Bombay High Court
Baig Salim Abdul Razzak vs The State Of Maharashtra And Anr on 22 December, 2016
Bench: V.K. Tahilramani
1. cri wp 2310-14.doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2310 OF 2014
Baig Salim Abdul Razzak .. Petitioner
Versus
The State of Maharashtra & Anr. .. Respondents
...................
Appearances
Ms. Nasreen Ayubi Advocate (appointed) for the Petitioner
Mr. H.J. Dedia APP for the State
...................
CORAM
: SMT. V.K. TAHILRAMANI &
A.M. BADAR, JJ.
DATE : DECEMBER 15, 2016.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. Heard both sides.
2. The case of the petitioner is that on 17.12.2012, when
he was released on parole from 18.12.2012 for 30 days, he
did not report back in time. As the petitioner did not
surrender in time, case came to be registered against him on
16.11.2013 under Section 224 of IPC vide C.R. No. 248/13 of
Byculla Police Station, Mumbai. On account of overstay, he
was permanently removed from the remission register. It
may be stated that as the petitioner did not report back in
jfoanz vkacsjdj 1 of 17
1. cri wp 2310-14.doc
time, ultimately he was arrested by police and brought back
to prison on 26.11.2013. Thus, there was overstay of parole
by 259 days. The prayer of the petitioner is that the second
punishment i.e of permanently removing him from the
remission register be quashed as it amounts to double
jeopardy.
3.
Thus, the petitioner has no grievance in respect of C.R.
No. 248/13 which is pending trial but his only prayer is that
the order of removing him from remission register be set
aside. The case of the petitioner is that as he has
overstayed his parole leave on account of which C.R. No.
248/13 was registered against him, in such case, he cannot
be punished against for the overstay by removing him from
the remission register.
4. Ms. Nasreen Ayubi, the learned Advocate for the
petitioner also submitted that the petitioner is being
punished twice which cannot be allowed. She claimed that it
jfoanz vkacsjdj 2 of 17
1. cri wp 2310-14.doc
is a case of double jeopardy under Article 20(2) of the
Constitution of India. She submitted that on account of
overstay, C.R. No. 248/2013 was registered against the
petitioner and in addition thereto, punishment has been
imposed on the petitioner of removing him from the
remission register, hence, according to her, it is clearly a
case of double punishment i.e double jeopardy as visualized
by Article 20(2) of the Constitution of India. She also relied
upon Section 300 of Code of Criminal Procedure.
5. The argument advanced on behalf of the
petitioner is that it is a case of double punishment in the
sense that for the overstay, C.R. No. 248/2013 was
registered against him and in addition, punishment was
imposed of removing him from remission register. Thus, the
petitioner has been doubly punished which is in violation of
Article 20(2) of the Constitution of India and which cannot be
allowed under Section 300 of Code of Criminal Procedure.
jfoanz vkacsjdj 3 of 17
1. cri wp 2310-14.doc
6. Double jeopardy is a concept which would amount to
violation of Article 20(2) of the Constitution of India and it is
also barred under Section 300 of the Code of Criminal
Procedure. On going through the provisions of Article 20(2),
as well as Section 300, we find that the accused cannot
derive any benefit therefrom. We are of the opinion
that it is not a case of double jeopardy. The only
condition precedent
ig for application of the principle of
double jeopardy is that the person concerned has been
prosecuted and punished for the same offence. Article 20(2)
reads as under:-
" 20. Protection in respect of conviction for offences :-
(1) ....................
(2) No person shall be prosecuted and punished for
the same offence more than once;
(3) ................... "
The Apex Court in the case of Maqbool Hussain Vs
State of Bombay1 held that the words "before a
Court of law or judicial tribunal" are not to be found in
Article 20(2), yet in order to invoke the protection of Article
20(2), there must have been a prosecution and punishment
1 1953 (Cri. L.J. 1432 : 2010 ALL SCR (O.C.C.) 294
jfoanz vkacsjdj 4 of 17
1. cri wp 2310-14.doc
in respect of the same offence before a Court of Law or
Tribunal, required by law to decide the matters in
controversy judicially on evidence on oath which it
must be authorized by law to administer. The Article
contemplates proceedings of criminal nature before a Court
of law in accordance with the procedure prescribed in
the statute which creates the offence and regulates the
procedure.
