Gujarat High Court
Ramesh Lallu Jakhra vs State Of Gujarat And Ors. on 8 August, 1988
Equivalent citations: (1989)2GLR850
JUDGMENT A.P. Ravani, J.
1. While granting furlough leave as provided under the provisions of the Prisons (Bombay Furlough and Parole) Rules, 1959 (for short 'the Rules') is the Inspector General of Prisons who is the sanctioning authority as prescribed under the Rules, required to consult the appropriate Government as referred to in Section 432 of the Criminal Procedure Code? This in short is the question which has arisen in this petition.
2. The petitioner has been convicted for offence under Section 135 of the Customs Act, 1962 and be has been ordered to undergo R.I. for two years. There is no dispute with regard to the fact that as per the relevant provisions of 'the Rules', he has become entitled to one furlough Since his application for furlough was not granted, he preferred a Special Criminal Application in this High Court. As per an order dated July 26, 1988 this High Court (Coram: G.T. Nanavati and I.C. Bhatt, JJ.) directed the I.G. Prisons to decide the application of the petitioner on or before July 29, 1988. The I.G. Prisons by his order dated July 29, 1988 rejected the application for furlough on the ground that the petitioner-prisoner has been convicted for an offence under Section 135 of the Customs Act. 1962. which is a 'Central Act'. As per Rule 16 of the Rules, furlough is to be counted as remission and therefore appropriate orders from the Central Government are necessary before granting furlough. Proposal for the same has already been made to the Central Government and the Central Government has not passed any order hence the furlough is refused.
3. It appears that the office of the I.G. Prisons was labouring under some mis-conception of law. In this connection the question with regard to commutation, remission and suspension of sentence and provisions relating to the same are required to be examined and clarified. The imposition of sentence on an offender is a function of the judiciary. After trial in accordance with law, if a person is adjudged guilty, he may be convicted and sentenced as per the judgment delivered by the Court of competent jurisdiction. Thereafter the implementation of the judgment delivered and execution of the sentence is in the realm of executive sphere of the Government. It is for the executive side of the Government to implement the judgment and order of conviction and sentence passed by the Court. In this sphere there may be pardon and reprieve or commutation, suspension and remission of sentence. The provisions with regard to pardon and reprieve are under Articles 72 and 161 of the Constitution of India. The President and the concerned State Government may grant pardon and remit the sentence and set the Prisoner at liberty. With these constitutional provisions we are not concerned.
4. The State Government may grant suspension or remission of sentences under the provisions of Section 432 of the. Code of, Criminal Procedure or commute the sentences under the provisions of Section 433 read with Section 435 of the Code of Criminal Procedure. The power to grant ordinary and special remissions as defined under the Bombay Jail Manual (Chapter XL, Rule 1442) are with the appropriate Jail authority or with the State Government concerned depending upon the nature of remission. These powers flow from the provisions of Prisons Act, 1894. As far as the power to grant furlough is concerned, it is as per the provisions of 'the Rules' framed by the Government in exercise of its power under Clauses 5 and 28 of Section 59' of the Prisons Act, 1894. Before examining the provisions of the Rules, we may have a look at the relevant provisions of the Prisons Act, 1894.
5. The Prisons Aci has been enacted mainly with a vew. TO provide Rules for the regulations of prisons. This is what is stated in the preamble to the Act. Dictionary of the Act is to be found in Section 3. Section 3(2) defines criminal prisoner and Section 3(3) defines convicted criminal prisoner. Convicted criminal prisoner means any criminal prisoner under sentence of a Court, or Court Martial and includes a person detained in prison under the provisions of Chapter VIII of the Code of Criminal Procedure, 1882 or under the Prisoners Act. 187] Remission systems has been defined in Section 3(5). It means the system of regulating the award of marks to end the consequent shortening of sentences of prisoners in Jail in accordance with the Rules for the time being in force. Furlough system is defined in Section 3(5A). It means the system of releasing prisoners in Jail on furlough in accordance with the Rules for the time being in force. Similarly the parole system is defined in Section 3(5B) of the Act. It means the system of releasing prisoners in Jail on parole, by suspension of their sentence in accordance with the Rules for the time being in force.
6. The definition of "criminal prisoner" and "convicted criminal prisoner" clearly indicate that it does not make any difference whatsoever with respect to the prisoners convicted for offence under any of the provisions of Central Act or State Act or even the Court Martial. Even the persons convicted under the offence of Prisoners Act, 1871. are included in the definition. The Prisoners convicted by the Jail authorities exercising power under the Prisoners Act, 1871, are also covered within the definition of "convicted prisoners". The furlough system is applicable to all types of prisoners.
7. The furlough system provided under the Rules is applicable to all type of prisoners and the Inspector General of Prisons (or the Deputy Inspector General of Prisons when the Inspector General of Prisons is out of headquarters) is competent to grant furlough to the Prisoners as provided under the Rules. Rule 8 of the Rules provides as to how the application for furlough is to be made and the manner in which it is to be dealt with. After obtaining the opinions of the appropriate Police authority and the District Magistrate concerned, the application is ultimately put before the sanctioning authority i.e. Inspector General of Prisons or the Deputy Inspector General of Prisons as the case may be, who after taking into consideration the recommendations of the District Magistrate and/or the Police Commissioner as the case may be, is required to consider as to whether furlough is to be granted or not. Thus it is the sanctioning authority who is required to make order for the release of the petitioner-Prisoner on furlough on such conditions as may be specified by him in the order.
