JUDGMENT
R.S. Mohite, J.
1. Heard Miss Udeshi, Advocate for the petitioner and Mrs. Dangre, APP for the respondents.
2. Rule. By consent, rule is made returnable forthwith.
3. This is a petition filed for release of the petitioner on furlough leave for a period of two weeks and for quashing and setting aside an order dated 7-2-2003 rejecting the application for grant of furlough leave.
4. The brief facts of the case are as under:
(a) The present petitioner was convicted by the Sessions Court, Akola, for an offence under Section 376 of Indian Penal Code vide its judgment and order dated 12-12-1997 and sentenced to suffer R.I. for 10 years.
(b) On 17-1-2001, the petitioner applied for furlough leave. Since the said application was not considered with urgent dispatch, the wife of the petitioner filed a Criminal Writ Petition No. 400 of 2001 in this Court. The Division Bench of this Court decided the matter finally by the judgment and order dated 25-2-2002 and after making certain observations came to the conclusion that the application for furlough made by the present petitioner had not been immediately attended to. The Division Bench, therefore, made rule absolute, released the petitioner on furlough leave and directed the State to pay the cost of the petition to the petitioner, which was quantified at Rs. 5,000/-.
(c) According to the Jail Authorities, an incident of indiscipline involving the petitioner took place on 23-3-2002. It is the case of the State that on that date, the present applicant confronted another prisoner by the name of Dilip Solanki, who was working in the kitchen and told him to get good articles of food from the kitchen and informed him if he did not do so, he would complain to the Court against the prisoner and would remove him and other persons working in the kitchen. It appears that while this enquiry was being conducted, on 26-3-2002, another incident took place. This incident took place when the petitioner was called to the office of the Jail Authority at about 5-30 P.M. for making enquiry in respect of previous incident dated 23-3-2002. The petitioner is said to have told the Prison Officer Shri S. T. Markad that he has not taken food right from the morning and like him 40 other prisoners had refused to take food. He told the Prison Officer that he was agitating his grievance and that he had declared a hunger strike along with other prisoners. It was contended that while telling these things to the Prison Officer, the prisoner had raised his voice and insulted Shri Markad.
(d) Ultimately, as regards the incident dated 23-3-2003, the Jail Superintendent passed an order and reduced the remission period to the extent of 180 days from the period earned.
(e) The matter then was forwarded to the Sessions Court for judicial appraisal and by a further order dated 10-6-2002, the District and Sessions Judge, Akola, was pleased to reduce the remission period to the extent of 60 days from the period earned by the petitioner.
(f) On 8-1-2003, the petitioner applied for grant of fresh furlough leave. A police report was called for and the Police Authorities recommended that the petitioner should be granted furlough leave. However, on 7-2-2003, by the impugned order, the furlough leave of the petitioner was rejected on the ground that his conduct in the prison was unsatisfactory and, therefore, the grant of such furlough leave had not been recommended by the Superintendent of the Prisons. The impugned order indicated that the furlough leave was being refused in view of the provisions of Sub-rules (5) and (6) of Rule 4 of the Prison (Bombay Furlough & Parole) Rules, 1959.
5. It was contended on behalf of the petitioner that the refusal of the furlough leave was a mala fide act in retaliation of the costs imposed by this Court. It was contended that a minor prison offence could not be made the basis of refusing furlough as the petitioner had already been punished for that offence. The refusal of the furlough leave on the same ground will amount to double punishment and would violate the double jeopardy rule enshrined in Article 20(2) of the Constitution of India. The reliance was placed on the judgment of the Gujarat High Court in the case of Atulji Magaji v. State of Gujarat and Ors., reported in 1984 G.L.H. 139.
6. On behalf of the learned Additional Public Prosecutor, it was contended that the action taken was not mala fide and had nothing to do with the imposition of cost by the Court. That it was based on the events which had occurred subsequent to the imposition of cost by the Court and for which he had been subsequently punished. It is further contended that the punishment imposed was confirmed by the Sessions Court in the Judicial Appraisal and that since this aspect of the matter was not under challenge, it could not be said that the act of the refusal of furlough leave was mala fide. It was then contended that Sub-rules (5) and (6) of Rule 4 of the Prison (Bombay Furlough and Parole) Rules, 1959, confer wide powers and there were no words in the said sub-rules imposing a limitation on the powers conferred upon the Superintendent of Prison.
