      computation llf the term of parole, whereas it is vice versa in
      furlough. Parc>le can be granted number of times whereas there
      is limitation in the case of furlough. Since furlough is not granted
B
      for any particular reason, it can be denied in the interest of the
      society. [Para I3J (583-G-H; 584-A-C]
            State of Maharashtra and Anr. v. Suresh Pandurang
                    1




            Darvakd,r (2006) 4 SCC 776 : (20061 3 SCR 1128;
            State of Haryana and Ors. v. Mohinder Singh (2000) 3
c           sec 394 : [2000) 1 SCR 698 - relied on.
         2.5 A convict, literally speaking, must remain in jail for the
  period of sent~nce or for rest of his life in case he is a life convict.
  It is in this c~ntext that his release from jail for a short period
  has to be considered as an opportunity afforded to him not only
D to solve his personal and family problems but also to maintain his
  links with soci~ty. Convicts too must breathe fresh air for at least
  some time provided they maintain good conduct consistently
  during incarc~ration and show a tendency to reform themselves
  and become g~od citize.ns. Thus, redemption and rehabilitation
E of such prisoners for good of societies must receive due
  weightage while they are undergoing sentence of imprisonment.
  [Para 12) (58J-E-F)
            2.6 Amongst the various grounds on which parole can be
      granted, the most important ground, which stands out, is that a
F     prisoner should be allowed to maintain family and social tics. For
      this purpose, he has to come out for some time so that he is able
      to maintain his family and social contact. This reason finds
      justification in one of the objectives behind sentence and
      punishment, namely, reformation of the convict. The theory of
      criminology, which is largely accepted, underlines that the main
G     objectives which a State intends to achieve by punishing the culprit
      are: deterrence, prevention, retribution and reformation. [Para
      141 [584-D-E)
             2.7 The provisions of parole and furlough, thus, provide for
      a humanistic approach towards those lodged in jails. Even citizens
H     of this country have a vested interest in preparing offenders for
                  I

            ASFAQ v. STATE OF RAJASTHAN & ORS .                           575


. successful re-entry into society. Those who leave prison without        A
  strong networks of support, without employment prospects,
  without a fundamental knowledge of the communities to which
  they will return, and without resources, stand a significantly higher
  chance of failure. When offenders revert to criminal activity upon
  release, they frequently do so because they lack hope of merging
                                                                          B
  into society as accepted citizens. Furloughs or parole can help
  prepare offenders for success. [Para 151 (584-G-H; 585-A-Bl
       2.8 Apart from public purpose in granting parole or
 furlough, ingrained In the reformation theory of sentencing, other .
 competing public interest has also to be kept in mind while
 deciding as to whether in a particular case parole or furlough is c
 to be granted or not. This public interest also demands that those
 who are habitual offenders and may have the tendency to commit
 the crime again after their release on parole or have the tendency
 to become threat to the law and order of the society, should not
 be released on parole. This aspect takes care of other objectives · D
 of sentencing, namely, deterrence and prevention. This side of
 the coin is the experience that great number of crimes are
 committed by the offenders who have been put back in the street
 after conviction. Therefore, while deciding as to whether a
 particular prisoner deserves to be released on parole or not, the
 aforesaid aspects have also to be kept in. mind. To put it tersely, E
 the authorities are supposed to address the question as to whether
 the convict is such a person who has the tendency to commit ·
 such a crime or he is showing tendency to reform himself to
 become a good citizen. [Para 161 [585-C-E]
       2.9 Thus, not all the people in prison are appropriate for         F
 grant of furlough or-parole. Obviously, society must isolate those
 who show patterns of preying upon victims. Yet administrators
 ought to encourage those offenders who demonstrate a
 commitment to reconcile with society and whose behaviour shows
 that aspire to live as law-abiding citizens. Thus, parole program        G
 should be used as a tool to shape such adjustments. [Para 17)
 (585-.F-G)
       2.10 In introducing penal reforms, the State that runs the
 administration on behalf of the society and for the benefit of the
 society at large, can_nnt be unmindful of safeguarding the               H
576            SUPREME COURT REPORTS                       (2017] I I S.C.R.


