Bombay High Court
Buwaji Sahadeo Hazare vs The State Of Maharashtra on 24 June, 2016
Bench: V.K. Tahilramani
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RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2477 OF 2015
Buwaji Sahadeo Hazare .. Petitioner
Versus
The State of Maharashtra .. Respondent
...................
Appearances
Ms. Rohini Dandekar Advocate (appointed) for the Petitioner
Mrs. A.S. Pai APP for the State
...................
CORAM : SMT. V.K. TAHILRAMANI &
MRS. MRIDULA BHATKAR, JJ.
DATE : JUNE 24, 2016.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. Heard both sides.
2. Rule. By consent, Rule is made returnable forthwith.
3. The case of the petitioner is that in the year 2007 when
he was released on furlough, he overstayed his furlough
leave by 132 days. On account of this, three days of
remission was cut off for each day of overstay. Thereafter, in
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the year 2012, the petitioner was released on furlough on
3.12.2012. On that occasion, he overstayed his furlough
leave by 31 days. Due to this overstay, four days of
remission was cut off for each day of overstay. The prayer
of the petitioner is that the prison punishment be waived or
reduced to cutting of remission of one day for each day of
overstay.
4. Further case of the petitioner is that thereafter, he
preferred two applications for parole and furlough which
came to be rejected. As far as his case that on two
occasions, his parole and furlough applications were rejected
is concerned, the petitioner has stated that he has no
grievance in this respect and he has accepted the decisions
whereby his parole and furlough applications were rejected.
Thus, his only prayer is that the orders of cutting his
remission be set aside. The case of the petitioner is that he
has accepted the punishment of rejection of his parole and
furlough applications on account of overstaying when he was
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released on furlough earlier, in such case, he cannot be
punished again for the overstay by cutting his remission on
account of overstay.
5. The learned Advocate for the petitioner also
submitted that the petitioner is being punished twice which
cannot be allowed. She claimed that it is a case of double
jeopardy under Article 20(2) of the Constitution of India. She
submitted that on account of overstay, his two applications
for furlough and parole came to be rejected and in addition
thereto, punishment has been imposed on the petitioner of
cutting remission, hence, according to her, it is clearly a case
of double punishment i.e double jeopardy. She also relied
upon Section 300 of Code of Criminal Procedure.
6. The argument advanced on behalf of the
petitioner is that it is a case of double punishment in the
sense that for the overstay, punishment was imposed of
not being released on parole and furlough and in addition,
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remission was cut. 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.
7. 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 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) ................... "
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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
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
1 1953 (Cri. L.J. 1432 : 2010 ALL SCR (O.C.C.) 294
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punishment for the same offence.
8. The petitioner in this case cannot get any benefit,
because he has not been prosecuted earlier. 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 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 has not been prosecuted
before any Court of law or Tribunal. There were no
proceedings of criminal nature "before a Court of law" in
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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.
9. 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
other ingredient could be added. Both, Article 20(2) and
Section 300, Cr.P.C. are not attracted in the instant case.
The petitioner has not been convicted or acquitted earlier for
an offence based on the same facts. 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.
10. 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
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person can be tried again. In the present case, the petitioner
has not been tried by a competent Court for any of his
misdeeds, 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. While dealing with Section 300 of Criminal Procedure
Code, it is necessary to take note of the exceptions provided
under the said sub-section 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.
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11. 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
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.
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12. 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 cutting of remission is
only a disciplinary action taken 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
2 AIR 1959 SC 375
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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.
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.
13. 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.
3 (2001) 3 SCC 414
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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.
14. In our view, applying the above principle in the present
case, two actions taken against the prisoner, one of
deducting the remission earned by him and the second of
rejecting his applications for parole and furlough 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
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300 of Cr.P.C.
15. This Court in three decisions to which one of us was a
party (V.K. Tahilramani, J.) took the same view in similar
circumstances. The three decisions are :- 1. Anil Lala
Saundade Vs State of Maharashtra 4, 2. Niyaj Ahamad
Abdul Jabbar Vs. State of Maharashtra 5. 3. Akash @
Vijay Kumar Khandekar Vs State of Maharashtra &
Anr.6.
16. 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. In the case of Niyaj Ahamad (supra), the
grievance of the petitioner was that on account of not doing
4 2003 ALL MR (Cri) 433
5 2011 ALL MR (Cri) 2509
6 2011 ALL MR (Cri) 3831
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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 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 was negatived.
17. Thereafter, after referring to Section 48-A of the
Prisons Act, 1894, it was sought to be contended that the
petitioner having been already punished under the said
provision of the Prisons Act by cutting his remission on
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account of the period for which he had overstayed, the
petitioner could not be again penalized by applying Rule
4(10) as it amounts to double jeopardy.
Section 48-A of The Prisons Act, 1894 reads as under:-
" 48A. If any prisoner fails without sufficient cause to
observe any of the conditions on which his sentence was
suspended or remitted or furlough [or release on parole] was
granted to him, he shall be deemed to have committed a prison
offence and the Superintendent, may, after obtaining his
explanation, punish such offence by -
(1) a formal warning as provided in clause (1) of Section 46;
(2) reduction in grade if such prisoner has been appointed an
officer of prison;
(3) loss of privileges admissible under the remission or furlough
[or parole] system; or
(4) loss of such other privileges as the State Government may be
a general or special order direct.]"
The provisions relating to entitlement or disentitlement
of furlough leave 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 Jail Superintendent are in the nature of
administrative authority for maintenance of discipline and to
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inflict summary punishment for breach of discipline and
those proceedings are not judicial proceedings. The
contention that on account of the punishment having been
imposed under Section 48-A of the Prisons Act, the
respondents would not be entitled to deny the furlough or
parole leave by taking resort to the provisions of law
comprised under Rule 4(10) of the Furlough Rules is devoid
of substance.