7. I have perused the record and considered the arguments advanced on behalf of both sides. It would be necessary firstly to reproduce Sub-rules (5) and (6) of the Prison (Bombay Furlough and Parole) Rules, 1959, which are in the following terms.
“4. When prisoners shall not be granted furlough. — The following categories of prisoners shall not be considered for release on furlough :–
(1) to (4) ………………..
(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.
(7) to (11) ………………
8. In my view, the conduct of the petitioner in jail arose out of his perception that he was not being given good food. It is not the case of the prosecution that in the incident dated 23-3-2002, he assaulted anybody or indulged in any violent act. Even the alleged threat given to the prisoner was that he would obtain orders from the Court. As regards the incident dated 26-3-2002, it appears that only thing done by the petitioner was that he did not take any food and informed the jail authorities that 40 other prisoners were also refusing to take food. During this incident also he has not committed any violent act. In my view, these acts cannot fall within Sub-rule (5) of Rule 4 of the Rules. There is no crime which was committed by the present applicant by merely demanding good food and threatening action through Court. Similarly, as far as incident dated 26-3-2002 is concerned, there was no overt act committed by the present applicant. Insofar as Sub-rule (6) is concerned, in my view, the opinion of the Superintendent of Prison that the conduct of the prisoner is not satisfactory enough for grant of furlough must be based on reasonable and relevant considerations. Merely because the prisoner has been punished for a minor jail offence, that would not by itself automatically cause the extinguishment of his right of being released on furlough. In this context, the Division Bench of the Gujarat High Court in the case of Atulji Magaji v. State of Gujarat and Ors., reported in 1984 G.L.H. 139, has observed in para 13 as under :
“But the trend of the affidavit of the jailor is as if once a prisoner is punished, he forfeits his right for being released on furlough. This is not correct. If it is considered that because a prisoner has been punished for a jail offence he loses his right for being released on furlough, then it will be punishing him again and again and that can never be the intention even of Sub-rule (6) of Rule 4. Such an action on the part of the jail authorities would be visiting the prisoner with double and multiple jeopardy. It is open to the jail authorities to cut furlough leave as a punishment for any jail offence so that he can move against that punishment.”
9. In my own view, while forming an opinion, the Superintendent of Prison must keep in mind that Sub-rule (6) of Rule 4 has been enacted to provide an exception to a prisoner’s right to obtain furlough. That being so, the conduct of the prisoner which the Superintendent of Prison takes into consideration must be one which would have some nexus to his conduct outside the prison once he is released on furlough. For example, if the prisoner has attempted to escape, it would be appropriate and possible for the Superintendent of Jail to infer that the prisoner would be unlikely to come back if he is released on furlough leave. Further if the applicant is guilty of violent acts inside the prison, it would be possible to infer that there may be likelihood that in case the prisoner is released on furlough he may commit violent acts. Having laid down a broad proposition, it is not possible to lay down all circumstances in which the Superintendent of Prison should exercise his powers under Sub-rule (6) of Rule 4 of the Rules.
10. Coming back to the facts of the present case, the conduct of the petitioner in demanding good food or even staging a peaceful hunger strike by itself would not be a matter which would disentitle him from claiming his furlough leave. I am not inclined to go into the question of the order being a mala fide act because the subsequent conduct of the petitioner was made the basis of the punishment in a judicial appraisal where punishment was imposed and the same was never challenged.
11. In this view of the matter, rule is made absolute. The impugned judgment and order passed by the Deputy Inspector General (Prisons), Eastern Region, Nagpur, dated 7-2-2003, is quashed and set aside and it is directed that the petitioner be released on furlough leave for a period of two weeks from the date of his release, in accordance with rules.