A     legitimate rights of the citizens in regard to thdr security in the
      matters of life and liberty. It is for this reason that in introducing
      such reforms, the authorities cannot be oblivious of the obligation
      to the society to render it immune from those who are prone to
      criminal tendencies and have proved their susceptibility to indulge
      in criminal activi~ies by being found guilty (by a Court) of having
B
      perpetrated a criminal act. One of the discernible purposes of
      imposing the penalty of imprisonment is to render the society
      immune from the criminal for a specified period. It is, therefore,
      understandable t'1at while meting out humane treatment to the
      convicts, care has to be taken to ensure that kindness to the
c     convicts docs not result in cruelty to the society. Na tu rally enough,
      the authorities would be an>;ious to ensure that the convict who
      is released on furlough does not seize the opportunity to commit
      another crime when he is at large for the time-being under the
      furlough leave granted to him by way of a measure of penal reform.
      [Para 18] [585-H; 586-A-C]
D
            2.11 Being in a civilized society organized with law and a
      system as such, it is essential to ensure for every citizen a
      reasonably dignified life. If a person commits any crime, it does
      not mean that by committing a crime, he ceases to be a human
      being and that he can be deprived of those aspects of life which
E     constitute humarn dignity. For a prisoner all fundamental rights
      are an enforceable reality, though restricted by the fact of
      imprisonment. (Para 20) [586-H; 587-A-BJ
            Sunil Batra (II) v. Delhi Administration (1980) 3 SCC
            488 : [1980) 2 SCR 557; Maneka Gandhi v. Union of
F           India and Am: (1978) 1 SCC 248 : [1978) 2 SCR 621;
            Charles Sobraj v. Superintendent Central Jail Tihar,
            New Delhi (1978) 4 SCC 104 : [1979] 1 SCR 512 -
            relied -011.
            2.12 Hardened criminal. Hardened criminal would be a
G     person for whom it has become a habit or way of life and such a
      person would necessarily tend to commit crimes again and again.
      Obviously, if a person has committed a serious offence for which
      he is convicted, but at the same time it is also found that it is the
      only crime he hns committed, he cannot be categorised as a
H     hardened criminal. In his case, consideration should be as to
           ASFAQ v. STATE OF RAJASTHAN & ORS.                            577


whether he is showing the signs to reform himself and become a A
good citizen or there are circumstances which would indicate that
he has a tendency to commit the crime again or that he would be
a threat to the society. Mere nature of the offence committed by
him should not be a factor to deny the parole outrightly. Wherever
a person convicted has suffered incarceration for a long time, he B
can be granted temporary parole, irrespective of the nature of
offence for which he was sentenced. However, in cases where a
person has been convicted for committing a serious office, the
competent authority, while examining such cases, can be well
advised to have stricter standards in mind while judging their
cases on the parameters of good conduct, habitual offonder or C
while judging whether he could be considered highly dangerous
or prejudicial to the public peace and tranquillity etc. [Para 19)
[586-D-GJ
      2.13 The appellant was convicted under TADA and was
given the life imprisonment. As per the Jail Custody Certificate         D
dated April 13, 2017, the appellant has undergone the sentence
of more than ten years. The communication dated November 10,
2015 of the Government of India to the Home Department of the
State of Rajasthan conveys that the appellant's case for twenty
days of parole has been rejected in view of the adverse reports
                                                                         E
of the concerned authorities. Reasons given in these reports are
to the effect that if the appellant is released on parole, it may lead
to untoward incidents in the society or even among unsocial
elements and may have adverse effect on the young generation
as well. It is also mentioned that there is a possibility that the
appellant may threaten those who had deposed against him and             F
may even physically harm them. It is recorded that his release
on parole may adversely affect peace in the society. Further, having
regard to the nature of the crime he had committed, there may
even be a threat to his life as well. because of the reason that
there is a feeling of anger and ann,oyance in the society against
him and, therefore, possibility of a member of public physically         G
harmin~ the appellant cannot be ruled out. Therefore, it cannot
be said that the authorities have not taken into account relevant
considerations while rejecting the request of parole made by the
appellant. Therefore, it is not a fit case for grant of parole to the
appellant particularly at this stage. [Paras 25-271 [589-B-C, D-G]       H
578            SUPREME COURT REPORTS                        (2017] l l S.C.R.