It was also held that Article 20(2) incorporates
within its scope the plea of "autrefois convict" as known to
British Jurisprudence or the plea of "double jeopardy" as
known to the American Constitution but
circumscribes it by providing that there should not only
be a prosecution but also a punishment in the first instance
in order to operate as a bar to a second prosecution and
punishment for the same offence.
7. Article 20(2) would become operative in a case where
the second prosecution and punishment is for the same
offence for which the person concerned has already
jfoanz vkacsjdj 5 of 17
1. cri wp 2310-14.doc
been prosecuted and punished. Moreover, the principle is
that no man should be vexed with more than one trial for
offences arising out of identical acts committed by him. The
rule against double jeopardy is stated in the maxim Nemo
debet bis vexari pro una et eadem causa. It is only when
the offence has been the subject of judicial adjudication and
it ended in acquittal or conviction, the criminal justice
system would not allow repetition of the adjudication in a
separate trial on the very same facts. In the
present case, the petitioner is only being prosecuted in
relation to C.R. No. 248/2013. There is no other proceeding
of criminal nature "before a Court of law" in accordance with
the procedure prescribed in the statute which creates
offences and regulates procedure for punishment,
therefore, it is clearly not a case of double jeopardy.
8. The only condition precedent for application of the
principle of double jeopardy is that the person concerned has
been prosecuted and punished for the same offence. No
jfoanz vkacsjdj 6 of 17
1. cri wp 2310-14.doc
other ingredient could be added. Both, Article 20(2) and
Section 300, Cr.P.C. are not attracted in the instant case.
Only one case is pending against the petitioner in a Court of
law in relation to not surrendering in time. The petitioner is
not being prosecuted in respect of the same offence before a
Court of law or Tribunal. Thus, in view of the above, the
doctrine of "double jeopardy" contained in Article 20(2) or
even the bar of Section 300, Cr.P.C. could not be applied to
the case of the petitioner.
9. Section 300 of Code of Criminal Procedure would not
be attracted because it covers cases of persons convicted or
acquitted earlier and states the situations whereunder, the
person can be tried again. In the present case, the petitioner
is only being tried by a competent Court in relation to C.R.
No. 248/2013, hence, he cannot claim any benefit. This is in
view of the fact that Section 300 states that such person
ought to have been convicted or acquitted by a competent
Court earlier, he cannot be tried again by a competent Court
jfoanz vkacsjdj 7 of 17
1. cri wp 2310-14.doc
for the same offence. While dealing with Section 300 of
Criminal Procedure Code, it is necessary to take note of the
exceptions provided under the sub-section to Section 300
and also the explanation thereunder. Sub-section (4) of
Section 300 of the Code provides that a person acquitted or
convicted of any offence constituted by any acts, may,
notwithstanding such acquittal or conviction, be
subsequently charged with, and tried for, any other offence
constituted by the same acts which he may have committed
if the Court by which he was first tried was not competent to
try the offence with which he is subsequently charged. The
explanation thereto provides that the dismissal of a
complaint or the discharge of the accused is not an acquittal
for the purpose of the said Section.
10. It is, therefore, clear that to attract the provisions of
Section 300 (1) of the Code, it must be established that :
1.(a) A person has once been actually tried by a
competent Court for the same offence charged
jfoanz vkacsjdj 8 of 17
1. cri wp 2310-14.doc
in the second trial; or
(b) Though not actually tried for the same offence
charged in the second trial, the person could
have been on the same facts charged with it
under Sections 221(1) or convicted of it under
Section 221(2).
2. The person has been convicted or acquitted in
the earlier trial. Dismissal or discharge is not
acquittal.
3. Conviction or acquittal is in force i.e it has not
been set aside by a superior Court.
The said Section 300 of the Code corresponds to
Section 403 of the Code of Criminal Procedure, 1903.
