MEHTA - (1.)In all these petitions filed by different prisoners, a grievance is made regarding refusal of furlough due to them on the ground that their conduct is not satisfactory, in view of the jail punishment imposed on each of them for jail offence. In most of the cases, the jail offence is of overstay after the expiry of the period of parole/furlough, for which punishment by way of cut in remission has been imposed. In other cases, for other jail offences, the punishment of cut in remission is imposed. According to the respondents, under Rule 4(6) of the Prisons (Bombay Furlough and Parole) Rules, 1959, furlough can be refused to the prisoners whose conduct is not satisfactory, and under Rule 4(10) of the said Rules, furlough can be refused to the prisoners who have defaulted in any way un surrendering themselves at the appropriate time after release on parole or furlough. The respondent-authorities have relied upon the judgment of this Court in Special Criminal Application No. 328 of 1986 decided on 23-2-1987.
(2.)On behalf of the petitioners, it is submitted that having regard to the nature and gravity of the prison offence, appropriate and commensurate punishment has been imposed on then by the prison authorities and even though the punishment of forfeiture of furlough could have been imposed, it has not been imposed by the punishing authority, and now when the furlough has become due, it is not open to the sanctioning authority to refuse furlough on the ground of the above punishment, and that would amount to awarding additional and double punishment in respect of the same prison offence, and that such refusal of furlough would be illegal as held by the Division Bench of this Court in the case of Atulji Magaji v. State of Gujarat and Ors., 1984 GLH 139, and by the Full Bench of this Court in the case of Bhikhabhai Devshi v. State of Gujarat and Ors., [1987(2)] 28(2) GLR 1178. It is further submitted that in any case the prison offence should be of such gravity that the authority comes to the conclusion that the conduct of the prisoner is not satisfactory enough to release him on furlough. It is not that every unsatisfactory conduct however trivial would result into forfeiture or refusal of furlough. The particulars of the prison offences and the punishments in the present cases are as under : Spl. Criminal Offence Punishment Appln. No. 1 2 3 1155 of 1990 Overstay by 21 days 105 days cut in the remission. 1419of 1990 Carelessness in duty Reduction in the grade for 2 years. 1476 of 1990 Overstay by 11 days 33 days cut in the remission. 1477 of 1990 Overstay by 105 days 105 days cut in the remission. 1490 of 1990 Overstay by 5 days 20 days cut in the remission. 1552 of 1990 Overstay by 30 days 60 days cut in the remission. 1634 of 1990 Roti Khatala 15 days cut in the remission and stoppage of canteen facility for 3 months. 1650 of 1990 Overstay by 12 days Pending. 1750 of 1990 Carelessness in duty Reduction in grade for ever, and stoppage of canteen facility for 3 months. 1751 of 1990 Roti Khatala 15 days cut in the remission and stoppage of canteen facility for 3 months.
(3.)Rule 2 of the Prisons (Bombay Furlough and Parole) Rules, 1959, provides for the "Sanctioning Authority", and it is mentioned that the Inspector General of Prisons shall be competent to grant furlough to a convicted prisoner. Rule 4(5), (6) and (10) reads as follows :
"4. When prisoners shall not be granted furlough :- The following categories of prisoners shall not be considered for release on furlough : (5) Prisoners, who, in the opinion of the Superintendent of the Prison, show a tendency towards crime. (6) Prisoners whose conduct is, in the opinion of the Superintendent of the Prison, not satisfactory enough. (10) Prisoners who have at any time escaped or attempted to escape from lawful custody or have defaulted in any way in surrendering themselves at the appropriate time after release on parole or furlough."
Rule 8(5) provides that if furlough is not recommended, adequate reasons therefore, shall be given. Rule 9 provides that a prisoner may make a fresh application for furlough six months after the rejection of his previous application for furlough. Note 3 to Rule 3, provides that if at any time, a prisoner who could have been granted furlough is either not granted or is refused the same, the period for which he could have been granted the furlough shall not be carried forward but shall lapse.