A         · 2.14 The Rules of the Central Government, in this behalf
      (framed vide Notification dated November 9, 1955) are of the
      year 1955, which are skeleton in nature. There is an imperative
      and immediate need for updating these Rules so as to provide.
      suitable guil!elines to those who have to consider such
B     appUcations for grant of parole. This aspect shall be given due
      consideration at the appropriate level by the Government of India.
      [Para 231 (588-G-HJ
                              Case Law Reference
            [2006) 3 SCR 1128                relied on          Para 14
c           [2000J 1 SCR 698                 relied on           Para 14
            [1980) 21 SCR 557                relied on          Pam 20
            [1978) 2 SCR 621                 relied on           Para 20
            [1979) 1 SCR 512                 relied on           Para 20
D
           CNIL APPELLATE JURISDICTION: Civil Appeal No. 10464
      of2017
            From the Judgment and Order dated 01.05.201 7 of the High Court
      of Judicature for Rajasthan at Jaipur in DBCWP No. 9052 of 2016.
E           R. K. Da$h, Sr. Adv. AarifAli Khan, Muzahid Ahmad and Mohd.
      !rshad Hanif, Advs. for the appellant.
            Ms. Ruchi Kohli, Adv. for the respondent.
            The Judgpient of the Court was delivered by
             A. K. SIKRI, J. 1. Serial bomb blasts took place in five trains
F
      on December 06. 1993 at the behest of certain miscreants on the first
      anniversary of the Bahri Masjid demolition. As per the allegations of the
      prosecution, a cq>nspirational meeting was held in this behalf in Lucknow
      a couple of months before. to carry out the aforesaid operations. Six
      separate First Information Reports (FIRs) came to be registered where
G     this bomb blast had taken place, namely, at Kota, Allahabad, Kanpur,
      Gujarat, Malkajgiri and Karjat. Five of these FJRs were clubbed together
      and the Central Bureau of Investigation (CBI) took up the investigation.
      During the cou~se of investigation, the provisions of the Terrorist and
      Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as
      'TADA') were also invoked. The appellant herein was one of the
H
             ASFAQ v. STATE OF RAJASTHAN & ORS. ·                                  579
                        [A. K. SIKRI, J.]

accused persons and one ofthe allegations levelled against him was that            A
he had supplied explosive material to accused No. I for which he was
paid money by the said accused. Outcome of the trial by the CBI Court
was that the appellant, along with others, was convicted under TADA
and awarded life imprisonment on February 28, 2004. This conviction
has been upheld by this Court as well and, therefore, the conviction and
                                                                                   B
sentence of the appellant has attained finality. In this appeal, the issue
pertains to grant of parole to the appellant.
         2. The appellant had submitted an application for grant of regular
 parole for twenty days before the District Parole Advisory Committee
  (hereinafter referred to as the 'Advisory Committee') in the year 2014.
  His request was rejected by the said Committee on the ground that it did         c
  not have the jurisdiction to entc1tain parole for TADA prisoners. This
  action of the Advisory Committee was challenged by the appellant in the
  form of writ petition wider Article 226 of the Constitution oflndia, which
  was filed in the High Court ofRajasthan. The High Court disposed of
  this writ petition vide order dated March 21, 2014 with the direction that       D
  his application be forwarded to the Advisory Committee to examine the
  same in accordance with law. In compliance of the aforesaid order, the
  Advisory Committee considered the application of the appellant for parole
  on merits and rejected it on the premise that the appellant had been
  convicted under TADA and, therefore, his application could not be
  considered in view of the Rajasthan Prisoners Release on Parole Rule,            E
   1958. The appellant again approached the High Court ofRajasthan by
  means of another writ petition, which was disposed ofby the High Court
  on June 30, 2015 granting him liberty to file a fresh application before
  the concerned competent authority for grant of parole in terms of rules
  framed by the Government of India in this behalf vidc Notification dated         F
  November 9, 1955. Armed with this order, the appellant prdcrred another
  parole application with. the Government of India. This was, however,
  rejected by the Ministry of Home Affairs, Government of India vide
  orders dated November I 0, 2015. It may be noted that the appellant had
  simultaneously moved an application for parole before the State of
  Rajasthan as well. That applicaJion also came to be rejected vide order          G
  dated November 16, 2015 on the ground that the Union of India had
  already rejected the parole of the appellant. For the third time the appellant
· approached the High Court seeking a prayer to the effect that he b.:
  released on parole for twenty days. This petition was dismissed vidc
  order dated May 0I,2016 with the following observations:                         H
580             SUPRE)ME COURT REPORTS                        [2017] l l S.C.R.


