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Advocate Ashwini Upadhyay appears on pro-bono basis in SLP seeking furlough for petitioner jailed since the last 26 years [READ PETITION]

Advocate Ashwini Upadhyay Supreme Court ProBono

Recently, Advocate Ashwini Kumar Upadhyay took up a Special Leave Petition before the Supreme Court, appealing interim relief and furlough for the petitioner who has been jailed for the past 26 years and has been denied interim relief since the start of his life imprisonment. Advocate Upadhyay appeared for the petitioner free of cost (on a pro-bono basis), considering his dire financial conditions and the urgency of the matter.

As part of the SLP, Advocate Upadhyay (and Advocate on Record Milind Kumar) argued before the SC bench consisting of Justice Dinesh Maheshwari and Vikram Nath as to whether the sentence awarded to the prisoner holding that the prisoner shall remain in prison for the whole of the remainder of his life without remission of the term of imprisonment will debar him from grant of furlough?

They also questioned the Court that the petitioner who satisfies the criterion for the grant of furlough in accordance with the Delhi Prison Rules, 2018, would still be debarred from availing furlough if he has been convicted for life imprisonment with no remission for the remainder of his life?

Placing before the Court the facts of his good conduct and citing several judgments pointing towards the duty of the Court to grant remission to a prisoner on account of his/her good behaviour in jail, Advocate Upadhyay prayed for interim relief for the petitioner, including the grant of furlough to him for a period of 3 weeks, and to pass any other orders as it may deem fit while allowing the SLP.

Background of the Case:

The petitioner was arrested for committing the murder of his stepmother in 1996 and was awarded a death sentence by the Sessions Court. He has been in continuous custody since then for over 26 years and has not been granted furlough ever since. He filed a mercy petition before the then President of India against the death sentence, which was later commuted to life imprisonment in 2012.

In 2019, for the first time, the petitioner made an application seeking the first spell of furlough, which was denied by the jail authorities via order dated October 21, 2019. The petitioner then filed a writ petition seeking the quashing of the said order, which was further dismissed by the Delhi High Court.

The High Court, while denying the grant of furlough, stated that the petitioner is not entitled to any kind of remission as per the order dated November 15, 2012, passed by the President of India and that the petitioner’s claim is not made out of the view of the decision of the Hon’ble High Court of Delhi in W.P. (Crl.) 682/2019 titled as ‘Chandra Kant Jha vs. State of NCT of New Delhi’ dated July 3, 2020. The present leave petition is filed against the order of the Delhi High Court.

Present Scenario:

It was noted that the petitioner has been in jail for the past 26 years and has not been granted bail, parole, or furlough even for a day to attend the marriage of his real brother and sister and even to attend the last rites of his father and mother.  

It was also stated that he has not seen the sun and moon for the last 26 years though as per jail authorities, he has been totally reformed and that the not seeking any remission but furlough to see his birthplace and his family members. 

Advocate Upadhyay further noted that the petitioner is not a terrorist separatist drug smuggler, money launderer, or a serial killer and that the interim relief ought to be granted on the above-stated grounds.

The Court will hear the matter next on November 12, 2021.




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