8. It is true that Rule 16 does provide that furlough period shall be counted as remission of sentence provided it is not extended as per Note 4 below Rule 3 or under Rule 13. In case of such extension it appears that the same may be treated as suspension of sentence meaning thereby as parole. Rule 17 provides that nothing in these Rules shall be construed as conferring a legal right on a prisoner to claim release on forlongh. The provisions of the Prisons Act 1894 and the Rules framed thereunder clearly indicate that as far as the grant of furlough is concerned, the final authority is the Inspector General of Prisons or the Deputy Inspector General of Prisons as the case may be. It is the sanctioning authority as prescribed under the Rules which has to take decision with regard to grant or refusal of furlough. The provisions of Section 432 of the Code do not come into picture at all when the question of furlough is to be decided. The absurdity of the view that the provisions of Section 432 of the Code are attracted and proposal is required to be made to the Central Government in cases where the Prisoner is convicted for offence under the Central law will be oblivious if one puts a question to the sanctioning authority that has he ever sent the proposal to the State Government when he has granted furlough in respect of the Prisoners convicted for offence under the State law?
9. We are told at the bar that in cases where prisoners convicted for offences under any of the State laws and in whose cases appropriate Government would be the State Government, at no time proposal has been made to the State Government, and in our opinion it should be so.
10. The type of remission under the provisions of Section 432 of the Criminal Procedure Code is defined in Bombay Jail Manual (Rule 1442) which reads as follows:
State remission is awarded by Government on occasions of public rejoicing. It is granted unconditionally under Section 401(1), Criminal Procedure Code, and cannot under any circumstances be forfeited. Thus the provisions of the Jail Manual itself making it abundantly clear that the remission provided under the Jail Manual and the remission provided under Section 432 of the Criminal Procedure Code are quite the different things and both operate in altogether distinct and different fields for different purposes.
11. Revision under the Prisons Act, 1894 is as per the provisions of Chapter XL of the Bombay Jail Manual. Remissions provided under the Bombay Jail Manual are of ten types. The different types of remissions are referred to in Rule 1420 of Bombay Jail Manual, which are as follows:
1. Ordinary 42 days per six months
2. Ordinary High watchman-48 days (forty-eight days) per six months.
3. Ordinary Convict Overseer-54 days per six months.
4. Annual Good Conduct 30 days per year.
5. Special 30 days a near by Superintendent and 60 days a year by Inspector General.
6. Blood donation 10 days at a time.
7. Conservancy Work 20 days per six months.
8. Physical Training 3 days in a month.
9. Sport At the discretion of the Inspector General of Prisons.
10. Yoga Education 3 days.
These remissions as well as the grant of furlough are not as per the provisions of Section 432 of Criminal Procedure Code. But the powers to grant these remissions flow from the provisions of Prisons Act. 1894 and the Rules framed thereunder. Therefore the short question that may arise. "Is the provisions with regard to the remissions and forlough in the Prisons Act in any way contrary to or inconsistent with the provisions of Section 433 of Criminal Procedure Code?" However, Section 6 of the Criminal Procedure Code provides that nothing contained in this Code shall, in the absence of a specific provisions to the contrary, affect any special or local law for the time being in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
12. The provisions of Prisons Act, 1894 do provide for remissions and these provisions do confer powers on the Inspector General of Prisons and other Jail authorities to grant furlough and remissions. Now Section 432 of the Code may be looked at. This provides for suspension or remittance of sentence by the appropriate Government. This power may be exercised by the Government at any time either with or without conditions. This power is required to be exercised by the Government only after obtaining the opinion of the Presiding Judge of the Court before or by which the order of conviction was passed or confirmed. This power may be exercised even in respect of persons who may not be a prisoner and who is ordered to undergo sentence but he may not be a prisoner. Therefore, it is abundantly clear that these powers are not operating in the same field in which the provisions of Prisons Act, 1894 and the Rules operate. As provided under Section 5 of the Code, there should be a specific provision to the contrary affecting any special or local law or affecting any special jurisdiction or power conferred or any special form of procedure prescribed under any other law. The phrase "specific provisions to the contrary" is Stronger than phrase the express provision. It means a provision clearly expressed and it should have been expressed by specific reference so as to cover the field of operation by another provision and to virtually nullify the same.
13. As indicated hereinabove the provisions of Section 432 of the Code of Criminal Procedure operate altogether in a different field. It may be that there is at time overlapping of the field inasmuch as the powers under Section 432 of the Code of Criminal Procedure may be exercised by the Government concerned in respect of the persons who might be undergoing imprisonment and who might be actually in prison. But this exercise of power would not be on account of the Prisoners conduct in Jail as is the case in respect of remissions provided under the provisions of Jail Manual referred to hereinabove. Thus it is evident that the sanctioning authority exercising power to gram furlough is not required to refer the case to the appropnate Goveminent, be that Central Government or State Government, when it exercises powers under the provisions of "the Rules".
14. In this view of the matter, the order bearing No. GUD 1/ 2713/ 88 dated 29-7-1988 passed by the Inspector General of Prisons is erroneous and the same is required to be quashed and set aside. It is stated on behalf of the respondent authorities that it was on this ground alone the Prisoner has not been granted furlough. In this view of the matter the following order is passed.
15. In the result the petition is allowed. The order bearing No. GUD/ 1/2713/88 dated July 29, 1988 passed by the Inspector General of Prisons refusing to grant furlough to the petitioners-prisoner is quashed and set aside. The Inspector General of Prisons is directed to grant furlough leave to the petitioner as per his entitlement on usual terms and conditions. Rule made absolute accordingly.
16. A copy of the operative portion of the order shall be supplied to the Counsel for the petitioner and the Counsel for the petitioner will be at liberty to serve the same upon the Jail authorities.
We would like to place on record the assistance rendered by the learner Advocate Shri S.D. Shah, The assistance rendered by him is highly appreciated.