A             "Having heard the rival submissions of the parties and after going
              through the relevant record, we arc of the considered opinion
              that it is a case ofserious and heinous crime where parole cannot
              be claime(l as a matter of right. Further, in view of the fact that
              appeal has been decided by the Hon'ble Supreme Court. it would
              not be appropriate for exercise of discretion in favour of the
B
              petitioner.
                    The writ petition is accordingly dismissed. However if the
              petitioner,, so desirous (sic -desires), may approach the Hon 'ble
              Supreme <t:ourt for appropriate relief."

c           Correctness of this order is the subject matter of the present
      appeal.
             3. As is clear from the above, the High Court did not deem it
      proper to exercisci its discretion and left the matter to this Court. It is
      notwithstanding the fact that in the earlier paragraph, than the paragraphs
D     quoted above, the High Court has referred to some of the judgments
      which were relied upon by the counsel for the appellant. However,
      there is no discussion of those judgments or applicability thereof to the
      facts of the present case.
             4. In view of the aforesaid background, submission made by the
E     learned counsel for the appellant was that merely because the appellant
      was convicted of an offence which was of serious or heinous nature
      would not be a ground to reject the plea of parole outrightly. It was
      argued that the cases which were cited by the counsel for the appellant
      before the High C1>urt were also those cases where the convicts were
      held guilty under tit provisions ofTADA. It was argued that the purpose
F     behind grant of parole was altogether different and, therefore, the nature
      of offence would be an irrelevant consideration.
            5. Learned counsel appearing for the respondents refuted the
      aforesaid arguments with the submission that the case of the appellant
      was duly considqred and rejected after finding that it was not
G     recommended by the District Magistrate and Superintendent of Police
      ofDausa, Social Justice Department of the State ofRajasthan and the
      Superintendent of Jail, Jaipur. It was argued that all the aforesaid
      authorities had given adverse reports about the appellant.
           6. We have ~iven our serious consideration to the respective
H     submissions made by counsel for the parties on either side.
            ASFAQ v. STATE OF RAJASTHAN & ORS.                                581
                           [A. K. SIKRI, J.]

      7. We may state at the outset that the reason because of which A
the High Court dismissed the writ petition filed by the appellant herein is
not an apposite one and does not meet the test of law. The petition is
dismissed only on the ground that the appellant is convicted in a case of
serious and heinous crime and, therefore, parole cannot be claimed as a
matter of right. As per the discussion that would follow hereinafter, the
                                                                            B
conviction in a serious and heinous crime cannot be the reason for denying
the parole per se. Another observation made by the High Comt is that
since this Court had decided the appeal of the appellant affirming the
conviction, it would not be appropriate for the High Court to exercise its
discretion in favour of the-appellant and ifhe so desires he may approach
this Court for the said purpose. This again amounts to abdication of the      c
power vested in the High Court. Insofar as conviction for the offence
for which he was charged, i.e. under the provisions of TADA, is
concerned, no doubt that has been upheld till this Court. However, the
issue before the High Court was entirely different. It was as to whether
the appellant is entitled to the grant of parole for twenty days which he
                                                                            D
was claiming. Merely because the matter of conviction of the appellant
had come up to this Court would not mean that the appellant has to _be
relegated to this Court every time, even when he is seeking the reliefs
unconnected with the main conviction. It is more so when in the first
instance it is the High Court which is supposed to decide such a prayer
for parole made by the appellant. With these remarks, we advert to the E
issue at hand.
      8. In the first instance, it would be necessary to understand the
meaning and purpose of grant of parole. It would be better understood
when considered in contra~! with furlough. These terms have been legally
defined and judicially explained by the Courts from time to time.             F
       9. There is a subtle distinction between parole and furlough. A
parole can be defined as conditional release of prisoners i.e. an early
release of a prisoner, conditional on good behaviour and regular reporting
to the authorities for a set period of time. It can also be defined as a
form of conditional pardon by which the convict is released before the        G
expiration of his term. Thus, the parole is granted for gpod behaviour on
the condition that parolee regularly reports to a supervising officer for a
specified period. Such a release of the prisoner on parole can also be
temporarily on some basic grounds. In that eventuality, it is to be treated
as mere suspension of the sentence for time being, keeping the quantum
                                                                              H
582             SUPREME COURT REPORTS                          [2017] ll S.C.R.