11. Thus, in our view, so far as the constitutional provision
is concerned, the prohibition is against the prisoner being
"prosecuted" and "punished" for the same offence more than
once. The action taken against him of removing him from
the remission register is only a disciplinary action taken
jfoanz vkacsjdj 9 of 17
1. cri wp 2310-14.doc
against the prisoner for which there was no prosecution
launched against him nor there was any order of conviction
and sentence awarded as contemplated under Article 20(2)
of the Constitution. It would be relevant to refer to two other
judgments of the Apex Court in this connection.
The first case is of Thomas Dana v. State of Punjab2
decided by the Constitution Bench of the Supreme Court. In
that case, the Supreme Court was considering the principle
of double jeopardy laid down in Article 20(2) of the
Constitution. The question before the Supreme Court was
whether prosecution under the Penal Code and the action
taken under the provisions of Section 167 of the Sea
Customs Act were hit by Article 20(2) of the Constitution. It
was held that the proceeding before the Sea Customs
authorities under Section 167 of the Sea Customs Act was
not a prosecution within the meaning of Article 20(2) of the
Constitution observing that "prosecution" means a
proceeding either by way of indictment or information in the
criminal courts in order to put an offender upon his trial.
2 AIR 1959 SC 375
jfoanz vkacsjdj 10 of 17
1. cri wp 2310-14.doc
Thus, in the present case, the imposition of penalty under
the rules framed under the Prison Act would not amount to
prosecution as contemplated under Article 20(2) of the
Constitution.
12. Another judgment of the Supreme Court is in the case
of Union of India and Ors. v. Sunil Kumar Sarkar 3. That
was a case where the delinquent was found guilty and
sentenced by the General Court Martial to R.I. for 6 months
under Army Act. The disciplinary authorities had punished
him by dismissing him from service under the rules for his
misconduct. It was held that Court Martial proceedings and
disciplinary proceedings deal with different aspects i.e. one
under the Army Act and another under the Service law i.e.
Central Civil Services (CCA) Rules under which disciplinary
action was taken and therefore, the concurrent proceedings
under the two i.e. Army Act and CCS (CCA) Rules would not
amount to double jeopardy within the meaning of Article
20(2) of the Constitution.
3 (2001) 3 SCC 414
jfoanz vkacsjdj 11 of 17
1. cri wp 2310-14.doc
13. In our view, applying the above principle in the present
case, two actions taken against the prisoner, one of lodging
C.R. under Section 224 of IPC for not surrendering back to
the prison in time and of removing him from the remission
register do not amount to double jeopardy within the
meaning of Article 20(2) of the Constitution. This is in view of
the clear dicta of the Supreme Court given by the Supreme
Court as far back as the year 1953 in the case of Maqbool
Hussain (supra) and thereafter in 1958 by the Constitution
Bench of the Supreme Court in the case of Thomas Dana
(Supra) and thereafter, in the judgment of the Supreme
Court in Sunil Kumar's case (Supra) in the year 2001. So
also, for the reasons stated earlier, the case of the petitioner
is not covered by Section 300 of Cr.P.C.
