Bombay High Court
Wilsen Benjamin Castellino vs The State Of Maharashtra on 28 November, 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. 2473 OF 2015
Wilson Benjamin Castellino .. Petitioner
Versus
The State of Maharashtra .. Respondent
...................
Appearances
Mrs. Farhana Shah Advocate (appointed) for the Petitioner
Mr. H.J. Dedia APP for the Stateig
...................
CORAM : SMT. V.K. TAHILRAMANI &
MRS. MRIDULA BHATKAR, JJ.
DATE : NOVEMBER 28, 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 2010, he
was released on furlough on 19.11.2010. He had to
surrender on 4.12.2010, however, on 1.11.2012, when he
was going to surrender to the prison, he met with an
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accident and therefore he was disoriented and could not
report back to the prison. Thus, there was overstay of 674
days. On account of this, his remission has been cut.
Further it is the case of the petitioner that earlier he was
appointed to the post of convict overseer, however, after he
came back to the prison, he was not reappointed to the post
of convict overseer. Thus, it the case of the petitioner that
he was punished twice for the same offence i.e for overstay
while he was on furlough.
4. The petitioner had to surrender on 4.12.2010, however,
the case of the petitioner is that he was going to surrender to
the prison on 1.11.2012 when he met with an accident. This
is after about two years from the date, when he had to
actually surrender back to the prison. There is no
explanation for these two years why the petitioner did not
report back to the prison on his own. In fact, he was
arrested by the police in two other cases i.e C.R. No. 14/2012
of Vita Police Station and C.R. No. 3104/2012 of Karad Police
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Station. After being arrested in C.R. No. 14/2012, he was
brought back to the prison. Had the police not arrested the
petitioner, the petitioner would have continued to remain
outside and not reported back to the prison.
5. The learned Advocate for the petitioner 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 remission was cut
and in addition, he was removed from the post of overseer.
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
cutting of remission. In addition, he was removed from the
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post of overseer. 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 petitioner 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 the petitioner 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 petitioner, one of
deducting the remission earned by him and the second of
not reappointing him to the post of convict overseer 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 four decisions to which one of us was a
party (V.K. Tahilramani, J.) took the same view in similar
circumstances. These 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 and 4. Buwaji Sahadeo Hazare Vs. State of
Maharashtra7
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
7 Criminal Writ Petition No. 2477 of 2015 decided on 24.6.2016
(Coram : V.K. Tahilramani & M.R. Bhatkar, JJ)
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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. In the case of
Buwaji Hazare, on account of overstay when the prisoner was
granted furlough, his remission was cut and his subsequent
applications for parole and furlough were rejected, hence, it
was contended that it was a case of double jeopardy, which
contention was negatived.
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17. Thereafter, after referring to Section 48-A of the
Prisons Act, 1894, it was sought to be contended on behalf of
the petitioner that the petitioner having been already
punished under the said provision of the Prisons Act by
cutting his remission on account of the period for which he
had overstayed, the petitioner could not be again penalized
by removing him from the post of overseer, 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 by
a general or special order direct.]"
The provisions relating to cutting of remission does not
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relate to penal action on the part of the authorities. So is
the case of not appointing to the post of overseer. 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. 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 petitioner of
the post of overseer is without merit.
18. It would also be relevant to point out that proviso to
Rule 26 of Chapter XXVII of the Maharashtra Prison Manual
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
behaved prisoner shall not be deemed to be a punishment
for the purpose of Prison Rules. Thus, even if remission was
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cut on account of overstay, it cannot be deemed to be a
punishment. So also not reappointing him to the post of
overseer cannot amount to 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. In view of above, Rule is discharged.
20. 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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