A of sentence intact. Release on parole is designed to afford some relief to
      the prisoners in certain specified exigencies. Such paroles are normally
      granted in certain situations some of which may be as follows:
         (i)   a member of the prisoner's family has died or is seriously ill or
               the prisoner himself is seriously ill; or
B        (ii) the marri4ge of the prisoner himself, his son, daughter, grandson,
              grand daughter, brother, sister, sister's son or daughter is to be
              celebrated; or
         (iii) the temporary release of the prisoner is necessary for ploughing,
               sowing or harvesting or carrying on any other agricultural
c              operation of his land or his father's undivided land actually in
               possession of the prisoner; or
         (iv) it is desir~blc to do so for any other sufficient cause;
         (v) parole can be granted only after a portion of sentence is already
             served;
D
         (vi) if conditions of parole are not abided by the parolee he may be
              returned to serve his sentence in prison, such conditions may be
              such as those of committing a new offence; and
         (vii) parole may also be granted on the basis of aspects related to
 E             health of convict himself.
             10. Many sltate Governments have formulated guidelines on parole
      in order to bring out objectivity in the decision making and to decide as to
      whether parole needs to be granted in a particular case or not. Such a
      decision in those cases is taken in accordance with the guidelines framed.
 F    Guidelines of some of the States stipulate two kinds of paroles, namely,
      custody parole and regular parole. 'Custody parole' is generally granted
      in emergent circumstances like:
         (i)   death of a family member;
         (ii) marriage of a family member;
 G
         (iii) serious illness ofa family member; or
         (iv) any other emergent circnmstances.
            As far as 'regular parole' is concerned, it may be given in the
      following cases:
 H
             ASFAQ v. STATE OF RAJASTHAN & ORS.                                    583
                        [A. K. SIKRI, J.]

    (i) . serious illness of a family member;                                      A
    (ii) critical conditions in the family on account of accident or death
         of a family member;
    (iii) marriage of any member of the family of the convict;
    (iv) delivery ofa child by the wife of the convict if there is no other        B
         family member to take care of the spouse at home;
    (v) serious damage to life or property of the family of the convict
        including damage caused by natural calamities;
    (vi) to maintain family and social ties;
                                                                                   c
    (vii) to pursue the filing of a special leave petition before this Court
          against a judgment delivered by the High Court convicting or
          upholding the convi"Ction, as the case may be.
        11. Furlough, on the other hand, is a brief release from the prison.
It is conditional and is given in case of long term imprisonment. The              D
period of sentence spent on furlough by the prisoners need not be
undergone by him as is done in the case of parole. Furlough is granted as
a good conduct remission.         ·
        12. A convict, literally speaking, must remain in jail for the period
 of sentence or for rest of his life in case he is a life convict. It is in this
                                                                                   E
 context that his release from jail for a short period has to be considered
 as an opportunity afforded to him not only to solve his personal and
 family problems but also to maintain his links with society. Convicts too
 must breathe fresh air for at least some time provided they maintain
·good conduct consistently during incarceration and show a tendency to
 reform themselves and ~1.:come good citizens. Thus, redemption and                F
 rehabilitation of such prisoners for good of societies must receive due
 weightage while they are undergoing sentence of imprisonment.
       13. This Court, through various pronouncements, has laid down
the differences between parole.and furlough, few of which are as under:
    (i)   Both parole and furlough are conditional release.                        G

    (ii) Parole can be granted in ca~e of short term imprisonment whereas
         in furlough it is granted in case of long term imprisonment.
    (iii) Duration of parole extends to one month whereas in the case of
          furlough it extends to fourteen days maximum.
                                                                                   H
584             SUPREME COURT REPORTS                           [2017] l I S.C.R.


