( 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 an prescribed under the Rules required to consult the appropriate Government as referred to in Sec 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 Sec. 135 of the Customs Act 1962 and he 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 26/07/1988 this High Court (Coram: G. T. Nanavati and I. C. Bhatt JJ.) directed the T. G. Prisons to decide the application of the petitioner on or before 29/07/1988 The I. G. Prisons by his order dated 29/07/1988 rejected the application for furlough on the ground that the petitioner-Prisoner has been convicted for an offence under Sec. 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 this-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 ad judged guilt he may be convicted and sentenced as per the judgment delivered by the Court of competent jurisdiction. Thereafter the imprisonment 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 Arts. 72 and 161 of the Constitution of India. The President and the concerned State Government may grant pardon and merit 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 Sec. 432 of the Code of Criminal Procedure or commute the sentences under the provisions of Sec. 433 read with Sec. 435 of the Code of Criminal Procedure. The power to grant ordinary and special remission 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 1834 As far as the power to grant furlough is concerned it in as per the provisions of the Rules framed by the Government in exercise of its power under clauses 5 and 28 of Sec. 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 Act has been enacted mainly with a view 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 Sec. 3 Section 3 (2) defines criminal prisoner and Sec. 3 (3) defines convicted criminal prisoner. Convicted criminal prisoner means any criminal prisoner under sentence of a Court or Court Martial and inc