14. This Court in four decisions to which one of us was a
party (V.K. Tahilramani, J.) took the same view in similar
circumstances. The four decisions are :- 1. Anil Lala
Saundade Vs State of Maharashtra 4, 2. Niyaj Ahamad
4 2003 ALL MR (Cri) 433
jfoanz vkacsjdj 12 of 17
1. cri wp 2310-14.doc
Abdul Jabbar Vs. State of Maharashtra 5. 3. Akash @
Vijay Kumar Khandekar Vs State of Maharashtra &
Anr.6. 4. Buwaji Sahadeo Hazare Vs. The State of
Maharashtra7
15. In the case of Anil Saundade (supra), the petitioner had
escaped from lawful custody. On account of this, he was
prosecuted under Section 224 of IPC and sentenced to one
year of imprisonment and in addition his remission was
deducted. In the said case also, the argument of double
jeopardy was raised, however, the Court negatived the said
contention and rejected the petition. In the case of Niyaj
Ahamad (supra), the grievance of the petitioner was that on
account of not doing work properly in prison and disobeying
the orders of the Jail Authorities, he was transferred to
special prison and in addition thereto, a period of 15 days
was deducted from his remission which according to the
petitioner therein amounted to double jeopardy. This Court
5 2011 ALL MR (Cri) 2509
6 2011 ALL MR (Cri) 3831
7 Cri. W.P. No. 2477 of 2015 decided on 24.6.2016
jfoanz vkacsjdj 13 of 17
1. cri wp 2310-14.doc
relying on the decision in the case of Maqbool Hussain
(supra) held that it was not a case of double jeopardy. In the
case of Akash Khandekar (supra), the argument advanced on
behalf of the petitioner was that it is a case of double
jeopardy in the sense that apart from punishment of cutting
of remission being imposed for overstay, the petitioner's
application for parole was rejected. In the case of Akash
(supra), relying on the decision of the Supreme Court in the
case of Maqbool Hussain (supra), the contention of double
jeopardy was negatived. In Buwaji Sahadeo Hazare, it was
contended that on account of overstay, his parole and
furlough applications were rejected and in addition, his
remission was cut, therefore, it was contended that it was a
case of double jeopardy. This Court relying on Maqbool
Hussain turned down the said contention. The case of the
petitioner is identical to the case of Anil Saundade, hence, no
benefit can be given to the petitioner.
jfoanz vkacsjdj 14 of 17
1. cri wp 2310-14.doc
16. We would also like to add that punishment for jail
offence by the Jail Superintendent would not even bar the
prosecution and punishment in a Court for the same offence
because the powers of Jail Superintendent are in the nature
of administrative authority for maintenance of discipline and
to inflict summary punishment for breach of discipline and
those proceedings are not judicial proceedings.
17. As far as the provisions of law comprised under Section
48-A of the Prisons Act are concerned, the same relate to
punishment for breach of conditions when furlough or parole
is granted. Clause (3) thereof provides that if any prisoner
fails without sufficient cause to observe any of the conditions
on which the furlough / parole leave was granted to him, he
shall be deemed to have committed a prison offence and the
Superintendent may, after obtaining his explanation, punish
him for such offence by curtailing the privileges admissible
under the remission or furlough or parole system.
Undisputedly, in the case in hand, on account of overstay by
jfoanz vkacsjdj 15 of 17
1. cri wp 2310-14.doc
the petitioner after availing the parole leave, he was
punished under the said provision of law.
18. The provisions relating to cutting of remission or
removing from remission register do not relate to penal
action on the part of the authorities. Besides, punishment for
jail offence by the Jail Superintendent would not even bar the
prosecution and punishment in a Court for the same offence
because the powers of the jail superintendent are in the
nature of administrative authority for maintenance of
discipline and to inflict summary punishment for breach of
discipline and those proceedings are not judicial
proceedings.
19. It would also be relevant to point out that proviso to
Rule 26 of Chapter XXVII of the Maharashtra Prison Manual
Rules clearly lays down that any measure taken for security
and safe custody of a refractory or dangerous prisoner, or for
preventing him from committing mischief, and exclusion
jfoanz vkacsjdj 16 of 17
1. cri wp 2310-14.doc
from a privilege which is otherwise admissible only to a well
behaved prisoner shall not be deemed to be a punishment
for the purpose of Prison Rules. Thus, even if the petitioner
was removed from remission register on account of overstay,
it cannot be deemed to be a punishment. Thus, in view of
this fact and all the above facts, we are of the considered
opinion that this is not a case of double jeopardy. There is
no violation of Article 20(2) of the Constitution or S. 300 of
Cr.P.C. Thus, there is no merit in this petition.
20. In view of above, Rule is discharged.
21. Office to communicate this order to the petitioner who
is in Kolhapur Central Prison, Kalamba.
[ A.M. BADAR, J. ] [ SMT. V.K. TAHILRAMANI, J. ]
jfoanz vkacsjdj 17 of 17