A        (iv) Parole is granted by Divisional Commissioner and furlough is
              granted by the Deputy Inspector General of Prisons.
         (v) For parole. specific reason is required, whereas furlough is meant
             for bre11king the monotony ofimprisonment.
         (vi) The ten;n of imprisonment is not included in the computation of
B
              the term of parole, whereas it is vice versa in furlough.
        (vii) Parole qan be granted number of times whereas there is limitation
              in the case of furlough.
         (viii)Since fl,lrlough is not granted for any particular reason, it can be
c              denied In the interest of the society.
         :see State of Maharashtra and Another v. Sures/1 Pandurang
         Darvakar 1; and State of Haryana and Others v. Mo hinder Singh').
           14. Front the aforesaid discussion, it follows that amongst the
    various grounds on which parole can be granted, the most important
D ground, which stands out, is that a prisoner should be allowed to maintain
    family and social ties. For this purpose, he has to come out for some
    time so that he is able to maintain his family and social contact. This
    reason finds justification in one of the objectives behind sentence and
    punishment, namely, rcfonnation of the convict. The theory of criminology,
E . which is largely accepted, underlines that the main objectives which a
  ·State intends Jo achieve by punishing the culprit arc: deterrence,
    prevention, retr bution and reformation. When we recognise reformation
    as one of the oQjcctives, it providesjnstification for letting of even the
  . life convicts for short periods, on parole, in order to afford opportunities
    to such convicts not only to solve their personal and family problems but
F also to maintainltheir links with the society. Another objective which this
    theory underlines is that even such convicts have right to breathe fresh
    air. al beit for periods. These gestures on the part of the State, along
    with other measures, go a long way for redemption and rehabilitation of
    such prisoners. They are ultimately aimed for the good of the society
    and, therefore, are in public interest.
G
            15. The provisions of parole and furlough, thus, provide for a
    humanistic approach towards those lodged in jails. Main purpose of
    such provisions is to afford to them an opportunity to solve their personal

      '(2006) 4 sec 776
      '(2000) 3 sec 394
H
                                         ..
             ASFAQ v. STATE OF RAJASTHAN & ORS.                                    585
                        [A. K. SIKRI. J.]

and family problems and to enable them to maintain their links with society.       A
Even citizens of this country have a vested.interest in preparing offenders
for successful re-entry into society. Those who leave prison without
strong networks of support, without employment prospects, without a
fundamental knowledge of the communities to which they will return,
and without resources, stand a significantly higher chance of failure.
                                                                                   B
When offenders revert to criminal activity upon release, they frequently
do so because they lack hope of merging into society as accepted citizens.
Furloughs or parole can help prepare offenders for success.
       16. Having noted the aforesaid public purpose in granting parole
or furlough, ingrained in the reformation theory of sentencing, other
competing public interest has also to be kept in mind while deciding as to         c
whether in a particular case parole or furlough is to be granted or not.
This public interest also demands that those who arc habitual offenders
and may have the tendency to commit the crime again after their release
on parole or have the tendency to become threat to the law and order of
the society, should not be released on parole. This aspect takes care of           o
other objectives of sentencing, namely, deterrence and prevention. This
side of the coin is the experience that great number of crimes are
committed by the offenders who have been put back in the street after
conviction. Therefore, while deciding as to whether a particular prisoner
deserves to be released on parole or not, the aforesaid aspects have also
to be kept in mind. To put it tersely, the authorities are supposed to             E
address the question as to whether the convict is such a person who has
the tendency to commit such a crime or he is showing tendency to reform
himself to become a good citizen.
       17. Thus, not all people in prison arc appropriate for grant of
furlough or parole. Obviously, society must isolate those who show                 F
patterns of preying upon victims. Yet administrators ought to encourage
those offenders who demonstrate a commitment to reconcile with society
and whose behaviour shows that aspire to live as law-abiding citizens.
Thus, parole program should be used as a tool to shape such adjustments.
       18. To sum up, in introducing penal reforms, the State that runs            G
the administration on behalf of the society and for the benefit of the
society at large cannot be unmindful of safeguarding the legitimate rights
of the citizens in regard to tl1eir security in the matters of life and liberty.
It is for tl1is reason that in introducing such reforms, the authorities cannot
be oblivious of the obligation to the society to render it immune from             H
5X6             SUPREME COURT REPORTS                          [2017] I l S.C.R.