17A. Rule 4(10) of the Prisons (Bombay Furlough and
Parole) Rules, 1959 reads as under:-
4. When prisoners shall not be granted furlough:-
The following categories of prisoners shall not be
considered for release on furlough:-
(1) ................
(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."
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 on which either the
sentence is suspended or remitted or furlough or release on
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parole is granted. The Clause (3) thereof provides that if any
prisoner fails without sufficient cause to observe any of the
conditions on which the furlough 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
the petitioner after availing the furlough leave, he was
punished under the said provision of law comprised under
Section 48A of the Prisons Act. However, Rule 4(10) of the
Furlough Rules does not speak of any punishment as such. It
merely curtails the entitlement of the benefit of furlough
leave to the prisoner. In cases where a prisoner continues to
commit default in the matter of surrender on expiry of the
furlough leave, once having availed the same, Rule 4(10)
provides that prisoners who had at any time escaped or
attempted to escape from the lawful custody or defaulted in
any way in surrendering themselves at the appropriate time
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after release on parole or furlough, shall not be released on
furlough. Obviously, this does not speak of any punishment
as such. It is well-settled that any entitlement prescribed
under the statute can be availed within the parameters
prescribed under the statute. If the statute imposes
conditions to claim any such benefit under the statute, the
same are to be availed on compliance of the conditions and
not otherwise. The provisions regarding the entitlement of
benefit has to be read along with conditions attached to the
same. Being so, the entitlement has to be read along with
the conditions provided for the same. The entitlement of
leave would be to the extent it is permissible and would not
be available in cases where it is sought to be curtailed by
specific provisions in that regard.
17B. The rules make elaborate provisions regarding
entitlement as well as disentitlement of furlough leave to the
prisoner. Merely because under certain circumstances the
rule provides that a prisoner would not be entitled to
furlough leave, that does not amount to a penal provision so
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as to contend that the implementation of such provision
would amount to double jeopardy in the case of a prisoner
who is punished under Section 48A of the Prisons Act. The
provisions relating to entitlement or disentitlement of
furlough leave 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.
18. 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
from a privilege which is otherwise admissible only to a well
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behaved prisoner shall not be deemed to be a punishment
for the purpose of Prison Rules. Thus, even if remission was
cut 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.
19. As far as the prayer relating to setting aside or reducing
prison punishment imposed of cutting of remission on
account of overstay of furlough is concerned, it is seen that
in the year 2007 on 15.2.2007, when the petitioner was
granted furlough, he did not report back to the prison in
time. It is seen that the petitioner was arrested by Police and
brought back to prison. Thus, it is not a case of the
petitioner surrendering on his own to prison. The reason
given by the petitioner for overstay in the year 2007 is that
his son met with an accident on 15.2.2007 and thereafter,
one of his daughters got married on 14.5.2007 and second
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daughter got married on 24.6.2007. However, it is seen that
on 15.2.2007 when the petitioner was granted furlough for
14 days, he had to surrender back within 14 days from
15.12.2007. The marriage of the daughters of the petitioner
took place in May and June 2007. The petitioner, in such
case, ought to have surrendered on his own to prison and
thereafter ought to have applied for parole but the petitioner
did not do so. Moreover, it is seen that the petitioner did not
even prefer an application for extension of furlough.
However, looking to the facts and circumstances of the case,
the Prison Authorities have not imposed the maximum
punishment on the petitioner of cutting off of remission of
five days for each day of overstay and they have only
imposed punishment of cutting of remission of three days for
each day of overstay. Looking to the fact that the petitioner
had to be arrested and brought back by the Police to the
prison, it cannot be said that the prison punishment is harsh.
Moreover, it is seen that the marriage of second daughter of
the petitioner was on 24.6.2004, in such case, the petitioner
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ought to have surrendered back to prison on his own
immediately after the marriage but he has not done so and
ultimately, Police arrested him and brought him back to
prison. Had the petitioner surrendered on his own, a lenient
view may have been taken by us but looking to the above
facts, we are of the opinion that the appropriate prison
punishment has been imposed on the petitioner for overstay
of 132 days of furlough.
20. The second occasion that the remission was cut was
when on 3.12.2012 when the petitioner was released on
furlough, he had to surrender back within 14 days, however,
the petitioner surrendered back to prison only after 31 days.
During this period of overstay also, the petitioner did not
prefer an application for extension of furlough. Moreover, we
find no reason stated in the present petition for overstay of
31 days. It is seen that the Prison Authorities have not
imposed the maximum sentence of prison punishment on the
petitioner of cutting of remission of five days for each day of
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overstay but instead they have only cut off remission of four
days for each day of overstay. It is seen that the maximum
punishment which could have been imposed, has not been
imposed on the petitioner. Looking to the fact that no
cogent and convincing reason has been furnished by the
petitioner for overstay of 31 days when he was granted
furlough, we are not inclined to reduce the prison
punishment.
21. We also want to express that the cases of late
surrender by the prisoners are on increase. It is, therefore,
necessary that the tendency to disrespect the rule of law by
the prisoner needs to be curbed. It is pertinent to note that
the Authorities, on the earlier occasion when the petitioner
overstayed had not imposed maximum punishment i.e cut of
five days' remission for each day of overstay, but in spite of
that, the petitioner did not improve his conduct and
continued to either abscond or report late after expiry of
period of furlough leave or parole leave.
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22. In view of above, Rule is discharged.
23. Office to communicate this order to the petitioner who
is in Kolhapur Central Prison, Kalamba.
[ MRS. MRIDULA BHATKAR, J ] [ SMT. V.K. TAHILRAMANI, J. ]
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