A     those who are pfone to criminal tendencies and have proved their
      susceptibility to indulge in criminal activities by being found guilty (by a
      Court) of having perpetrated a criminal act. One of the discernible
      purposes of imposing the penalty of imprisonment is to render the society
      immune from th~ criminal for a specified period. It is, therefore,
      understandable that while meting out humane treatment to the convicts,
B
      care has to be ta~n to ensure that kindness to the convicts does nut
      result in cruelty to the society. Naturally enough. the authorities would
      be anxious to ensqre that the convict who is released on furlough does
      not seize the opportunity to commit another crime when he is at large f-or
      the time-being under the furlough leave granted to him by way of a
c     measure of penal reform.
             l 9. Another vital aspect that needs to be discussed is as to whether
      there can be any presumption that a person who is convicted of serious
      or heinous crime is to be, ipso facto, treated as a hardened criminal.
      Hardened criminal would be a person for whom it has become a habit or
D     way of life and such a person would necessarily tend to commit crimes
      again and again. Obviously, if a person has committed a serious offence
      for which he is convicted, but at the same time it is also found that it is
      the only crime he has committed, he cannot be categorised as a hardened
      criminal. Jn his case consideration should be as to whether he is showing
      the signs to reforrjl himself and become a good citizen or there arc
E     circumstances which would indicate that he has a tendency to commit
      the crime again or that he would be a threat to the society. Mere nature
      of the offence committed by him should not be a factor to deny the
      parole outrightly. Wherever a person convicted has suffered incarceration
      for a long time, he can be granted temporary parole, irrespective of the
F     nature of offence for which he was sentenced. We may haste:i to put a
      rider here, viz. in 1!hose cases where a person has been convicted for
      committing a serious office, the competent authority,, while examining
      such cases, can be well advised to have stricter standards in mind while
      judging their cases on the parameters of god condLtct, habitual offonder
      or while judging whether he could be considered highly dangerous or
G     prejudicial to the public peace and tranquillity etc.
              20. There can be no cavil in saying that a society that believes in
      the worth of the individuals can have the quality of its belief judged, at
      least in part, by the quality of its prisons and services and recourse made
      available to the prisoners. Being in a civilized society organized with law
H
             ASFAQ v. STATE OF RAJASTHAN & ORS.                                 587
                        [A. K SIKRI, J.]

and a system as such, it is essential to ensure for every citizen a             A
reasonably dignified life. If a person commits any crime, it docs not
mean that by committing a crime, he ceases to be a human being and
that he can be deprived of those aspects oflife which constitute human
dignity. For a prisoner all fundamental rights are an enforceable reality,
though restricted by the fact of imprisonment. [Sec - Su nil Batra (II)
                                                                                B
v. Delhi Administration', Maneka Gandhi v. Union of India and
Another•, and Charles Sobraj v. Superintendent Central Jai, Tillar,
New Del/ti').
        21. It is also to be kept in mind that by the time an application for
parole is moved by a prisoner, he would have spent some time in the jail.
During this period, various reformatory methods must have been applied.         c
We can take judicial note of this fact, having regard to such reformation
facilities available in modern jails. One would know by this time as to
whether there is a habit of relapsing into crime in spite of having
administered correctional treatment. This habit known as "recidivism"
reflects the fact that the correctional therapy has not brought in the mind     D
of the criminal. It also shows that criminal is hardcore who is beyond
correctional therapy. If the correctional therapy has not made in itself, in
a particular case, such a case can be rejected on the aforesaid ground
i.e. on its merits.
       22. We arc not oblivious of the fact that there may be hard core         E
criminals who by reason of their crime and the methods of dealing with
the crime, form associations, loyalties and attitudes which tend to persist.
There may be even peer pressure when such convicts are out to commit
those crimes again. There may be pressure of ostracised from delinquent
groups which may lead them to commit the crime again. Persistence in
criminal behaviour may also be due to personality traits, most frequently       F
due to pathological trail~ of personality, such as mental defectiveness,
emotional instability, mental conflicts, ecoccntrism and psychosis. In
regard to relapse or recidivism, Frank Exner, a noted criminologist and
sociologist, points out that the chances of repeating increase with the
number of previous arrests and the interval between the last and the            G
next offence becomes shortened as the number of previous crimes
progresses'. The purpose of the criminological study is the prognosis of
' ( 1980) 3 sec 488
'(1978) 1 sec 24s
' ( 1978) 4 sec 104
'Frank Exner, Kriminologie, pp. 115-120                                         H
588              SUPREME COURT REPORTS                         (2017] ll S.C.R.


A     the improvable occasional offenders and that of the irredeemable habitual
      offender and hardcore criminal. To differentiate the recidivists from non-
      rccidivists and \langerous and hard-core criminals from occasional
      criminals had been enumerated by Exner in the following flow-sheet:
         (i)     Hereditary weakness in the family life.
B        (ii)    Increasing tempo of criminality.
         (iii)   Bad conditions in the parental home.
         {iv)    Bad sahool progress (especially rn deportment and
                 industriousness).
C        (v)     Failure to complete studies once begun.
         (vi)    Irregular work (work shyness).
         (vii) Onset of criminality before 18 years of age.
         (viii) More thpn four previous sentences.
D        (ix)    Quick relapse of crime.
         (x)     lnterlocal criminality (mobility).
         (xi)    Psychopathic personality (diagnosis of institutional doctor).
         (xii) Alchoholism.
E        (xiii) Release from institution before 36 years of age.
         (xiv) Bad conduct in the institution.
         (xv) Bad soda! and family relations during period ofrclcase.
             At the samo time, as criminality is the expression of the 'symptom'
 F    of certain disorder in the offenders, they can be easily reformed if they
      arc rightly diagn 0 sed and correct treatment is administered to them.
             23. We find that the Rules of the Central Government, in this
      behalf, arc of the year 1955, which arc skeleton in nature. There is an
      imperative and immediate need for updating these Rules thereby including
      comprehensive prpvisions, in the light of the discussion contained above,
G
      incorporating the aforesaid and other principles so as to provide suitable
      guidelines to thos,e who have to consider such applications for grant of
      parole. We are hopeful that this aspect shall be given due consideration
      at the appropriate level by the Government oflndia. For this purpose, a
      copy of this judgrrtent may also be sent to the Ministry of Law & Justice,
H     Government of India.
            ASFAQ v. STATE OF RAJASTHAN & ORS.                                  589
                       [A. K. SIKRI, J.)

      24. Having discussed the parameters which are to be kept in mind          A
while considering the request of a convict for parole, we advert to the
case at hand.
        25. As already noted above, the appellant has been convicted under
TADA and given the life imprisonment. As per the Jail Custody Certificate
dated April 13, 2017 produced before us, the appellant had undergone 09         B
years 10 months and 29 days of incarceration till that date. It means that
as of now, the appellant has undergone the sentence of more than ten
years. We have mentioned above about the request of the appellant for
release on parole and rejection thereof. The communication dated
November 10, 2015 of the Government oflndia to the Home Depaitment
of the State of Rajasthan conveys that the appellant's case for twenty          c
days of parole has been rejected in view of the adverse reports of the
concerned authorities. The concerned authorities.mentioned therein arc
the District Magistrate and Superintendent of Police of Dausa, Social
Justice Department of the State ofRajasthan and the Superintendent of
Jail, Jaipur.                                                                   D
       26. We have gone through the reports of the aforesaid authorities.
Reasons given in these reports are to the effect that if the appellant is
released on parole, it may lead to untoward incidents in the society or
even among unsocial elements and may have adverse effect on the
young generation as well. It is also mentioned that there is a possibility      E
that the appellant may threaten those who had deposed against him and
may even physically harm them. It is recorded that his release on parole
may adversely affect peace in the society. Further, having regard to the
nature of the crime he had committed, there may even be a threat to his
life as well because of the reason that there is a feeling of anger and
annoyance in the society against him and, therefore, possibility of a           F
member of public physically harming the appellant cannot be ruled out.
There is even a danger to the appellant's life as well.
       27. Having regard to the aforesaid reports, it cannot be said that
the authorities have not taken into account relevant considerations while
rejecting the request of parole made by the appellant. We, therefore, arc       G
of the opinion that it is not a fit case for grant of parole to the appellant
particularly at this stage.
       28. The appellant is a life convict. Therefore, he is supposed to
remain in jail during his life unless remission is given to him. In such a
situation, the appellant can, after some time, renew his request for parole     H
590              SUPREME COURT REPORTS                         [2017] 11 S.C.R.


A     when the present atmosphere prevailing outside undergoes a change for
      better. Otherwise, his conduct in the jail has been reported as satisfactory.
      When a request for parole is made after some time. which of course
      should not be in jmmediate future, the same can be considered again in
      the light of the principles laid down by this Court in this judgment.
B            29. For the foregoing reasons, this appeal is dismissed.


      Kalpana K. Tripathy                                          Appeal di~n1issed.